R (Cth) v Grewal

[2021] NSWDC 360

District Court

New South Wales

Medium Neutral Citation:

R (Cth) v Grewal [2021] NSWDC 360

Hearing dates:

11-12 March 2021

Date of orders:

12 March 2021

Decision date:

12 March 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

ICO for 1 year 6 months. Ordered to pay reparation of $365,922.09.

25% discount for plea of guilty.

Catchwords:

CRIME - SENTENCE - Pharmacist defrauding PBS with false claims for prescriptions.

Legislation Cited:

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Criminal Code (Cth)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

DPP v Golic [2014] VSCA 355

DPP (Cth) v Phan [2016] VSCA 170

El Rakhawy v The Queen [2011] WASCA 209; (2011) 2014 A Crim R 124

Imbornone v R [2017] NSWCCA 144

R v Buckman [2016] QCA 176

R v Holdsworth [1993] QCA 242

Category:

Sentence

Parties:

Regina (Cth) – Crown
Sabrina Grewal - Offender

Representation:

Crown:
T. McMinn
Office of the Commonwealth Director of Public Prosecutions
Offender:
P. Boulten SC
P. Musgrave (Musgrave Legal)

File Number(s):

2020/00091041

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Sabina Grewal stands for sentence as a consequence of pleading guilty to a charge that between 24 November 2015 and 24 August 2018 at Lindfield in this State, she engaged in a course of conduct involving the lodgement of fraudulent PBS claims for prescriptions containing false information and without the item being supplied to the patient or an authorised person with the intention of dishonestly obtaining a gain from another person, namely, the Department of Health, which is a Commonwealth entity, contrary to section 135.1 (1) of the Criminal Code (Cth). That is an offence which is punishable by imprisonment for up to five years and or a pecuniary fine, I am told, of $54,000.

2. The offender also asks me to take into consideration on a Form pursuant to section 16BA of the Crimes Act 1914 a similar offence that occurred between 25 August 2018 and 2 May 2019. Had that offence been separately charged it carries a maximum penalty of 10 years’ imprisonment and or a pecuniary fine double the size of the pecuniary fine for the principal offence.

3. At all material times the offender was a pharmacist having a degree in pharmacy from the University of Sydney. The offender commenced a pharmacy graduate training programme in 2000. In December of that year she completed that training and became a qualified pharmacist. On 6 October 2015 the offender became the proprietor of the Lindfield Pharmacy at Lindfield. She was a sole trader. The pharmacy is located at 316 Pacific Highway, Lindfield. Between 27 November 2015 and 1 May 2019, the offender submitted fraudulent PBS claims containing false information and received PBS payments to the total value of $365,922.09. There is no dispute that she was not entitled to any of that money.

4. In regard to the offence to which she has pleaded guilty, the offender approved 454 fraudulent PBS claims for prescriptions containing false information without the item being supplied to a patient or a person authorised to receive it by the patient. The claims were made in respect of herself, her daughter, her parents, her sometime partner, and her partner’s parents. The same occurred with respect to the matter on the Form under section 16BA. In respect of that offence there were 70 fraudulent PBS claims. Of the total 524 false PBS claims the offender used the details of 12 health care providers by providing their Medicare provider numbers. It is also common ground that in order to process the claims she would use the Medicare number of herself and the members of her family, whose identity she used to effect the fraudulent payments. All the money was paid into the bank account of the practice of the Lindfield Pharmacy. It was not paid into her personal account or the personal account of any person. There is nothing unusual about that, indeed if it had been into anyone’s personal account it would put the PBS on notice that something amiss may have occurred. It is true that correct Medicare numbers were used, and correct Medicare provider numbers were used, but again if false numbers had been used, that did not match the identity of the provider or the patient, that again would put the PBS on notice. In other words, doing everything “by the book” allowed the plan to be carried out. The last transaction was processed by the Scheme on 1 May 2019, but according to the records in the agreed facts, the prescribing date was 19 April and the “supply date” was 19 April, but they may well have been false because there was no actual prescription provided, nor was any drug actually dispensed. However, the claims on the PBS are processed on the day they are received or some subsequent time. It appeared to me to be likely that the offender did not process any claims after she came into the care of Dr Michael Diamond, a specialist psychiatrist, for psychotherapy. She saw him on 29 April 2019 for the first time.

5. There can be no dispute that this was deliberate conduct by the offender designed to obtain money from the Commonwealth to which she was not entitled, thereby enabling her to use the money for her own purposes. Those purposes were to keep her pharmacy practice in business. There is no dispute between the parties that the offender’s conduct warrants the imposition of a custodial sentence. The issue joined between the offender and the Crown in right of the Commonwealth is whether that should be a sentence of full time imprisonment, or whether an alternative to full time imprisonment be available.

6. The first thing that ought be noted is the general attitude of the Courts to offences of this nature. In El Rakhawy v The Queen [2011] WASCA 209; (2011) 2014 A Crim R 124 Hall J, with whom McLure P and Buss JA agreed, said at [77]:

“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.”

That case involved a fraudulent claim by a medical practitioner on Medicare. The facts are somewhat different to the facts of the current case.

7. In R v Holdsworth [1993] QCA 242 the Court said this:

“It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught. Any notion that the Commonwealth and its departments are fair game for this type of activity is to be resisted... activity and notions of this kind will only be deterred by the imposition of penalties that those minded to defraud governmental agencies will find an unacceptable risk.”

After all, the victim of frauds of this nature are the general Australian community. The Commonwealth obtains its moneys by raising taxes which every citizen pays. Defrauding a scheme such as Medicare or the PBS is in fact taking money from the pockets of every tax payer in this country.

8. This is a matter in which the offender has a very strong subjective case. In order to discern the criminality involved it is necessary to turn at an earlier stage than is usual to the offender’s personal circumstances because it elucidates the problem or the task facing this Court. The offender has provided a letter bearing the date 3 March 2021 and also a detailed document headed “Chronology of life events of Sabina Grewal”, which is illuminating.

9. Before turning to that chronology I should say this: the Crown submitted that I should give little weight, if any, to what comes from the offender’s letter and her chronology and the statements that she has made to others, because of her failure to give sworn evidence. I am completely aware of the relevant case law. It is succinctly summarised by Wilson J with whom Hoeben CJ at CL, RA Hulme J agreed in Imbornone v R [2017] NSWCCA 144. The relevant principles are collected by her Honour at [57] of her reasons and are well known. However, the principles do not mean that I must always approach subjective material unsupported by sworn evidence with scepticism, caution or contempt. I look for consistency, plausibility and detail. Indeed, if an offender gives sworn evidence he or she can only be cross-examined on material available to the Crown. It is infrequent for the Crown to have available to it any medical evidence or any material that relates to subjective matters. The cross-examiner can only look at consistency, plausibility and the details provided. When I consider those matters here, it appears to be that I can give weight to what has been said by the offender or on her behalf.

10. The offender is currently 45 years old. She was born in Liverpool in England. Her father is an engineer by profession and he is an academic in that field. He is now a retired Professor of Engineering. Her mother was a human resources manager. It would appear that, ethnically, the family is Indian. Having been born in Liverpool, England, the offender moved when she was very young, either one or two years old, to Limerick, Ireland. Her father had obtained a teaching position at the University of Limerick, having obtained a doctorate in philosophy. The offender grew up in Limerick and she remembers living there fondly. In 1984 the family moved to Coventry, England. The purpose of that move was to be closer to the extended family. The offender and her younger brother studied hard and secured admission to a private school named King Henry VIII School. Of that she said this:

“I remember feeling like an alien in my first year and being quite lonely, unsure and intimidated by my teacher. I was frequently bullied by a certain group of boys and racism was a daily occurrence. Despite these initial hardships, I made friends with many of the girls and formed a close tightly knit group. I was very happy and content at KH VIII.”

It appears that the offender overcame her initial difficulties to become a happy and contented student at that school.

However, her father was appointed as a senior research scientist with CSIRO in 1989 and the family relocated to Sydney. The offender would have been 13 years old at that time. That is a critical time for any young person. The offender said this:

“I was devastated to leave my best friend and school. I cried often and it took me a couple of years to settle. I missed the UK tremendously. My brother and I attended the government state school, Turramurra High, and I started mid-late through year 8 at the age of 13. As a migrant from the UK - I felt lonely and scrutinised at my new school. It took me some time to establish friendships and I was ‘frankly bullied’ by my male peers. I disliked the school as it contrasted sharply with my previous schooling experience. I found the classroom chaotic, undisciplined and lacking respect. My self-confidence plummeted.”

However, by year 10 the offender had settled into the Australian lifestyle and made some good friends at school.

11. In or about 1992, the offender made a trip back to the United Kingdom to attend the wedding of an aunt. At that time she made a decision to pursue a career in medicine, however her academic performance up to that time and had been lucklusture, and on her return from the trip, she settled down to study seriously. However, in year 12 she met a fellow student who had left Barker College. He became her first boyfriend and introduced her to alcohol. This teenage romance become consuming. She lost focus on her studies, and, at the instigation of her boyfriend, decided to repeat year 12 as he had himself done. In 2014, repeating year 12, she worked extremely hard and was coming first in most of her subjects. Both she and her teachers were confident that she could obtain the necessary TER to obtain entrance into a medical school. However, she fell pregnant in mid-1994, immediately prior to the trial HSC. Her boyfriend and she decided to terminate the pregnancy because of their youth. The offender’s chronology says this:

“It was a traumatic and frightening experience. I suffered from shame and guilt which led to depression, exhaustion and weepy binge drinking with [her boyfriend]. My teachers witnessed my academic slide and were concerned.”

She obtained a TER of 96.75. That was not sufficient for her to enter any medical school. It was however sufficient to enable her to undertake a degree in pharmacy at the University of Sydney.

12. Like many young people, the offender found her early experience of drinking to be liberating. Her chronology says this:

“My early days at university were socially focused and I quickly started to miss many lectures. My friends joked that I was the first student to complete the degree by correspondence.”

I am told it took the offender six years to complete a three year degree course. Her chronology says this:

“I struggled through most of my university years with a diagnosis of Chronic Fatigue Syndrome in 1996 and associated depression. It was the first time that I commenced antidepressants and had the first of many hospitalisations due to alcohol misadventure.”

Earlier she pointed out that in her social life she was drinking a lot of alcohol, and with the benefit of hindsight she could see that her life as a student was punctuated by depression, anxiety and low self-esteem. In 1997 she met another young man and fell pregnant to him. That led to a second termination of pregnancy. That operation the offender found to be “quite traumatising” and cast her further into reliance upon alcohol, and it would appear, to binge drinking.

13. As I earlier mentioned, the offender commenced her pharmacy graduate training programme in the year 2000. Her training was either at hospital or a community pharmacy at Broadway. During that year she met a male American graduate living in Sydney during the Olympic Games and they formed a strong relationship, and when the American gentleman returned to his native land she took up the place which he was sharing, an apartment in Elizabeth Bay, where she lived at many times thereafter. In December 2000 she was offered a job as the full time pharmacist manager at the Broadway Community Pharmacy. She took that job seriously and worked long hours from Monday to Friday, often with no break. She was missing her American boyfriend, and friends were encouraging her to meet other people to overcome that feeling of loss. Again, the offender started engaging in alcoholic refreshment in order to socialise, and her consumption of alcohol became quite regular.

14. In 2001 she met her future husband who is a practising solicitor. They met through a mutual friend. According to the offender, he changed her world “forever”. He was her first non-Caucasian partner. Eventually they were to marry in India on 10 January 2002. After the marriage the offender and her husband lived with her husband’s family at Randwick. In 2003, the offender purchased a pharmacy at a medical centre at South Cronulla with financial assistance from her mother-in-law and the full support of her husband and her family. She managed the pharmacy whilst her mother-in-law managed the medical practice. Her father-in-law had died. He was in fact a medical practitioner, and his wife, the offender’s mother-in-law, had worked as his practice manager. Accordingly, it was easy for her to manage the medical practice attached to the offender’s pharmacy. The business was successful and buoyed by that success the offender decided to open a second pharmacy in Paddington. That was a joint venture with her husband and his sister. To put it bluntly, the offender said in one sentence, “It was a disaster from beginning to end”. It was a financial disaster in effect. The final straw was when there was an armed robbery one morning at 10am, and the robber threatened the offender with a firearm and decamped from the pharmacy with expensive perfumes. The pharmacy closed shortly after that.

15. It appears that to have a pharmacy, one has to have an “approval number” from probably the Commonwealth Department of Health. The idea was to sell that approval number to recoup vast financial losses. However, before the approval number could be sold it was proposed that it be cancelled. That led to litigation where the offender and her husband and family members suffered financial stress, paying costs, and emotional and mental stress. Especially was that so for the offender’s mother-in-law.

16. To overcome this setback, the offender and her husband decided to have a family but there were difficulties in conceiving and it was considered that there could be no conception without IVF. The offender’s chronology says this:

“This further blow triggered a severe depression and an increasing dependency on alcohol. My ability to function and make rational decisions became impaired.”

She sought the friendship and advice of a medical practitioner who was the medical practitioner at the South Cronulla Medical Clinic, attached to South Cronulla Pharmacy. The offender was admitted to a psychiatric clinic in Sydney and was diagnosed as having a mood disorder and depression caused by alcoholism. That led to the offender’s commencing to attend Alcoholics Anonymous as suggested to her by her treating psychiatrist at the time.

17. During that period the offender formed an attachment to the medical practitioner at South Cronulla, which appears to have led to marital difficulties. The offender admits that her addiction to alcohol and her need for treatment led to impaired judgment and despite all advice to the contrary, she commenced an affair with the medical practitioner at South Cronulla.

18. In 2007 or thereabouts it was necessary to sell the South Cronulla Pharmacy and medical practice because of financial pressures and the failed business venture at Paddington, fuelled by a significant downturn at South Cronulla because of certain difficulties which I need not cite. The offender made a second attempt on her life by slashing her wrists. That led to her being admitted to the Prince of Wales Hospital at Randwick. After that the offender sought locum work on the Central Coast.

19. She and her husband later went to India to travel, and to visit the Himalayas and to seek spiritual assistance. By that stage her alcohol consumption was still occurring but there had been a marked reduction in her daily intake. On her return to Sydney she found locum work at various places in New South Wales, such as Lightning Ridge and Tumbarumba. She also was introduced to one of her husband’s clients who had purchased two pharmacies, one at Wallerawang and the other at Portland. The owner of those pharmacies was looking for a locum and that caused the offender to take up a position as the pharmacist at Wallerawang. That led to her forming a friendship with a man known as Shannon, whom I earlier described as her sometime partner. That led to a relationship which caused the breakdown of her marriage.

20. In 2011 the offender and Shannon moved to Forbes and later that year she fell pregnant which she discovered in November. Her daughter was born in July 2013. Her daughter is now eight years old. Shannon was unable to support the offender and her daughter. His income was small. The offender needed to go back to work as soon as her paid maternity leave was used, and then Shannon expressed the desire to leave Forbes. He maintained he had never been entirely happy or settled in Forbes. He wanted to move back to Lithgow to be near his family. They did and the offender became a pharmacist in Lithgow, commencing December 2012. According to the offender, she was, “utterly miserable in Lithgow”. She missed Forbes, she missed the job that she had there and the friends that she had there. She also missed her parents and friends in Sydney. The offender tells me in her chronology that she fell into a deep depression, perhaps with a post-partum component. There were difficulties in her relationship with Shannon and the couple split up.

17. The offender moved to Sydney to start anew again. She obtained a good job managing a pharmacy in Broadway which was in receivership. Her father’s tenure at Sydney University as an adjunct Professor had finished. Her parents were “at a loose end”. They asked her about the concept of purchasing the pharmacy at Broadway and starting a business there, and that was what the family decided to do, but they were “gazumped”. The offender and her parents then explored the possibility of opening a pharmacy elsewhere and that led to their taking up the Lindfield Pharmacy with effect from 1 October 2015. The purchase price of the pharmacy was $2.876 million. To do that the offender borrowed $2.44 million. She obtained a loan from the offender’s parents, used their residence as security for her loan, and her parents increased their own mortgage upon that residential property. They also put their cash savings into the business, and the offender’s mother’s superannuation fund, and they borrowed £70,000 from family members in the United Kingdom. This was a massive investment.

18. There were problems initially. The stock that was actually received was about $50,000 less than what had been estimated in the contract for the purchase of the business. The offender and her family understood that there were two large aged care facilities that were serviced by the Lindfield Pharmacy, but one of those aged care facilities stopped its arrangement with the Lindfield Pharmacy either shortly before or shortly after the offender took over the pharmacy. The pharmacy was required to achieve a gross profit of 35%. That it would appear was difficult to obtain. The offender’s chronology says this:

“I worked almost 90 days straight without a break and very often as a solo pharmacist as we were trying to contain the wages. This workload was unsustainable. I was already starting to struggle.”

She felt unable to disappoint her parents and unable to disappoint those from whom she had borrowed money. There were zoning problems and the income from the business was insufficient to generate the gross profit. The offender said this:

“I was petrified that we would not meet this [gross profit] and face even tougher scrutiny from our lender. I don't recall at which moment that I thought it would be a good idea to defraud Medicare. I’m at a loss today to understand how I thought my behaviour would be justified on the grounds that I was helping my parents to overcome their financial woes. I know that the first bank covenant that we reported showed a GP (gross profit) of over 40%. My business broker was impressed with my ability to make a business so profitable in a short period of time, and my parents were proud of me for the first time in many years.”

23. It would therefore appear to be that either the offender was lacking the necessary gross profit, and in order to boost herself she decided to defraud Medicare. She then said this in her chronology:

“On many occasions when I engaged in a criminal act I never thought of the consequences. I managed to assuage my guilt and fear with alcohol and sleeping tablets. I became dependant on this toxic combination to dull my senses. I was always sober for work the next day, and never once consumed alcohol in the morning before work or during the work day.”

However, by June 2016 things came to a head. She made another attempt on her own life by overdose. That led to her being admitted to the Northside Clinic at Greenwich for a four week rehabilitation program. She was under the care of Dr Anthony Sams, a specialist psychiatrist. Whilst in hospital she was informed that the HCCC had been notified by the police of her overdose which occurred on the pharmacy premises. She was then reported to the Pharmacy Council and she was required to attend the impaired registrants’ panel nominated by the Pharmacy Council. She had a large number of conditions placed upon her practice, directed to making sure that she overcame her alcohol addiction and did not misuse prescribed medication. She is not permitted to practice unless supervised. The offender said this:

“I felt like a disappointment and a failure. Adding to the stress of the situation was the additional financial pressure of now having a full-time pharmacist to be cover [for] my hours. This was in excess of $100,000 per annum. This amount should have been enough to motivate me to focus on recovery as the financial ramifications were huge. It was at this time that I believe I became desperate and my fraudulent claims increased in response to the news that Chemist Warehouse were looking to purchase another pharmacy in Lindfield with a view to relocating two doors away from my business.”

That business was at 310 Pacific Highway, Lindfield. It was a pizzeria. There was litigation involved and eventually the offender’s family bought the pizzeria business and the property in which it was conducted.

24. In December 2016 the offender found that she was pregnant. She and Shannon had reconciled after her inpatient treatment at the Northside Clinic. The offender was shocked to find that she was pregnant, but was also overjoyed by it. However, the foetus died in utero, leading to an immediate dilation and curettage procedure. The offender’s drinking commenced again. However, that return to drinking was brought to the attention of the Pharmacy Council and she was called upon to explain her behaviour and she stopped drinking. In June 2017 she again fell pregnant to Shannon, but that child also died in utero and there was another gynaecological procedure. That was followed by another short relapse to alcohol use. The offender then appeared to concentrate on the idea of having another child, and sought treatment from her obstetrician and gynaecologist, and also a fertility consultant. The only way to fall pregnant again was to consider IVF. However, the limitation was money. The offender’s partner, Shannon, was not able to pay for any treatment, and the offender did not wish to ask her family for money for the treatment, so again she rationalised the need for the IVF treatment by defrauding Medicare. Those events occupied 2017 and 2018.

25. Things came to a head in 2019. The offender said this:

“My mental health was fragile and my resolve to stay sober and recover my professional standing was sabotaged by my diabolical defrauding of Medicare. I no longer had the emotional strength or mental courage to pursue IVF. I gave up. My anxiety and depression started to escalate as I found myself living in constant fear. Fear of getting caught, fear of destroying my parents, fear for [my daughter’s] future.”

She then refers to the problems that she and her daughter were experiencing, including separation anxiety as she was starting school. The offender pointed out that she had increasing dependence on Valium and Stilnox to deal with her fear and anxiety, and that they overshadowed her alcoholism. Again, because she was using alcohol from time to time, the Pharmacy Council tightened up the conditions under which she could practice, and the offender said she “completely fell apart”. She tells me that she stopped defrauding Medicare in May 2019. That is borne out by the records although it may have been the end of April 2019. She went to the United Kingdom to attend the funeral of a cousin. On her return she went to see her general practitioner at Pymble, but he informed her that he could no longer treat her as he had been approached by Medicare which was investigating “my fraudulent claims”. It appeared that the medical practitioner at Pymble was one of the 12 providers whose number she had used to perpetrate the fraud. She was suspended from practice. She said this:

“The next three months were torturous days of fear, paranoia and constant anxiety. I could not speak to anyone of my crime as I was steeped in shame. I lived in purgatory. The shame would consume me. Underpinning everything is my inability to tackle my alcohol addiction.”

In September 2019 a letter arrived, hand delivered to her pharmacy, from Medicare. That appears to have drawn her attention to what had been discovered and led to her being charged.

26. I have recited enough to now turn to the medical evidence. What the medical evidence tells me is that for many, many years the offender has suffered from psychiatric illness. There is in evidence a report from Dr Anthony Sams bearing date 16 February 2021. He diagnoses Alcohol Use Disorder which was severe, but by February of this year was in remission, a Recurrent Major Depressive Disorder, which in February of this year, was also in remission. In March 2019, Dr Sams referred the offender to Dr Michael Diamond, a psychiatrist at St Leonards, for “more intensive insight-oriented psychotherapy”. He did that because, “It had become evident at this time that Ms Grewal was prone to be impulsive and ultimately making self-defeating choices throughout her adult life, hence the need for more insight-oriented psychotherapeutic approach to augment her existing management.”

27. Dr Diamond agrees with the two diagnoses made by Dr Sams and also adds either a diagnosis of Post-Traumatic Stress Disorder or features of a Post-Traumatic Stress Disorder referrable to the effect of the armed hold up at the Paddington pharmacy. Dr Diamond, for the purpose of providing a report, was provided with the statement of agreed facts. Of that he said this:

“I am familiar with this material. The offences are known to me. This information was revealed in the course of my assessment and during the ongoing treatment of Ms Grewal. It has never been withheld from me.

The material has been an important consideration in the course of my treatment of Ms Grewal. The extent of the offences including both the number of the offences and the financial magnitude of the fraud has been fully revealed in the course of my treatment of Ms Grewal.”

28. A diagnosis of Recurrent Major Depressive Disorder is a diagnosis of a condition which appears to have affected the offender throughout her life. The first time she openly speaks of depression was after the first termination of pregnancy in 1984. However, the depression may have its genesis before that. This is recited by Dr Diamond in his report. On page 5 he says this:

“A recurring pattern of substance abuse, denial associated with the substance abuse (a common and profound characteristic of addiction) and entrenched repetitive patterns of disabling psychiatric symptoms associated with addiction, anxiety and mood disturbance, are clearly described throughout the document.”

The document that the doctor was talking about is the chronology, significant portions of which I have cited. He goes on to say this:

“The recurrence and the strength of these dysfunctional and pathological manifestations of underlying psychiatric disorders is clearly documented. There are some moments of apparent well-being described but the underlying vulnerability remains.”

Further on he says this:

“The chronology documents the detail of the dysfunctional relationships, but also the importance to Ms Grewal of the birth of her daughter, despite it occurring in the context of a highly dysfunctional relationship. It represented a major psychological focus for Ms Grewal, and also an opportunity to reconcile with her parents and extended family. Her descriptions of the impact of her life on the birth of her daughter are clearly described in this chronology. These emotions and the power of the bond which she has with her daughter have formed a major, and sometimes life-saving, aspect to her ongoing ability to function at some level and to ensure her survival. This has emerged clearly in the course of her therapy with me.”

The offending conduct that is described in great detail in the chronology in the context of increasingly desperate attempts to re-establish functional businesses running pharmacies. The desperation to succeed in order to maintain the support of her parents and provide for her daughter are clearly described in the chronology. At the same time the inability to address the obvious psychiatric disorders and to cope with the full extent of the impairment of her psychiatric symptoms, resulting in reliance upon her attempts at self-treatment with alcohol and other sedatives is clearly documented in the chronology.

Ms Grewal’s state of mind, desperation, impaired perception and functioning as she describes it during that period is consistent with a clumsy and unsophisticated fraud that she then repeated on multiple occasions until she was finally investigated and prosecuted.

29. It is clear from both what Dr Sams but, in particular, Dr Diamond say that the offender’s judgment and ability to make rational choices has been impaired for many, many years by her major depressive disorder. Whether the major depressive disorder was generated by her alcoholism or not is impossible to determine, but they are completely different forms of psychiatric illness.

30. The offender is currently being treated for her condition. Dr Sams’ report sets out this future treatment plan:

“1. Continued prescription of Sertraline (antidepressant medication) 2. Continued prescription of Disulfiram (aversive treatment for alcohol use disorder) [Antabuse] 3. Continued attendance at the Drug and Alcohol Day program, Northside St Leonards Clinic, St Leonards 4. Continued consultation with myself, weekly to second monthly, depending on need 5. Continued attendance at Alcoholics Anonymous Meetings 6. Continued gym attendance 7. Continued individual psychotherapy.

Ms Grewal informs me that Dr Michael Diamond in St Leonards has reduced the frequency of their sessions this year. At review today she reported has sought a psychologist referral in order to maximise her ongoing psychological support and recovery.”

At the end of his report, Dr Sams said this:

“I do not work in a custodial setting, however my understanding is that of the seven components of Ms Grewal’s proposed treatment plan outlined above, perhaps medications and gym will be likely the only aspects available to her in custody. This would likely have a negative impact on her recovery and rehabilitation.”

Whilst I also do not work in a custodial setting, I am aware of what custody involves. It appears to me that what Dr Sams said about treatment is correct, should the offender be sentenced to full time custody.

31. On this question of treatment, Dr Diamond said this:

“It is now apparent that Ms Grewal is firmly engaged in treatment outside the custodial setting that addresses her addiction primarily and substantially. She is engaged in psychiatric treatment involving longer term psychodynamic psychotherapy that addresses the underlying and causal features of her long term addiction. She is treated with maintenance medications for depression and to promote abstinence from alcohol. She has re-engaged with family. She is closely involved with parenting her daughter.

These are all significant protective factors with regard to re-offending behaviour, and importantly with regard to improving her long terms psychological and psychiatric well-being.”

Turning again to the question of causation, Dr Diamond said this:

“It is clear from my extensive discussion about the association between her psychological vulnerabilities, her overt psychiatric disorders and their existence before the offending conduct, that the conduct itself was based upon attempting to deal with the effects of the underlying psychiatric disorders, albeit it in a criminal dysfunctional manner.”

32. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 McClellan CJ at CL discussed at [177] the position of an offender suffering from mental illness, mental handicap or other mental problems. The principles developed by the Courts include these:

“Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence...

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed...

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced...

It may reduce or eliminate the significance of specific deterrence...

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence...Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public...”

In my assessment the first four of those five points is applicable to this case. The major depressive disorder has been present for many, many years. It appears to have affected the offender throughout her life. The alcohol abuse disorder has also affected her throughout her adult life. If the diagnosis of PTSD be correct, that has certainly pre-existed any work she has done at the Lindfield Pharmacy. Even that not be an acceptable diagnosis, there are clearly on the assessment, Dr Diamond, the features of PTSD, which again will increase the depressive illness, and the attempt by the offender to treat herself by taking alcohol, which of course reinforces the alcohol abuse disorder. I accept that her moral culpability is therefore attenuated. It also appears to me to be that this is not a case where the general deterrence can be served by, for example, imposing a lengthy custodial sentence upon this particular offender. There are a number of people who are, for example, medical practitioners or pharmacists or indeed solicitors suffering from the conditions which this lady experienced before she committed this particular fraud. For example, the Crown relied heavily upon the decision of the Court of Appeal of Western Australia in El Rakhawy v The Queen [2011] WASCA 209. However in that case the appellant relied upon the report of a psychologist. At [25] Hall J said this:

“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.”

33. I have often expressed the view that any offender standing for sentence who has not some symptoms of anxiety and for depression is abnormal. There, the fact that the offender was a Muslim and may have been discriminated against by others was no justification whatever for defrauding Medicare. Furthermore, the reason for El Rakhawy to commit the fraud that he committed was summarised thus at [35]:

“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.”

There is a significant difference in my view between committing offences to support a lifestyle as distinct from committing the offences to seek remain in practice, to seek to protect the investment made by family members in the business, which the offender was seeking to do. The situation in El Rakhawy is completely different. El Rakhawy was obviously a case where general deterrence loomed large. Here it cannot. When I consider whether the offender would find a custodial sentence to affect her more heavily than another, I would point out that it would so interrupt her treatment regime as to interfere with her ability to return to a normal life, to become a positive member of society, and to maintain the care of her daughter. It would be an alien environment for any tertiary educated lady as this lady is.

34. Finally, a psychiatric illness may reduce or eliminate the significance of specific deterrence. Here there is no likelihood, in my view, of the offender again doing what she has done in the past, should she be able to return to practice as a pharmacist. The fact of a low risk of recidivism is attested to by Dr Diamond, Dr Sams, but also in the Sentencing Assessment Report which assessed a low risk of re-offending. There are no conditions which Corrective Services would impose if the offender were given a supervised order, and, indeed, Corrective Services propose to suspend supervision and can point to nothing else that would require to be done to make sure the offender does not re-offend.

35. Section 15A (2) of the Crimes Act 1914 (Cth) requires me to consider a number of matters.

36. The first is the nature and the circumstances of the offence. I have described the offence and the circumstances in which it was committed. In doing that I have also borne in mind the second matter, that are other offences that are required to be taken into account. I have taken into account the offence on the Form pursuant to section 16BA.

37. The third matter to be taken into account is whether the offence was part of a course of conduct consisting of a series of criminal acts of the same or similar character to that course of conduct. Here that course of conduct is the actual offence itself. The provision is directed to, for example, recurrent drug dealing, recurrent drug importation, recurrent drug manufacture. Here the offence itself is a course of conduct.

38. The fourth matter to be taken into account are the personal circumstances of any victim of the offence. Of course, the victim is the Commonwealth and in particular the Treasury of the Commonwealth, but inferentially it is the whole of our community.

39. The fifth matter to be taken into account is any injury, loss or damage the result of the offence. That loss is the monetary value of the fraud. The next matter to be taken into account is irrelevant.

40. The next point is the degree to which the person has shown contrition for the offence, by taking action to make reparation for any loss or in any other manner. Here, the offender has placed on the market the Lindfield Pharmacy. There is before me and irrevocable authority given by the offender on 3 March 2021 to lawyers confirming that she has instructed those lawyers to act on her behalf in relation to the sale of the Lindfield Pharmacy, and directing the solicitors on completion of the sale of the Lindfield Pharmacy to repay to the Department of Health the money which she now owes to the Commonwealth. There is also before me exhibit 3, an exclusive selling agency agreement which the offender has given to MedBrokers Australia, to sell the Lindfield Pharmacy. The estimated selling price is $2,850,000 plus stock of $250,000 and the most suitable method of sale is for offers of over three million, including stock. It would appear that if the Lindfield Pharmacy be sold that the Commonwealth will be reimbursed for its loss. I take that into account in a positive fashion on the offender’s behalf.

41. The next requirement I am required to consider is irrelevant. The second next requirement is whether the offender has pleaded guilty. She has pleaded guilty. It is agreed that she pleaded guilty at the earliest available opportunity, and she is therefore entitled to a discount for the utilitarian value of her plea. It appears to be common ground that that discount should be one quarter of the sentence properly to be passed upon her.

42. The next consideration is the degree to which the person has cooperated with law enforcement agency in the investigation of the offence or other offences. That does not appear here to exist, but there is no suggestion that the offender could in any way have further assisted the Commonwealth.

43. The next considerations are both specific deterrence and general deterrence. I have already expressed views on those subjects. The next consideration is the need to ensure that a person is adequately punished for the offence and I am seeking to do so by considering all relevant matters. The next matter is the character, antecedents, age, means and physical or mental condition of the offender. I have sought to do so. The next consideration, the penultimate one, is the prospect of rehabilitation. The prospects of rehabilitation are excellent provided the offender continues to observe the treatment regime prescribed by Dr Sams.

44. The final consideration is the probable effect that any sentence or order under consideration has on any of the person’s family or dependants. This has been interpreted by judges as having the same meaning as in New South Wales law that it can only be taken into account if the offender is, for example, a nursing mother still breast feeding. Here it does not arise as a matter that could affect whether there should be a custodial sentence or a non-custodial sentence, or as to the type of custody, but it is again a matter to be taken into account. The offender’s daughter as I said is eight. She has some problems. One can understand the offender’s daughter’s anxiety because she understands what is happening to her mother at the present time. The offender and her daughter live with the offender’s parents. Her father is now 71, her mother is younger, and I am told from the Bar table by the learned Senior Counsel for the offender that she has mobility problems. She is present in Court today and was present in Court yesterday, and I could readily accept that by observing the lady’s bodily habitus. Leaving the offender’s daughter in the charge of her parents would not be helpful to her daughter or her parents, and the only other person in the offender’s family, living in Australia, appears to be her younger brother, who has his own young family and has not had any part to play, as far as I can ascertain, in the offender’s history or background or current circumstances, for many, many years.

45. The number of cases available to me has not set any range of options. In El Rakhawy the offender was initially sentenced to imprisonment for four years with a non-parole period of three years and four months. On appeal that was reduced to three years in prison with release on the cognisance after serving one year and eight months in custody. I have also been referred to the decision of the Victorian Court of Appeal in the DPP (Cth) v Phan [2016] VSCA 170. On appeal the offender was sentenced to four years in prison with a non-parole period of two years. The offender in that case was a medical practitioner, who over a period of seven years made 14,565 false claims and defrauded the Commonwealth of $854,188.20. That is a much more significant case than the current one. I have also been referred to the decision of the Queensland Court of Appeal in R v Buckman [2016] QCA 176. There the offender was sentenced to imprisonment for three years with release on recognisance after serving 14 months in prison. The offender does not appear to have been a professional but rather an employee of a medical practice. She used the Medicare numbers of 518 patients of the practice to submit 771 false claims for services, defrauding Medicare of $189,316.90. The final case to which I have been referred is the matter of DPP v Golic [2014] VSCA 355. That was an appeal against the alleged inadequacy of the sentence where a 31 year old woman who was not a professional but rather a patient, sought to defraud the Commonwealth by $216,545.15. She obtained almost $200,000 and the balance was what she attempted to obtain. She made 36 false Medicare claims. That offender had longstanding psychiatric issues. She was sentenced to imprisonment for two years but released on recognisance forthwith for a period of two years. That is equivalent of what used to be a suspended sentence in New South Wales.

46. Bearing in mind all the factors that I have taken into account there appears to me that I shall commence this sentencing exercise with a head sentence of two years. I reduce that by 25% such that it becomes an imprisonment for one year and six months. I then turn to consider how it should be served. It has been submitted on behalf of the offender that it ought be served by way of an Intensive Corrections Order. The sentencing assessment report indicates that that is available in this case.

47. When a Court is considering the imposition of an Intensive Corrections Order community safety is a mandatory element for consideration. That requires in accordance with section 66 (2) of the Crimes (Sentencing Procedure) Act 1999 an assessment as to whether an ICO or full time detention is more likely to address the offender’s risk of re-offending. Section 66 does not preclude the imposition of an ICO except where the sentencing Court reaches a positive determination that an ICO as opposed to full time detention is more likely to address the offender’s risk of re-offending. The weight to be given to the determination of the offender’s risk of re-offending is a matter within my discretion. I do not believe that full time custody would be the better way of addressing the offender’s risk of re-offending. Indeed, a non-full time custodial sentence would be a better way of ensuring that the offender is not re-offending because it would permit the offender to maintain her treatment regime, which is the best way of ensuring that she does not offend again. It appears to me that I should impose a condition requiring the offender to abstain from taking alcohol, a condition requiring her to continue to maintain the treatment regime she currently practices, and she has been assessed as being suitable for community service, and it is appropriate in the circumstances to make such an order.

48. Sabina Grewal, on the charge that between 26 November 2015 and 24 August 2018 at Lindfield in this State you engaged in a course of conduct involving lodgement of fraudulent PBS claims for prescriptions containing false information and without the item being supplied to the patient or an authorised person with the intention of dishonestly obtaining a gain from another person, namely the Department of Health of Commonwealth of Australia contrary to section 135.1 (1) of the Criminal Code you are convicted. I sentence you to imprisonment for a term of one year and six months commencing today to be served by way of intensive correction within the community.

49. The terms of the order are:

1. You must not commit any offence

2. You must submit to supervision by a Community Corrections officer

3. You must complete community service work for 350 hours

4. You must participate in a treatment programme as directed by Dr Anthony Sams

5. You must abstain from alcohol.

6. You are to report to the Community Corrections office at Hornsby by telephone within seven days.

50. Pursuant to the Crimes Act 1914 section 21B (1) (c), I order you to make reparation to the Commonwealth of Australia a monetary payment of $365,922.09.

51. Any other orders sought?

MCMINN: No, thank you, your Honour.

MUSGRAVE: Thank you, your Honour.

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Decision last updated: 28 July 2021