AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 24 March 2022

Lee v R

[2022] NSWDC 178

Fraud & dishonesty

Citation: Lee v R [2022] NSWDC 178
Court: District Court of NSW
Date: 24 March 2022
Judge: Bennett SC DCJ

Background

The appellant was a medical student who had failed her university examinations and was excluded from her degree program in late 2020. Despite knowing she had not completed her qualifications and did not hold registration with the Medical Board of Australia, she accepted a position as an intern at a public hospital and commenced work on 18 January 2021.

Over a period of approximately eight months, she completed 126 shifts as an intern. Performance concerns emerged as early as February 2021, and she was moved to a supernumerary role under close supervision. On multiple assessment forms, she left the registration number field blank. The hospital discovered her lack of registration on 9 August 2021, at which point she initially claimed she was waiting for documentation from her university before disclosing the truth.

The Local Court convicted her of an offence under the Health Practitioner Regulation National Law (NSW) of claiming qualification to practise while not registered as a health practitioner. The magistrate imposed a two-year intensive correction order (ICO) and a fine of $10,000. The appellant appealed to the District Court on the ground of severity.

  • Whether the threshold for imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 was properly crossed
  • Whether the two-year ICO imposed by the Local Court was excessive in all the circumstances
  • Where the offending fell on the scale of objective seriousness for this type of offence
  • Whether the sentencing outcome adequately reflected both the seriousness of the conduct and the mitigating factor of an early guilty plea

Decision

Bennett SC DCJ confirmed that the s 5 threshold for imprisonment had been correctly crossed by the magistrate. The judge characterised the offending as serious, placing it at or above the mid-range of objective seriousness. The conduct involved planning, misrepresentation, and duplicity sustained across eight months, and carried real public safety implications given that the appellant was performing clinical work without proper qualifications or registration.

The court accepted, however, that the two-year term was excessive. The judge found the magistrate had not given adequate weight to the objective seriousness of the offending in calibrating the sentence, and that the earliest-opportunity guilty plea was a significant mitigating factor warranting a meaningful reduction. The court also accepted psychological evidence that the appellant's primary motivation was concealing her academic failure from her family, rather than financial gain, though financial benefit was acknowledged.

The aggravating factors identified included the absence of regard for public safety, a sustained course of criminal conduct across multiple shifts, and an element of planning and misrepresentation. Against those factors, the court weighed the guilty plea, the absence of prior convictions, and the psychological evidence going to motivation. The ICO was varied to 18 months.

Orders Made

  • Appeal allowed
  • Conviction confirmed
  • Sentence of imprisonment confirmed, varied to 18 months by way of intensive correction order, commencing from the date the appellant submitted to Community Corrections supervision
  • Fine of $10,000 confirmed (one sequence only)
  • Order for professional costs of $3,400 confirmed
  • Materials to remain on file

Key Takeaways

  • The District Court confirmed that practising or holding out as a health practitioner without registration, even in a supervised clinical role, can cross the imprisonment threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999.
  • Under the Health Practitioner Regulation National Law (NSW), the protection of public health and safety is the paramount consideration, and the court treated that purpose as a significant factor in assessing objective seriousness.
  • A sentencing court must adequately bring to account both the objective seriousness of the offending and significant mitigating factors, such as an early guilty plea. Failure to do so can warrant appellate intervention on severity grounds.
  • Sustained conduct involving planning and misrepresentation across multiple incidents was treated as aggravating, even where the court accepted that financial gain was not the primary motivation.
  • In reducing the ICO from two years to 18 months, the District Court demonstrated that appellate courts on severity appeals will recalibrate a sentence where the balance between seriousness and mitigation has not been properly struck, without necessarily disturbing the finding that full-time custody was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5
- Health Practitioner Regulation National Law (NSW) No 86a of 2009, cl 116(1)(d) and s 116
- Health Practitioner National Law Act 2009 (National Law), Part 7, Division 10

Cases cited: None stated in the judgment.