IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-21-00307 

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SAM BEITNER 		

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JUDGE:	HIS HONOUR JUDGE O’CONNELL 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	3 October 2023	
DATE OF SENTENCE:	17 October 2023	
CASE MAY BE CITED AS:	DPP v Beitner	
MEDIUM NEUTRAL CITATION:	2023 VCC 1893		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW 
Catchwords: 	Plea of guilty; 2 charges of dishonestly obtain a financial advantage by deception from a Commonwealth entity totalling $318,435.35; Medical practitioner who falsely claimed 212 bulk billed batches of rebates from Medicare; Offender in critically compromised physical ill health with Alzheimer’s disease and major depressive disorder; Full reparation made; Whether offender a suitable vehicle for general deterrence; Significant utilitarian value of plea. Verdins principles 2, 5 & 6 engaged.
Legislation Cited:	Crimes Act 1914 (Cth); Sentencing Act Vic 1991 (Vic). 
Cases Cited:	R v Verdins (2007) 16 VR 269.
Sentence:	Total effective sentence 3 years’ imprisonment. Immediate release on Recognizance Release Order for a period of 18 months. 

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APPEARANCES:
	Counsel	Solicitors	
For the CDPP	Ms K. Breckweg
Ms E. Addams
	Commonwealth Office of Public Prosecutions	
			
For the Accused	Mr R. Richter KC
Mr D. Hannan	Doogue & George	

HIS HONOUR:
Introduction
1	Sam Beitner you have pleaded guilty to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity by submitting false claims to Medicare Australia for medical services which you did not provide.
2	During the timeframe of the Indictment - 4 January 2013 through until 6 April 2016 - you were a medical practitioner registered with Medicare. On 1 November 1997 you sought and obtained a Medicare medical services provider location number for an address at Tara Avenue Kew. On 5 February 2013, you were granted another Medicare medical services provider location number for the address at McKenzie Street Melbourne.
3	During the charge period you submitted 212 false bulk billed claim batches for rebates to Medicare. The claims related to the provision of 5,108 medical services to 330 individual patients between 31 January 2011 and 28 February 2016 at the Tara Avenue and McKenzie Street locations. All 212 bulk bill batch claims were false because the services claimed were never rendered by you, or indeed anyone else.
4	The details of the 330 patients, the subject of these claims, were obtained through your employment as a general medical practitioner at the following medical clinics: St Kilda Super Clinic, Gap Road Medical Centre, Greenvale Medical Centre and Mill Park Super Clinic. In these false claims you represented that you had provided medical services to these patients at the Tara Avenue or McKenzie Street addresses. In fact, those patients never attended either of those addresses. Investigators determined that both the Tara Avenue and McKenzie Street locations lacked the basic facilities required to operate medical practices.
5	Tara Avenue was your private residential address where you lived with your wife. There was no functioning medical consulting suite and no medical equipment found at this property. The McKenzie Street address was a four-storey office building in Melbourne. When investigators attended that address on 28 April 2016 it appeared to be in the process of being renovated and the interior of the ground floor was generally dirty, derelict, and there was no area where any medical services could practically be provided.
6	The investigation further revealed that at various times in 2013 and 2015 you were overseas, yet you claimed benefits for services purportedly rendered over those periods. Similarly, on particular dates in December 2011, June 2014, December 2014 and April 2015 you were hospitalised, yet also claimed benefits for services purportedly rendered. In total you obtained $318,435.35 in Medicare benefits to which you were not entitled.
7	Both charges are between dates charges which represent a course of conduct that you engaged in by dishonestly obtaining a financial advantage by deception by submitting the false claims and receiving payment for those claims. The commencement date of each charge is the date on which you were paid the first payment arising from submitting a false claim to Medicare and the end date represents the date on which you were paid the last such payment.
8	Charge 1 pertains to the period of 4 January 2013 to 14 November 2014 where 131 bulk billed batches of claims were submitted for 2,332 services purportedly provided to 112 patients at Tara Avenue Kew. The funds claimed were paid via electronic funds transfer into a bank account you held with your wife in the name Newcoast Pty Ltd, a company of which you were the sole director and shareholder. The total amount in benefits paid in respect of those claims was $145,812.50.
9	Charge 2 pertains to the period of 14 November 2014 to 6 April 2016 where 186 bulk bill batches of claims were submitted for 2,776 services purportedly provided to 268 patients at McKenzie Street Melbourne. The funds claimed were paid to you via electronic funds transfer into a bank account in the name of McKenzie Square Developments, a company of which you were secretary and co-director with your wife. The total amount in benefits paid in respect of those claims was $172,622.85.
10	As to the disposition of those monies the Summary of Prosecution Opening for Plea states: 
Bank statements of the offender reveal a spending pattern across both accounts whereby sums of money were deposited into the offender’s bank accounts, sums were then contemporaneously withdrawn from ATMs at or near Crown Casino at time when the offenders Crown Casino loyalty card was also in use at the casino (Exhibit A).
Procedural history
11	Search warrants were executed in respect of this investigation on 28 April 2016. You were charged on summons on 2 May 2018. You were then subject to a number of serious health problems to which I will refer but which caused some considerable delay even before the COVID-19 pandemic delays took effect.
12	On 15 February 2021 the matter proceeded to this court via a straight hand up brief. No witnesses were cross-examined however you pleaded not guilty. After further delays primarily caused by COVID-19, the matter was set down for trial with a six week estimate in February 2023. Your case was then managed in the long trials list until you were arraigned on 19 January 2023 at which time you pleaded guilty to a lesser number of charges alleging a reduced quantum than had previously been alleged.
Personal history
13	You were born in April 1945 in Kraków, Poland and moved to Australia with your family as refugees when you were aged five. You are now 78 and a half years of age.
14	You quickly learned English and attended primary school in Windsor. You then went to Malvern Central High School for Year 7 and 8 before being accepted to Melbourne High School as a high achieving student where you completed the remainder of your secondary schooling. 
15	You did very well at school and matriculated with several honours. You then studied medicine at the University of Melbourne for six years. You did your residency at Preston and Northcote Community Hospital for two years and then worked as a general practitioner, eventually joining your brother’s practice in Noble Park where you worked for approximately eight years, until 1980. 
16	You had met your wife Dr Lucy Platt at university and met again whilst you were working in your brother’s practice. You have been together for the last 40 or so years and there are two children of that relationship, both daughters who have themselves become doctors, one a surgeon, the other a general practitioner.
17	For a period of 10 years or so during the 1980s and into the 1990s you operated a general practice in the Melbourne CBD with your wife specialising in travel medicine. During that time your brother, to whom you were very close, developed a terminal illness. You supported him through his treatments but he passed away in about 1991. 
18	Thereafter you took a break from medical practice for about two years whilst you assisted your father-in-law renovate a motel. You then returned to general practice engaging in sessional work in lower socio-economic areas for the next 25 or so years, all the time maintaining your continuing professional development obligations and further enhancing your skills with additional medical training in areas such as diabetes, HIV and hepatitis B.
19	In June 2011 you pleaded guilty in the Melbourne Magistrates Court to prescribing schedule 8 prescriptions in circumstances where you had failed to renew your permit to do so. You were fined $15,000 without conviction. It was contended this finding had little, if any, relevance to the formulation of this sentence and I will indicate at this point that I accept that is so.
20	As to your character otherwise, it was contended that as a medical practitioner you had treated thousands of patients over many years and that you had saved countless lives. You had been a caring, dedicated, empathetic and energetic contributor to the medical profession and the community as a whole. Six character references were tendered on your behalf. The authors of those references were all aware of the charges to which you have pleaded guilty. Each of those references narrate particular instances where you provided exemplary medical care to your patients. I accept on the strength of those references and the material more generally that you were a selfless and outstanding general practitioner.
21	It was contended that you personally led a frugal lifestyle, driving a 15-year-old car, living in a modest house, rarely taking holidays and otherwise being very careful with your money. The monies which were the subject of this fraud were paid into the bank accounts of two companies in which you held a shareholding or directorship in conjunction with your wife. Those companies earned monies elsewhere legitimately and the funds were used for daily expenses by your wife to pay mortgages and other routine expenses.
22	As to the Prosecution contention relating to the pattern of withdrawals from ATMs at or near Crown Casino, it was suggested that although you held a Crown Casino loyalty card this was used by your wife rather than yourself. It was contended that you did not have any sort of gambling problem and did not gamble at all. It is to be inferred that your wife did.
23	Numerous medical reports tendered on the plea demonstrate that your physical and mental health is critically compromised.
24	Turning first to your physical health you contracted type II diabetes about 20 years ago and since that time have lost something in the order of 20 kg. That illness is controlled with diet and medications however you have, over these years, physically deteriorated such that you now walk with a slow, shuffling, stooped gait. You suffered a serious heart attack in May 2018 for which you were hospitalised. You remain at risk of further such episodes because of your chronic health conditions and a genetic predisposition. You also suffer from angina which is treated by the daily use of glyceryl patches. 
25	In 2019 you were diagnosed with aggressive high-grade bladder cancer and underwent resection surgery and treated with immunotherapy. The side effects of this treatment have been severe and resulted in you being bedridden for many months, addled by brain fog and incontinent. The cancer is multifocal with an 80% rate of re-occurrence even after repeated surgical intervention. You have so far undergone eight cystoscopies with another scheduled shortly. You remain incontinent. 
26	You also suffer from multi-joint pain which is acute in your shoulder. The level of pain has been debilitating. It is likely that this is the result of rheumatoid arthritis.
27	Insofar as your mental health is concerned you were assessed by Associate Professor David Darby, a behavioural neurologist, back in mid-2021 as to your cognitive function. The history taken at that stage suggested a significant decline. The most likely underlying pathology for that impairment was Alzheimer’s disease.
28	In May of this year you were assessed by a neuropsychologist, Mr Martin Jackson, who found that there had been a continued deterioration in your functioning since the assessment by Associate Professor Darby, indeed he found that you were significantly worse two years on. Your wife reported to Mr Jackson that at a practical level your short-term memory was poor and that you cannot remember things for more than a few minutes, that you cannot read newspapers or books or follow a plot on a television show. You can no longer follow instructions, use a computer or a photocopier, you cannot read plans or maps and you need assistance with daily tasks such as dressing or organising meals. 
29	Mr Jackson stated:
It is clear from the above that Dr Beitner’s prominent impairment on the current assessment are severe to profound impairments in new learning and memory (apart from logically structured verbal information) including rapid forgetting, as well as severe visuospatial integration deficits. He also has moderate to severe impairments (borderline to low average) in processing speed, high level attention, most aspects of working memory and category fluency… (Exhibit 2).
In terms of possible diagnoses, it seems quite conclusive that Dr Beitner has a neurodegenerative disorder, in other words, dementia. Given the profound impairments in memory and visuospatial skills, as well as some aspects of language (such as semantic fluency), the most likely diagnosis is Alzheimer’s disease…
30	You were also examined by a consultant forensic psychiatrist, Associate Professor Andrew Carroll, on 8 August 2023. Dr Caroll found that your collateral history, together with the relevant neuropsychological findings, to which I have referred above, is consistent with his assessment that you suffer from two distinct psychopathological processes:
•	Major neurocognitive disorder (dementia) due to Alzheimer’s disease; and
•	Major depressive episode of moderate severity (DSM-5296.22) (Exhibit 3).
31	Dr Caroll noted:
There is some unfortunate “synergy” between the effects of his two conditions whereby each likely exacerbates the other: his major depression worsens his cognition; his impaired cognition makes him feel more depressed in mood.
32	It appears that there was a noticeable decline in your functioning and mood after you had undergone chemotherapy for the bladder cancer in 2019.
Defence Submissions
33	Mr Richter KC who appeared with Mr Hannan, emphasised that you had made full reparation of the loss to the Commonwealth. Section 16A(2)(f)(i) of The Crimes Act 1914 requires this court to take into account “the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence”. Although not necessarily decisive, the fact of full reparation is a very significant mitigating feature.
34	It was submitted that your plea of guilty should result in a very substantial reduction in your sentence. It demonstrated an acceptance of responsibility and a clear willingness to facilitate the course of justice. The utilitarian benefits of the plea were very substantial. You elected not to cross-examine any witnesses at committal and you have spared the community the expense of a long complex trial that may have required the calling of as many as 70 witnesses. Moreover, the plea was made in the context of this court having to manage a large number of cases delayed by the pandemic.
35	Although the plea was not entered until early this year, the complexity of the matter, the impact of the pandemic and the various ongoing negotiations which led to a reduction in the charges and the quantum alleged, justifies proceeding on the basis that the plea was entered as soon as it was reasonably practicable to do so.
36	The combination of those matters attaching to the plea of guilty should, it was submitted, result in a very substantial reduction in the sentence that would otherwise be imposed. I should say at this point that the Crown did not take issue with this submission, and I accept it.
37	A further matter raised in mitigation concerns the delay that has attended these proceedings. This offending was detected in April 2016 however you were not charged until May 2018. Thereafter, there were a number of problems which caused significant delay not least of which was your heart attack, the bladder cancer and the advent of the pandemic. In the result, you have had these proceedings hanging over you for something like seven years which it was submitted was in itself punitive. It was noted that you had not reoffended in any manner during that time.
38	Reliance was also placed on your advanced age. You are now 78 and a half years of age and in precarious health. It was submitted that even though your offending was not causally linked to your illnesses there was nevertheless scope for the application of three of the principles to be derived from Verdins case, namely the second, fifth, and sixth principles. 
39	It was contended on the strength of the medical evidence that an immediate custodial sentence would have a devastating effect on your major depressive disorder and likely lead to a significant deterioration in your mood and cognitive capacity. Dr Caroll opined that “prisons in Victoria are currently not well-equipped to manage the complications of dementia from either an environmental or medical perspective” (Exhibit 3). Essentially your conditions would render your time in custody more burdensome than for a person of normal health and give rise to a significant risk of further deterioration in your condition.
40	It was also submitted that you are not an appropriate vehicle for general deterrence and although that was ordinarily an important sentencing purpose in cases of this kind it needed to be moderated in your case. Additionally, it was put that there was no basis on which to emphasise specific deterrence given that there is no realistic prospect of reoffending. 
41	It was also submitted that the two charges represent a continuing course of conduct and that their separation by reason of the Medicare provider number was essentially artificial. It was appropriate therefore to impose concurrent sentences.
42	Finally, it was submitted that it would simply be too severe to require you to serve an immediate term of imprisonment in circumstances where you suffer from the disabilities that you have more recently developed. Rather, it was submitted that you and others could be adequately deterred, and your conduct appropriately denounced, by imposing a term of imprisonment which allowed for your release on a recognizance release order immediately.
Crown Submissions
43	Ms Breckweg, who appeared with Ms Addams on behalf of the Commonwealth Director, in her submissions first pointed to the well-established general sentencing principles relevant to frauds of this kind which in essence required that general deterrence be the predominant sentencing consideration. It was submitted that specific deterrence was also a relevant sentencing consideration given the period of time over which you committed these offences.
44	More specifically, it was submitted that this offending was objectively very serious because you obtained $318,435.35 to which you were not entitled and to which you knew you were not entitled. You committed these offences over a period of more than three years and that during that time you engaged in repeated and deliberate acts of dishonesty by submitting 212 false claims for Medicare rebates in respect of 5,108 medical services that were never rendered.
45	It was submitted that as a medical practitioner you were in a position of trust having been given a provider number and access to the online claim system. You exploited that system, it was submitted, by utilising the Medicare details of 330 legitimate patients so as to minimise the risk of detection. You also sought to conceal this offending by claiming to have provided these services at your home or at an office building in Melbourne rather than at the clinics at which you worked.
46	Those matters, it was contended, would almost invariably require the imposition of a term of imprisonment with a component that should be served immediately. However, Ms Breckweg conceded that there were some significant matters in mitigation, not least of which was your advanced age (78 and a half), your debilitating ill-health, the fact that the fifth and sixth principles enunciated in Verdins were engaged (it would be extremely burdensome for a man who is incontinent and suffering from dementia to be imprisoned), the fact that there has been a significant delay, that reparation had been made, and the utilitarian value of the plea. In those circumstances it was put that if the court were to impose a sentence of not more than three years, “it would not be wholly outside the range of appropriate sentencing dispositions for the offender to be released forthwith on a recognizance release order pursuant to section 20(1)(b) of the Crimes Act 1914” (Exhibit A).
Consideration
47	In weighing these submissions, I must bear steadily in mind that the maximum penalty for each of these offences is 10 years’ imprisonment. As Ms Breckweg submitted, and I accept, the Medicare online claim system very much depends on the trustworthiness of the medical practitioners who use it. Where that trust and responsibility is abused as it was in this instance, that must be regarded as very serious offending. All the more so, where the offending persists over a lengthy period and involves repeated deliberate acts of dishonesty. 
48	Despite the statutory direction enshrined in s 17A(1) of the Crimes Act 1914 to the effect that a court shall not pass a sentence of imprisonment on any person unless the court is satisfied that no other sentence is appropriate, in my view, this is such case - there is no other sentence other than imprisonment that is appropriate.
49	That said, this is a very unusual case where I am confronted by a constellation of mitigating factors that taken together are quite exceptional. The amount of the fraud has been fully recovered. You are afflicted by the continuing progression of Alzheimer’s disease and a debilitating depressive disorder. Your physical health is, I accept, critically compromised and would be unlikely to be effectively managed in custody.  I also accept that the second, fifth and sixth principles in Verdins are engaged in your circumstances. 
50	It therefore seems to me the Crown’s position on sentence represents an appropriate balance of the competing sentencing purposes in what I have determined is an exceptional case. Despite the need to emphasise general deterrence in cases of this kind, you are not a particularly suitable vehicle for that purpose, nor, in my view, is emphasis on specific deterrence required.
51	It follows that despite the seriousness of the offending, the appropriate course is to sentence you to a term of imprisonment in respect of each charge but further order that you be released forthwith subject to a recognizance release order.
Sentence
52	Taking all relevant matters into account you will be sentenced as follows:
53	On both charges of dishonestly obtaining a financial advantage by deception you will be convicted and sentenced to 3 years’ imprisonment.
54	I will order that each of those terms of imprisonment are to commence this day, 17 October 2023 and are to run concurrently with each other.
55	I will further order that you be released forthwith on a recognizance release order  pursuant to s 20(1)(b) of the Crimes Act 1914 in the sum of $3,000 for a period of 18 months.
56	I will further declare pursuant to s 6AAA of the Sentencing Act Vic 1991 that but for your plea of guilty you would have been sentenced to a total effective term of immediate imprisonment of 4 years and I would have fixed a non-parole period of 2 years.