DPP (Cth) v Phan - [2016] VSCA 170

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0246

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)	Applicant
v
HUNG DIEN PHAN	Respondent

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JUDGES:	ASHLEY, TATE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2016
DATE OF JUDGMENT:	22 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 170
JUDGMENT APPEALED FROM:	DPP (Cth) v Phan (Unreported, County Court of Victoria, Judge Cotterell, 13 November 2015)

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CRIMINAL LAW – Sentencing – Appeal against sentence by Commonwealth Director of Public Prosecutions – Respondent pleaded guilty to dishonestly obtaining property of a Commonwealth entity by deception contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth) – Whether sentence manifestly inadequate – Respondent medical practitioner dishonestly obtained $854 188.20 from Medicare over more than six years – Offending was objectively serious – Significant matters in mitigation – Crown’s table of comparative sentences unsatisfactory – Sentence was outside reasonably available range – Manifest inadequacy shown – Appeal allowed – Respondent resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Dickie	Mr M Pedley, Commonwealth Solicitor for Public Prosecutions
For the Respondent	Mr S Devlin	NWA Legal Services

ASHLEY JA:

Hung Dien Phan pleaded guilty in the County Court to two charges of dishonestly obtaining property of a Commonwealth entity by deception contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth) (‘the Code’). Each offence carried a maximum penalty of 10 years’ imprisonment.

On 13 November 2015, Phan was sentenced to an aggregate three years’ imprisonment on both charges, to be released after 16 months upon entering into a recognisance in the amount of $5000 to be of good behaviour for 20 months. The judge also ordered that Phan make reparation to Medicare of $834 188.20[1] and forfeit a laptop computer which he had used in committing the offences.
[1]Phan had made a payment of $20 000 on the day of the plea in reduction of the amount which he had dishonestly obtained, it being said by his counsel that it was ‘effectively all the money he has in the world’.

At relevant times, Phan was a medical practitioner. The charges arose out of his lodging claims for medical services that he did not in fact provide. He conceded that he had obtained from Medicare—

1.$211 425.10 as a result of 3357 claims for services not rendered (I will describe them as ‘false claims’) submitted between 29 December 2006 and 16 May 2012 (‘the first period’) (charge 1).
2.$642 763.10 as a result of 11 208 false claims submitted between 11 October 2012 and 10 September 2013 (‘the second period’) (charge 2).

The false claims were lodged in batches—145 in the first period and 99 in the second.
Grounds of appeal

The Commonwealth Director of Public Prosecutions now appeals against the sentence imposed, relying upon the ground that—

The sentence imposed upon the respondent is manifestly inadequate and in particular the learned sentencing judge:
(a)failed to give sufficient weight to the objective gravity of the offending, including the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Cth) v Phan

Details

AGLC: DPP (Cth) v Phan [2016] VSCA 170
Case: [2016] VSCA 170
Decision Date: 22 July 2016

CaseChat Overview and Summary

The case of DPP (Cth) v Phan involved an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on the respondent, a medical practitioner who had pleaded guilty to charges of dishonestly obtaining property from a Commonwealth entity by deception. The offending occurred over a period of more than six years, during which the respondent obtained approximately $854,188.20 from Medicare. The District Court had sentenced the respondent to a fine of $100,000 and ordered that the sentence be suspended for two years. The Crown argued that the sentence was manifestly inadequate, while the respondent contended that it was appropriate given the circumstances.

The primary legal issue before the court was whether the sentence imposed by the District Court was manifestly inadequate. The court considered the seriousness of the offending, the presence of significant mitigating factors, and the appropriateness of the sentence in relation to the comparative sentences tabled by the Crown. The Crown argued that the sentence was manifestly inadequate because it was outside the reasonably available range, while the respondent maintained that the sentence reflected the totality of the circumstances.

In determining the appeal, the court found that the offending was objectively serious and involved significant breaches of trust. The court acknowledged the presence of mitigating factors, including the respondent's otherwise unblemished character, expressions of remorse, and the substantial repayment of the funds. However, the court held that the sentence imposed by the District Court was manifestly inadequate because it fell outside the reasonably available range of sentences for the offence. The comparative sentences tabled by the Crown were found to be unsatisfactory, and the court concluded that a custodial sentence was warranted in this case. The appeal was allowed, and the matter was remitted to the District Court for resentencing.

The court ordered that the matter be remitted to the District Court for resentencing, with the direction that a custodial sentence be imposed. The respondent was to be given an opportunity to make further submissions on sentence before the District Court. The court did not specify the length of the custodial sentence, leaving that matter to be determined by the District Court on resentencing.

Orders