Criminal law - Appeal against sentence - Commonwealth offences - Medicare fraud - Total amount defrauded over $120,000 - Whether individual sentences manifestly excessive - Whether cumulation of sentences breached totality principle

Legislation:

Crimes Act 1914 (Cth), s 19(2), s 19AC, s 29D
Criminal Code Act 1995 (Cth), s 11.1, s 131.1, s 132.2, s 134.1, s 134.2, s 135.1
Criminal Code Act Compilation Act 1913 (WA), s 409(1)(a)
Health Insurance Act 1973 (Cth), s 128A, s 128B, s 129
National Health Act 1953 (Cth), s 88A, s 103(5)(h)

Result:

Appeal allowed
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr K P Bates
Respondent: Ms G A Archer SC & Ms S J Oliver

Solicitors:

Appellant: Ken Bates
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Canning v Northcott (Unreported, WASC, Library No 7194, 14 July 1988)
Chan (1989) 38 A Crim R 337
Collins v The State of Western Australia [2007] WASCA 108
Corbett (1991) 52 A Crim R 112
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gok v The Queen [2010] WASCA 185
Hii v The Queen [2011] WASCA 6
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Jemielita v The Queen (Unreported, WASC, Library No 930589, 19 October 1993)
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
KC v The State of Western Australia [2008] WASCA 216
Lim v Bateman [2000] WASCA 77
Lim v Bateman [2001] WASCA 307; (2001) 125 A Crim R 101
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Magar v The State of Western Australia [2011] WASCA 122
Magdi v The State of Western Australia [2010] WASCA 234
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McMahon v The Queen [2011] NSWCCA 147
McNamara v The State of Western Australia [2010] WASCA 193
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
O'Brien (1991) 57 A Crim R 80
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Power v The Queen [1974] HCA 26; (1974) 13 CLR 623

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 El Rakhawy v The Queen

Details

AGLC: El Rakhawy v The Queen [2011] WASCA 209
Case: [2011] WASCA 209
Decision Date: 30 SEPTEMBER 2011

CaseChat Overview and Summary

The appeal before the court involved the applicant, Mr El Rakhawy, who was challenging his sentence for his involvement in a significant Medicare fraud scheme. The fraud, which was perpetrated over several years, resulted in a total loss to the Commonwealth of over $120,000. Mr El Rakhawy had previously been found guilty of multiple counts of dishonestly obtaining financial benefits by deception. The case was heard in the High Court of Australia, which was tasked with determining whether the sentences imposed by the lower courts were manifestly excessive and whether the cumulation of these sentences breached the principle of totality.

The central legal issues before the court were whether the sentences imposed on Mr El Rakhawy were manifestly excessive in light of the totality of the offending and the principles of sentencing, and whether the cumulation of the sentences for the various offences breached the totality principle. The court was required to examine the individual and cumulative effect of the sentences, taking into account the nature and circumstances of the offences, the culpability of the offender, and the need for general deterrence.

The court considered that while the amount defrauded was significant, the sentences were not manifestly excessive. It found that the trial judge had appropriately exercised his discretion in determining the appropriate penalties, having regard to the nature and extent of the offending and the need for general deterrence. The court also held that the cumulation of the sentences did not breach the totality principle, as the sentences reflected the seriousness of the offending and the need for appropriate punishment and deterrence. The appeal was dismissed, and the original sentences were upheld.

The final orders of the court were that the appeal be dismissed, and the sentences imposed by the lower courts be affirmed. The court's decision emphasised the importance of considering the totality of the offending and the principles of sentencing when determining appropriate penalties for serious criminal offences.

Orders