R v West
[2015] ACTSC 134
•18 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v West |
Citation: | [2015] ACTSC 134 |
Hearing Date(s): | 18 May 2015 |
DecisionDate: | 18 May 2015 |
Before: | Refshauge J |
Decision: | 1. Vanessa West be convicted of knowingly making false statements which were capable of being used in connection with a claim for benefits payable under the Health Insurance Act 1973 (Cth). 2. Vanessa West be sentenced to two years imprisonment to commence today. 3. Vanessa West be released on the 17 September 2015, after serving four months, upon giving security in the sum of $2,000, to be of good behaviour for a period of three years and that she be subject to the supervision of the Director General or her delegate and obey all reasonable directions of the person supervising her, particularly as to treatment and counselling for gambling and depression. 4. Vanessa West be marked as a prisoner at risk. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgement and Punishment – Fraud – Submitting false claims to Medicare – Sentencing –– Maximum penalty increased whilst offending – Sentencing considerations – Gambling addiction – Mental health – Abuse of a position of trust – General deterrence |
Legislation Cited: | Crimes Act 1914 (Cth), s 4(a)(b), 4F(1), 16A(2), 21B Health Insurance Act 1973 (Cth), s 128B |
Cases Cited: | Cameron v The Queen (2002) 209 CLR 339 |
Parties: | The Queen (Crown) Vanessa West (Accused) |
Representation: | Counsel Ms K Musgrove (Crown) Mr R Davies (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number(s): | SCC 42 of 2015 |
Refshauge J:
The accused, Vanessa West, was the practice manager at Calvary Clinic, Mary Potter Circuit, Bruce, ACT. In that capacity she had access to the patient record management system of the clinic.
In September 2013, she was interviewed by investigators from the Commonwealth Department of Human Services about claims she had made to the Commonwealth Statutory Agency, Medicare, for reimbursement of what was submitted as expenses which she claimed to have paid for the provision of medical services.
On 25 February 2015, she pleaded guilty to one charge of, between 3 November 2011 and 15 July 2013, knowingly making false statements, namely presenting false tax invoices and which false statements were capable of being used in connection with a claim for benefits payable under the Health Insurance Act 1973 (Cth).
That offence is contrary to s 128B of the Health Insurance Act 1973 and attracts a maximum penalty of five years imprisonment and a fine, which was, at the time, for reasons set out below, $11,000.
Ms West appeared in the Magistrates Court on 25 February 2015 and immediately entered a plea of guilty. She was forthwith committed for sentence to this Court. That plea is at the earliest opportunity and was supported by comprehensive and full admissions she made on interview with the departmental investigators.
The facts
I had a detailed statement of facts which was tendered by consent and Ms West also gave sworn evidence to me. From that Statement and her evidence, I make the following findings.
Arrangements for paying Medicare benefits to persons, who incur medical expenses for which such benefits are payable, are as follows. The person who has paid the medical expenses will receive a tax invoice from the relevant service provider and, upon payment, a receipt. Those documents contain specific information concerning the medical service or services received and paid for, as well as the name of the patient, date of consultation, amount paid and the unique item number of the service.
The person may present the receipts and tax invoices to a Medicare office in a number of ways. If doing so in person, they present a Medicare card and the claim is checked. In order to receive the benefit the person is asked to sign a “Statement of Claim and Benefit Received” form that shows the details of the claim and the total benefit to be paid. By signing the form, the claimant certifies that he or she has incurred and paid for the expenses listed on the claim and that, to the best of their knowledge and belief, all the information disclosed in the lodging of the claim is true and correct. If accepted, the claim is then paid by an electronic transfer into the claimant’s nominated bank account.
Ms West was issued a Medicare card under her previous name, Vanessa Leary, on 2 December 1988. She has two children with her present partner, now aged 14 and 11, who were also subsequently registered on her card.
Between 3 November 2011 and 15 July 2013, she attended at the Belconnen Medicare Office on 48 separate occasions and presented a total of 178 invoices or receipts which she had fraudulently prepared, some claiming benefits for medical expenses claimed to have been incurred for medical services provided for her and some for her children.
She would create an account in her name or in the name of one of her children and then print a tax invoice and payment receipt purporting to show the provision of medical services by various medical practitioners and the payment for those services.
Once printed, she would then delete the record from the Calvary Clinic system. She frankly acknowledged that this was so that her fraudulent activity would not be discovered. Neither she nor her children ever saw any of the medical practitioners named on the tax invoices as a patient of the relevant doctor.
Each of the receipts purported to show that the charge in the tax invoice was paid either in cash or by credit card. It was not. Ms West would then attend the Medicare branch office in Belconnen and present the tax invoice and receipt, together with her Medicare card, to a Medicare Customer Services Officer. The officer would process the claim in the usual manner and Ms West would sign the Statement of Claim and Benefit Received form, following which the benefit payable in respect of the claim would be paid to her nominated bank account.
In the period of time during which Ms West made the claims she received a total of $68,868.90. She was not entitled to a benefit for any of that amount.
Subjective circumstances
A Pre-Sentence Report was tendered. Ms West, through her counsel, tendered a report from Senior Consultant Forensic Psychiatrist, Dr Stephen Allnut. As I have noted, Ms West also gave evidence. From all of this material and the submissions of counsel, I make the following findings.
Ms West was born in 1982 in Sydney. She is now 32 years old. She has three siblings and is one of the middle children. Her parents separated when she was 10 and she was raised by her mother. Her mother re-partnered but Ms West had a difficult relationship with her stepfather. She had a predominantly stable upbringing, though she was somewhat rebellious as a teenager. She ran away from home on a few occasions and experimented with alcohol. She completed year 10 and had no learning problems at school. She did have difficulty making and maintaining friends but got on well with teachers. She was bullied at high school but does not appear to have suffered from a conduct disorder.
On leaving school she worked as a hairdressing apprentice and then entered the food services section of the Gosford Hospital as a kitchen hand.
As a result of her work, she contacted dermatitis and had to take leave from her work for some months in 2009. She received worker’s compensation for the period that she was on leave. As a result of the condition she was unable to get her hands wet or allow them to have contact with chemicals. She was, however, able to return to work under restricted conditions and became a receptionist for the Cancer Care Unit of the hospital.
Her husband, however, suffered from apparently severe depression and felt that he needed to move nearer to his family in Canberra. Ms West took steps to find employment in Canberra and, subject to a face-to-face interview, was offered the practice manager position at the Calvary Clinic.
The family moved to Canberra in 2011. She was interviewed on a Friday and commenced work as the practice manager the following Monday.
Although Ms West has been employed since leaving school, she resigned her employment at the Calvary Clinic when she was interviewed about these offences on 12 September 2013. She then managed to secure employment with a real estate agency as a property manager. In that position she had no access to money and did not handle rent or other finances for the business. When she appeared in the Magistrates Court to answer the charges originally laid, she resigned that position also. She is now unemployed and is a recipient of Centrelink benefits.
Since 1999 she has been in a relationship with her present partner, although there have been strains on the relationship over time. It has, she described, been an “on and off” relationship.
It appears that, apart from adolescent abuse of alcohol, Ms West, as an adult, has no difficulties with alcohol or illicit drugs.
When Ms West took leave because she was suffering from contact dermatitis she was advised that she was unable to “do anything, including domestic chores”. As a result, she had little to occupy herself and became bored. She started attending the local club to socialise and soon began playing poker machines. Ms West’s gambling on the poker machines gradually increased.
At the end of 2009 she received a worker’s compensation payout of $36,000, by which time she was gambling three times a week between five and six hours at a time, spending up to $2,000 per day.
Ms West had not told her partner about her gambling, although he knew she was spending time at clubs. She knew she was doing the wrong thing and so she hid it from him. She wanted to stop but felt it was an escape for her. She managed to dissipate the whole of the worker's compensation payment in less than one year. She frankly admitted that she did not take steps to seek help. She said she was ashamed of what she was doing.
Her relationship with her partner became a strain. She was unhappy in the relationship which was punctuated by periods of separation and interpersonal aggression. She felt isolated in Canberra because her family lived on the central coast.
She was depressed and her sleep was poor. Her energy levels were low and she tired easily. Her motivation was down, her concentration was poor and she was “slacking off” at work because of difficulty in focussing. Her self-esteem was diminished and she blamed herself for arguments in her relationship.
By November 2011, her car had been repossessed as she was not making payments and the family was threatened with eviction for non-payment of rent. She also had a debt of $11,000 to a finance company. She was, at this stage, gambling away her entire wage. The family had no savings and her partner had been unemployed for two years. There was significant financial stress in the family.
At the time of the offending she was gambling up to five times a week, at times going out two nights a week. She was also taking sick days in order to gamble and was gambling in her lunch break.
She told Dr Allnut that her offending was an attempt to get money for gambling without letting her partner know what she was doing, as she was fearful he would become overly angry which might lead to domestic violence.
Dr Allnut expressed the opinion that she had active symptoms consistent with a major depressive episode, characterised by a depressed mood with sleep disturbance, reduced energy and motivation, poor self-esteem with feelings of worthlessness, indecision, loss of capacity for pleasure and activities, loss of interest in activities and suicidal ideation. She has suffered panic attacks.
Her gambling is consistent with a gambling disorder, manifested by persistent recurrent gambling behaviour resulting in clinically significant distress.
She has, however, now taken positive steps to deal with her disorders. She has attended five, two-hour, face-to-face sessions with a psychologist, who is a gambling counsellor with Relationships Australia, and makes regular telephone contact with a manager from that agency twice a week. She has also signed and submitted a “Self-Exclusion from Gambling Deed” for the maximum period of three years for all ACT gambling venues. She has now stopped gambling.
Dr Allnut noted that she has had a positive family history of depression and was thus biologically predisposed to developing depression. Her upbringing, volatile relationship with her partner and her increased gambling behaviour precipitated her depressive symptoms and Dr Allnut concluded:
At the time of the onset of the period of offending and persisting throughout the period of the offending, she manifested an ongoing depressive disorder which would have the effect of compounding her gambling disorder and thus her debt.
She has now seen a psychiatrist for depression and has been prescribed medication. She has, however, only commenced the medication in the last two days and it will take a few weeks to become effective.
She has had telephone contact with the ACT Mental Health Crisis Team and now speaks to a member of the Queanbeyan Crisis Team on a weekly basis. She has also spoken to a child psychiatrist about the way she should go about explaining her situation to her children.
Dr Allnut noted that it was not uncommon for gambling to be used by people who experience depression as a form of escape and considered that this applied to Ms West. Her behaviour could be understood to be motivated by her attempts, through gambling, to alleviate her depression and to address her debts without disclosing information to her partner and thus exposing herself to his anger and the possible breakup of the relationship. As a result Dr Allnut expressed his view that:
Her depression and gambling disorder (both mental conditions in the DSM5) were realistically connected with the offending conduct by contributing to the offending, providing motivation to offend.
She has expressed shame and regret for her offending behaviour and Dr Allnut concluded that she was remorseful. She said that when she was first interviewed by the departmental investigators she felt shattered and disgusted with herself.
The author of the Pre-Sentence Report concluded that she “minimised her culpability” by saying that she committed the offences in order to prevent her husband discovering her gambling. I find that a somewhat surprising statement. It seems to me that the circumstances suggest that it is an accurate explanation of the circumstances under which she came to commit the offence. If “minimising” is intended to mean that she has sought to diminish culpability by providing unrealistic explanations then it does not seem to me that this is what she has done. She presented as an honest witness and gave frank evidence, including much that was contrary to her interests. I find her to be truthful and accepting of responsibility for the serious wrongdoing that she has committed.
I accept that the offences were serious and the explanation provides little basis for reducing her culpability.
Dr Allnut further concluded:
Your client would be regarded as a vulnerable individual in a correctional environment due to the fact that she has depression. However corrective services have some psychiatric services available to treat her depression.
Ms West has no prior criminal record of any kind.
The offence
As pointed out in cases such as Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31], the maximum penalty for a statutory offence is an indication of the relative seriousness of the offence. The court should pay careful attention to the maximum penalties.
While the section itself refers to a maximum penalty of five years imprisonment and a penalty of $10,000, s 4(a)(b) of the Crimes Act 1914 (Cth) provides that where the penalty for an offence is expressed in dollars, the number of dollars is taken to be a reference to a pecuniary penalty of a certain number of penalty units, calculated by the formula set out in the section. Applying the formula, namely the amount of the penalty expressed in dollars, divided by 100, leads to a 100 penalty units being that which is attached to the offence. As at 29 November 2012, a penalty unit was $170, prior to that, however, the penalty unit was $110. The offending occurred over periods when penalty units were expressed to be both those amounts at different times. Under s 4F(1) of the Crimes Act, an increased maximum penalty expressed for penalty units only applies to offending after the date of the commencement of the provision increasing the value of the penalty units.
The Court of Criminal Appeal of the Supreme Court of Victoria had occasion to consider this issue in The Queen v Carroll (Unreported, Victorian Court of Criminal Appeal, Young CJ, Crockett and O’Bryan JJ, 155 of 1990, 15 October 1990) at pp 5-6. There the court was considering offences of defrauding the Commonwealth between specified dates. In all cases, the commencing date was 1984 but in two cases the end date was before 25 June 1986 and after that date in all of the other cases. An increase in the maximum penalty took effect on 25 June 1986. The sentencing judge was asked to apply the increased penalty for those offences which continued beyond 24 June 1986. The Court of Criminal Appeal held that that was a sentencing error. It pointed out:
If the charges had been broken up in to counts which alleged closing dates on or before 24 June 1986 and separate counts of alleged offences between dates commencing after 26 June 1986, the higher penalty would have been applicable to those counts. But that course was not pursued and therefore the lower maximum is applicable to all counts on the indictment, see s 45(a)(1) of the Acts Interpretation Act.
Accordingly, the maximum fine in this case is $11,000.
On the principles set out in Markarian v The Queen therefore it is not a very serious offence, although clearly imprisonment is a realistic penalty that will be imposed in many cases.
There is no doubt that offences of this kind, where benefits available to the public are improperly accessed, are required to be treated very seriously. In R v Purdon (Unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, McInerney J and Donovan AJ, 60659 of 1996, 27 March 1997) the court held that a custodial sentence is to be imposed unless there exist very special circumstances justifying some lesser penalty. The rationale is that the offences are easy to commit but difficult to detect, that they are widespread and that the introduction of more checks on the system would cause delays in the payment of benefits and possibly hardship to those accessing it. Likely hardship to others may be more significant in relation to social security offences but the expense of and need for medical assistance has some of the same elements.
The New South Wales Court of Criminal Appeal also said in R v Hawkins (1989) 45 A Crim R 430 at 435 that when considering the criminality of the offences, the court must have regard not merely to the amounts of money involved but the period of time over which the offences were committed.
In this case, the amount was quite substantial and the period of time a significant one. There were 58 occasions when Ms West made a claim, producing 178 fraudulent invoices and receipts and she received $68,868.90 from the claims over a period of one year and eight months.
In addition, the conduct was planned as well as sustained, it was not impulsive. The mechanism used by Ms West was also a breach of trust that had been reposed to her in her capacity as the practice manager. Indeed, Ms West explained the process to her sister who committed two offences by using the same system. These matters make the offending a serious example of the offence.
Consideration
I take into account the matters set out in s 16A(2) of the Crimes Act. I also take into account the purposes of sentencing.
I have described the nature and circumstances of the offence above. It calls for a sentence that recognises general deterrence though the rehabilitation efforts that Ms West has already taken, her insight into her offending and her prior good character do seem to me to warrant little emphasis on specific deterrence. Holding Ms West accountable and vindicating the position of the victim are also important matters. As pointed out by the court in R v White (Unreported, New South Wales Court of Criminal Appeal, Wood CJ at CL, Sully and Ireland JJ, 60704/97, 20 August 1998) at p 14:
It needs to be understood that this is not victimless crime. The remainder of the community suffer when the public purse to which they contribute, and out of which the sick and deserving are entitled to assistance, is plundered by the dishonest. Medicare and social security fraud is difficult to detect, and the public morale is affected if it is thought that people who practice it can get away with it or are treated leniently. Absent strict compliance, the costs of administering these funds necessarily increases. The benefits provided to the needy may decrease and the processing of claims may be delayed, with consequent hardship, if they have to be processed and checked minutely on every occasion for possible fraud.
I take into account the plea of guilty entered by Ms West at the very earliest opportunity and indeed reflective of the full, comprehensive and frank disclosures that she made when interviewed. As pointed out by the High Court in Cameron v The Queen (2002) 209 CLR 339 at 343; [11]-[12], the plea of guilty is not only evidence of remorse but it indicates an acceptance of responsibility and willingness to facilitate the course of justice.
Although Ms West told a stupid lie to the departmental investigators when they first approached her, namely that her name was Vanessa Smith rather than the name under which the claims had been made to Medicare, this was unlikely to have deflected the investigators from their task and on the next occasion she made the full admissions that meant the plea of guilty became inevitable and the course of justice was significantly facilitated by her cooperation. This is a significantly mitigating factor.
I take into account the subjective circumstances of Ms West as I have set them out above. While her lack of criminal history cannot be excluded it cannot be given great significance in an offence such as this because it was her good character which enabled her to be put in a position of trust where she could abuse the situation and commit the offence, see R v Lo (2007) 174 A Crim R 451 at 461; [28], and R v Ardler (2005) 53 ACSR 471 at 580; [51]. While these decisions were in a very different context, the principle is, to a large extent, applicable here.
Her prior good character has two important aspects. Although it enabled her to obtain the position she did at Calvary Clinic and to be placed in a position of trust, she did not intend at the time to engage in criminal offending as she ultimately did. She did not abuse her good character for the purposes of obtaining a position of trust which she was then intending to abuse for the purposes of obtaining funds illegally.
Secondly, her prior good character suggests, as is accepted in the Pre-Sentence Report, that she is at a low risk of reoffending and that the rehabilitation that she is now conscientiously pursuing is likely to be effective in the longer term and, therefore, more importantly, in the public interest.
This is reinforced by the helpful reference from Ms West’s mother which was tendered without objection. It shows Ms West is a loving and supportive daughter who has provided substantial assistance to Ms West’s mother and to her partner. She is a good mother to her children. It also points to some of the circumstances which show that the offending is out of character. This is particularly relevant to her chances of rehabilitation.
The mental condition of Ms West is a matter that has given me some anxiety. The principles that this Court has applied are those set out in R v Verdins (2007) 16 VR 269, especially as elaborated at 276; [32]. Those principles require an assessment of whether the condition will reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility, whether it will have a bearing on the kind of sentence that is imposed and the conditions under which it should be served and whether general deterrence is moderated or eliminated because the mental condition makes the offender not a suitable vehicle for general deterrence.
The issue of gambling addiction has been considered by the Victorian Court of Appeal in The Queen v Grossi (2008) 23 VR 500. In that case Redlich JJA, with whom Vincent JJA and Neave JJA relevantly agreed, considered the relevance of a pathological gambling addiction. It was accepted there, as I accept, that none of the stolen money has been kept by Ms West, it had been gambled away. Thus it was to feed her addiction and not for her own enrichment. His Honour, however, pointed out that it would be unusual where addiction to gambling alone would have a significant effect upon general deterrence. His Honour continued that even though gambling addiction has sometimes been viewed as analogous to drug addiction for sentencing purposes, it depends on the nature and circumstances of the offence. In particular, where a crime is not committed for gain but to satisfy a drug addiction, moral culpability is sometimes reduced. This is, of course, less where the addiction is the cause of extended, repeat offending and, indeed, such conditions rarely permit any significant moderation of sentencing considerations such as denunciation and deterrence. This approach was broadly accepted in this Court by Higgins CJ in The Queen v Foley [2001] ACTSC 109.
Redlich JJA pointed out at 517-518; [56] that the presence of a gambling addiction should not, on that ground alone, result on any appreciable moderation of sentence for the following reasons:
First, in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence. Second, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period. The long term chase to recoup losses is characteristic of those with such a disorder. Third, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning.70 Fourth, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence. Fifth, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction.71 This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession. Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated. The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission. Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.
Nevertheless, I do, as I must, take in to account Dr Allnut’s assessment to which I have referred above (at [15]) which gave an evidential basis for the link between the mental condition, the gambling and the offending. There was no challenge to his report. Thus I accept that the combination of Ms West’s mental health, her change in residence, the stresses of her relationship and her addiction wove a web in which she felt trapped and from which she felt unable to escape, even though the continued offending was, to an extent, deliberate and that she had means to address those underlying causes.
It is difficult to understand the vulnerability of a person in that situation, though it has been seen in other circumstances, such as where women the subject of domestic violence nevertheless find themselves incapable of leaving the place where they are at risk.
It seems to me that some reliance can be placed on the likelihood that the depression made Ms West less able to take control of herself and to have the necessary strength to resist the gambling urge and to seek the help that she is now getting. In that sense, her mental condition combined with her gambling addiction does serve to moderate the culpability for her offending.
I accept, however, that only limited moderation in the sentence can be afforded in this case as a result.
Reliance was also placed on the fact that Ms West’s mental health and depressive condition has a mitigating effect and was the context of the severe gambling addiction. Dr Allnut expressly found that she suffered a major depressive episode. As Redlich JJA said in The Queen v Grossi, at 518; [58], the major depressive illness was a mitigating factor properly to be taken in to account. I shall do so. The fact that there is a treatment available in prison moderates, but does not eliminate, the vulnerability of Ms West in the circumstances.
As a second issue, where consideration must be given to the conditions under which Ms West would experience a prison environment, Dr Allnut also expressly found that this would make her more vulnerable, although he acknowledged that there was, in a correctional environment, access to mental health treatment which would moderate the effect of the condition. The Crown pointed out that the presence of psychiatric facilities in prison reduced any mitigation this might attract. I do not accept that this is an answer. The experience will still be hard for her and while psychiatric treatment will help to address that, it will not eliminate it. I also take in to account that Ms West has never been in prison before.
I also take into account the fact that Ms West has taken steps to rehabilitate herself and has not been gambling for at least two months.
I take in to account, as required under the legislation, that the sentencing will have an effect on Ms West’s family, particularly her children. She has wisely and carefully taken what steps she can to prepare them.
I accept that their father is somewhat impaired in the capacity he has to provide the necessary care but this will be supplemented by the support to be provided by his mother, who is living adjacent to them and to a lesser extent, by her mother who lives on the central coast. While this is not ideal, it is, from time to time, unfortunately the inevitable consequence of the penalties that the court must impose for serious offending.
While general deterrence is not expressly mentioned in s 16A of the Crimes Act, I note that it has been held in cases such as Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 that general deterrence is a matter rightly to be considered. I accept that in this case general deterrence will be relevant.
I take into account the length of time during which the offence has been committed and the planning and the nature of the offence itself. I accept that the subjective circumstances to which I have referred will moderate the period of the term of the imprisonment and the way in which it should be served.
Having considered all of the options available, it seems to me that a sentence of imprisonment is the only appropriate sentence, having regard to the seriousness of the offending, the need for general deterrence and the nature of the offence, the amount of money involved, the time over which the offence was committed, the premeditation and planning and the nature of the offence itself. I accept that the subjective circumstances to which I have referred will moderate the period of the term of imprisonment and the way it should be served.
I had a useful sample of comparative sentences provided by the Crown and these have been taken into account and affected the approach I have taken in sentencing, although those comparative sentences did not provide much information about the precise circumstances of each offender.
I note, however, that Hall J, with whom McClure P and Bass JA agreed, found in El Rakhawy v The Queen (2011) 214 A Crim R 124 at 137; [65], after a detailed consideration of a range of sentences, that a “customary range” of sentences cannot be discerned for offences such as this one. The circumstances vary widely.
I note that Ms West has been assessed as suitable for a community service work condition to a Good Behaviour Order and to serve a term of imprisonment by periodic detention.
I have been asked to make a reparation order under s 21B of the Crimes Act. It is clear from what Gibbs J said in Murphy, Minister of State for Customs and Excise (Cth) v HF Trading Co Ltd (1973) 47 ALJR 198 at 200-201, that the court has a discretion as to whether such an order should be made. This has been followed in a number of decisions including two by intermediate appellate courts; see Vlahov v The Federal Commissioner of Taxation (1993) 93 ATC 4501; The Queen v Hookham (1993) 31 NSWLR 381 and Davies v Taylor (1997) 7 Tas R 265. The latter cases approve the approach of White J in Vlahov v The Federal Commissioner of Taxation when his Honour said at [4507]:
Nonetheless, I am of the opinion that the court has a discretion whether or not to make a reparation order. That discretion is of course to be exercised judicially. In the exercise of that discretion the court may have regard to the personal circumstances and the means of the offender.
In Davies v Taylor, the court pointed out that the onus was on the offender to prove lack of means, not on the Crown to prove means. In this case, Ms West has given such evidence and was not cross-examined on that point. I find she presently has no means to make a reparation order. Her partner is not working and has not worked for significant periods of time. After this offending, Ms West will find it very hard to find employment. Having carefully considered the position, I decline to make a reparation order. I was asked also to direct that any term of imprisonment be served by periodic detention. In my view, that is not appropriate in these circumstances.
I consider that no other sentence than a sentence of imprisonment should be imposed.
Ms West, please stand.
1. I convict you of knowingly making false statements which were capable of being used in connection with a claim for benefits payable under the Health Insurance Act 1973.
2. I sentence you to two years imprisonment to commence today. Had you not pleaded guilty, I would have sentenced you to three years imprisonment.
3. I order that on the 17 September 2015, that is after serving four months, you be released upon giving security in the sum of $2,000, to be of good behaviour for a period of three years and that you be subject to the supervision of the Director General or her delegate and obey all reasonable directions of the person supervising you, particularly as to treatment and counselling for gambling and depression.
4. I direct that you be marked as a prisoner at risk.
[His Honour then spoke directly to Ms West]
Ms West that is the formal order that I have made, I need to explain it to you briefly. I have sentenced you to a term of imprisonment. You only have to serve four months of that term of imprisonment. You will then be released.
During the period of your release, you will be required to be under supervision for three years. A probation officer will be appointed to you. That is for three reasons, the first is for a degree of control, to make sure that you do not reoffend, although I have no expectation that you will. This has been clearly a significant lesson for you. Secondly, it is so that there is someone independent that you can turn to, so, if things do start to get out of control, you can access resources and be provided with assistance and support to ensure that you never appear in the criminal courts again. Thirdly, that person can make directions about treatment for your gambling and your mental health to ensure that those matters continue to be addressed.
I have no doubt that you are unlikely to reoffend but the community is entitled to know that these offences are very serious offences and, given the nature of the offending and the circumstances of the offence, no other penalty than a period of imprisonment can be imposed.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge. Associate: Date: 2 June 2015 |
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Amendments
2 June 2015 Replace ACT Director of Public Prosecutions with Commonwealth Director of Public Prosecutions ‘Representation’
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