R v Whitestyles[2023] QCA 209

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  The applicant pleaded guilty on 31 August 2023 to three counts of fraud.  Count 1 was particularised that on various dates between 4 December 2018 and 11 November 2021 the applicant dishonestly obtained bank credits and a sum of money from persons contrary to s 408C(1)(b) of the Criminal Code (Qld).  Count 2 was particularised that on various dates between 1 April and 10 June 2019 the applicant dishonestly induced one doctor to authorise prescriptions that the doctor was lawfully entitled to abstain from doing contrary to s 408C(1)(f) of the Code.  Count 3 was particularised that on various dates between 15 November 2019 and 7 February 2021 the applicant dishonestly induced another doctor to authorise prescriptions that the doctor was lawfully entitled to abstain from doing contrary to s 408C(1)(f) of the Code.  The maximum penalty for each count is imprisonment for five years.
2. [2]
   The sentencing proceeded on 4 October 2023 when the applicant was sentenced to imprisonment for 19 months for count 1 that was ordered to be suspended after the applicant had served a period of three months in custody and the operational period for the suspended term of imprisonment was fixed at three years.  For each of counts 2 and 3, the applicant was sentenced to three months’ imprisonment to be followed by probation for the period of three years.  The commencement date for the probation order was the date of sentence: s 92(2) of the Penalties and Sentences Act 1992 (Qld) (Act).
3. [3]
   The grounds of appeal are:

1. The sentence was manifestly excessive in all the circumstances.
2. The learned sentencing judge erred in placing too much emphasis on s 9(2)(c) of the Act.
3. The sentencing judge erred in failing to have regard to s 9(2)(a) of the Act or alternatively in failing to have sufficient regard to s 9(2)(a) of the Act in imposing a sentence of actual imprisonment.
4. The sentencing judge erred in not recognising that the applicant’s mental illness reduced utility in imposing a deterrent sentence and that a sentence involving actual imprisonment would weigh more heavily on the applicant.

Circumstances of the offences

4. [4]
   The applicant operated an alternative medical clinic with her partner who was a registered nurse practitioner.  The applicant held herself out to be a registered nurse when dealing with patients when she was not.  Count 1 relates to consultations she had with six patients and dishonestly obtained a total of $8,965.  At the time of consulting with the complainants, the applicant knew or did not reasonably believe that she had authority to provide medical consultations and treatment.  She referred patients for blood tests, reviewed blood test results, recommended treatment plans and administered vitamin injections and intravenous infusions or directed other persons to do so.  Had the patients known the applicant was not a registered nurse, they would not have taken medical advice from her.  The applicant recruited two doctors to provide consultancy services to the applicant’s business.  Both doctors authorised prescriptions in circumstances where the applicant, holding herself out as a registered nurse, indicated she had reviewed patients and proposed certain prescriptions to be issued.  There were 36 prescriptions which were the subject of count 2 and 1,245 prescriptions that were the subject of count 3.
5. [5]
   The applicant’s counsel had made a submission to the sentencing judge that the potential for damage to the complainants for count 1 was mitigated by the involvement of the two doctors who prescribed the medications to the applicant’s patients.  That submission was negated to an extent by comparison of the periods for which the two doctors were engaged by the applicant with the periods of treatment for the six complainants for count 1 that spanned a period of almost three years between 4 December 2018 and 11 November 2021.  Three of the patients had continued with treatment after the period particularised in count 3 for the involvement of that doctor.  Another two patients had commenced treatment prior to the involvement of either doctor during the periods particularised in counts 2 and 3.
6. [6]
   The applicant was arrested and charged with offending related to the two doctors on 12 May 2021.  She was charged with further offences on 22 November 2021.  One of the complainants for count 1 made a complaint in December 2021 which resulted in the applicant being issued with a notice to appear.  The charges originally brought against the applicant were more serious than those to which she ultimately pleaded guilty.

The applicant’s antecedents

7. [7]
   The applicant was born in 1974 and was 49 years old when sentenced.  She had a relevant criminal history of two offences under s 135.2(1) of the Criminal Code (Cth) committed respectively between 24 June 2016 and 16 March 2017 and between 12 and 15 March 2018.  Those offences were committed during her employment in an administrative role in a medical clinic.  Her duties involved processing Medicare claims for patients.  She intentionally claimed rebates from Medicare for medical services provided to others that were paid into her bank account.  She obtained a financial advantage for herself from the Commonwealth of $10,485.60 for the first offence and $143.40 for the second offence.  She pleaded guilty on 14 July 2021 and was released without proceeding to conviction under a recognisance release order on conditions that she make restitution of $10,629 to the Commonwealth and be subject to probation for 12 months and a good behaviour bond for two years.  The applicant was therefore subject to the orders for the Commonwealth offences during the latter part of her offending comprising count 1.
8. [8]
   An affidavit sworn by the applicant on the day of sentencing was tendered before the sentencing judge.  It confirmed the applicant was in poor health and continued to suffer from mental health illness in the form of PTSD, anxiety disorder and major depressive illness.  The applicant exhibited the report she obtained from forensic psychologist Ms Ferrari in mid 2021 for the purpose of her sentencing for the Commonwealth offences, as the applicant said she could not afford to obtain a more up to date report.  She expressed the view that she still felt the same type of symptoms that she did at the time of Ms Ferrari’s report.
9. [9]
   Ms Ferrari noted that “imprisonment would likely weigh more heavily” on the applicant than a person without her conditions, as there was potential for significant mood fluctuation resulting in co-morbid depression and anxiety in individuals with PTSD and the volatile nature of the imprisonment can trigger impulsive, disproportionate responses further exacerbating her symptoms and the risk of decompensation.  Ms Ferrari also suggested that it was unlikely that the applicant’s mental health would be adequately treated in custody, given the need for consistent, regular psychological interventions and specialist interventions for her PTSD.  The applicant did not, however, disclose in her affidavit that she was undergoing treatment of that type leading up to the sentencing for the subject offences.

Sentencing remarks

10. [10]
    The sentencing judge accepted that the pleas of guilty were timely.  After referring to the applicant’s antecedents, the sentencing judge noted that the applicant was “remorseful and embarrassed” by her conduct.  The sentencing judge expressly stated that his Honour had regard to the principles set out in s 9(1) and s 9(2) of the Act.  The delay in her charges being finalised was significant for her because of her mental health issues.  The sentencing judge noted that there was a serious aspect of the offending in that the applicant pretended to be a nurse when she was not and some of the treatment of the patients (that was the subject of count 1) was outside the period where the doctors were involved in the applicant’s business.  The sentencing judge noted the submission of the applicant’s counsel that her physical and mental health issues would make prison time more burdensome for her but noted that the applicant’s counsel accepted that was not a reason of itself not to order a term of imprisonment.  The sentencing judge also noted relevant traumatic aspects of the applicant’s personal history.  His Honour had viewed the letters of apology that were written by the applicant to each of the complainants for count 1 and the two doctors and accepted that those letters set out her genuine feelings and remorse.  There had been no further offending in the period commencing with the charges that were first imposed in relation to the offending and the date of sentencing.  The sentencing judge stated:

“These are serious offences, and there is a need for general deterrence and public denunciation. There is also a need for specific deterrence, although I do note what is said in that context about your particular mental health issues and the impact that has on specific deterrence.”

11. [11]
    The sentencing judge expressly acknowledged that the seriousness of the applicant’s offending, the need for general deterrence and specific deterrence, community protection, denunciation and the nature of the applicant’s conduct had to be balanced against the factors in favour of the applicant including the matters of mitigation that were identified in the sentencing remarks.  The sentencing judge identified “an extra level of criminality” which was of a serious kind in the applicant holding herself out to be a qualified nurse which she was not which went beyond the sums of money involved in the fraud.

Did the sentencing judge make the specific errors alleged in the grounds of appeal?

12. [12]
    The applicant’s counsel focuses on the three specific errors identified in the grounds of appeal as the primary reason why she should succeed on her sentence leave application.  The first factor is failing to have regard to s 9(2)(a) of the Act that a sentence of imprisonment should be imposed as a last resort and a sentence that allowed an offender to stay in the community was preferable.  It cannot be said that the sentencing judge overlooked this factor when reference was made to it in the course of sentencing submissions, his Honour expressly stated that he had regard to the principles set out in s 9(2) of the Act, and the applicant’s counsel in the written submissions had quoted s 9(2) in full.  It is apparent from the sentencing remarks that the sentencing judge’s decision to structure the sentences to include a short term in actual custody was related to the sentencing judge’s conclusion that there was a serious aspect to the applicant’s offending in holding herself out to be a qualified nurse.
13. [13]
    The second specific error is based on the weight that the sentencing judge placed on the nature of the offending and the seriousness of the offending pursuant to s 9(2)(c) of the Act.  It was not unreasonable for the sentencing judge to focus on those aspects of the offending which were relevant factors and the sentencing judge appropriately identified the applicant’s conduct of holding herself out as a registered nurse as adding to the seriousness of the fraud.
14. [14]
    As to the third specific error based on the applicant’s mental illness, it was made clear in the sentencing remarks that the sentencing judge had regard to those conditions and the submission that was made, based on Ms Ferrari’s report, that imprisonment would be burdensome for the applicant. It explains the selection of the custodial component of three months only in relation to the head sentence of 19 months for count 1.  In view of the fact that the applicant was not receiving treatment for her mental health conditions in the nature of psychological interventions at the time she was sentenced, the difficulty in accessing those services in prison was irrelevant.  The sentencing judge did focus on the impact of the applicant’s mental health conditions on specific deterrence as a factor but did consider general deterrence remained a relevant sentencing factor.  That was a matter for the sentencing judge: see R v Yarwood (2011) 220 A Crim R 497 at [24].  In view of the nature of the offending based on the applicant’s holding herself out as a registered nurse in defiance of the registration system for health care professionals which protects the public, general deterrence was not irrelevant.  In the circumstances, the fact that the sentencing judge has identified the need for general deterrence as one of the purposes of punishing the applicant was not an error.
15. [15]
    The applicant cannot succeed on the basis of the grounds of appeal based on specific errors.  Having regard to the applicant’s age, the period over which counts 1-3 were committed and the nature of the offending, particularly in relation to count 1 that involved treatment of six members of the public over almost three years, the applicant cannot show that sentences which involved an actual custodial component of three months were manifestly excessive.

Order

16. [16]
    The order which should be made is: Application for leave to appeal refused.
17. [17]
    FLANAGAN JA:  I agree.
18. [18]
    WILLIAMS J:  I agree.
19. [19]
    MULLINS P:  The order of the Court is: Application for leave to appeal refused.