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Ryan v The King

Ryan v The King

Case [2024] VSCA 74 23 April 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0202

TAMMY LOUISE RYAN	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 April 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 74
JUDGMENT APPEALED FROM:	[2023] VCC 1871 (Judge Maidment)

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CRIMINAL LAW – Appeal – Sentence – Dishonestly obtaining financial advantage from Commonwealth entity by deception – Total effective sentence 31 months’ imprisonment – Release after 12 months upon entering recognisance of $2,500 – Whether sentencing judge failed to take into account extra-curial punishment – Information about applicant’s offending shared publicly – Reputational damage to be expected – No basis for moderating sentence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether total effective sentence manifestly excessive – Leave to appeal refused.

Criminal Code (Cth) s 134.2(1).

R v Squire [2008] QCA 19; Director of Public Prosecutions (Cth) v Au [2023] VCC 68; Director of Public Prosecutions (Cth) v Simpson [2023] VCC 1129; Dickinson v The Queen [2021] VSCA 50 considered.

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Counsel
Applicant:		Ms B East
Respondent:		Ms K Breckweg
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

MCLEISH JA:

The applicant was the practice manager of a medical practice. Her duties included hiring and paying staff members, assisting medical practitioners to apply for provider numbers from the Department of Health and Human Services and lodging claims with Medicare.
Between 13 March 2018 and 20 March 2019, the applicant used the provider numbers of eight medical practitioners employed in the practice to lodge 115 claims with Medicare which contained false information. The claims falsely stated that the medical practitioners in question had provided 1,591 professional services related to 757 individuals that were eligible to be claimed under the Medicare Benefits Schedule. In addition, 816 bulk bill incentive payments were claimed.
As a result of the claims, Medicare benefits totalling $81,228.20 were paid by Medicare to a bank account in the name of the practice. The applicant was the sole signatory of the account.
In addition, the applicant made 13 further false claims relating to 49 professional services and 16 bulk bill payments, in the total amount of $2,370.80. These claims were not paid by Medicare. These claims stated that services were provided to the applicant, a dependent of the applicant and former patients of the practice. In fact, the services had not been provided.
The applicant pleaded guilty to two charges. The first charge related to the payments that were successfully obtained. The second charge related to the attempted payments. The relevant offence was dishonestly obtaining a financial advantage from a Commonwealth entity by deception, contrary to s 134.2(1) of the Criminal Code (Cth) (the ‘Code’).[1] Each offence carried a maximum penalty of 10 years’ imprisonment.[2]
[1]Charge 2 relied also on the attempt provisions in s 11.1(1) of the Code.
[2]Code, s 134.2(1).
On 13 October 2023, a judge…

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 Ryan v The King

Details

AGLC: Ryan v The King [2024] VSCA 74
Case: [2024] VSCA 74
Decision Date: 23 April 2024

CaseChat Overview and Summary

Ryan appealed against the sentence imposed by the County Court of Victoria, contending that the total effective sentence of 31 months' imprisonment was manifestly excessive and that the sentencing judge had failed to take into account the extra-curial punishment he had already suffered. Ryan was convicted of obtaining a financial advantage by deception from the Commonwealth. The sentence imposed was 31 months' imprisonment, to be served concurrently with a two-year sentence for a related offence. Ryan was released after 12 months upon entering into a recognisance of $2,500. Ryan’s argument regarding extra-curial punishment was based on the fact that information about his offending had been shared publicly, causing him reputational damage. The appeal was heard by the Victorian Court of Appeal.

The primary issues before the court were whether the total effective sentence was manifestly excessive and whether the sentencing judge had failed to take into account the extra-curial punishment. The court noted that the sentencing judge had considered the extra-curial punishment by taking into account the public notoriety of Ryan’s offending and its impact on his reputation. The court held that there was no basis to moderate the sentence on these grounds. The court also considered whether the total effective sentence was manifestly excessive, but found that it was within the range of sentences that could be considered appropriate for the offence.

The court held that Ryan’s appeal should be dismissed. The total effective sentence was not manifestly excessive, and the sentencing judge had adequately taken into account the extra-curial punishment in the form of reputational damage. The public notoriety of Ryan’s offending and its impact on his reputation had already been considered by the sentencing judge, and there was no basis to moderate the sentence on this ground. The court also noted that Ryan had already served 12 months of his sentence before being released on recognisance. The appeal was dismissed, and Ryan’s sentence of 31 months’ imprisonment, to be served concurrently with a two-year sentence for a related offence, stood.

Orders