R v Waters; Ex parte

Case [2023] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Waters; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 131

PARTIES:

R
v
WATERS, Erin Kate
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 195 of 2022
DC No 405 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 17 August 2022 (Morzone KC DCJ)

DELIVERED ON:

20 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2023; further submissions received 22 May 2023 and 29 May 2023

JUDGES:

Bowskill CJ and Morrison JA and Henry J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was a receptionist in a medical practice and raised and submitted 355 false Medicare claims over a 13 month period – where the respondent, by deception, dishonestly obtained $178,548.70 from those 355 false Medicare claims – where the respondent was sentenced to two years and nine months’ imprisonment and was released forthwith on a $1,000 two-year recognisance and two years probation – where the respondent not being required to serve any jail time appeared to derive from the content of a psychological report – where the Commonwealth Director of Public Prosecutions appeals the sentence – whether the sentence was manifestly inadequate – whether the sentencing judge erred in finding that issues of general deterrence and specific deterrence could be moderated by the mental health of the respondent – whether the circumstances of the long delay between sentence and appeal hearing and what has transpired in the interim make it unjust to re-sentence to actual custody

Crimes Act 1914 (Cth), s 16A, s 17A(1)
Criminal Code (Qld), s 669A
Director of Public Prosecutions Act 1983 (Cth), s 9(7)
Judiciary Act1903 (Cth), s 68(2)

Brown v The Queen (2020) 62 VR 491; [2020] VSCA 212, followed
Director of Public Prosecutions (Cth) v Golic [2014] VSCA 355, distinguished
Director of Public Prosecutions (Cth) v Gregory (2011) 34 VR 1; [2011] VSCA 145, cited
Director of Public Prosecutions (Vic) v O’Neill (2015) 47 VR 395; [2015] VSCA 325, cited
CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, cited
El Rakhawy v The Queen (2011) 214 A Crim R 124; [2011] WASCA 209, cited
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158, considered
Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59, cited
R v Adams; Ex parte Attorney-General (Qld)[2006] QCA 312, considered
R v Buckman[2016] QCA 176, considered
R v Hayes[2010] QCA 96, distinguished
R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489, followed
R v Holdsworth; Ex parte Director of Public Prosecutions (Cth)

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Details
AGLC
R v Waters; Ex parte [2023] QCA 131
Case
[2023] QCA 131
Decision Date

CaseChat Overview and Summary

The case of R v Waters involves an appeal by the Commonwealth Director of Public Prosecutions against the sentence imposed on the respondent, who was convicted of fraudulent conduct involving false Medicare claims. The respondent, a former receptionist at a medical practice, submitted 355 fraudulent Medicare claims over a 13-month period, resulting in dishonest gains of $178,548.70. The respondent was sentenced to two years and nine months' imprisonment but was released forthwith on a $1,000 two-year recognisance and two years of probation, with no actual jail time required. The basis for this lenient sentence appeared to be influenced by a psychological report on the respondent’s mental health.

The primary legal issues before the court were whether the sentence was manifestly inadequate and whether the sentencing judge erred in considering the respondent's mental health as a mitigating factor for issues of general and specific deterrence. Additionally, the court considered whether the significant delay between the sentencing and the appeal hearing, along with the respondent's conduct during that period, warranted a re-sentencing to actual custody.

In dismissing the appeal, the court found that the sentence imposed was not manifestly inadequate. The court upheld the sentencing judge’s discretion to take into account the respondent’s mental health in determining the appropriate sentence. The court further noted that the respondent’s conduct post-sentencing and the delay in the appeal process did not provide sufficient grounds to re-sentence to actual custody. The appeal was dismissed, affirming the original sentence.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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