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McLean v Workers' Compensation Regulator[2021] QDC 22

McLean v Workers' Compensation Regulator[2021] QDC 22

DISTRICT COURT OF QUEENSLAND

CITATION:

McLean v Workers’ Compensation Regulator [2021] QDC 22

PARTIES:

PATRICK MCLEAN

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

3419 of 2020

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 and 22 February 2021

JUDGE:

Rosengren DCJ

ORDER:

  1. The appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST SENTENCE – WHERE RESTITUTION PAID – where the appellant pleaded guilty to 10 counts of dishonesty relating to a claim for workers compensation  – where the appellant was sentenced to concurrent terms of imprisonment for nine of the offences with a head sentence of two years for the defrauding WorkCover offence to be suspended after serving six months – where the defrauding offending extended over some 13 months – where the appellant was also ordered to repay WorkCover the total payments made in circumstances where he had sustained a legitimate injury – where there was no reference made to this in the magistrate’s reasons – whether this amounts to an error – whether the sentence imposed was appropriate and just in all the circumstances

Penalties and Sentences Act 1992 (Qld) s 3, s 3(3), 9(2)(a), s 9(10), s 12(2), s 12(2)(c), pt 2

Justices Act 1886 (Qld) s 222(2)(c)

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 533, s 534, s 537

House v The King (1936) 55 CLR 499, applied

R v Allen [2005] QCA 73, applied

R v Crawford [2020] QCA 68, cited

R v Datez; R v Wilson (2003) 139 A Crim R 398, applied

R v Galeano [2013] QCA 51, cited

R v Hannigan [2009] 2 Qd R 331; [2009] QCA 40, applied

R v Matauaina [2011] QCA 344, applied

R v Murray [2014] QCA 250, applied

R v Noble and Verheyden [1996] 1 Qd R 329, applied

R v SCU [2017] QCA 198, applied

R v Tout [2012] QCA 296, applied

Teelow v Commissioner of Police [2009] 2 Qd R 489, applied

WorkCover Queensland v Stanley [2010] QDC 48, cited

COUNSEL:

A Edwards for the appellant
P O’Connor (sol) for the respondent

SOLICITORS:

Hounsell Cunningham for the appellant
Crown Law for the respondent

  1. [1]
    On 31 August 2020 Mr McLean pleaded guilty in the Brisbane Magistrates Court to 10 charges of dishonesty in relation to a claim for compensation he made to WorkCover Queensland (“WorkCover”) under the Workers Compensation and Rehabilitation Act 2003 (Qld) (“the WCR Act”).  On 19 November 2020 he was sentenced for this offending as follows:
  1. (i)
    defrauding or attempting to defraud WorkCover – two years’ imprisonment suspended after six months for an operational period of three years;
  1. (ii)
    giving WorkCover a document containing information that is false or misleading in a material particular – nine months’ imprisonment suspended after three months;
  1. (iii)
    knowingly making to WorkCover a false or misleading statement in a material particular (seven charges) – for each charge, nine months’ imprisonment suspended after three months;
  1. (iv)
    failing to notify WorkCover of a return to work or an engagement in a calling – convicted but not further punished.
  1. [2]
    Mr McLean had received $265,774.21 by way of WorkCover payments. He had repaid $4,250 by the time of the sentence. There was a contest at the sentence as to whether a restitution order should be made for all of the outstanding WorkCover payments or just for that component of the payments paid to Mr McLean for the purposes of net weekly compensation, being a sum of approximately $123,000. The magistrate determined that all of the outstanding WorkCover payments in the sum of $261,524.21ought to be repaid to WorkCover and made this restitution order. Mr McLean was also ordered to pay WorkCover’s costs.
  1. [3]
    There are two grounds of appeal. First, there was an error of law made by the magistrate in failing to take into account the abovementioned restitution that Mr McLean was ordered to make. Second, the requirement for Mr McLean to serve a period of six months of actual imprisonment is manifestly excessive. Mr McLean only challenges the sentence in respect of the time to be served in custody. No challenge was mounted as to the quantum of the restitution, the head sentence of two years’ imprisonment, any of the concurrent terms of imprisonment or the order for costs.
  1. [4]
    The matter was originally listed as an application for appeal bail on 11 February 2021. However, all the material for the appeal proper had been filed and with the consent of the parties a decision was made to hear the appeal. I heard further submissions from the parties on 22 February 2021.
  1. [5]
    For the reasons set out below, the appeal should be dismissed.

Nature of s 222 appeals

  1. [6]
    The appeal is by way of rehearing of the evidence. Section 222(2)(c) of the Justices Act 1886 (Qld) provides that where a defendant pleads guilty, an appeal can only be brought on the sole ground that a fine, penalty or punishment was excessive or inadequate. 
  1. [7]
    There cannot be intervention by this court merely because it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion.[1]  Rather, it must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499.[2]  If the magistrate acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the exercise of the discretion, made a mistake about the facts or did not take into account some material consideration, then the appellate court may intervene and exercise its own discretion.[3]
  1. [8]
    It is also not sufficient to demonstrate that the sentence is markedly different from sentences in other cases or that offenders have received lesser sentences for similar offending.[4]

Circumstances of the offending

  1. [9]
    On 16 August 2017, Mr McLean was attacked by some dogs while visiting a property to sign a contract in the course of his work as a real estate agent. He suffered some physical injuries to his right hand and a secondary psychological injury (‘the subject incident’). At the time he worked for Harcourts Calamvale (‘the agency’). While he had previously been a director of the agency, his son had taken over this role about three weeks prior to this incident. On 22 August 2017 Mr McLean lodged a claim for compensation with WorkCover Queensland in relation to the injuries sustained in this incident.

Giving WorkCover documents with false information – 8 September 2017

  1. [10]
    Having made the claim for compensation, WorkCover requested that Mr McLean provide his payslips for the purpose of it being satisfied that he came within the definition of a ‘worker’ within the WCR Act.
  1. [11]
    In response to this request, on 8 September 2017 Mr McLean forwarded to a WorkCover claims representative 12 payslips relating to the period between 22 May and 13 August 2017. They purported to evidence that Mr McLean’s weekly wages were in the amount of $1,738.54 and paid into a Westpac bank account in his name. Subsequent investigations revealed that the payments set out in the payslips were not credited to the bank account nominated on the payslips or any other Westpac bank account. Mr McLean had involved his son in this offending by having his son furnish to him the payslips.

Failing to tell WorkCover of his return to work – 22 October 2017 to 23 July 2018

  1. [12]
    In the course of making his application for compensation Mr McLean had informed WorkCover that he was unable to work on account of the injuries he sustained in the subject incident. He had an obligation to notify WorkCover within 10 days of returning to work or engaging in a calling.
  1. [13]
    On 12 October 2017 Mr McLean signed a contract for the sale of a property at Logan in his capacity of working as a real estate agent. He was required to notify WorkCover of this by no later than 22 October 2017. The first time WorkCover became aware of Mr McLean’s return to work was when a suitable duties plan was implemented by WorkCover’s occupational therapist which he commenced on 23 July 2018. Surveillance footage (which is discussed below) shows that Mr McLean continued working between 12 October 2017 and when he commenced the suitable duties program.

Knowingly making false or misleading statements – 27 June to 6 September 2018

  1. [14]
    On seven separate occasions between 27 June and 6 September 2018, Mr McLean knowingly made false or misleading statements to WorkCover’s representatives and health providers as to the nature and impact of his ongoing injuries. These came to light after surveillance in relation to Mr McLean was undertaken on several days during this period.
  1. [15]
    First, on 27 June 2018, Mr McLean told a WorkCover claims representative that he still had his wife drive him to appointments, that he was unable to use a pen or a computer` and that he was also unable to perform his role as a real estate agent. However, the surveillance footage showed him using his hand contrary to this reporting. It showed him wearing his work uniform, attending upon an open house and driving a vehicle.
  1. [16]
    Second, on 3 July 2018 the WorkCover claims representative enquired of Mr McLean as to whether he had been into his office at the agency and he responded that he had not, apart from going in ‘just to say hello’. The surveillance footage demonstrated this was false.
  1. [17]
    Third, on 12 July 2018 Mr McLean told the WorkCover claims representative that he could not legally drive and that there was no steering wheel that was light enough for him. On further enquiries by the WorkCover claims representative as to his limitations on account of his injuries, Mr McLean told her that while he could drive to the corner shop which was about two minutes away, it was not safe for him to drive any distance, for example to the Gold Coast. He also said that there were not many duties he could potentially do. He suggested that he might be able to work in an administration or mentoring role. He went on to say that he did not have an earning capacity. In particular he said that he could not do open homes because he could not put the flags up at houses and could not write in the registers at these houses because of his poor hand function. The surveillance footage demonstrated this was false.
  1. [18]
    Fourth, on 13 July 2018 Mr McLean told an occupational therapist engaged by WorkCover that apart from mentoring in the office for a few days a week, there was little other work he was capable of performing. The surveillance footage demonstrated this was false.
  1. [19]
    Fifth, on 16 July 2018 Mr McLean attended upon the occupational therapist with his son. In response to an enquiry by the occupational therapist as to whether he had assisted with any open homes, Mr McLean categorically said that he had not. He reinforced that he had not been undertaking any productive duties such as open homes or sales duties. He went on to say that he had only attended the office to touch base with his son.
  1. [20]
    The surveillance demonstrated this information was false. Footage taken only three days later showed Mr McLean conducting an open home, at which time he was using his right hand without apparent difficulty. The person he was showing around was an operative and in the course of doing this, Mr McLean shook the operative’s hand. Further footage was obtained two days later on 21 July 2018. The defendant was again showing another operative around a home. He again shook the operative’s hand with his right hand and otherwise gestured with his right hand displaying no apparent difficulty. Based at least partly on this false information, the occupational therapist considered Mr McLean was only fit to trial suitable duties for four hours a day, three days a week, with restrictions on the duties he could perform.
  1. [21]
    Sixth, Mr McLean commenced his suitable duties program at work on 23 July 2018. Two days later he told the WorkCover claims representative that his return to work had been really intimidating, that he was unable to undertake filing because of wrist pain, that he could not bend his wrist and that he was needing to modify his performance of tasks. He also said that he ‘can’t push through’ because of his wrist problems and that he could not bend his fingers.  The surveillance footage demonstrated this was false.
  1. [22]
    Seventh, Mr McLean attended a medical examination on 6 September 2018, the purpose of which was to assess his level of impairment. Mr McLean told the medical practitioner that while he had returned to some light duties, he could not go to property sites and perform open houses, that he was unable to hold objects with his right hand and that it was very stiff with poor function, and that he was unable to drive. The surveillance footage demonstrated this was false.
  1. [23]
    Following the medical examination Mr McLean was assessed to have a 27 percent cent impairment. This resulted in WorkCover offering him a lump sum compensation of $89,164.80 which he accepted on 6 November 2018.

Defrauding WorkCover – 11 October 2107 to 18 November 2018

  1. [24]
    WorkCover commenced making payments in relation Mr McLean’s compensation claim on 11 October 2017. These payments continued for the following 13 or so months until 17 November 2018. The total of the payments made by WorkCover was $265,774.21. These payments had commenced following the provision of the fraudulent payslips in September 2017.

Background to the offending

  1. [25]
    Reports of Dr Joseph Matthew, psychiatrist and Dr Therese Ellis-Smith, psychologist were tendered at the hearing. Dr Matthew initially examined Mr McLean in relation to psychological injuries he may have suffered consequential upon the subject incident. Dr Matthew diagnosed an adjustment disorder with depressed mood. Dr Matthew re-examined Mr McLean in November last year for the purpose of providing a presentence report. He opined that Mr McLean was suffering from this mental health illness for the duration of the offending. He considered that while this clouded Mr McLean’s judgement it did not deprive Mr McLean of the capacity to know what he was doing was wrong or of the capacity to control his actions.
  1. [26]
    The abovementioned reports also detail various stressors that Mr McLean reported that he was under around the time of his offending. He had been declared a bankrupt (for a second time) two months prior to the subject incident. This had followed the break-down of his long term marriage in 2014. On account of his bankruptcy Mr McLean was not permitted to remain as a director of the agency and transferred this responsibility to his 22 year old son who was inexperienced in the real estate industry. He was under considerable stress mentoring and supervising his son. Mr McLean was also under financial stress which was exacerbated when the premises from which the real estate business operated was burnt down in January 2018.
  1. [27]
    Dr Ellis-Smith considered that Mr McLean’s offending was driven by his need to avoid further financial loss, embarrassment and a consequential sense of failure. She considered that while his actions were likely to have been opportunistic in the beginning, that he perpetuated the fraud and falsifications over a lengthy period of time.

Sentencing framework

  1. [28]
    The Penalties and Sentences Act 1992 (‘the Act’) creates the regulatory framework which is relevant to a consideration of Mr McLean’s sentence.  The purposes for which sentences may be imposed on an offender are found in s 9(1) of the Act.  Those include punishment, conditions to assist rehabilitation, deterrence of the offender or others, denunciation of the conduct on behalf of the community and protection of the Queensland community from the offender.
  1. [29]
    Section 9(2)(a) of the Act refers to the various factors that a court must have regard to. These include the principle that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows an offender to stay in the community is preferable. Other factors the Court must have regard to include the maximum penalty prescribed for the offence; the nature and seriousness of the offence; the extent to which the offender is to blame for the offence; the offender’s age, character and intellectual capacity; the presence of any aggravating or mitigating factors; and the prevalence of the offence.
  1. [30]
    The requirement for a sentencing court to state in open court its reasons for imposing a sentence of imprisonment can be found in s 10 of the Act.

Sentencing submissions and remarks

  1. [31]
    The sentencing submissions made on behalf of Mr McLean were that;
  1. (i)
    even though the maximum penalty for having defrauded WorkCover has increased from 18 months’ to five years’ imprisonment, the comparable authorities suggest that this has not resulted in an increase to the penalties which have been imposed;
  1. (ii)
    he had been diagnosed by a psychiatrist as suffering from an adjustment disorder with depressed mood since the time of the subject incident;
  1. (iii)
    the medical material supported a conclusion that Mr Mclean’s moral culpability for his offending is reduced on account of his mental health making him a less appropriate vehicle for general and specific deterrence;
  1. (iv)
    he had suffered legitimate injuries and his dishonesty therefore related to the extent and not the existence of the claim;
  1. (v)
    while there is a legislative requirement for the total WorkCover payments to be repaid, the fact that he was entitled to some of the monies on account of his injuries is a relevant consideration;
  1. (vi)
    he had significant personal and financial stressors leading up to and during the period of the offending;
  1. (vii)
    the guilty plea was timely;
  1. (viii)
    he had no criminal history and was otherwise an upstanding member of the community;
  1. (ix)
    he had commenced paying restitution prior to being sentenced for the offending;
  1. (x)
    the COVID pandemic may adversely impact him with respect to any order for actual imprisonment.
  1. [32]
    It was submitted by the Regulator that the appropriate sentence range was a head sentence of three to four years’ imprisonment with a requirement for Mr McLean to serve one third of the head sentence. It was submitted on behalf of Mr McLean that the head sentence should not exceed 18 months’ imprisonment and that he should not be required to serve more than two months in prison.
  1. [33]
    The sentencing remarks of the magistrate reveal that the following matters were taken into account:
  1. (i)
    the maximum penalties for the offences;
  1. (ii)
    dishonesty of the type engaged in undermines the integrity of the WorkCover scheme;
  1. (iii)
    the aggravating features of his conduct were the large quantum of the fraud, the protracted period over which it occurred and the fact that he involved his adult son in providing the false payslips to WorkCover;
  1. (iv)
    although Mr McLean had sustained genuine injuries, he was required pursuant to the legislative scheme to repay all WorkCover payments which had been made;
  1. (v)
    the medical evidence was to the effect that Mr McLean’s judgment was impaired but not his cognitive ability;
  1. (vi)
    his mental state over the course of the offending reduced his moral culpability but only to a limited extent;
  1. (vii)
    he put his financial interests above other interests and did not fully consider his actions or the potential consequences;
  1. (viii)
    the timely plea of guilty;
  1. (ix)
    he was a mature man, with no criminal history and a good work history and he was the primary provider for his family;
  1. (x)
    he had repaid $4,250 prior to the sentence hearing;
  1. (xi)
    he had ongoing symptoms as a consequence of the subject incident.

Consideration

  1. [34]
    Mr McLean points to two errors. The first is that the magistrate did not take into account as a mitigating factor that Mr McLean was required to repay the total WorkCover payments against a background of having been legitimately injured with ongoing symptoms.
  1. [35]
    The total compensation payments which had been paid to Mr McLean were $265,774.21. Of this Mr McLean had repaid $4,250 prior to the sentence hearing. The magistrate took this into account as a mitigating factor. In my view, this was appropriate as it demonstrates remorse. The remaining $261,524.21 was ordered by the magistrate to be repaid to WorkCover as restitution. This was considered by the magistrate in determining the quantum of the restitution to be made by Mr McLean pursuant to s 537 of the WCR Act. It was not taken into account as a mitigating factor. The issue is whether it should have been.
  1. [36]
    In R v Allen[5], the appellant was convicted of dishonestly applying his employer’s funds to his own use.  Prior to appearing for sentence the appellant had made full restitution to his employer.  He had done this by the sale of the residence where he and his wife lived.  McMurdo P held that it is “a relevant mitigating factor in that it compensates the victim and benefits society, and is often, as here, a tangible demonstration of genuine remorse”. It is for similar reasons that the $4,250 paid by Mr McLean is a relevant mitigating factor.
  1. [37]
    The restitution order made against Mr McLean is distinguishable from cases where an order is made under s 35 of the Act with a reference to the State Penalties and Enforcement Registry (‘SPER’).[6]  Pursuant to section 35(2)(b) of the State Penalties Enforcement Act 1999 (Qld), upon registration, SPER becomes responsible for collecting the debt.  Ultimately, if the debt is not paid, Part 6 of the legislation authorises enforcement by imprisonment.   Fraser JA held in R v Matauaina[7] that “the consequence for a debtor of non-payment, even if that is merely a consequence of poverty, might extend to the imposition of a further term of imprisonment without intervention by the sentencing court”.  In that case the Court of Appeal observed that the appropriateness of the term of imprisonment imposed by the sentencing judge could not be considered in isolation from the consequence that the appellant might be imprisoned for a further period of time for non-payment of the compensation. 
  1. [38]
    Mr McLean is not exposed to a potential term of imprisonment in addition to that imposed by the magistrate if he does not pay the restitution ordered. Section 537(5) of the WCR Act relevantly provides that this order may only be enforced against him as if it were made by a court in civil proceedings for a debt. The effect of this is to provide WorkCover with a summary remedy to enforce this existing civil liability. There is no evidence that WorkCover will even enforce its rights to recover this debt.
  1. [39]
    Counsel for Mr McLean relied on WorkCover Queensland v Stanley[8] in support of its contention that the restitution order ought to have been taken into account by the magistrate when determining the appropriate sentence.  This case was also an appeal from the Magistrates Court for somewhat similar offending.  Relevantly the defendant in that case had failed to disclose to WorkCover that she had returned to work.  She too had been ordered pursuant to the WCR Act to repay WorkCover by way of restitution the total quantum of the compensation payments she had received, despite only a relatively small proportion of this being related to the fraud.  This was taken into account as a mitigating factor.    The fact that another District Court judge has adopted this approach is relevant but not determinative of the issue in this case.  This is particularly in circumstances where the reasons of the judge do not include any statement of principle providing any guidance on how the discretion was exercised. 
  1. [40]
    The remaining issue on this point is whether the restitution order is a form of extra-curial punishment as contended for by counsel for Mr McLean. There is no doubt that such punishment should be taken into account to ensure that an offender is punished appropriately and not excessively for the same offence.[9]  It is a material fact in the sentence process because deterrence or retribution has been achieved, at least in part.[10]
  1. [41]
    In R v Hannigan Chesterman JA identified the theory underlying the relevance of extra-curial punishment in the following way:

“that it deters an offender from re-offending by providing a reminder of the unhappy consequence of criminal misconduct, or it leaves the offender with a disability, some infliction, which is a consequence of criminal activity”.[11]

  1. [42]
    Counsel for Mr McLean relied on R v Galeano[12] in this regard.  In that case, the appellant was sentenced for trafficking in dangerous drugs.  The police operation culminated in the attendance of police at the appellant’s home on a cane farm.  In the course of being apprehended and arrested, the appellant panicked, took flight and tripped on barbed wire fencing.  He sustained blackened eyes and several broken teeth.  He also injured both shoulders.  Gotterson JA described these injuries as substantial even though they were neither life threatening nor productive of long term physical disability.  This was taken into account as a mitigating circumstance.  It is worth observing that not every injury suffered in the course of committing an offence is necessarily a factor in sentencing.[13]
  1. [43]
    In this case, while the restitution order is a direct consequence of Mr McLean’s criminal conduct, in my view it is not a factor in mitigation of the sentence. Mr McLean was injured while working and received compensation payments pursuant to the WCR Act. His compensation payments were assessed as being higher than they should have been because of his fraudulent behaviours. On account of his own deliberate actions he became disentitled to these payments under the same legislation. It is a fundamental principle that a person should not benefit from a fraud. In the two and a quarter years since the payments were ceased on account of Mr McLean’s fraud, he has only repaid $4,250 of the $265,774.21. The fact of the restitution order having been made by the magistrate in relation to the outstanding amount cannot be regarded as a serious loss, detriment or hardship that Mr McLean has suffered as a result of his offending. There is no evidence that he has any intention or capacity to repay the outstanding amount. There is no evidence that WorkCover will take steps to recover it if Mr McLean does not repay it. There is also no potentially punitive consequence for a failure to repay it. Further, of course there can be no suggestion that it is evidence of remorse.
  1. [44]
    In the absence of the alleged specific error having infected the sentencing discretion, the Court would be warranted to adjust the sentence only if it is excessive. This is the second ground of Mr McLean’s appeal. I am unpersuaded that the requirement for Mr McLean to spend six months in custody can be characterised in this way.  The reasons for this are detailed below.
  1. [45]
    The remarks of the magistrate indicate that she had proper regard to the sentencing guidelines provided for in sections 9(1) and (2) of the Act.
  1. [46]
    The offences carry the following maximum penalties:
  1. (i)
    defrauding WorkCover – five years’ imprisonment;
  1. (ii)
    giving WorkCover a document containing false information as to a material particular – 12 months’ imprisonment;
  1. (iii)
    knowingly making to WorkCover a false statement as to a material particular – 12 months’ imprisonment; and
  1. (iv)
    failing to notify WorkCover of a return to work or an engagement in a calling – 50 penalty units. 
  1. [47]
    There are aggravating features of Mr McLean’s offending. These are the amount of the fraud (even accepting that Mr McLean may well have been entitled to some compensation) and the lengthy period of time over which it occurred. Further, in addition to providing false payslips and failing to inform WorkCover that he had returned to work as a real estate agent, on seven separate occasions he deliberately misled or lied to WorkCover representatives or its health providers as to the nature and extent of his injuries. He engaged in this course of offending as a mature man and involved his son in providing him with the fraudulent payslips.
  1. [48]
    Mr McLean’s offending is serious even when considered against the background of a legitimate injury with continuing symptoms. WorkCover did not invite him to steal from it and it was entitled to expect that he would behave as an honest injured worker. It is not as though some flaw in WorkCover’s administrative arrangements led to Mr McLean having accidentally conducted himself dishonestly. He deliberately set out to become the beneficiary of payments which he knew he was not entitled to. He pursued this course over a lengthy period and avoided detection by strategies of concealment. He persisted with his dishonesty until detection. As his conduct demonstrates, if he chose to breach the trust that WorkCover placed in him, then there was nothing to prevent him from exploiting the system that had been put in place to compensate injured workers with genuine claims. The magistrate aptly observed that dishonesty of the type engaged in by Mr McLean undermines the integrity of the WorkCover scheme. The community expectation is that WorkCover related fraud will be met with condign punishment.
  1. [49]
    The psychiatric and psychological evidence tendered on behalf of Mr McLean is relevant to the sentencing discretion in that it assists in understanding the factual background against which the offending occurred and Mr McLean’s personal circumstances. I agree with the magistrate that Mr McLean’s mental state over the period of offending reduces his moral culpability but only in a limited way. While his adjustment disorder with depressed mood may have clouded his judgment, there is no suggestion that it impaired his ability to control his actions, or to know that he ought not to engage in the dishonest behaviours.
  1. [50]
    I accept that Mr McLean’s ongoing mental health problems will mean that there may well be some adverse consequence for him in custody beyond what would be the norm for a person being sentenced to a term of imprisonment.
  1. [51]
    The other factors in mitigation include Mr McLean’s timely plea, his remorse, his lack of a criminal history, his otherwise good character, his solid work history and his low risk of reoffending.
  1. [52]
    As to comparables, with respect to all but one of them, the magistrate was not provided with the reasons and decisions of those other magistrates. Rather she was presented with summaries prepared by someone at a law firm as to their interpretation of the sentencing submissions and the reasons for the respective sentences imposed. This clearly raises questions as to their accuracy. Having said this, I have detailed them below because they were relied on by the parties at the sentence hearing.
  1. [53]
    Tracy Watson was sentenced in the Brisbane Magistrates Court on 10 Febraury 2010 for one count of returning to a calling, seven counts of providing false and misleading statements and one count of defrauding WorkCover. The aggravating features of her conduct included that her return to work pre-dated her application for compensation, the false pretences were maintained for some 19 months, there had been numerous opportunities where disclosure could have been made and her dishonesty continued after her statutory claim was ceased.
  1. [54]
    Ms Watson pleaded guilty and had no criminal history. She had financial pressures.  The summary of the reasons of the magistrate could be described as cursory at best.  A head sentence of 18 months’ imprisonment suspended after six months for an operational period of three years was imposed.  She was also ordered to pay approximately $144,000 by way of restitution, representing the compensation and damages that had been paid to her.
  1. [55]
    Sandra Stone was sentenced in the Brisbane Magistrates Court on 26 August 2011 for two counts of defrauding WorkCover and three counts of making false and misleading statements. The period of the offending was 23 months. She had made an application for compensation on the basis that she had suffered stress in the course of her employment as a teacher. While in receipt of compensation she returned to work without disclosing that she had earned approximately $45,000. She had also made a number of false and misleading statements to WorkCover.
  1. [56]
    Ms Stone had no criminal history and was 34 years old. Her guilty plea was not regarded as an early one. She had sustained an injury but had lied about her capacity to work. She was actively involved in volunteer work. She had been a single mother and in a violent marriage. She had mental health challenges. A number of references spoke of her positive attributes. The magistrate imposed a head sentence of 12 months’ imprisonment suspended after four months for an operational period of 18 months. The payments she received from WorkCover were approximately $122,000 and this was ordered to be repaid.
  1. [57]
    Bowie Pink was sentenced in the Townsville Magistrates Court on 17 August 2016 for one count of defrauding a self-insurer, two counts of providing false or misleading information in a document and two counts of making a false or misleading statement. The period of the dishonesty was approximately two years. Mr Pink had a previous injury to his left shoulder which he either failed to disclose or denied having had. He also exaggerated the symptoms of his left shoulder injury the subject of the claim.
  1. [58]
    The death of Mr Pink’s mother and mental health issues were apparently affecting him over the period of his offending. He was 24 years old. References spoke of his positive attributes and his higher education studies were to his credit. Mr Bowie was sentenced to a head sentence of 12 months’ imprisonment with immediate parole. He was also ordered to repay the compensation which he had been paid, namely approximately $110,000.
  1. [59]
    Mark Cantlon was sentenced in the Brisbane Magistrates Court on 19 December 2016 for one count of defrauding WorkCover, three counts of providing false or misleading information to WorkCover and one count of failing to notify WorkCover of his engagement in a calling. The period of the dishonesty was approximately two and a half years. Towards the end of the claim period, WorkCover had become aware that Mr Cantlon was working. He had returned to work about three months after having applied for compensation. He then worked on three separate occasions in different capacities without notifying WorkCover. This is despite having been reminded on numerous occasion of his requirement to do so. He continued to lie to WorkCover even after he was told that it had payslips evidencing that he had been working.
  1. [60]
    The summary in relation to this decision provides no information about Mr Cantlon’s personal circumstances, apart from the fact that he had an irrelevant criminal history. There is also no reference in the summary to any other features of mitigation that were taken into account by the magistrate. A head sentence of 15 months’ imprisonment suspended after two months was also imposed. Mr Cantlon was ordered to pay by way of restitution the total WorkCover payments, namely some $223,000.
  1. [61]
    Ravidran Lingam was sentenced in the Brisbane Magistrates Court on 7 June 2017 for one count of defrauding an insurer. He had claimed for a back injury and secondary urological and psychological injuries. During the 13 month period of the claim, he made representations to the insurer and various medical providers that his previous back problems were limited to a single injury almost 30 years earlier and that he had not suffered significant back pain leading up to the injury the subject of the claim. This was untrue. He claimed that his urological and psychological conditions had commenced after the subject injury which was also false. Mr Lingam had resisted the insurer having access to his medical records which revealed his fraudulent conduct.
  1. [62]
    The guilty plea was early and Mr Lingam had no criminal history. He was sentenced to 18 months’ imprisonment wholly suspended for three years. Of the $98,818 which he was required to repay, Mr Lingam paid $70,000 on the day of the sentence, leaving restitution in the sum of $28,818.
  1. [63]
    Neale Shaw was sentenced in the Beenleigh Magistrates Court on 21 August 2018 for one count of defrauding an insurer, three counts of providing false or misleading information or documents and one count of failing to notify the insurer of his return to work. The period of the dishonesty was approximately 18 months. Mr Shaw worked throughout the entire period of the claim. He compounded his fraud by making false or misleading statements when asked about his work status. His offending only ceased at the closure of his claim after the insurer had discovered his dishonesty and he had been placed under surveillance.
  1. [64]
    The summary in relation to this matter refers to Mr Shaw having pleaded guilty at a late stage and of having had a criminal history. The nature and extent of this history is not known. Neither is his age or other personal circumstances. The summary does not record the mitigating factors taken into account by the magistrate. A head sentence of 12 months’ imprisonment with a parole release date after two months was imposed. He was also ordered to make restitution in the sum of approximately $120,000, being the total compensation payments which had been paid to him.
  1. [65]
    I have also had regard to Stanley which is discussed above. In that case Ms Stanley pleaded guilty at an early time to one count of defrauding WorkCover and three counts of providing false or misleading information to WorkCover.  She had made an application for compensation on the grounds of suffering a psychological injury in her workplace and claimed a total incapacity to work. During the period of her receiving compensation, she worked as a part time waitress for which she was paid approximately $2,000 over a 13 month period.   She had told her psychologist that she was not working and this was included in medical certificates provided to WorkCover.  She made full admissions when confronted about her dishonest behaviours.  Ms Stanley had no criminal history.  On appeal the sentence imposed was six months’ imprisonment wholly suspended for an operational period of 18 months.  She was also ordered to make restitution in the sum of approximately $60,000.
  1. [66]
    As to the abovementioned comparables, apart from the caution to be exercised as to the reliability of the summaries, there are a few other points to be made. First, I am not persuaded by the submission made on behalf of Mr McLean at the hearing below that they demonstrate that the sentences imposed for like offending have not demonstrably increased in response to the increase in the maximum penalty in 2013 for defrauding an insurer. In my view, it misses the point. The reason behind the increase in the maximum penalty in 2013 from 18 months to five years’ imprisonment was to align it with fraudulent offending under the Criminal Code Act 1899 (Qld).[14]  This substantial increase shows how seriously the community through Parliament regards the type of offending engaged in by Mr McLean. In short, careful attention to maximum penalties is always required.  They invite comparison between the worst possible case and the case before the court.   Taken and balanced with all other relevant factors, maximum penalties provide a yardstick for the courts.[15]
  1. [67]
    Second, while I accept that consistency of sentencing is a desirable objective in the sentencing process, care needs to be taken when considering sentences in other cases as each case turns upon its own facts. Third, a sentence imposed in another matter in the Magistrates or District Courts does not create a binding precedent or set a ‘range’ of permissible sentences. Rather what might give rise to a precedent is a statement of principle from an appellate court that effects how the discretion should be exercised.[16]  Finally, the comparables which predate the 2013 increase in the maximum penalty are of little assistance as they concern sentences that were imposed under a different statutory regime.   
  1. [68]
    In my view, the requirement for Mr McLean to serve six months in custody was not outside the broad sentencing discretion of the magistrate.  It is below a third of the head sentence of two years’ imprisonment to reflect the various factors in mitigation which are addressed above. 
  1. [69]
    If I am wrong in the sense that the magistrate ought to have taken the restitution ordered into account, I am not persuaded that it is an error that has led to an excessive sentence. This is because it attracts no significant weight when balanced with the other mitigating factors and aggravating features of Mr McLean’s offending.

Orders

  1. [70]
    The following order is made:
  1. (i)
    The appeal is dismissed.

Footnotes

[1] R v Lawley [2007] QCA 243 at [18]. Cf R v Wruck [2014] QCA 39.

[2] At 504-505.

[3] Teelow v Commissioner of Police [2009] 2 Qd R 489.

[4] R v Tout [2012] QCA 296 at [8].

[5] [2005] QCA 73.

[6] Pursuant to s 36(1)(c) of the Act.

[7] [2011] QCA 344 at [33].

[8] [2010] QDC 48.

[9] R v Daetz; R v Wilson (2003) 139 A Crim R 398 at [57] and [62]; R v Crawford [2020] QCA 68 at [18].

[10] Ibid at [25].

[11] [2009] 2 Qd R 331.

[12] [2013] QCA 51

[13] R v Noble and Verheyden [1996] 1 Qd R 329 at 330-331.

[14] Explanatory Memorandum – Workers’ Compensations and Rehabilitation and Other Legislation Amendment Bill 2013.

[15] R v Murray [2014] QCA 250 at [16] – [17].

[16] R v SCU [2017] QCA 198.

Close

Editorial Notes

  • Published Case Name:

    McLean v Workers' Compensation Regulator

  • Shortened Case Name:

    McLean v Workers' Compensation Regulator

  • MNC:

    [2021] QDC 22

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    24 Feb 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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