SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The applicant Ms Squire pleaded guilty on 6 August 2007 to one count of obtaining and one count of attempting to obtain a financial advantage from the Health Insurance Commission.  She was sentenced on the first count to 30 months imprisonment and on the second count to 18 months imprisonment, with an order that she be released after nine months upon entering into a recognisance in the amount of $2,500 on condition that she be of good behaviour for three years.  She was also ordered to pay reparation of $45,685.95.  She applies for leave to appeal against her sentence contending that it was manifestly excessive and that the judge erred in not taking mitigating circumstances into account.  She also applies to adduce evidence on appeal that was not before the sentencing court.

[2] Ms Squire was 34 at sentence and a single mother with two dependent children aged 8 and 15.  She was between 31 and 32 at the time of the offences.  

[3] She had a relevant criminal history.  In 1996 she was convicted and fined for stealing.  On 6 September 2004 she was placed on 12 months probation and ordered to perform 120 hours community service for break and entering premises and committing an indictable offence in November 2003 and for breaching bail.   That offence involved the smashing of the window of the pharmacy where Ms Squire had previously worked.  She gained entry to a safe using the combination which she knew because of her employment.  She stole $400 and prescription drugs.  The present offences also occurred in 2004 over a period pre-dating and post-dating the probation order.  Significantly, she committed the second of the present offences only a few days after the imposition of the probation order. 

[4] In 2005 and 2006 she was thrice fined for breaches of bail.  In September 2006 she was convicted of breaching the 2004 probation order and re-sentenced to four months imprisonment to be released on parole after serving three months with a declaration as to time served in pre-sentence custody.  She was also sentenced to short periods of cumulative imprisonment for further bail breaches, using a carriage service to menace, harass or cause offence, fraud and wilful damage.  In November 2006 she was convicted and sentenced to 14 days cumulative imprisonment for dealing with a prohibited thing. 

[5] The maximum penalty for each of the present offences is 10 years imprisonment.[1]  The offences arose in this way.  Ms Squire created and uttered false receipts for medical services said to be provided by gynaecologist, Dr Molloy, and cardiologist, Dr Cross.  She then claimed a Medicare rebate in relation to these false receipts.  The Health Insurance Commission is the administrator of the Medicare system.  Count 1 occurred between 23 June and 1 November 2004.  Ms Squire presented 4 false invoices relating to services purportedly provided by Dr Cross and 13 false invoices for services purportedly provided by Dr Molloy.  In total, she received $45,685.95 to which she was not entitled.  She had previously been a patient of Dr Cross and made the false receipts by copying a genuine document.  She had never been a patient of Dr Molloy.  The false invoices she produced from Dr Molloy were similar to the false invoices she produced from Dr Cross.   

[6] Ms Squire committed count 2 when she attempted to make a claim in the name of Katie Elizabeth Gleeson on 24 September 2004 at the Indooroopilly Medicare office.  Ms Gleeson had previously shared accommodation for about a month with Ms Squire who at this time came into possession of Ms Gleeson's birth certificate and high school certificate.  Ms Squire used those documents to support a false Medicare claim in Ms Gleeson's name for $5,985.  Ms Squire provided her own ATM card to the Medicare officer and requested that payment be made into it.  Unsurprisingly, the officer became suspicious and did not pay the claim.  The resulting investigation led to the discovery of the commission of count 1.   

[7] The prosecutor at sentence made the following submissions. He was unaware of any statistics to demonstrate the prevalence of offences like these. The premeditated nature of the offences was an aggravating feature.  The Medicare system, like the social security system, was based on trust.  Ms Squire pleaded guilty at a very early stage (pre-committal for count 1 and during the committal proceedings for count 2).  A sentence of two and a half to three years imprisonment with release after ten months upon entering to a recognisance release order for three or four years was suggested.   

[8] Defence counsel made the following submissions.  Ms Squire gave birth to her first child when she was 19 years old.  The child has learning difficulties and was 15 at sentence.  She also had an eight year old daughter.  Ms Squire was a qualified pharmaceutical assistant.  At the time of the offences, she had a prescription drug habit.  She suffered from cluster migraines which were treated with pethidine and maxolon. She was also diagnosed with diabetes.  He tendered a copy of a report from her treating GP, Dr David Robertson, dated 2 August 2007.  It recorded that Ms Squire suffered from type 1 diabetes, hypertension, hypothyroidism, depression and anxiety, chronic pain and a gastric ulcer for which she was prescribed insulin, Karvezide, Prozac, Thyroxine, Panadeine Forte, Xanax and Omeprazole.  Defence counsel also tendered a report from general practitioner, Dr Julien Valery dated 1 February 2003.  It recorded that she suffered from migraines and may need pethidine and maxolon injections.  Progress notes from Dr Valery's surgery were tendered.  Defence counsel submitted that these notes supported his contention that Ms Squire developed an addiction to pethidine at the time of the present offences.  The notes referred to treatment for migraine on a number of occasions, but only on one occasion (1 February 2003) did they record that she was prescribed pethidine.  They recorded, consistent with counsel's submissions, that she was assaulted by her partner (the father of her eight year old child) in April 2004 (during the offending period) and suffered facial bruising. 

[9] The learned sentencing judge stated that he was not prepared to accept assertions made on behalf of Ms Squire about her medical treatment unless these were supported by other material.  Defence counsel stated that he had nothing other than the notes.  He maintained his submission that prior to the present offences she had become addicted to pethidine but had beaten her addiction and made the following additional submissions.  She committed the present offences and the break and enter of the pharmacy after separating from her partner and at a time when she was the sole support of her children and living "hand to mouth", sometimes out of a car.  She obtained pethidine from a young woman on a methadone program whom she had met through her pharmacy work.  Her latent pethidine addiction was quickly reignited.  Her use of her own ATM card in the commission of the second count is consistent with her having a desperate drug addiction at this time.  After count 2 was unsuccessful she realised that she would not receive any further funds from Medicare and again withdrew from pethidine use.  She attended Narcotics Anonymous.  In response to a query from the judge, counsel stated that Narcotics Anonymous did not provide reports and he had nothing from that organisation to support his submission.  When released on parole in late 2006, she was required to have regular urine tests.  It had not been alleged that any drugs had been detected in her urine.  She was living with her two children and participating in a community solutions program to assist her to return to the workforce.  She had received counselling from psychologist Shane Brisson.  She has recently been diagnosed with hypertrophic cardiac myalgia.  Again, no reports were tendered in support of these submissions.  She entered an early guilty plea.  The present offences were not sophisticated but resulted from her desperation to obtain drugs.  Her drug addiction  distinguished Ms Squire's case from others and supported a sentence in the range of two and a half years imprisonment but with release after serving four to six months. 

[10]  In his sentencing remarks, the learned primary judge made the following observations.  Offences like these are particularly serious as they undermine public confidence in Australia's publicly-funded health system which, although imperfect, is the envy of much of the world.  It depends on the honesty of users.  A deterrent sentence had to be imposed.  The offences revealed a deal of premeditation and involved multiple episodes of fraudulent conduct resulting in the obtaining of $45,685.95.  The total amount attempted to be defrauded raised that figure to $50,494.50.  The explanation provided for the offending was highly improbable and unsupported by medical reports, the tendered material or Ms Squire's criminal history.  There had been no restitution and there was no real prospect of it.

[11]  Ms Squire is representing herself in the present application.  It should be noted that the matter was originally listed for hearing in November last year but was de-listed at her request.  She applies to adduce evidence to this Court.  The only further evidence she has presented is an affidavit from the solicitor who represented her at her sentence.  He swears that two days after the sentence his office received a letter from Mr O'Regan, the director of Assure Programs Employee Assistance Program.  The letter records that Ms Squire attended counselling there on eight occasions between May and September 2004.  Had he had the letter at sentence, he would have asked counsel to tender it.

[12]  Ms Squire has presented to this Court clear written and oral submissions in support of her applications.  She submits that the judge erred in not accepting that she was severely drug addicted and desperate at the time of the offences.  She claims that she has medical records (which she has not placed before the Court in a proper form) which demonstrate that she was addicted to narcotics prior to November 2002.  She also claims (although without any evidentiary support) that her various medical conditions have deteriorated so significantly since her incarceration that she has been deemed unfit medically to either work in the prison or to transfer to a low security facility.  As a result, she has had to serve her term of imprisonment in maximum security with associated restrictions and impediments.  She emphasises that she has now been drug-free for almost four years.  She submits that these factors, when combined with her early guilty plea, warrant her release from prison after four to six months.

[13]  The material before the primary judge supporting Ms Squire's claimed addiction to prescribed drugs as the reason for her involvement in the present offences and her subsequent rehabilitation was by no means compelling.  It turned largely on her assertions made through her counsel.  She did not give supporting oral evidence.  Counsel did not request an adjournment to obtain further material.  The judge was entitled to reject defence counsel's submissions in this respect.  The contention that the judge erred in not taking Ms Squire's explanation and personal circumstances into account is not made out, especially in the light of the order for her early release.

[14]  This Court does have the power to receive evidence which was not before the sentencing judge if its admission would mean that some sentence other than that imposed was warranted in law: R v Maniadis.[2]  The only evidence placed before this Court is that in the affidavit of Ms Squire's former solicitor and the letter from Mr O'Regan.  The letter states only that she participated in confidential counselling on a number of occasions in 2004.  It does not demonstrate that, if it were admitted in evidence before this Court, some other sentence than that imposed at first instance was warranted in law.  The same is equally true in respect of any evidence of her narcotic use before November 2002, well before the commission of the present offences.  In any case, dysfunction and drug abuse may explain why Ms Squire committed these offences, but is no significant counterweight to the serious aspects of them to which I shall shortly refer in more detail.  The application to adduce further evidence should be refused.

[15]  It follows that Ms Squire's application for leave to appeal must fail unless she can demonstrate that the sentence imposed is manifestly excessive in all the circumstances. 

[16]  Ms Squire was a mature woman with a relevant prior criminal history and some minor subsequent criminal history.  She committed two serious offences involving the defrauding of Medicare, this country's publicly-funded health system.  It is common knowledge that Medicare's administrative costs are high.  Offences like these must greatly add to those costs ultimately shouldered by taxpayers.  They also cause the millions of legitimate claimants to be burdened with more onerous and complicated procedures before receiving their entitlements.  She received over $45,000, none of which has been or is likely to be repaid.  She attempted to obtain a further $5,985.  Her fraudulent conduct was sustained and premeditated.  It warranted a significant deterrent penalty: see R v Holdsworth.[3] The sentence imposed in Holdsworth, a much less serious example of Medicare fraud than the present, shows that Ms Squire's early release on parole after nine months gave compassionate and generous recognition to her guilty plea, her personal circumstances, family responsibilities and the effect of her imprisonment on her dependent children.  The sentence was not manifestly excessive.  The application for leave to appeal against sentence should be refused.

ORDERS: 

1.Application to adduce evidence refused.

2.Application for leave to appeal against sentence refused.

[17]  MUIR JA:  I agree with the reasons of McMurdo P and with her proposed orders.

[18]  MACKENZIE J:  I agree that the application to adduce further evidence and application for leave to appeal against sentence should be refused for the reasons given by the President.