R v Mohammadi
[2017] ACTSC 376
•17 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mohammadi |
Citation: | [2017] ACTSC 376 |
Hearing Date: | 17 May 2017 |
DecisionDate: | 17 May 2017 |
Before: | Mossop J |
Decision: | See [20] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – dishonestly obtain property by deception – attempt to dishonestly obtain property by deception – using a false document to obtain a gain – plea of guilty at the earliest opportunity – balancing general deterrence with rehabilitation – exceptional circumstances surrounding offending conduct unlikely to repeat themselves – pro-social factors and stable employment – planned nature of the offending conduct – Good Behaviour Order and sentences of imprisonment imposed – sentences of imprisonment fully suspended upon entering into a Good Behaviour Order – community service work order |
Legislation Cited: | Criminal Code 2002 (ACT), ss 326, 347 |
Parties: | The Queen (Crown) Maryam Mohammadi (also known as Maryam Howe) (Offender) |
Representation: | Counsel C Wanigaratne (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 36 of 2017 |
MOSSOP J:
Introduction
Maryam Mohammadi (also known Maryam Howe) is charged with 20 offences:
(a)seven charges of dishonestly obtaining property by deception (charges CC2017/1771, CC2017/1772, CC2017/1773, CC2017/1774, CC2017/1775, CC2017/1776 and CC2017/1777);
(b)four charges of dishonestly attempting to obtain property by deception (charges CC2017/1778, CC2017/1779, CC2017/1780 and CC2017/1781); and
(c)nine charges of using a false document to dishonestly obtain a gain (charges CC2017/1782, CC2017/1783, CC2017/1784, CC2017/1785, CC2017/1786, CC2017/1787, CC2017/1788, CC2017/1789 and CC2017/1790).
As the grouping of these charges suggest, they relate to three identifiably separate courses of offending conduct.
Facts
The first series relates to conduct between 26 November 2012 and 21 June 2014 whereby the offender, on 68 occasions, dishonestly obtained property from the health insurer Medibank Private Limited. She did that by making false claims from Medibank. She did this using an online claim-payment process. She obtained a total amount of $3469.40. This amount was paid into the offender’s bank account. The charges have been grouped so that each charge encompasses a group of claims made within a limited period. The claims related to medical services which had not in fact been provided to the offender.
The second series of charges relates to the period between 22 December 2012 and 1 July 2014. These charges relate to attempts to make such claims. They involved a total of eight attempts, seven made in the period 22 December 2012 to 16 March 2013 which were made using the online system. No benefits were paid by Medibank in relation to these seven claims. A further claim was made in person on 30 June 2014 but no benefit was paid. The claims were made in relation to medical services that had not been provided to the offender.
The third group of charges relates to the period 17 September 2013 and 3 May 2014. During that period, on 61 occasions, the offender used a false document with the intention of inducing the insurer that trades as HCF to pay her claim on her health insurance. The total value of the gain obtained by her from HCF amounted to $1911.
The police first contacted the offender in September 2016. The amount that she had obtained from the two health insurers was repaid in February 2017.
Maximum penalties
The maximum penalty for the offence of dishonestly obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) is 10 years’ imprisonment and a fine of $150,000.
The maximum penalty for the offence of attempting to dishonestly obtain property by deception is the same.
The maximum penalty for the offence of using a false document to dishonestly obtain a gain contrary to s 347 of the Criminal Code is 10 years’ imprisonment and a fine of $150,000.
Objective seriousness
It is relevant to consider in determining the objective seriousness of this kind of an offence the amount of money involved, the premeditation and the time over which the offences were committed.
In this case, the individual amounts were small. Overall, the amount was moderate. The total obtained was the not insignificant sum of $5380. However, many of the individual transactions were obviously small. It is significant in assessing the objective seriousness of the conduct that it was obviously planned and occurred over a significant period. Each of the individual offences must be assessed in that light. Because of the planning and premeditation involved I would assess the conduct at the low-to-mid range of objective seriousness for this type of offending.
Plea of guilty
The offender pleaded guilty at the earliest opportunity.
Subjective circumstances of the offender
The offender has no criminal history.
Evidence concerning the subjective circumstances of the offender was available from the Pre-Sentence Report as well as a report of Dr Danielle Clout, a psychologist, dated 9 May 2017; character references from the offender’s husband, Stephen Howe; her work supervisor, Mr John Moore; and a friend, Vasiliki Boagiatzis. There was also a Restorative Justice Report indicating that while the offender was prepared to engage in that process, neither of the health insurers involved were willing to participate.
The offender is aged 33 years. She was born in Iran. She reported that her family was very poor. She described her father as strict and abusive. She obtained a science degree in Iran and was able to relocate to Australia in 2007. She entered a relationship soon after and was married in 2009. The relationship was an unsatisfactory one, involving domestic violence and abuse by her husband. She and her husband moved to Canberra in 2009. In 2012 she commenced a Masters in Information Systems at the University of Canberra. With the assistance of a psychologist at the University of Canberra she was able to put herself in a position where she was able to leave the unsatisfactory relationship in 2012. She was divorced in 2014. She reported significant financial difficulties in 2012 when the offending conduct first started. She met her current husband in late 2013 and they married in December 2014. It is notable that the offending conduct extended beyond the period of difficulty and instability at the point where her earlier relationship was breaking down. The report of Dr Clout identifies that she was suffering Major Depressive Disorder and Post-Traumatic Stress Disorder which predated the commission of the offences. Both the report of Dr Clout and the Pre‑Sentence Report assess her as being at a low risk of reoffending. That is consistent with the character references and other evidence which indicates that she is now in a stable position in the ACT public service which she entered following her graduation from the University of Canberra. She is also now in a stable relationship with her present husband. Any financial difficulties that existed when the offending conduct first started are now removed. She is assessed as being suitable for community service.
It is clear in my view that the risk of reoffending is low. That arises from the offender’s present social circumstances and the stability of her employment. While the explanation for her offending conduct was not particularly clear, it seems to have been generated by the particular social circumstances that she found herself in at the time when she had left a very unsatisfactory relationship and was attempting to establish herself again through education. Those circumstances are unlikely to repeat themselves. It appears to me that there are good prospects that she will continue to be a productive and useful member of the community.
Consideration
I was referred to a significant number of other cases involving offences against s 326 of the Criminal Code or similar offences. They provide some assistance in indicating the seriousness with which such conduct is treated but the circumstances of those cases are sufficiently different that they provide only limited guidance as to the appropriate range of sentences.
There is clearly a tension between those sentencing considerations which pointed to the need for general deterrence and those which pointed to the need for specific deterrence and rehabilitation. Both sides submitted, correctly, that the most significant element of any penalty would have to be one driven by the sentencing purpose of general deterrence and the denunciation of the offending conduct. Matters of specific deterrence and rehabilitation are of lesser significance having regard to the social position in which the offender now finds herself and the steps that she has taken in relation to her mental health and dealing with her traumatic past.
In my view the planned nature of the offending conduct and the lengthy period over which it occurred, is such that for at least some of the offences, the only appropriate sentence is one of imprisonment. I have structured the sentences so that for the offending conduct that occurred in the period between November 2012 and March 2013 the only penalty is a Good Behaviour Order. After that initial period I have imposed sentences of imprisonment. However I consider that any such imprisonment should be wholly suspended upon entering into a Good Behaviour Order. I have also imposed a modest requirement for community service work to ensure that the reality of the sentence is brought home to the offender. I have taken into account the early plea of guilty by reducing the sentences of imprisonment for those offences in relation to which I have imposed them from 14 days to 10 days. I have also taken into account the plea of guilty by reducing the amount of community service from 75 hours down to 50 hours.
Orders
The orders of the Court are:
1. On charge CC2017/1771 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
2. On charge CC2017/1772 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
3. On charge CC2017/1773 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
4. On charge CC2017/1774 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
5. On charge CC2017/1775 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
6. On charge CC2017/1776 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
7. On charge CC2017/1777 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:
a.A probation condition that the offender be under the supervision of the Director-General or the Director-General’s delegate for a period of 12 months or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you.
b.A community service condition that you complete 25 hours of community service within 12 months.
8. On charge CC2017/1778 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
9. On charge CC2017/1779 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
10. On charge CC2017/1780 the offender is convicted and required to sign an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
11. On charge CC2017/1781 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
12. On charge CC2017/1782 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
13. On charge CC2017/1783 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
14. On charge CC2017/1784 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
15. On charge CC2017/1785 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
16. On charge CC2017/1786 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
17. On charge CC2017/1787 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
18. On charge CC2017/1788 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
19. On charge CC2017/1789 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
20. On charge CC2017/1790 the offender is convicted and sentenced to imprisonment for a period of 10 days which is to be suspended upon the offender signing an undertaking to comply with her good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:
a.A probation condition that the offender be under the supervision of the Director-General or the Director-General’s delegate for a period of 12 months or such lesser period as the person supervising you considers appropriate and obey all reasonable directions of the person supervising you.
b.A community service condition that you complete 25 hours of community service within 12 months.
21. Each of those sentences of imprisonment are cumulative upon each other.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 14 December 2017 |
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