El Rakhawy v The Queen

Case [2011] WASCA 209


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   EL RAKHAWY -v- THE QUEEN [2011] WASCA 209

CORAM:   McLURE P

BUSS JA
HALL J

HEARD:   2 AUGUST 2011

DELIVERED          :   30 SEPTEMBER 2011

FILE NO/S:   CACR 232 of 2010

BETWEEN:   MOHAMED EL RAKHAWY

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 1526 of 2010

Catchwords:

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

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Details
AGLC
El Rakhawy v The Queen [2011] WASCA 209
Case
[2011] WASCA 209
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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