R v Blackburn

[2023] NSWDC 1

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Blackburn [2023] NSWDC 1

Hearing dates:

22 November 2022

Decision date:

03 February 2023

Jurisdiction:

Criminal

Before:

Colefax SC DCJ

Decision:

Aggregate term of imprisonment of 4 years with a non-parole period of 2 years - reparation order in the sum of $314,253.60

Catchwords:

CRIME - SENTENCE - obtain a financial advantage by deception - dishonestly obtain financial advantage by deception from the Commonwealth of Australia

Legislation Cited:

Criminal Code Act 1995 (Cth), s 134.2(1)

Crimes Act 1914 (Cth), s 21B

Category:

Sentence

Parties:

Rex (Crown)

Ms Amanda Leigh Blackburn (Offender)

Representation:

Mr Roucek (Crown Prosecutor)

Mr McAullife (Counsel for the offender)

File Number(s):

2020/00355786

Publication restriction:

Nil

1. Amanda Leigh Blackburn, you appear for sentence in relation to two principal offences.

2. The first principal offence is that, in the approximately 4 and a half years between 25 March 2014 and 3 August 2019, you obtained a financial advantage by deception.

3. In essence, this involved you, as the practice manager of a physiotherapy practice in St Clair, New South Wales, submitting 2,244 claims to Medicare for 2,579 patient services that were not provided by that practice. The total amount of payments made by the Commonwealth for those false claims to bank accounts to which you had access or control was $127,530.35. This is sequence 1.

4. The second principal offence is that, in the approximately 18 months between 8 August 2019 and 2 February 2021, you obtained another financial advantage by deception.

5. In essence, this again involved you, as that practice manager, submitting 1,403 claims to Medicare for 3,438 patient services that were not provided by that practice. The total amount of payments made by the Commonwealth for those false claims to banks accounts to which you had access or control was $186,703.25. This is sequence 2.

6. The total amount of payments which you received by deception over almost 7 years was $314,253.60.

7. Sequences 1 and 2 each involves a contravention of s134.2(1) of the Criminal Code 1995(Cth). The maximum penalty for each offence is imprisonment for 10 years and / or (in the case of sequence 1) a maximum fine of $102,000.00 and (in the case of sequence 2) a maximum fine of $126,000.00.

8. Insofar as sequence 2 is concerned, you have asked me to take into account one matter on a s16BA Schedule, which I have certified. That is a matter of attempting to obtain a financial advantage by deception.

9. In essence, this matter relates to you, as that practice manager, attempting to obtain payment from Medicare for 383 claims for 880 patient services which had not been provided by that practice. The total amount of these attempted payments was $47,805.22 and related to the period 8 August 2019 to 2 February 2021. This is sequence 3.

10. Your offending over that lengthy period of time was brought about by you deliberating abusing Medicare’s bulk billing of claims process – a process which is highly reliant on the integrity of the health care professionals using that system (the expression “health care professionals”, for present purposes, includes people such as you who were solely responsible persons within the relevant practice for accepting and submitting bulk bill claims).

11. For my purposes today, it is not necessary for me to detail the precise steps you took in relation to each of the 4,030 false claims you made or attempted to make. Suffice to say, (contrary to what was submitted on your behalf) it involved sustained, deliberate and not unsophisticated criminality on thousands of occasions over those 7 years.

12. It is significant to note that your illegal activities came to the attention of the Department of Health at some time in about mid-2019, and that you were interviewed by officers of that department on 7 August, 18 September and 21 November 2019.

13. It will be apparent that the dates of those interviews are after the rolled-up offence captured by sequence 1.

14. After those three interviews, a Court Attendance Notice was issued on 12 November 2020 and personally served on you on 19 November 2020. That Court Attendance Notice contained only what is now sequence 1.

15. It is not in dispute that, at the time that first Court Attendance Notice was issued, the Department of Health was not aware of offending conduct by you after the last date in sequence 1 (3 August 2019) – and that was because you had not been completely truthful as to the extent of your criminality in those interviews. In this context, I also note that you purported to express remorse for your offending conduct at the first interview. But, as I have said, you weren’t completely honest with the officers at that time as to the scope of your criminality and its continuing nature; and, in fact, your offending continued after the first interview. No weight can therefore be given to the expression of remorse made by you at that time; and your subsequent expressions of remorse (to Mr Borkowski, a psychologist who prepared a report on your behalf; and on oath) need to be examined very carefully.

16. You appeared before the Local Court in relation to that first Court Attendance Notice on 15 January 2021.

17. But by reference to the dates in sequences 2 and 3, your offending conduct did not cease:

1. after the first, second or third interview with the Department of Health officers - not only did your offending not cease after the first interview, it very significantly escalated.

2. nor upon the service of the first Court Attendance Notice upon you;

3. nor even by the time of your first appearance in the Local Court in relation to that first Court Attendance Notice (your offending conduct continued for about 2 or 3 weeks after that first Court appearance). 

18. I note for completeness that a second Court Attendance Notice in relation to sequences 2 and 3 was issued on 28 April 2022.

19. It is necessary for the Court to make an assessment of the objective seriousness of each of the principal offences for an offence of its kind. In this regard, in my opinion sequence 1 is a mid-range offence and sequence 2 is slightly above a mid-range offence.

20. By having regard to the nature of sequence 3, it will result in a meaningful increase in the sentence for sequence 2.

21. Before turning to your subjective circumstances, and the submissions made on your behalf in mitigation, it is noteworthy (for reasons I shall soon explain) that your dishonesty was not confined to the criminal misconduct I have just referred to.

22. The physiotherapy practice with which these false claims was connected was owned by you and your husband in the proportions, respectively, of 40 per cent and 60 per cent. Your husband provided most of the skilled physiotherapist services in the practice - although, in this regard, he was assisted by other physiotherapists. He had no role in the administrative aspects of the practice. Your role, as I have said, was that of practice manager with sole responsibility for processing Medicare bulk billing claims.

23. I hasten to make clear that your husband (Mr Blackburn) was in no way criminally connected with your offending.

24. At some point your husband became aware of your offending, although there is no explicit or direct evidence of when he precisely became so aware. It may well have been at about the time of your first interview with officers of the Department of Health on 7 August 2019.

25. As I have understood the agreed statement of facts, your husband also became aware, after you were served with the first Court Attendance Notice on 19 November 2020, that you were continuing to make false claims – and it was your husband who, on 4 February 2021, alerted the Department of Health to your continuing criminality and which ultimately led to further investigations by the Department and then to the issuing of the second Court Attendance Notice containing what are now sequences 2 and 3.

26. The agreed statement of facts record at paragraphs [42], [43], [50] and [51] how, on four separate occasions, you also made statements to your husband in connection with your offending which, in significant aspects, were not true.

27. I mention this, in the context of offences of significant dishonesty (including continuing that dishonesty after being interviewed on three occasions and ultimately served with a Court Attendance Notice), to explain why I regard much of your explanation for your offending conduct with considerable scepticism. And this, in turn, has in part at least informed my ultimate conclusions as to your remorse and your prospects for rehabilitation.

28. Your subjective circumstances have been advanced to the Court through:

1. a sentencing assessment report dated 17 October 2022;

2. the report of Mr Borkowski dated 15 November 2022;

3. two character references (including one from your current employer and to whom you have made disclosure of your criminal misconduct); and

4. your sworn oral evidence in the sentence proceedings on 22 November 2022.

29. Facts in mitigation are to be proved by an offender on the balance of probabilities.

30. Applying that standard, I am satisfied of the following facts.

31. You are now 38 years of age, and you were aged 30 to 36 at the time of the offending.

32. Your parents separated when you were 3 years old, after which you and your three siblings were raised by your mother. That lady worked hard to raise her children, and you and your siblings were brought up in a loving and supportive household.

33. You married Mr Blackburn when you were 19 years of age.

34. As at 2022, you had a child aged 10 years and a child aged 14 years. You had also conceived a third child with Mr Blackburn in 2016. I shall return to the sad circumstances of that child’s death shortly.

35. In 2014, you and your husband established the physiotherapy practice.

36. In that year, and shortly after the practice started, your husband was diagnosed with an autoimmune disease which impacted upon his capacity to operate as a physiotherapist. At some point not clearly identified in the evidence, this began to have a significant impact on the financial operation of the practice. The practice was the sole source of family income.

37. As at 2014, you had had no prior convictions of any kind, but the practice began to have serious financial difficulties. 

38. It was in this context that you decided that, rather than bringing the business to an end, it could be continued by defrauding Medicare.

39. Although that was your primary purpose in initially defrauding Medicare, some of the funds which you thereby dishonestly obtained were diverted to maintaining the drug habit of one of your sisters and to maintaining the gambling habit of your brother.

40. By about 2016, your husband’s condition had sufficiently recovered that he was able to effectively resume working in the physiotherapy practice. But in 2016 you sustained a miscarriage to the (third) child I have earlier referred to.

41. After that miscarriage, the relationship between you and your husband deteriorated. Your husband began to inflict emotional and physical violence on you, including sexual assaults.

42. But the defrauding continued, notwithstanding that the practice, it would seem, was able to resume properly operating.

43. Mr Borkowski has expressed the opinion that, at the time of your offending, you had a compromised capacity for rational judgment and problem solving. However, I am not satisfied that that provides any adequate explanation for the commencement of your criminal misconduct in 2014 or a complete answer to your continuing criminal misconduct in 2016 and following.

44. In 2018, and apparently as a means of self-medicating in connection with your unsatisfactory domestic situation, you started to use cocaine. This rapidly became a serious problem such that you were spending on average $3,000.00 a week on cocaine – and often $900 a day on that drug. It would seem that at this time the object of the defrauding which continued was no longer principally in connection with the conduct of physiotherapy practice, but to support this substantial drug problem.

45. In addition to cocaine, you were also abusing alcohol and you had developed a gambling issue.

46. As I have said, the defrauding continued up to (and beyond) 2019 when, on three occasions, you were interviewed by officers of the Department of Health, and the service on you in late 2020 with a Court Attendance Notice.

47. And as I have also said, although your husband is likely to have been aware of your criminal activities at about the time of the interviews with the Department of Health in 2019, he was not aware of your continuing offending conduct – not least because you had, on four occasions, lied to him about that.

48. Your husband did, however, become aware of your continuing offending in early 2020 and, as a result, the relationship between you and him came to an end.

49. Once the relationship came to an end, you left the matrimonial home and moved into your mother’s house.

50. It was your evidence that, upon the termination of your marriage and moving into your mother’s house, your abuse of cocaine, alcohol and gambling immediately ceased – and without professional intervention at that time. In this context, I note your inconsistent evidence as to efforts before that time to deal with those addictions before you left the matrimonial home.

51. I have found your evidence that you had immediately ceased your very substantial cocaine habit immediately upon leaving the matrimonial home difficult to accept.

52. However, although that explanation in that evidence was improbable, there is no explicit evidence that you have used illicit drugs, or that you have had gambling or alcohol related problems, since early 2020.

53. In the meantime, you have obtained a job; you have satisfactory access arrangements with your former husband concerning your two children; and you have the support of your mother, siblings and friends.

54. In addition to diagnosing you, at the time of the offending, with a general anxiety disorder and an adjustment disorder with mixed disturbance of mood and conduct, Mr Borkowski also diagnosed you with a stimulant type substance use disorder in early remission.

55. As I also earlier noted, you have no prior convictions. However, prior good conduct, which can result in a lenient sentence in appropriate circumstances, is of reduced significance where the offending conduct takes place over a substantial period of time, as is this case in these proceedings.

56. A prominent sentencing consideration for offences of this kind is general deterrence – and that is so in this case (albeit with some slight reduction because of the diagnostic conclusions of Mr Borkowski)

57. Furthermore, specific deterrence is fully engaged.

58. I have had some difficulty in assessing your prospects of rehabilitation. I have already explained why I approach with caution your expressions of remorse; and I also have some apprehension concerning your evidence concerning your ceasing to use of cocaine. However, there are a number of protective factors involved – namely, your young children for whom you have some responsibility; your family and support; and a good and meaningful job.

59. On balance, I regard your prospects for rehabilitation as being guarded.

60. The encouragement of your rehabilitation is also a relevant sentencing consideration.

61. The nature of the offending is such that no sentence for either sequence 1 or 2 other than imprisonment is appropriate and so much was properly conceded by your counsel.

62. You have not spent any time in custody to date in relation to these offences.

63. I intend imposing an aggregate sentence.

64. It is necessary for me to state the indicative sentences underlying that ultimate aggregate sentence.

65. In determining each indicative sentence, I shall allow a discount of 25 per cent for your early plea of guilty which facilitated the course of justice.

66. In relation to sequence 1, except for your plea of guilty and the discount of 25 per cent, the indicative sentence would have been imprisonment for 3 years 6 months; after the discount, the indicative sentence is imprisonment for 2 years 7 months.

67. In relation to sequence 2 and taking into account sequence 3, except for your plea of guilty and the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years and 6 months; after the discount, the indicative sentence is imprisonment for 3 years and 4 months.

68. I have taken totality into account.

69. In the result, Ms Blackburn, for the two principal offences of obtaining a financial advantage by deception, I sentence you to an aggregate term of imprisonment of 4 years.

70. I fix a non-parole period of 2 years to date from 3 February 2023 and which will expire on 2 February 2025.

71. I fix a balance of 2 years to date from 3 February 2025 and which will expire on 2 February 2027.

72. I order, pursuant to s 21B of the Crimes Act 1914 (C’th), that you pay reparation to the Commonwealth of Australia in the sum of $314,253.60.

Amendments

06 February 2023 - Typographical error

Decision last updated: 06 February 2023