Lim v Bateman - [2000] WASCA 77

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LIM -v- BATEMAN [2000] WASCA 77

CORAM: SCOTT J

HEARD: 3 & 16 MARCH 2000

DELIVERED : 30 MARCH 2000

FILE NO/S: SJA 1122 of 1999

BETWEEN: ESMERALDA LIM
Appellant
AND
ROBERT BATEMAN
Respondent

Catchwords:

Criminal law and procedure - Penalty - Appellant convicted of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth) - Claims not fraudulent in terms of s 128B - Incorrect use of the word "fraudulent" by the learned Magistrate - Magistrate made no error in selecting a global fine as appropriate sentence - Appellant has refunded whole amount incorrectly claimed - Appeal against penalty dismissed

Legislation:

Health Insurance Act 1973 (Cth) s 128A, s 128B, Part VB, s 124F(2)

Crimes Act s 21A

Result:

Appeal against penalty dismissed

Representation:

Counsel:

Appellant: Mr T F Percy QC & Mr W J Clements
Respondent: Mr G J Allen

Solicitors:

Appellant: Williams Ellison
Respondent: Commonwealth Director of Public Prosecutions

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

Nil

Case(s) also cited:

Lim v Bateman [1999] WASCA 305
Minister for Human Services and Health v Haddad & Anor (1995) 38 ALD 204
Mulholland (1994) 76 A Crim R 155
Tognini v McGuire [2000] WASCA 31

SCOTT J: On 21 December 1999 an appeal by the appellant against her conviction on 70 counts of making false statements contrary to s 128A of the Health Insurance Act 1973 (Cth) ("the Health Insurance Act") was dismissed.
By the order granting leave to appeal of 30 July 1999, McKechnie J also granted to the appellant leave to appeal against the penalty imposed. The grounds for appeal against sentence are:
"(i)The penalty imposed by the Learned Magistrate was excessive in all the circumstances of the case and in particular in light of the Applicant's antecedents;
(ii)The Learned Magistrate erred in assessing penalty in that he incorrectly:
(a)dealt with the charges as being charges involving an element of fraud;
(b)misunderstood or incorrectly interpreted the thrust of the plea in mitigation in that the Applicant did not blame her language nor was it said on her behalf that she had problems; and
(c)saw the offences as warranting a deterrent penalty."
When the appeal against conviction was argued, the matter of penalty was left on the basis that it would be argued if necessary after the appeal against conviction was disposed of. Because the appeal against conviction was unsuccessful, the appeal against penalty now falls for determination.
Following the appellant's conviction on the 70 charges and a plea in mitigation on the appellant's behalf, his Worship, the trial Magistrate, imposed a fine of $15,000 with costs of $122.30 and ordered reparation in the sum of $4,211.50.
In sentencing the appellant, his Worship said:
"Well in this case, Dr Esmeralda Santilis Lim, has pleaded guilty to 70 charges under the Health Insurance Act of 1973, in which she's made claims that could not be substantiated and which she could not substantiate. And she has…

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 Lim v Bateman

Details

AGLC: Lim v Bateman [2000] WASCA 77
Case: [2000] WASCA 77
Decision Date: 30 MARCH 2000

CaseChat Overview and Summary

In the case of Lim v Bateman, the appellant was convicted of making false statements in contravention of section 128A of the Health Insurance Act 1973 (Cth). The dispute centred around the appellant's argument that his statements were not fraudulent as defined under section 128B of the Act. The appellant sought to appeal against his penalty, claiming that the Magistrate had incorrectly used the word "fraudulent" during the proceedings. The matter was brought before the court for determination of the appropriate penalty and the correctness of the Magistrate's approach.

The court was required to decide whether the Magistrate erred in the use of the term "fraudulent" and if the penalty imposed was appropriate. The court examined the statutory language and the Magistrate's application of it, concluding that the term "fraudulent" was used in a general sense, consistent with the legislative intent. The court also considered the appropriateness of the penalty, noting that the Magistrate had correctly selected a global fine as an appropriate sentence given the circumstances. The appellant had refunded the entire amount incorrectly claimed, which was taken into account in the penalty assessment.

The court found no merit in the appellant's claim that the Magistrate had erred in using the term "fraudulent". It was determined that the Magistrate's use of the term was not inconsistent with the legislative language and did not affect the outcome of the penalty. The court upheld the penalty imposed by the Magistrate and dismissed the appeal. The reasoning and application of the law by the Magistrate were affirmed, and the court did not find any basis to alter the penalty.

Orders