R v West

Case [2015] ACTSC 134 18 May 2015

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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 Davies v Taylor (1997) 7 Tas R 265 Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 El Rakhawy v The Queen (2011) 214 A Crim R 124 Markarian v The Queen (2005) 228 CLR 357 Murphy, Minister of State for Customs and Excise (Cth) v HF Trading Co Ltd (1973) 47 ALJR 198 R v Ardler (2005) 53 ACSR 471 R v Hawkins (1989) 45 A Crim R 430 R v Lo (2007) 174 A Crim R 451 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) R v Verdins (2007) 16 VR 269 R v White (Unreported, New South Wales Court of Criminal Appeal, Wood CJ at CL, Sully and Ireland JJ, 60704/97, 20 August 1998) The Queen v Carroll (Unreported, Victorian Court of Criminal Appeal, Young CJ, Crockett and O’Bryan JJ, 155 of 1990, 15 October 1990) The Queen v Foley [2001] ACTSC 109 The Queen v Grossi (2008) 23 VR 500 The Queen v Hookham (1993) 31 NSWLR 381 Vlahov v The Federal Commissioner of Taxation (1993) 93 ATC 4501
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v West

Details

AGLC: R v West [2015] ACTSC 134
Case: [2015] ACTSC 134
Decision Date: 18 May 2015

CaseChat Overview and Summary

The case of R v West involved a defendant, Vanessa West, who was charged with knowingly making false statements in order to claim benefits under the Health Insurance Act 1973 (Cth). This case was heard in a court of criminal jurisdiction. The defendant was found to have submitted false claims to Medicare, and the primary legal issue for the court to decide was the appropriate sentence for the offence, given the nature and circumstances of the case.

The court had to consider various factors in determining the sentence, including the maximum penalty for the offence, which had been increased during the period of the offending. Additionally, the court was required to take into account the defendant's gambling addiction, mental health issues, and the abuse of a position of trust. The court also needed to consider the principle of general deterrence in imposing the sentence.

The court found that the appropriate sentence for the offence was two years imprisonment, with the defendant to commence serving her sentence immediately. However, the court ordered that Vanessa West be released on 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 to be subject to supervision and counselling for gambling and depression. Finally, the court marked Vanessa West as a prisoner at risk.

Orders

Orders of the court

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.

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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Citations

AGLC Citation

R v West [2015] ACTSC 134

Most Recent Citation

R v Hoang [2015] ACTSC 138

Cases citing this decision · 12 of 12 shown

Director of Public Prosecutions v Blundell; Director of Public Prosecutions v Booth
[2025] ACTSC 16

…] HCA 70; 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Henry [1999] NSWCCA 111, 46 NSWLR 346 R v Hookham (1993) 31 NSWLR 381 R v West [2015] ACTSC 134 Vlahov v Commissioner of Taxation (1993) 26 ATR 49…
Director of Public Prosecutions v Padreny
[2023] ACTSC 286

…[2021] ACTSC 355 R v Smith (No 2) [2022] ACTSC 246 R v Stanley [2015] ACTSC 322 R v Steen [2015] ACTSC 259 R v Tonna (No 2) [2020] ACTSC 362 R v West [2015] ACTSC 134 R v Williams [2016] ACTSC 389 Ross v R [2012] NSWCCA 161 Stebbins v Tasmania [2016] TASCCA 6; 25 Tas R 421 Wyper v R; R v Wyper [2017] ACTCA 59…
R v Alberts
[2021] ACTSC 341 Para 1

…ourse, a matter of discretion and the Court is not bound to make an order on request and it should have regard to the means of the offender: R v West [2015] ACTSC 134 at [79] - [80].…
R v Pearson
[2020] ACTSC 375 Para 1

…It has been reinforced in decisions such as R v West [2015] [2015] ACTSC 134 at [79] that the decision of whether to make such an order is entirely discretionary, though, of course, that discretion must be exercised judicially. A wide range of relevant considerations, when deciding to make such an order, were taken…
Townsend v Witteveen
[2020] ACTSC 306

…R v Tucker (Unreported, ACT Supreme Court, Refshauge J, 30 August 2010) R v West [2015] ACTSC 134 R v Wheeler (Unreported, ACT Supreme Court, Higgins CJ, 22 February 2013) Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 Walto v Gilmour [2015] ACTSC 411 White v…
R v Dunn
[2019] ACTSC 75 Para 1

…I was provided with two tables of comparable cases by the parties, and was referred specifically to R v Raeyers [2015] ACTSC 134 ( Raeyers ) and Brown .…
Mooney v The Queen
[2018] ACTCA 24

…R v Riordan [2015] ACTSC 26 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v Visconti (1982) 2 NSWLR 104 R v West [2015] ACTSC 134 R v Wheeler [2000] NSWCCA 34 R v Woodman [2001] NSWCCA 310 Samani v The Queen [2017] ACTCA 23 SW v R [2013] NSWCCA 103 The Queen v Allred [2015] ACTSC 32…
R v Mooney
[2017] ACTSC 358 Para 1

…The defence also referred to R v West [2015] ACTSC 134. For one count of knowingly making false statements that were capable of being used in connection with a claim for benefits, the offender was sentenced to two years’ imprisonment (reduced from three years for the offender’s guilty plea). The sentence was suspen…
Ghoubriel v The Queen
[2016] ACTCA 66

…. The prosecutor provided a table of sentences in what she saw as generally comparable cases, including Tucker , as well as the cases of [ R v West [2015] ACTSC 134] ( West ); R v Diamond [2015] ACTSC 60; R v Foley [2001] ACTSC 109 ( Foley ); R v Dibley [2009] ACTSC, Burns J, 16 September 2013 ( Dibley ); R v Berry…
R v Reid
[2016] ACTSC 24 Para 1

…I note also, however, that the Crown says (relying on R v Huang (2007) 174 A Crim R 370 at [42]; R v West [2015] ACTSC 134 ( West ) at [62]-[63]) that a gambling addiction, even if it were accepted as the cause of Mr Reid’s offences, is not a mitigating factor except in rare cases. There has been no suggestion that…
R v Allred
[2015] ACTSC 327 Para 1

…m the Commonwealth covers a wide range of circumstances and, indeed, various other legislation creates similar offences, as I pointed out in R v West [2015] ACTSC 134 at [49]:…
R v Hoang
[2015] ACTSC 138 Para 1

…ambling addiction available in the AMC, though I am aware that there are some in the community, such as through Relationships Australia. See R v West [2015] ACTSC 134.…

View all 12 citing cases →

Cases cited in this decision · 9 of 9 shown

El Rakhawy v The Queen
[2011] WASCA 209 Para 1

…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.…
R v Grossi
[2008] VSCA 51 Para 1

…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 o…
R v Verdins
[2007] VSCA 102 Para 1

…e 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 offe…
Markarian v The Queen
[2005] HCA 25

…39 Davies v Taylor (1997) 7 Tas R 265 Director of Public Prosecutions v El Karhani (1990) 21 NSWLR 370 El Rakhawy v The Queen (2011) 214 A Crim R 124 Markarian v The Queen (2005) 228 CLR 357 Murphy, Minister of State for Customs and Excise (Cth) v HF Trading Co Ltd (1973) 47 ALJR 198 R v Ardler (2005) 53 ACSR 471 R v Hawkins (…
R v Adler
[2005] NSWSC 274 Para 1

…ut 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.…
Cameron v the Queen
[2002] HCA 6 Para 1

…d 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…
R v Foley
[2001] ACTSC 109 Para 1

…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.…
Hookham v The Queen
[1994] HCA 52 Para 1

…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 H…
Davies v Taylor
(1974) AC 207 Para 1

…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]:…

Legislation cited in this decision · 2

Crimes Act 1914 (Cth)
16A(2), 21B, 4(a)(b), 4F(1) 5 mentions (from Para 1)
Health Insurance Act 1973 (Cth)
128B 2 mentions (from Para 1)