El Rakhawy v The Queen - [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
Quetcher v The Queen [2010] NSWCCA 257
R v Abboud [2005] NSWCCA 251
R v Alimic [2006] VSCA 273
R v Baldock [2010] WASCA 170; (2010) 203 A Crim R 214
R v Coukoulis [2003] VSCA 22; (2003) 7 VR 45
R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554
R v Pipes [2004] NSWCCA 351
R v Price [2008] QCA 330
R v Squire [2008] QCA 19
R v Zongas [1997] NSWSC 533
Reynolds v The State of Western Australia [2010] WASCA 60
Roffey v The State of Western Australia [2007] WASCA 246
Ruane (1979) 1 A Crim R 284
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57
Sood v The Queen [2006] NSWCCA 114; (2006) 165 A Crim R 453
Trompler v The State of Western Australia [2008] WASCA 265
Turyn v The Queen [2007] ACTCA 23
Udechuku v The Queen (Unreported, WASC, Library No 930318, 25 May 1993)
White v Taylor [2001] WASCA 350

McLURE P: I agree with Hall J.
BUSS JA: I agree with Hall J.
HALL J: On 7 December 2010 the appellant was sentenced in the District Court to 2 years' imprisonment on each of 11 counts of dishonestly obtaining a gain from Medicare, contrary to s 135.1 of the Criminal Code (Cth). The sentences on counts 1 and 2 were ordered to be served cumulatively, the remainder being concurrent. The total effective sentence was therefore 4 years' imprisonment. A single non‑parole period of 2 years and 4 months was imposed. The appellant now appeals against this sentence.
There are two grounds of appeal. The first asserts that the sentence on each of the 11 counts was manifestly excessive. The second asserts that the sentencing judge erred by ordering that the first two sentences be served cumulatively as this contravened the totality principle.
I should note that although reference has been made to cumulative and concurrent sentences the law in relation to federal offenders requires that a court sentencing a person for two or more federal offences must direct when each sentence commences: s 19(2) Crimes Act 1914 (Cth). Cumulative sentences cannot be achieved by merely stating that a sentence is to be served cumulatively; a commencement date for each sentence must be set: O'Brien (1991) 57 A Crim R 80. Commencement dates were directed by the sentencing judge in this case. The effect of those dates was that the sentence on count 2 commenced after completion of that on count 1. For ease of reference I have referred to this as a cumulative sentence.

The facts

At all material times the appellant was a medical practitioner. He obtained his qualifications outside Australia and became registered in South Australia in 2003 and in Western Australia on 27 September 2006.
On 10 March 2005 the appellant was issued with provider and prescriber numbers by Medicare Australia. These numbers are issued to approved medical practitioners for the purpose of making claims for Medicare or Pharmaceutical Benefits Scheme benefits.
Medicare benefits are payable when a patient incurs medical expenses rendered by an approved medical practitioner. The requirements

for claiming Medicare benefits are outlined in the Medicare Benefits Schedule Book published by the Commonwealth Department of Health and Ageing. This book contains a list of items which allocates a number to eligible services. Only item numbers quoted in the book attract a Medicare benefit. The book also includes explanatory notes to guide doctors in making claims to Medicare Australia.

An approved medical practitioner has the option to accept payment of a Medicare benefit as full payment for services rendered. These arrangements are usually referred to as 'bulk billing'. Where a patient is bulk billed the patient does not make any payment to the medical practitioner in respect of the service rendered but instead assigns his or her entitlement to a Medicare benefit to the medical practitioner.
In 2007 the appellant commenced working for two locum services in Western Australia. These services refer patients to rostered doctors but the doctors are otherwise treated as being self‑employed and are responsible for their own Medicare billing. The doctors would be charged a commission by the locum service for referring patients. The locum services maintained call sheets recording the names and dates of patients referred to individual doctors.
Between 16 April 2007 and 5 August 2009 the appellant submitted claims for payment to Medicare for services that he represented he had rendered to patients. The claims were made by the appellant using an online facility available to doctors. After processing, benefits for the claims were paid directly into a bank account nominated by the appellant.
Patients who assign their entitlement to benefits to a doctor will have an annotation to that effect on their Medicare Claims History Statement. On 14 April 2008 a member of the public attended the Fremantle Medicare branch after noticing some discrepancies on his Medicare statement. He stated that the appellant had only attended at his home once for an after‑hours consultation on 15 August 2007. On that occasion the patient had paid cash for the service and later made a claim to Medicare. The patient noted that his statement recorded four additional urgent after‑hours attendances bulk billed to Medicare. In respect of each of those attendances the provider was recorded as being the appellant. The services were said to have been rendered on 13 August 2007, 23 September 2007, 20 October 2007 and 10 February 2008. The patient stated that he did not see the appellant on these dates.
On 15 April 2008 and again on 15 May 2008, two other members of the public also reported discrepancies on their Medicare statements. In both cases benefits had been paid to the appellant for services that had not been rendered.
An investigation was then commenced. Call sheets from the locum services were cross‑matched with claims for Medicare benefits made by the appellant. This exercise established that the appellant had made a number of claims for services that he had not rendered. On some occasions he had made claims for services on a date where it was not possible for him to have performed them because he was out of the country. In addition, he had made claims for work derived from one of the locum services in the period April 2007 to August 2008, which was six months before and five months after he was rostered for work with that service.
One of the claims made by the appellant listed 16 patients who were billed for after‑hours services on 19 July 2008. The claim was for services that the appellant claimed had been rendered in the course of his work for one of the locum services. In fact he was not working for that service on 19 July 2008 as his contract with them ended on 6 March 2008. When the locum service became aware of the claim they advised Medicare and payment of the benefits on that claim to the appellant were stopped.
The medical director of the same locum service also advised Medicare that he had met with the appellant in February 2008 to discuss his performance. Amongst the issues raised were suggestions by way of patient feedback that the appellant had not performed the service. The appellant denied the issues but the medical director nonetheless terminated the appellant's contract with the locum service.
In 2009 the appellant returned to South Australia and was engaged as a self‑employed locum doctor with another locum service between 6 June and 6 August 2009. Enquiries with patients in respect of whom the appellant made claims for benefits whilst working in South Australia identified discrepancies. In each case, whilst the appellant had attended to the patient on a particular day and claimed for a legitimate service, he had also claimed for other services that were not rendered.
The total amount of benefits fraudulently claimed and paid was $121,599.90. Each of the 11 charges related to a number of separate false claims. Furthermore, each false claim included numerous false items for individual services rendered to the same or different patients. This is reflected in the following table:

Count	Period of offending	No. of false claims	No. of false items	Total amount defrauded	Sentence
1	16 April 2007 - 25 June 2007	7	14	$740.95	2 years
2	9 ‑ 19 July 2007	17	180	$9,474.50	2 years cumulative
3	1 ‑ 20 August 2007	3	6	$327.95	2 years concurrent
4	7 ‑ 21 September 2007	28	320	$18,492.15	2 years concurrent
5	21 September 2007 - 4 January 2008	28	97	$6,107.50	2 years concurrent
6	4 ‑ 21 January 2008	17	640	$41,460.85	2 years concurrent
7	23 January 2008 - 4 February 2008	3	8	$478.85	2 years concurrent
8	4 ‑ 6 February 2008	4	167	$10,548.60	2 years concurrent
9	8 February 2008 - 17 March 2008	22	68	$4,260.40	2 years concurrent
10	17 ‑ 27 March 2008	10	315	$21,782.60	2 years concurrent
11	31 March 2008 - 5 August 2009	35	119	$7,925.55	2 years concurrent
TOTAL	174	1,934	$121,599.90

Thus, for example, in respect of count 1, seven claims were made on 16 April, 2 May, 14 May, 4 June, 8 June, 21 June and 25 June. Each of those claims related to an individual patient in respect of whom the appellant falsely claimed to have rendered two services. The large number of false claim forms and even larger number of false items contained within them give an indication of the effort and industry employed by the appellant in committing this fraud.

Personal circumstances

The appellant was 52 years of age at the time of sentencing and had no previous criminal history other than a minor Quarantine Act 1908 (Cth) charge. The appellant entered pleas of guilty at the first available opportunity in the Magistrates Court and was committed for sentence to the District Court. He repaid the total amount defrauded on 14 September 2010.
The appellant was arrested on 17 November 2009 and a restraining order was obtained over his property on 18 November 2009. He cooperated with the Commonwealth authorities by providing a statement of his assets and liabilities on 26 November 2009 and by answering questions on oath in that regard on 2 December 2009.
The appellant became a bankrupt in December 2009. At the time of sentencing he was unemployed and in receipt of Centrelink benefits.
A pre‑sentence report and a psychological report were obtained. These indicated that the appellant was remorseful for his actions and for the impact that they had had on his family. The reports said that the appellant had been born and educated in Egypt. He was in a stable relationship with his wife of 23 years with whom he had two daughters. He claimed that he had committed the offences due to personal financial difficulties. He said that these difficulties related to large borrowings, including a housing loan, two car loans, six credit cards and several personal loans. He said he found it increasingly difficult to make ends meet and that this was the reason he committed the offences.
As a result of unconnected complaints made to the Medical Board the appellant was suspended as a medical practitioner for six months. He had completed that period of suspension by the time he came to be sentenced and was eligible to be re‑registered.
The appellant told the psychologist that he felt that he had been the subject of discrimination from colleagues in Australia due to being a Muslim and that this impeded his ability to succeed in this country. The psychologist concluded that the appellant had a tendency to adopt a victim stance and to externalise blame and responsibility for his lack of success. However, apart from being depressed and anxious as a result of his situation, the appellant did not display any significant clinical issues in his personality functioning.

Ground 1 - were the individual sentences manifestly excessive?

Whether a sentence is manifestly excessive does not require the identification of specific error in the reasoning of the sentencing judge. A ground that asserts that a sentence is manifestly excessive relies upon there being implied error. Whether a sentence is manifestly excessive is a conclusion that should be plainly apparent from the nature of the sentence imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6] (Gleeson CJ & Hayne J).
An appellate court cannot intervene merely because it might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. Sentencing by its nature is an exercise that allows a range of possibly correct answers. The question is whether there has been an error in the exercise of the discretion.
Sentences should be consistent as far as possible; that is, like cases should be treated alike: Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465 [49]. Sentencing patterns can be taken into account as a yardstick, but a history of sentences does not necessarily establish a range, nor does it necessarily indicate the upper and lower limits of the range. In any event, consistency is not a matter of numerical equivalence: Hili [48].
When determining whether a sentence is manifestly excessive regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342.
The maximum penalty for an offence of carrying out an act with the intention of dishonestly obtaining a gain from a Commonwealth entity, contrary to s 135.1(1) of the Criminal Code (Cth), is imprisonment for 5 years.
As to the circumstances of the offending, they were, in my view, particularly serious. The total amount of money defrauded was large, but that is not the only relevant factor. The offending in this case constituted a course of deceit that continued over many months. That conduct involved the appellant personally submitting over 170 false claim forms. In respect of each of those claim forms the appellant included items for services that he knew he had not rendered. He was able to utilise information available to him from his employment as a doctor as to the name and Medicare details of individual patients in order to make these claims.
It was submitted on the appeal that whilst the total period of offending was two years and four months the majority of that offending occurred within the first 16 months. Whilst that is correct, it does little to mitigate the conduct. It is partly explained by the fact that between mid 2008 and July 2009 the appellant was between employers and had limited opportunity to commit offences. It also reveals that when the opportunity again presented itself when he resumed work in South Australia, the offending resumed. This occurred notwithstanding the obviously dishonest nature of the undertaking and the warning the appellant had received from the medical director of the locum service in Western Australia in February 2008.
One of the factors that made it possible for the appellant to commit these offences was that he was in a position of trust. As a doctor he was entrusted with a provider number and access to the online claim system. It is evident that this system significantly depends upon the trustworthiness of the doctors who use it. The appellant minimised the risk of detection by making claims in respect of real patients, some of whom he had rendered actual services to. If not for the diligence of a number of those patients, who clearly scrutinised their Medicare statements with some care, the offending might not have been detected.
As to the appellant's personal circumstances, his early plea of guilty and repayment of the moneys defrauded was deserving of a discount. However, it should be noted that the moneys were only repaid once a restraining order had been placed on the appellant's assets and after his arrest.
The appellant's reason for committing the offences was to maintain a lifestyle that he was clearly financially incapable of supporting. The need to service his large borrowings was one that was self‑created and could not possibly justify his fraudulent conduct.
In any event, it is well established that offences involving serious dishonesty committed over a period of time and involving substantial sums of money will ordinarily result in a term of immediate imprisonment. This is because in such cases the weight to be given to general deterrence is increased and that given to personal factors is reduced: R v Baldock [2010] WASCA 170; (2010) 203 A Crim R 214 [145] and Magdi v The State of Western Australia [2010] WASCA 234 [38].
The appellant submitted that the sentences on counts 1, 3 and 7, when viewed in isolation, were manifestly too long. It was submitted that the sentences of 2 years on the other counts were also too long but not to the same extent. This submission appears to be based upon the relative amounts of money involved in the offences and also, perhaps, the number of claims involved.
To some extent the periods covered by the charges were arbitrary. Conceivably separate charges could have been laid in respect of each separate claim form. Whilst it is true that the sentence imposed for an offence should be a reflection of the conduct to which it pertains, the reality in this case was that the offending constituted a course of conduct and an important objective for the sentencing judge was to ensure that the total effective sentence imposed was a proper reflection of the totality of that conduct.

A judge sentencing an offender to more than one offence can ensure that the total effective sentence is an appropriate reflection of the overall criminality by first fixing an appropriate sentence for each offence and then considering questions of cumulation and concurrency: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. Often the relative gravity of individual offences of this type may be assessed by reference to the amount of money involved in each offence: R v Coukoulis [2003] VSCA 22; (2003) 7 VR 45 [34] (Ormiston JA), R v Alimic [2006] VSCA 273 [10] (Nettle JA).
On that basis it would be expected that the sentences on counts 1, 3 and 7 would be lower than those imposed for the other offences. However, there were other relevant factors, including that some offences were in respect of periods that the appellant could not have rendered services because he was overseas. But most importantly, each offence was not an isolated incident but was part of a continuing course of dishonest conduct.
In his sentencing remarks his Honour said:
By way of penalty I would have imposed a term of three years' imprisonment for each count, but I will reduce that term by reason of your fast-track plea and all matters personal to you as outlined by Mr Bates, including your cooperation with Commonwealth authorities in resolving the matter of the Proceeds of Crime action.
The term that I would have imposed will be reduced to a term of two years' imprisonment. Ms Aloi for the Commonwealth says that there is no reason why I should regard any particular count as being in character more serious than another particular count.
It does seem to me that that submission is a fair one, considering that what we're dealing with here is a continuation of behaviour, albeit with intervals of non‑offending during that period from [time] to time, a period of two years and four months. The term of two years' imprisonment will therefore be imposed with respect to counts 1 to 11 inclusive (ts 34).
The sentencing judge did not receive information as to the amount defrauded in respect of the individual counts. He took the view that because the offences formed part of a course of conduct they should be treated as being equally serious.
The fact that each offence was part of a course of conduct was certainly a very important consideration. This fact would make it artificial to isolate the sentence on any particular count. It was open to conclude that the gravity of each count was not materially affected by the amount defrauded where each offence was an individual manifestation of a broader system: McNamara v The State of Western Australia [2010] WASCA 193 [13] (McLure P).
The fundamental principle in sentencing for multiple offences is that the total sentence imposed must reflect the overall criminality. In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 the High Court made it clear that this principle was not affected by the decision in Pearce. Pearce indicated a preferred way in which sentences could be structured to ensure that the total effective sentence was appropriate. However, to extract individual sentences out of context and suggest that those sentences are excessive can involve a high level of artificiality and obscure the real objective where multiple offences are part of a course of conduct: McMahon v The Queen [2011] NSWCCA 147 [52].
The approach referred to in Pearce and Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 of fixing an appropriate sentence for each offence before turning to questions of accumulation or concurrency is orthodox but not immutable: McNamara v The State of Western Australia [2010] WASCA 193 [11] (McLure P). See also KC v The State of Western Australia [2008] WASCA 216 [31] and R v Abboud [2005] NSWCCA 251 [36]. Judges at first instance should be allowed as much flexibility in sentencing as is consonant with a consistent approach and as accords with the applicable statutory regime: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27] (Gleeson CJ, Gummow, Hayne & Callinan JJ).
As to whether the sentences imposed here are in conformity with others imposed for offences of this type, sentences for fraud offences can vary widely because such offences can be committed in a wide variety of circumstances. As I have already noted, personal factors will be of less weight in serious frauds of this nature. However, differences between the manner in which frauds are committed, the amounts involved and the period of offending make comparisons difficult. Nonetheless, it is desirable to consider the penalties imposed in other cases involving the same type of offence in order to achieve as much consistency in sentencing as is possible: Hili.
The appellant referred to one case in submissions, namely Hii v The Queen [2011] WASCA 6. In that case, the offender sought leave to appeal against a sentence of 18 months imposed for one count of dishonestly appropriating property belonging to the Australian Postal Corporation contrary to s 131.1 of the Criminal Code (Cth). The offender had been employed at a post office and had made numerous false banking transactions over a five month period. The total amount of the fraud was $129,574. The offender had no relevant prior record, had pleaded guilty and paid the money back.
Whilst there are some superficial similarities between Hii and this case, there are a number of differences. The offending in the present case continued over a significantly longer period of time, resulted in eleven offences and the moneys were used for personal benefit. In the case of Hii the majority of the moneys had been lent to a co‑offender.
In any event, a single case cannot establish a range for the purpose of determining whether a particular sentence is manifestly excessive: Trompler v The State of Western Australia [2008] WASCA 265 [37] (McLure JA). Sentencing is an evaluative process and there is no single correct sentence for an offence. Furthermore, the refusal of leave to appeal against the sentence in Hii is not indicative that the sentence in that case provided any guide for other cases, particularly in circumstances where the ground of appeal did not relate to the length of the sentence but to the question of parity with a sentence imposed on a co‑offender.
The respondent provided a schedule setting out sentences imposed for frauds upon Medicare both in this and other States. In respect of Commonwealth offences it is desirable to try and achieve consistency of sentencing on a national basis. The schedule included sentences imposed both at first instance and considered on appeal. It also included sentences for other types of frauds and under both Commonwealth and State law. For present purposes I have limited consideration to those cases that relate to frauds on the Medicare system. They will be referred to in reverse chronological order.
In Quetcher v The Queen [2010] NSWCCA 257 the offender was a branch manager at Medicare. Over a period of four years and eight months the offender created 65 false identities and processed some 387 fraudulent claims for benefits totalling $156,034.50. The fraud also involved the creation of false supporting documents and departmental records. She denied responsibility when interviewed and falsely implicated other officers. The offender was found guilty after a trial. At the time of sentencing she was 48 years old, with no criminal record and had prior good character. She had not made reparation at the time of sentencing. She was convicted of 65 offences of obtaining financial advantage by deception, contrary to s 134.1(1) of the Criminal Code (Cth), for which the maximum sentence is 10 years' imprisonment. She was sentenced to a total effective head sentence of 8 years with a non‑parole period of 5 years. An appeal against sentence was dismissed. Consideration was given to other cases involving frauds by Commonwealth officers: R v Pipes [2004] NSWCCA 351; Gok v The Queen [2010] WASCA 185. Particular emphasis was placed on the applicant's abuse of her responsible position and the sophistication of the fraud. Though the amount defrauded is comparable with the present case, the circumstances and the absence of a plea of guilty justified a very much higher sentence in Quetcher.
In R v Price [2008] QCA 330 the offender was a medical practitioner who provided prescriptions to patients where those patients did not require the drugs for an approved purpose. One hundred and sixty six prescriptions were provided in these circumstances. The offender was charged with one offence of unauthorised writing of prescriptions, contrary to s 103(5)(h) and s 88A of the National Health Act 1953 (Cth). The maximum penalty for this offence was 2 years' imprisonment and/or a $5,000 fine. The offending conduct had occurred between 27 August 2002 and 2 November 2004. The offender was 40 years of age at the time of sentence, had no prior record and did not obtain any financial advantage from the offending. A sentence of 12 months' imprisonment to be released forthwith upon giving security to be of good behaviour for a period of 2 years, that is a suspended sentence, was upheld on appeal.
In R v Squire [2008] QCA 19 the offender created 17 false invoices from doctors for services that were not provided. She obtained approximately $45,000 by this means and attempted to obtain a further $5,000 by attempting to make a claim using another person's identity. At the time of sentencing the offender was a single mother of 34 years of age with two children, one having special needs. She had previous convictions for dishonest offending. She did not have the capacity to make reparation of the funds obtained. She had previously worked as a pharmacy assistant and was addicted to prescription drugs. The offender was charged with one count of obtaining a financial advantage by deception, contrary to s 134.2 of the Criminal Code (Cth) and one count of attempting to obtain a financial advantage by deception, contrary to s 11.1 and s 134.2 of the Criminal Code (Cth). An effective sentence of 2 years and 6 months' imprisonment to be released after 9 months upon entering into a recognisance release order in the amount of $2,500 to be of good behaviour for 3 years was imposed. An appeal against that sentence was dismissed.
In Turyn v The Queen [2007] ACTCA 23 the offender was a Medicare employee who, over a period of two years, processed 349 false claims for Medicare rebates. The total benefit obtained by the offender was $165,448.45. At the time of sentencing the offender was 33 years of age with three young children and was pregnant with a fourth child. She had no prior convictions, was suffering from depression and was at risk of suicide if imprisoned. The sentencing judge took into account the likely impact a term of imprisonment would have on the offender's children. The sentence imposed was 3 years' imprisonment to be released after serving 4 months on entering into a recognisance release order in the sum of $2,000 to be of good behaviour for 3 years. A prosecution appeal against that sentence was dismissed. In dismissing the appeal the court noted that the sentencing judge was entitled to have regard to the impending birth of the offender's fourth child.
In Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 the offender was an employee of a bulk billing medical practice in Sydney. Over a 13 month period the offender altered Medicare assignment forms in order to claim higher benefits. The offender did not obtain any direct personal benefit from the offending other than the continued viability of the medical practice. The sentencing judge accepted that the offender believed he was making corrections to the forms and was not motivated by personal gain. The offender had cooperated with authorities. The total fraud involved was $133,563.35. The offender was charged with one offence of defrauding the Commonwealth, contrary to s 29D of the Crimes Act. The sentence imposed was 2 years and 6 months' imprisonment to be released forthwith on entering into recognisance in the sum of $1,000 to be of good behaviour for 2 years and 6 months, that is a suspended sentence. An appeal against conviction (seeking to withdraw a plea of guilty) was dismissed. The appropriateness of the sentence was not considered by the appeal court.
In Sood v The Queen [2006] NSWCCA 114; (2006) 165 A Crim R 453 the appellant was a medical practitioner who obtained cash payments from patients for services rendered and then also made claims for payments to Medicare for the same services. She was charged with 96 offences of obtaining financial advantage by deception, contrary to s 134.2 of the Criminal Code (Cth). The total fraud involved was $154,376 and that fraud was said to have occurred between 4 May 2001 and 30 October 2001. The appellant pleaded not guilty and was found guilty at trial. The appellant was sentenced to 300 hours community service and fined $23,750. An appeal against conviction was allowed and a new trial ordered.
In White v Taylor [2001] WASCA 350 the offender was a 34‑year‑old general practitioner practising at two Perth hospitals. On 116 occasions he attended at pharmacies and obtained prescription drugs using his own prescription pad. The prescriptions were written out in the names of two women without their knowledge. The offender was separated and it was said that the break down of his marriage had led to depression and drug abuse which ultimately led to the offending. He had previously been imprisoned for other offences and had suffered assaults whilst in prison. At the time of sentencing the offender was in a stable relationship with another child expected. He was charged with 116 offences of obtaining property by fraud, contrary to s 409(1)(a) of the Criminal Code (WA). A total effective sentence of 18 months' imprisonment with eligibility for parole was upheld on appeal.
In Lim v Bateman [2000] WASCA 77 a medical practitioner was alleged to have made 70 false claims for services in that she had claimed benefits for out‑of‑hours consultations when in fact the consultations were made within ordinary hours, which attracted a lower fee. It was not disputed that she had provided the medical services. The appellant in that case accepted that she had made a stupid error in ticking the wrong box on the claim form but said that she had no intention of defrauding the system. She was charged with 70 offences of making false statements, contrary to s 128A of the Health Insurance Act 1973 (Cth). The total fraud involved was said to be $4,211.50. The matter went to trial in the Magistrates Court and on conviction the appellant was fined $15,000 as a global penalty. An appeal against that sentence was dismissed, a subsequent appeal against conviction was allowed and a retrial was ordered: Lim v Bateman [2001] WASCA 307; (2001) 125 A Crim R 101.
In Jemielita v The Queen (Unreported, WASC, Library No 930589, 19 October 1993) the offender was a medical practitioner who claimed higher fees for Medicare benefits than he was entitled to receive. He was charged with 34 offences of making a false or misleading statement, contrary to s 128B of the Health Insurance Act 1973. The period of offending was just over 24 months. The information provided by the respondent to this court states that the total fraud was $8,394.30 and the penalty imposed was 12 months' imprisonment to be released forthwith on a 12‑month good behaviour bond, that is a suspended sentence, and a fine of $8,400. An appeal against the convictions was dismissed. No challenge to the sentence was made.
In Udechuku v The Queen (Unreported, WASC, Library No 930318, 25 May 1993) the offender was a medical practitioner who included false claims for services in claims submitted for Medicare benefits. The appellant was charged on an indictment containing 44 counts each alleging a contravention of s 128B of the Health Insurance Act 1973. He was convicted of 26 counts and acquitted of the remainder. The period of the offending was 4 months. The amount of the fraud involved was not stated. The offender's wife was a co‑offender. She played a subordinate role and had no relevant record and was fined. The offender had a prior conviction for similar offending. For the present offences, an effective sentence of 3 years and 6 months' imprisonment with eligibility for parole was ordered. The appeals against conviction and sentence were dismissed.
In Corbett (1991) 52 A Crim R 112 the offender was a medical practitioner running a practice which employed a number of other doctors. Over a period of approximately 12 months the offender made 439 false statements for services that were not provided contrary to s 128B and s 129 of the Health Insurance Act 1973. Ninety‑two charges were chosen as being representative of the total. The total fraud involved was in excess of $560,000. At the time of sentencing the offender was 34 years of age and had no previous criminal history. Psychiatric evidence indicated that he suffered from serious depression arising from separation from his wife which preceded the offending conduct. He was described as withdrawn and chronically depressed and was given to overwork and extensive use of stimulants. Psychiatric reports did not cast any substantial light upon the reasons for the offender's behaviour, which appeared mainly to be directed to the acquisition of money for the purpose of buying real estate. The offender pleaded guilty, but at a late stage. A sentence of 8 years' imprisonment with a non‑parole period of 6 years was reduced to 7 years and 6 months' imprisonment with a non‑parole period of 4 years on appeal.
In Canning v Northcott (Unreported, WASC, Library No 7194, 14 July 1988) the offender was a medical practitioner who made 39 false claims for services to Medicare. Some of the false claims were for services not actually rendered, others were claims for longer consultations than had actually occurred. The total fraud involved was just over $1,000. The offender was charged with 39 offences of furnishing false documents, contrary to s 129(1) of the Health Insurance Act 1973 (as it then read). A fine of $17,000 was reduced on appeal to $10,000. In allowing the appeal the court noted that the fine of $17,000 was 16 times the amount of the financial benefit obtained.
In addition to those cases my own researches have disclosed the following case.
In R v Zongas [1997] NSWSC 533, the offender was an optometrist who pleaded guilty to one count of defrauding Medicare by making fraudulent claims for services over a two‑month period to a total value of $61,749. This was said to be part of a larger course of conduct (for which she was not charged). The sentencing judge ordered that the offender be released upon giving security by way of recognisance in the sum of $2,000. She was also required to comply with a number of conditions. The prosecution appealed against the original non‑custodial sentence. That appeal was allowed and a sentence of 9 months' periodic detention was imposed. That sentence was reduced by reference to the double‑jeopardy principle then applying to a prosecution appeal on sentence. Allowance was made for a psychiatric illness suffered by the offender.
The assistance that can be obtained from these cases is limited. It is not possible to discern a customary range of sentences imposed for offences of this type from the cases referred to. A number of the more serious cases involved internal frauds committed by Medicare employees. The manner in which those frauds were committed was quite different to that in the present case. As to frauds committed by medical practitioners, the circumstances of the frauds committed in the cases referred to varied significantly and this is reflected in the sentences imposed.

In some respects this case bears similarities to that of Corbett. However, the offender in that case obtained a much larger sum of money, was convicted of many more offences and pleaded guilty at a very late stage. Those factors are reflected in the higher total sentence imposed in Corbett.
This ground relates to the individual sentences of 2 years imposed for each offence. As I have noted, because the offences were committed as part of a course of conduct it is necessary to consider that context in assessing whether the individual sentences were manifestly excessive. Taking that context into account it is impossible to conclude that individual sentences of 2 years were in error; the real question is whether the total effective sentence was appropriate.

Ground 2 - totality

The appellant argues that the accumulation of sentences on counts 1 and 2 was in contravention of the totality principle. In this regard, he relies upon that aspect of the totality principle that requires that the total effective sentence bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
The totality principle is consistent with provisions of the Crimes Act applicable to the sentencing of Commonwealth offenders. In particular, s 16B which requires a court sentencing a federal offender to have regard to any other sentences already imposed on the person: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 308.
The appellant says that having regard to the total amount obtained, namely $121,599.90, the period over which it was obtained, principally over a 16‑month period, the circumstances in which it was obtained, the pleas of guilty on the fast‑track system and full cooperation with authorities leading to repayment of the amount dishonestly obtained, it was inappropriate to order that the sentence on count 2 be cumulative.
Each of the factors relied upon by the appellant was referred to by the sentencing judge. His Honour concluded that the offending conduct was sustained and calculated and that general deterrence required that a term of imprisonment be imposed. His Honour then said:
To my way of thinking, a term of two years would not adequately reflect the total criminality involved or the seriousness o the criminality involved in your offending. In that regard, I direct that counts 1 and 2 be served cumulatively, and that all other counts will be served concurrently. The total effective term will be therefore four years' imprisonment.
The term imposed pursuant to count 1 will therefore commence today and end on 6 December 2012. The term imposed with respect to count 2 will commence on 7 December 2012 and end on 6 December 2014.
As mentioned, I must fix a single non parole period in respect of those sentences. Accordingly, having regard to all of the circumstances, I fix a non‑parole period of two years and four months. It follows, if my mathematics is correct, that you'll be eligible for release on parole on 6 April 2013 (ts 34).
The totality principle will operate to reduce the total effective sentence where accumulation of sentences is otherwise appropriate but would produce a total sentence which is disproportionate to the total criminal conduct. In some cases the circumstances might favour concurrent sentences because, for example, the offences formed part of a single course of conduct. However, even where the circumstances might justify concurrent sentences it remains necessary for the sentencing judge to consider whether concurrent sentences provide a just and appropriate measure of the total criminality involved: R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [24] (McLure J).
In the present case, the appellant's conduct involved a large number of separate fraudulent acts committed in the same way over an extended period of time. I doubt that this would attract the 'one transaction rule', but in any event it does not lead to a conclusion that concurrent sentences for all offences were necessarily appropriate here. The 'one transaction rule' is merely a 'good working rule' that when a number of offences arise out of the one transaction or continuing episode any terms of imprisonment ought to be concurrent: Ruane (1979) 1 A Crim R 284, 286. However, in every case consideration must be given to whether application of the general rule would result in a sentence which does not adequately reflect the total criminality. If not, that result should be achieved by imposing some degree of cumulation: Faithfull [28]. That is the process that appears to have been adopted by the sentencing judge here.
It was open to the sentencing judge to make a sentence partly cumulative by setting a commencement date for the sentence on count 2 that was before the expiry of that on count 1: s 19(2) Crimes Act. His Honour did not specifically refer to this possibility, but the question to be determined now is whether the total effective sentence was 'just and appropriate': Postiglione (307).
In the circumstances of this case, the sentencing judge was correct in his assessment that he was dealing with a concerted course of conduct. It was appropriate to ensure that the total effective sentence was an adequate reflection of the whole of that course of conduct. It was also appropriate to consider whether sentences for individual offences should be made cumulative or partly cumulative. In this regard the sentencing judge had to bear in mind that at some point accumulation may result in a total effective sentence that was either disproportionate to the offending or crushing.
Though other cases do not disclose a clear range for offences of this nature, the total effective sentence imposed here is a particularly high one when compared to a number of the more comparable cases. It is higher than sentences recently considered for other types of Commonwealth fraud: see Magdi v The State of Western Australia; Magar v The State of Western Australia [2011] WASCA 122. It is also above the range applicable for the comparable offence of stealing as a servant (which attracts a higher maximum penalty): see Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176; Collins v The State of Western Australia [2007] WASCA 108 [18]; Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57; Reynolds v The State of Western Australia [2010] WASCA 60; McNamara v The State of Western Australia [2010] WASCA 193. Lack of consistency is not necessarily conclusive of error, but it is indicative.
The question then is whether the circumstances here were such as to permit a sentence of this severity. As I have noted earlier, the circumstances of the offending were serious. Systematic frauds committed by professionals such as doctors or lawyers and involving large sums of money are viewed as being particularly serious. They are an abuse of the privilege and responsibility that a member of a profession has and they can impact adversely on the reputation of that profession as a whole. For those reasons a sentence of imprisonment to be served immediately was clearly the correct disposition here.
On the other hand, the fast‑track plea of guilty, cooperation with authorities, and full restitution were significant mitigating factors. Taking those, and all other factors, into account the total effective sentence of 4 years was disproportionate. Accordingly, in my view, ground 2 should succeed.

Conclusion

I would refuse leave in respect of ground 1. As to ground 2, leave was granted by Mazza J on 13 March 2011. For the reasons I have given I would allow ground 2 and vary the sentences by making the sentence on count 2 partly cumulative such that the total effective sentence is one of 3 years.
As the aggregate sentence will now not exceed 3 years it will be necessary to make a recognisance release order: s 19AC Crimes Act 1914. In my view, the appropriate order would be that the appellant be released after serving 20 months' imprisonment on a recognisance release order in the sum of $5,000 to be of good behaviour for the balance of the term, being 16 months. I have taken into account the principles identified in Power v The Queen [1974] HCA 26; (1974) 13 CLR 623; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 and Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 in determining the appropriate length and conditions of the recognisance release order.

Orders

1.Leave to appeal on ground 1 refused.
2.Ground 2 allowed.
3.The sentence on count 2 be varied by ordering that the sentence of 2 years commence after 12 months of the sentence on count 1 has been served; that is, the sentence on count 2 commences on 7 December 2011.
4.The non‑parole order be set aside and in lieu thereof a single recognisance release order be imposed in the following terms; that the appellant be released after serving 20 months' imprisonment on entering into a recognisance in the sum of $5,000 to be of good behaviour for 16 months.