WorkCover Queensland v Stanley
[2010] QDC 48
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- Unreported Judgment
- WorkCover Queensland v Stanley[2010] QDC 48
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WorkCover Queensland v Stanley[2010] QDC 48
WorkCover Queensland v Stanley[2010] QDC 48
DISTRICT COURT OF QUEENSLAND
CITATION: | WorkCover Queensland v Stanley [2010] QDC 48 |
PARTIES: | WORKCOVER QUEENSLAND v SANDRA CLARE STANLEY |
FILE NO/S: | BD1456/09 |
DIVISION: | Appeal |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 5 March 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 14 September 2009 |
JUDGE: | Tutt DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL - Justices Act 1886 section 222 – appeal against sentence – where respondent pleaded guilty to one charge of “fraud” against WorkCover Queensland (ss 533 and 535 of the Workers’ Compensation and Rehabilitation Act 2003(“WCRA”)) and 3 charges of “false or misleading information (s. 534 of “WCRA”) – where sentence imposed was “conviction recorded and one month’s imprisonment wholly suspended for 18 months” on each offence with further order to pay “restitution and investigation costs with reference to S.P.E.R in default levy and distress” – whether sentence imposed was manifestly inadequate in the circumstances. Appeal Costs Fund Act 1973 s 15(2) Justices Act 1886 s 222 Magistrates Courts Act 1921 s 4 Penalties and Sentences Act 1992 ss 9, 144(6), 146 Workers’ Compensation and Rehabilitation Act 2003 ss. 533, 534, 535, 537 Aldrich v Ross [2001] 2 Rd 235 at 257 Fox v Percy [2003] 214 CLR 118 Allesch v Maunz [2000] 203 CLR 172 Coal & Allied Operators Pty Limited v Australian Industrial Relations Commission & Others (2000) 203 CLR 194 David v. Thomas [1997] 156 QGIG 647 Fahey v Keating (2003) QGIG 78 Fox v Percy [2003] 214 CLR 118 House v The King (1936) 55 CLR 499 Norbis v Norbis [1986] 161 CLR 513 R v Kelly (2006) QCA 467 R v Marshall (2010) QCA 29 R v Melano (1955) 2 Qd R 186 State Rail Authority NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 Warren v Coombes [1979] 142 CLR 531 |
COUNSEL: | Mr T.F. Carmody S.C. with Mr Cormack of counsel for the Appellant Mr P.E. Smith of counsel for the Respondent |
SOLICITORS: | Bruce Thomas Lawyers for the Appellant Carne Reidy Herd Solicitors for the Respondent |
Introduction:
- [1]This is an appeal pursuant to s 222 of the Justices Act 1886 (“the Act”) by WorkCover Queensland (“the appellant”) against the decision of the learned Industrial Magistrate at Brisbane on 29 April 2009 whereby Sandra Clare Stanley (“the respondent”) was convicted in the Industrial Magistrates Court at Brisbane on pleas of guilty, of four (4) offences under the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) in breach of ss 533 and 535 respectively. The offence in respect of s 533 was that of fraud and in respect of s 535 (three offences), that of providing false or misleading information to WorkCover in the course of her claim for compensation under WCRA. No evidence was offered in respect of eight other charges against the respondent and those charges were dismissed by the magistrate.
- [2]The magistrate convicted the respondent of each offence; convictions were recorded and the respondent was “sentenced to one month imprisonment wholly suspended for 18 months; ordered to pay $60,027.12 restitution and $11,732.23 investigation costs to WorkCover Queensland with reference to S.P.E.R in default levy and distress”.[1] The magistrate further endorsed the file as follows:
“The sentence imposed today is out of all proportion to the actions of the defendant and the level of criminality and dishonesty in this case and is imposed at the request of the defendant through her counsel to avoid an appeal. Had she told similar untruths to the Commonwealth whilst getting a disability pension she would have received a good behaviour bond. I am persuaded there is genuine remorse by the defendant and there is no likelihood of any further fraud. I am satisfied that whilst her conduct was criminal the extenuating circumstances indicate that the sentence imposed should not concern or deter any employer current or future”.
Grounds of appeal:
- [3]The appellant’s grounds of appeal are summarized in its “Certificate of Readiness”[2] for hearing which are:
i) “The inadequacy of the sentence imposed at first instance:
- The sentencer erred in her application of the sentencing principles identified by de Jersey J in David v. Thomas [1997] 156 QGIG 647;
- The sentencer erred in her calculation of the period of imprisonment;
- The sentencer had undue regard to the respondent’s circumstances and insufficient regard to the need for general deterrents;
- The sentence imposed at first instance did not adequately reflect the level of criminality and dishonesty involved in the offence.”
Background:
- [4]The circumstances of the respondent appearing before the Industrial Magistrate’s Court on 29 April 2009 included the following:
- The respondent was employed by Queensland Health at the Nerang Dental Clinic prior to December 2006;
- During the course of her employment she was the subject of bullying and applied for workers’ compensation on the basis of her total incapacity for work and her claim was accepted. There was no issue that her claim was a genuine one;
- The respondent was paid a total of approximately $60,000.00 in workers’ compensation and medical expenses between 11 December 2006 and 16 January 2008;
- During the period of her receiving workers’ compensation on a total incapacity basis she was offered and accepted part-time employment as a waitress for a few hours each Saturday afternoon at the Gold Coast Turf Club where she earned approximately $40.00 for the afternoon’s work with the aggregate amount she received over the 13 month period being $2,055.00.[3]
- During the course of her receiving workers’ compensation a number of medical certificates were submitted which reported that she had told her psychologist that she had not been currently in employment when in fact she had worked part-time for the period stated with the Gold Coast Turf Club.
- She was subsequently interviewed by the appellant’s investigators and made full admissions in respect of her part-time employment;
- Charges were subsequently proffered against her, which were dealt with by the court on 29 April 2009 when she was convicted on pleas of guilty and sentenced as stated above.
Relevant Provisions of the WCRA:
- [5]Pursuant to s 537 of the WCRA where a person is convicted of an offence involving fraud under s 533 of the WCRA “all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence” must be repaid to the Workers’ Compensation Insurer, rather than only that sum to which the person was not entitled to receive the subject of the offence. The monetary consequences under this legislation are therefore most severe for an offender and although it may be described as “draconian legislation” they are the consequences for an offender convicted of an offence under s 533 of the WCRA even though the “fraud” may reasonably be described as being at the “lower end” of the range.
Legal principles on Appeal:
- [6]The general principles upon which an appellate court must operate in appeals of this nature are well established. In the ordinary case of an appeal by way of rehearing it is necessary for the appellant to show that the decision appealed against was wrong and the appeal court although ultimately making up its own mind on the matter has due regard to such advantages that the Court or Tribunal at first instance had because of the opportunity to see the witnesses and to have the full consideration of all the relevant evidence as presented by the original hearing.[4]
- [7]In an appeal by way of rehearing the powers of the appellate court are exercisable only where the appellant can demonstrate that having regard to all of the evidence before the appellate court the order that is the subject of appeal is the result of some legal, factual or discretionary error.[5]
- [8]
“Because a decision maker charged with the making of a discretionary decision has some latitude as to the decision to be made the correctness of the decision can only be challenged by showing error in the decision-making process.[8] And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate Tribunal. The errors that might be made in the decision making process were identified in relation to judicial discretion in House v The King in these terms:
“If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or effect him, if he mistakes the facts, if he does not take into account some material consideration then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has materials for doing so.”[9]
- [9]As to appeals specifically against sentence, as this appeal is, the test to be applied was succinctly stated by his Honour the Chief Justice when sitting as President of the Queensland Industrial Court in the matter of David v Thomas [1997] 156 QGIG 647 where he said at page 650:
“…It (the appellate court) should not interfere (with the sentence at first instance) ‘unless the sentence is outside the sound exercise of the sentencing judge’s discretion (R v Melano (1955) 2 Qd R 186 at 190”).
In that authority which also concerned an offence for fraud under the corresponding section of the then Workers Compensation Act 1990 His Honour further stated:
“I take the view that this court should carefully examine the sentencing process to gauge whether the magistrate appears to have proceeded regularly taking only relevant considerations into account but not ignoring relevant considerations; whether in adverting to matters of principle the magistrate has been accurate; and whether the penalty imposed appears to fall within the range of penalty applicable to the particular offence as committed, taking account also of mitigating circumstances and other relevant considerations prescribed by the Penalties and Sentences Act 1992”.[10]
Appellant’s submissions:
- [10]The appellant’s primary submission is that the penalty imposed by the magistrate for the “fraud” offence is manifestly inadequate in the light of comparable sentences for that offence even more so when the respondent’s counsel at first instance agreed that “an appropriate sentencing range up to six or nine months” was appropriate for “a head sentence” to be imposed and that such a head sentence should be “wholly suspended”.[11] I interpolate here that contrary to the Magistrate’s file endorsement, the respondent’s counsel at first instance did not “request” that the Magistrate impose the sentence she did “to avoid an appeal” but rather “accepted” that “an appropriate sentencing range” for the fraud offence was “six to nine months wholly suspended”.[12]
- [11]The appellant further submitted that while there are mitigating factors to enable an appropriate head sentence to be wholly suspended the magistrate fell into error in imposing a head sentence for the fraud offence “well below the proper range for no good reason”[13] as the sentence imposed does not reflect the seriousness of the offence for committing a fraud against the Workers’ Compensation Scheme where “the integrity and viability of the scheme depends on the honesty and frankness of the claimants”.[14]
- [12]Ultimately the appellant submits that the sentence imposed for both categories of offences should be set aside and a more appropriate penalty imposed, particularly in respect of the head sentence “because of the importance of general deterrence and community disapproval of fraud on the public purse”.[15]
Respondent’s submissions:
- [13]The respondent submits that ultimately the sentence imposed should stand as it is not manifestly inadequate although counsel accepted that his predecessor at the hearing of the charges “conceded six to nine months” wholly suspended was within the range of sentence to be imposed for the fraud offence.
- [14]The respondent further takes issue with the Magistrates Court having jurisdiction to make the reparation order it did of $60,027.12 when s 4 of the Magistrates Courts Act 1921 provides that the Court has “a jurisdictional limit with respect to personal actions, actions or claims and demands of $50,000.00” and given that, “bearing in mind the definition of ‘court’ in the Workers Compensation Rehabilitation Act 2003 (the real issue is) whether the magistrate in this case did have jurisdiction to order in excess of $50,000.00 with respect to reparation”.[16]
- [15]The respondent further submitted that if this court was of the view that the magistrate was in error and costs were awarded against the respondent “an Appeal Costs Fund Certificate” should issue to the respondent in the proper exercise of the court’s discretion.
Reply by appellant on jurisdictional point:
- [16]Appellant’s counsel submitted that the respondent’s jurisdictional point has no merit in that the proceeding which brought the respondent before the court was “by complaint in the criminal jurisdiction” and “not a claim or demand and therefore not affected by the monetary jurisdictional limit”.[17] In addition the appellant submitted that s 537 of the WCRA “is in mandatory terms” and requires the court to order the payment to the insurer of “all amounts of compensation or damages paid to or on account of the person as a result of the commission of the offence” so that any monetary limit in this instance which might otherwise apply, has no application here.
- [17]The appellant further submitted that if the appeal is allowed it would not oppose the granting of a certificate under the Appeal Costs Fund Act 1973.[18]
Appeal Findings:
- [18]On the basis of the submissions made and the material filed I am satisfied that the Magistrate erred in her application of proper sentencing principles within the guidelines set out by de Jersey C.J. in David v Thomas[19], particularly in respect to the “fraud” offence for the following reasons:
- (a)The offence of “fraud” is a serious offence for which condign punishment must be imposed to reflect:
- (i)The seriousness of the offence and;
- (ii)To express “community disapproval of fraud on the public purse” by imposing a penalty to act as a deterrence to others from committing that type of offence;
- (b)The Magistrate allowed herself to be unduly influenced by the respondent’s personal circumstances and the range of penalties imposed in what may be described as “social security” fraud, rather than considering the gravamen of the offence under the “WCRA” and the penalties imposed therefor and as such her honour’s sentencing discretion miscarried. Whilst it has been said that ‘Sentencing is never a rigid mathematical exercise”[20] it does require a balancing exercise between the personal circumstances of an offender together with all of those guidelines set out in section 9 of the Penalties and Sentences Act 1992 and a consideration of the nature and consequences of the offence before the Court. I am satisfied in this instance the Magistrate erred in failing to have regard to “the range of penalty applicable to the particular offence as committed”[21] and as a consequence in the circumstances the penalty imposed by her honour in manifestly inadequate. It therefore requires this court to exercise that discretion afresh.
Sentence Imposed:
- [19]In respect of charge 1 (the fraud charge), having regard to the nature of the offence; the need for maintaining the “integrity and viability of the scheme[22] (by insisting upon) the honesty and frankness of claimants”; the principles set out in comparable decisions on point,[23] balanced against the respondent’s personal circumstances including her early plea; no previous convictions; her return to work with the same employer and it being mandatory that she be required to repay the whole of the workers’ compensation she received, despite her having received only a relatively small amount (in comparison) as a result of the fraud, I am of the view that an appropriate sentence to be imposed upon her for this offence is as follows:
- (a)the respondent be convicted thereof; a conviction be recorded and that she be sentenced to 6 months imprisonment wholly suspended forthwith for an operational period of 18 months i.e. she must not commit another offence punishable by imprisonment within the period of 18 months if she is to avoid being dealt with under section 146 of the Penalties and Sentence Act 1992 for the suspended term of imprisonment;
- (b)the respondent pays the sum of $60,027.12 by way of restitution and the sum of $11,732.23 for investigation costs to WorkCover Queensland with reference to S.P.E.R in default levy and distress.
- [20]In respect of the 3 “false or misleading information” charges the respondent be convicted thereof; convictions be recorded and that she be sentenced to 3 months imprisonment on each offence to be served concurrently with the sentence above, wholly suspended forthwith for an operational period of 12 months.
- [21]I note there was some discussion at the appeal hearing as to whether the Magistrate erred in suspending the sentence imposed on the “false or misleading information” charges for 18 months when the maximum period of imprisonment provided for such an offence is “1 year’s imprisonment”. The consensus of opinion was that the Magistrate was in error in doing so. On reflection there would appear to be no error in the sentencing discretion to suspend a term of imprisonment for longer than the maximum period of imprisonment provided for any such offence as the requirement is that the suspended operational period “must be –
- (a)not less than the term of imprisonment imposed; and
- (b)
Jurisdictional Point:
- [22]In respect of the “jurisdictional” point referred to in paragraph [14] above I find that the respondent’s argument has no merit for the reason that the proceeding which brought the respondent before the Court was “by complaint and summons under the Justices Act 1886” and was not an “action or claim” under section 4 of the Magistrates Court Act 1921. It was at all times acting in its jurisdiction as an Industrial Magistrates Court. Therefore any monetary limit applicable to a claim under section 4 has no relevance to the current proceeding under review.
Appeal Costs Fund Certificate:
- [23]In respect of the respondent’s application for an indemnity certificate under section 15(2) of the Appeal Costs Fund Act 1973 in the event of the appellant being successful in the Appeal and receiving a costs order, I am satisfied that it is appropriate to grant such a certificate as the condition precedent to such a grant under section 15(2) of the Appeal Costs Fund Act 1973 has been satisfied.
Orders:
- [24]My orders therefore are as follows:
- (i)The Appeal is allowed;
- (ii)The orders of the learned Magistrate are set aside and in lieu thereof the orders of this court are:
- (a)In respect of charge 1 (fraud charge), the respondent is convicted, a conviction is recorded and the respondent is sentenced to 6 months imprisonment wholly suspended forthwith for an operational period of 18 months i.e. she must not commit another offence punishable by imprisonment within the period of 18 months if she is to avoid being dealt with under section 146 of the Penalties and Sentence Act 1992 for the suspended term of imprisonment;
- (b)the respondent is further ordered to pay the sum of $60,027.12 by way of restitution and the sum of $11,732.23 for investigation costs to WorkCover Queensland with reference to S.P.E.R in default levy and distress.
- (iii)In respect of charges 10, 11 and 12 (false or misleading information) the respondent is convicted on each charge; convictions are recorded and she is sentenced to 3 months imprisonment to be served concurrently with the sentence referred to in (ii)(a) , wholly suspended forthwith for an operational period of 12 months.
- (iv)The respondent pay the appellant’s costs of and incidental to the appeal to be agreed or assessed on the standard basis.
- (v)The respondent be granted an Indemnity Certificate in respect of such costs pursuant to section 15(2) of the Appeal Costs Fund Act 1973.
Footnotes
[1]See endorsement dated 29 April 2009 on Magistrates Court file.
[2]Document filed 14 August 2009.
[3]Magistrates Court Transcript (MCT) p 5 line 30.
[4]Aldrich v Ross [2001] 2 Rd 235 at 257; Warren v Coombes [1979] 142 CLR 531 at 551; State Rail Authority NSW v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327; Fox v Percy [2003] 214 CLR 118 at [29].
[5]Allesch v Maunz [2000] 203 CLR 172 at 180.
[6](1936) 55 CLR 499 at 505.
[7](2000) 203 CLR 194 at 205 (21).
[8]See Norbis v Norbis [1986] 161 CLR 513 at 518-519 (per Mason & Deane JJ).
[9]House v The King (1936) 55 CLR 499 at 505 (per Dixon, Evatt & McTiernan JJ).
[10]David v Thomas (1997) 156 QGIG at 650.
[11]MCT p 6 lines 30-40.
[12]Ibid at line 35.
[13]Hearing Transcript (HT) p 17, line 5.
[14]HT p 8, line 5.
[15]HT p 6, line 38.
[16]HT p 24, lines 1-12.
[17]HT p 24, lines 47-50.
[18]HT p 24, line 45.
[19][1997] 156 QGIG 647.
[20]R v Marshall (2010) QCA 29, Atchison J at paragraph [58].
[21]David v Thomas (1997) 156 QGIG at p. 650.
[22]I.e. the Workers Compensation Scheme.
[23]Including David v Thomas (1997) 156 QGIG; Fahey v Keating (2003) QGIG 78.
[24]See s 144(6) of the Penalties and Sentences Act 1992 and see also R v Kelly (2006) QCA 467 at paragraph [10] and following.