SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  On 3 July 2008 the applicant was convicted on her own plea of one count of unauthorised writing of prescriptions between 27 August 2002 and 2 November 2004 in contravention of s 103(5)(h) and s 88A of the National Health Act 1953 (Cth).

[2] The applicant was sentenced to 12 months imprisonment, to be released forthwith upon giving security in the sum of $1,000 to be of good behaviour for a period of two years.  She was ordered to pay $27,821.93 by way of reparation to the Commonwealth in respect of the subsidy provided by the Commonwealth of the cost of drugs prescribed by the applicant.  The learned sentencing judge rejected an application that no conviction be recorded.

[3] The applicant now seeks to appeal against her sentence on the grounds that:

"(a)The learned sentencing judge failed to place sufficient weight on mitigating factors in favour of the applicant;

(b)The sentence imposed is manifestly excessive."

The circumstances of the offending

[4] The applicant is a medical practitioner in general practice in Queensland since 1990.  She was approved as a provider and prescriber under the Medicare Program and the Pharmaceutical Benefits Scheme ("PBS") administered by the Commonwealth Government through the agency of Medicare Australia.

[5] The PBS scheme provides for subsidies for the payment of drugs prescribed for a specific purpose.  Where the drugs have other purposes they are referred to as Restricted Benefits.  It is the responsibility of a prescriber to ensure that drugs which attract subsidies under the PBS are prescribed for the purpose specified in the PBS.  If the prescriber is of the opinion that the patient does not require the drugs prescribed for a specified purpose, the prescriber must prescribe the drug as a private script, not as a Restricted Benefits drug.

[6] During the relevant period, the applicant gave:

(i) 94 prescriptions for Anastrozole to 31 male patients otherwise than for the purpose specified in the PBS.  These prescriptions attracted a total subsidy of $18,572.47;

(ii) 38 prescriptions for Anastrozole to 17 female patients otherwise than for the purpose specified in the PBS.  These prescriptions attracted a total subsidy of $7,820.85; and

(iii) 34 prescriptions for Selegiline to 25 male and female patients otherwise than for the purpose specified in the PBS.  These prescriptions attracted a total subsidy of $1,428.61.

[7] Anastrozole may increase testosterone levels in older men, and Selegiline may be used to slow the aging process.  These drugs attract subsidies under the PBS when prescribed to treat advanced breast cancer or late stage Parkinson's Disease respectively.  The patients for whom the applicant prescribed these drugs were not suffering from these conditions.

[8]  The applicant was interviewed by officers of Medicare Australia on 12 April 2006.  She admitted that she knew that the drugs in question were restricted and that where they were not to be used for the specified purposes, the PBS subsidy was not available.  She agreed that the scripts she wrote asserted that subsidy was payable under the PBS.

The sentence

[9] It was said on the applicant's behalf that she was motivated solely by her desire to help elderly patients who would otherwise have been unable to afford the drugs prescribed by the applicant.  She received no financial benefit.  It was suggested, though, that the applicant did receive some benefit by way of the enhancement of the goodwill attaching to her medical practice.

[10]  The applicant was 35 years old when the period of offending began.  She was 40 years old when she was sentenced.

[11]  At sentence, the court was informed that the applicant was prepared to make reparation of the amount of $27,821.93.

[12]  The applicant was able to tender a number of enthusiastic testimonials from patients relating to her commitment, skill and success as a medical practitioner.

[13]  The learned sentencing judge acknowledged that the applicant was willing to make reparation and that the applicant had co-operated fully with the authorities.  His Honour also recognised that there were personal factors which were apt to mitigate her sentence.  Nevertheless, his Honour held that the consideration of general deterrence was so important in this case as to lead him to impose the sentence the subject of this application on the basis that he considered that no lesser sentence was appropriate.

The application to this Court

[14]  In this Court, Mr Farr SC, on behalf of the applicant, submitted that the learned sentencing judge erred in a number of respects.  First, it was said that there was inadequate recognition of the mitigating features of the case.  Secondly, it was said that his Honour erred in placing excessive emphasis on general deterrence for an offence for which no comparative sentence could be produced.  Thirdly, it was said that his Honour erred in relying upon the decision of Newton DCJ in R v Clark,[1] which, it is said, was a far more serious case, to impose an almost identical sentence.  Fourthly, the sentence was imposed at the very top of the range proposed by the Crown Prosecutor.  Fifthly, it is said that his Honour failed to appreciate that the order for full reparation constituted a substantial financial penalty, because the reparation was not of an ill-gotten gain but a payment for which the applicant had not received any corresponding financial benefit.  On the applicant's behalf, it is said that no conviction should have been recorded against the applicant.

[15]  In my respectful opinion, it cannot be said that the mitigating factors in the applicant's favour were not recognised by his Honour:  the orders which his Honour made did not involve any period of actual custody or a fine.  That his Honour did not decline to record a conviction does not mean that he failed to take mitigating factors into account:  it simply means that the serious nature of what was a deliberate and persistent offence by a mature person in a position of privilege and responsibility required the recording of a conviction and the imposition of punishment.  The imposition of a fully suspended sentence of imprisonment under s 20(1)(a) of the Crimes Act 1914 (Cth) was itself a substantial moderation of the sentence;  and reflected his Honour's expressed view that the applicant was entitled to credit for her co-operation with the authorities and her willingness to make reparation.

[16]  The exercise of the discretion under s 19B of the Crimes Act to proceed without recording a conviction for an offence has been said to be "exceptional".[2]  A prerequisite to an order under s 19B of the Crimes Act is that the sentencing judge be of the opinion that it is inexpedient to inflict any punishment, or any punishment other than a nominal punishment, having regard to, inter alia, "the extent (if any) to which the offence is of a trivial nature".  In this case, the learned sentencing judge was clearly of the opinion that the applicant's offence was so serious that it was inexpedient to inflict no punishment, or no punishment other than a nominal punishment, and, in particular, that it called for a deterrent sentence.  In these circumstances, it cannot be said that his Honour erred in his rejection of the suggestion made on the applicant's behalf that no conviction should be recorded.  The learned sentencing judge was entitled to act on the view that the claims of general deterrence would not be sufficiently served by a sentence which did not record that conduct of the kind engaged in by the applicant is, and must be proclaimed to be, truly criminal.  Further, the learned sentencing judge was entitled to regard the applicant's persistent use of her privileged position to divert public funds over more than two years as too serious to support a decision not to record a conviction.

[17]  It is clear that the learned sentencing judge was right to regard general deterrence as relevant.  It cannot seriously be suggested that the absence of a truly comparable case in which a deterrent sentence had been imposed meant that the learned sentencing judge erred in adopting such an approach.  The absence of a comparable case is not a fetter on the sentencing discretion. 

[18]  The argument advanced on the applicant's behalf in reliance upon the decision of Newton DCJ in R v Clark is without substance.  The offender in that case was a medical practitioner who defrauded Medicare of $24,275.97.  He made no personal gain from his fraud.  He was sentenced to 12 months imprisonment to be released forthwith upon entering into a recognisance in the sum of $2,000 to be of good behaviour for three years.  On the applicant's behalf, it is said that the learned sentencing judge erred in treating R v Clark as a comparable case.  In R v Clark, the offence in question was defrauding the Commonwealth, for which the maximum penalty was 10 years imprisonment, whereas the maximum penalty which might have been imposed in this case was a $5,000 fine or two years imprisonment or both.  It is also said that R v Clark involved a fraudulent scheme whereas the applicant's offending in this case was well-intentioned, albeit misguided. 

[19]  It may be accepted that the offending in this case did not involve an intention to defraud, but the applicant was aware that her prescription of Restricted Benefits was not permitted by the PBS.  In this respect, in terms of the need for general deterrence of this kind of conduct, the applicant's offending was, as his Honour recognised, less serious than the offending in R v Clark, but it was still such as to call for a deterrent sentence. 

[20]  In any event, the learned sentencing judge did not treat the offending in this case as comparable with that in R v Clark:  his Honour expressly stated that the offending in that case was more serious.  Further, the imposition of a just sentence in this case did not require the learned sentencing judge to seek to grade relative degrees of criminality so that the sentence in this case was calibrated to "fit" neatly with the sentence imposed in R v Clark.  The sentencing discretion is wide, and the question is whether the sentence which was imposed was outside the range of a sound exercise of that discretion.  That question must be considered bearing in mind the purposes which inform the exercise of the discretion. 

[21]  Next it must be said that, while there are many kinds of crime where the efficacy of deterrent sentences in the suppression of crime may be doubted – crimes of passion are an obvious example – crimes which involve a deliberate decision to abuse governmental arrangements for the provision of social welfare are crimes of calculation.  It is not at all unreasonable to suppose that in this field of conduct potential offenders may be deterred from offending by calculating the prospect of punishment.  Indeed, in R v Holdsworth,[3] Pincus JA and Thomas J said that the imposition of penalties is the only way to deter "those minded to defraud governmental agencies" from engaging in this kind of activity.  As I have said, this is not a case where a governmental agency has been a target of fraudulent misconduct, but the applicant here deliberately breached her obligations as a prescriber of drugs under the PBS.

[22]  A deterrent sentence in a case like the present is distinctly likely to be brought to the attention of persons in the privileged position occupied by the applicant in the administration of the PBS.  It can reasonably be expected to alert them that, if they choose to take it upon themselves to subvert arrangements made for the deployment of scarce public funds in the public interest, they do so at the risk of punishment.

[23]  It should also be recognised that it was open to the learned sentencing judge to proceed on the basis that the applicant's motivation was not entirely altruistic.  The applicant enhanced the goodwill attaching to her practice by breaking the rules of the PBS in circumstances where the viability of the PBS depends on medical practitioners complying with the rules.  When one bears in mind that the applicant derived some general economic benefit from her decision to act in contravention of the rules to require the applicant to make reparations to the PBS of the sum of which the PBS was unlawfully bilked does not seem to be an excessive punishment.

Conclusion and order

[24]  In my respectful opinion, the learned sentencing judge did not fail to recognise the factors in mitigation of the applicant's offence.  Nor was the sentence manifestly excessive.

[25]  I would refuse the application for leave to appeal against sentence.

[26]  HOLMES JA:  I agree with the reasons of Keane JA and the order he proposes.

[27]  FRASER JA:  I agree with the order proposed by Keane JA and with his Honour's reasons for the order.