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 made in effect, fraudulent claims, 70 fraudulent claims. Now, in mitigation her counsel says that her - - that english is her second language. Well she's been in Australia for 29 years, some 29 years. And she's been in practice on her account for 20 years. And she's a doctor - well, if a doctor hasn't learnt english in 20 years, or 27 years, then she's got a problem and I would wonder whether she should be practising or not.
To say that there's some kind of difficulty with interpreting this section, well I don't see any difficulty with it. And somebody earning $200,000 a year, gross, and I know that that's may be putting it easy, but somebody who's earning something like $200,000 a year and who has off-takes out of it and whatever else may be. And that is only in relation to bulk billing. And to commit 70 offences, for a total of some $4,000 has surely got a problem. Lawyers and doctors are not badly paid. Doctors are in a privileged position, they're like lawyers. Well paid for what they do, they may work long hours but at least they can work long hours, and at least they've got jobs and for somebody to come along to me and say well, I didn't - - couldn't really interpret this, I didn't really know and I've got all kinds of problems, is I consider something that just doesn't hold weight.
Doctors are in a privileged position and they better not abuse it, because if they come before the courts and they do abuse it, then they'll surely wish they hadn't. Now I'm not going to drag the thing out. Doctor Lim has pleaded guilty at the first opportunity, she has co-operated and she needs some discount for that. But I consider, that when somebody commits 70 offences, and is doing it against the public purse, a message needs to be sent, not only to them, but to the public in general and by that I mean, professional people in - - of a particular profession need to know generally, that if they commit offences of this kind, they will learn that perhaps they shouldn't.
If they do, they might regret them very sincerely. I think a fine of $15,000 with costs of $122.30 and reparation for the amount of $4,211.50 will get the message home and is, I consider lenient in the circumstances and that's what I impose."
The sentencing remarks of the learned Magistrate have been set out in full in these reasons as they have relevance to the way in which the grounds of appeal are formulated.
In dealing with the appeal against sentence, it is necessary to refer to the conduct which brought the appellant before the Court of Petty Sessions. The complaints allege that the appellant made false claims under the Health Insurance Act in relation to Medicare reimbursement.
As the facts were developed, the falsity arose out of the appellant's claim that particular services were performed "after hours" as defined in the regulations that govern Medicare claims. It was and is common ground that these particular consultations did not occur after hours within the terms of that definition. In that respect it is to be noted that there were 70 different occasions upon which the appellant made such claims and a perusal of the complaints indicates that there were occasions upon which more than one patient was seen at a time when the scheduled item was claimed.
Counsel for the respondent before the learned Magistrate indicated that the matter came to light because an examination of the patterns of services of medical practitioners revealed that the appellant was the highest provider of this particular scheduled item in Western Australia. It was said that the next highest provider of that item had only claimed one third of the number of consultations claimed by the appellant.
It was also said that the appellant had obtained the sum of $4,211.50 by way of the claims the subject of the charges, which represented an overpayment to her of the sum of $1,620.
In the course of the hearing of this appeal (although a fact not made known to the Magistrate) it was revealed that as a consequence of the respondent's convictions for these offences, she had been summoned to a special board meeting of the Medical Board of Western Australia, which I am told has power to impose professional consequences upon her, including suspension and/or striking-off. In addition, under the provisions of Part VB of the Health Insurance Act the respondent will be required to attend before the Medicare Participation Review Committee, which has power under s 124F to impose further sanctions upon the respondent as provided in s 124F(2) of the Health Insurance Act.
Both the professional consequences and the consequences under Part VB of the Health Insurance Act were not made known to the learned Magistrate at the time at which the penalty was imposed upon the respondent.
Turning to the grounds of appeal, it is first convenient to deal with ground 3(b)(ii) as outlined in the appeal book. In that respect the reasons of the learned Magistrate have been outlined in full earlier in these reasons. The reference in the ground of appeal is to the remark of the learned Magistrate where he said, "And she has made in effect, fraudulent claims, 70 fraudulent claims."
In that respect it is quite clear that the claims made by the appellant were not fraudulent. Importantly, the charges were preferred under s 128A of the Health Insurance Act, which relates to claims that were false in a material particular. It is to be noted that there was no allegation of fraud in the complaints. Section 128B deals with, "Knowingly making false statements relating to Medicare benefits". Because the section deals with fraudulent claims, a greater penalty is provided for. The penalties under the various sections are noted later in these reasons. It is common ground that there was no allegation of fraud in the complaints preferred against the respondent.
It is to be noted, however, that his Worship referred to what he described as "in effect, fraudulent claims" from which it is to be assumed that his Worship considered the effect of the claims to be that the respondent, by making false claims, induced the payment of moneys. That, of course, is a very different proposition to suggesting that the appellant, by a course of deceit, induced the payment of these claims.
In relation to fraudulent claims, the penalty is a $10,000 fine and/or imprisonment for 5 years (s 128B), whereas in relation to the present charges under s 128A, the penalty is a fine not exceeding $2,000. In my opinion, it is quite clear his Worship did not treat these claims as fraudulent claims in the terms of s 128B, although he did wrongly use the word "fraudulent" when dealing with the offences.
As to ground 3(b)(ii)(b), in my view it was quite clear that counsel for the appellant was not blaming the appellant's lack of fluency in English for the errors that she made. What he was doing was pointing out the fact that English was not the appellant's first language, although, as he expressed it, "she's obviously very competent in it". What I understand counsel was suggesting was that the appellant had simply selected the wrong box as the appropriate item to claim in relation to each of the 70 false claims. Whilst his Worship reflected upon the appellant's lack of English, in the end result, in my view, little turned upon it in terms of the penalty selected.
As to ground 3(b)(ii)(c), counsel for the respondent asked the court to impose a deterrent penalty. He made clear to the learned Magistrate that whilst these were not charges involving fraud, as would be the case under s 128B, they were nonetheless matters that caused the Health Insurance Commission to undertake a costly investigation. Counsel for the respondent urged the learned Magistrate to record a conviction and either impose a recognisance under s 21A of the Crimes Act or to impose a fine.
As revealed by his Worship's reasons, he took the view that a deterrent penalty was required because of the privileged position of the appellant as a doctor who could operate under the legislation and obtain a substantial income. His Worship rejected the invitation by counsel for the appellant to impose a sanction which did not involve a conviction. It was accepted that the appellant was of undoubted good character and performed exemplary community service.
Having carefully examined his Worship's sentencing remarks, whilst it is fair to say that he should not have referred to the claims as being "in effect fraudulent", I am unable to conclude that his Worship made any error in selecting a global fine as the appropriate penalty. In particular, these were commercial offences with a commercial advantage to the appellant. Whilst it is true that the whole of the amount claimed has been refunded, the offences themselves served to produce a commercial advantage to the appellant. This is not a case where there had been one or two inadvertent slips by a medical practitioner completing claim forms. The fact that there were 70 false claims, in my view, was sufficient to justify the penalty which the learned Magistrate selected.
I am not persuaded that the global penalty imposed was either inappropriate or excessive. The appeal in relation to penalty will also be dismissed.