Walia v The Workers Compensation Regulator
[2021] QDC 235
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- Unreported Judgment
- Walia v The Workers Compensation Regulator[2021] QDC 235
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Walia v The Workers Compensation Regulator[2021] QDC 235
Walia v The Workers Compensation Regulator[2021] QDC 235
DISTRICT COURT OF QUEENSLAND
CITATION: | Walia v The Workers Compensation Regulator [2021] QDC 235 |
PARTIES: | KHUSHPREET WALIA (appellant) |
v | |
THE WORKERS COMPENSATION REGULATOR (respondent) | |
FILE NO: | 460/21 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against sentence |
ORIGINATING COURT: | Magistrates CourtBrisbane |
DELIVERED ON: | 24 September 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 September 2021 |
JUDGE: | Cash QC DCJ |
ORDERS: |
|
APPEARANCES: | J Sibley of Sibley Lawyers for the appellant G Morgan instructed by The Workers’ Compensation Regulator for the respondent |
Introduction
- [1]The appellant committed an offence contrary to section 533 of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WRCA). This section provides ‘a person must not in any way defraud or attempt to defraud an insurer’. The maximum penalty is a fine of up to 500 penalty units or imprisonment for up to five years. On 29 January 2021 the appellant appeared before a Magistrate at Brisbane. After hearing submissions, the Magistrate sentenced the appellant to imprisonment for 12 months but suspended the sentence immediately for an operational period of two years. Necessarily, a conviction was recorded. The Magistrate also ordered the appellant to pay compensation in the amount of $5,500.
- [2]The offence committed by the appellant arose in the following way. He was a casual van driver employed by a company that was an insurer pursuant to the workers’ compensation scheme. On 20 June 2018 he was driving when a car collided with his van. The van was knocked onto its side and the appellant suffered injury to his arm as a result of broken glass. The event was plainly traumatic. The appellant made a claim relating to both his physical and psychological injuries. There is no dispute that the appellant suffered psychological injury – by August 2018 he had been diagnosed with post-traumatic stress disorder. But, from 6 September 2018 until the end of that year, the appellant falsified or exaggerated the extent of his injuries to continue to receive workers’ compensation. He did this by telling some of those treating him that his physical injuries had not improved, and that he continued to experience debilitating pain. He also claimed to be too anxious to drive at all.
- [3]The appellant’s assertions were maintained until late 2018. They were shown to be false by surveillance arranged by the insurer. This showed the appellant driving a car without apparent difficulty on three occasions in September 2018. On one occasion the appellant was seen visiting a gym and using exercise machines. In late October one of his physiotherapists observed the appellant driving for about fifteen minutes. Then in late November a psychiatrist formed the opinion that the appellant was malingering.
- [4]By his plea the appellant admitted that he had defrauded the insurer. The amount the appellant dishonestly claimed as a result was just over $30,000.
- [5]The appellant now appeals against the sentence imposed. It is alleged the Magistrate made specific errors. It is also alleged that the sentence was in any event excessive. Before considering the appellant’s complaints it is necessary to say something of the nature of this appeal and of the proceedings before the Magistrate.
Nature of the appeal
- [6]The appeal is brought pursuant to section 222 of the Justices Act 1886 (Qld). Section 222(2)(c) provides that if a person pleads guilty in the proceedings before a Magistrate, they may only appeal on the ground that the ‘fine, penalty, forfeiture or punishment was excessive’. Pursuant to section 223 of the Justices Act, the appeal is by way of rehearing on the evidence given in the proceedings before the Magistrate (and any further evidence that might be admitted with leave). I am required to conduct a real review of both the evidence before the Magistrate, and the Magistrate’s reasons for imposing the sentence, to determine whether the decision was affected by error. As this is an appeal against the exercise of the sentencing discretion, it must be determined in accordance with the well-known principles in House v The King (1936) 55 CLR 499.[1] If I find that the sentence imposed was ‘unreasonable or plainly unjust’, or if the Magistrate erred in law, acted upon a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, or mistook the facts, then I can exercise the sentencing discretion afresh.
The proceedings before the Magistrate
- [7]The appellant indicated he would plead guilty at an early stage. The sentence hearing commenced on 11 September 2020. Material was tendered, including an agreed statement of facts (exhibit one) and written submissions of the parties (exhibits two and three). The appellant’s written submissions, which were not challenged in this respect, described the appellant as a 29-year-old man who had been born in India and was a practising Sikh. He had no prior convictions. In 2014 he married and moved to Australia to support his wife as she studied. He worked for the company for about a year before being injured. Since then, his marriage had ended and he began driving cabs. The appellant was also involved in community work at his temple. It was said he risked losing his licence to drive taxis if a conviction were recorded.
- [8]At the hearing an issue arose as to the extent of the appellant’s genuine symptoms from post-traumatic stress disorder and whether this was relevant to the assessment of his culpability for the offence. The appellant applied for and was granted an adjournment to obtain the opinion of a psychiatrist about this issue. The hearing resumed on 29 January 2021, at which time the appellant relied upon the opinion of a psychiatrist, Dr Ravindran, contained in a report (exhibit 8). I will return to the contents of this report shortly. In response the prosecution tendered four reports of Dr Chung, a consultant psychiatrist who saw the appellant in 2018 in connection with his workers’ compensation claim.
- [9]The parties were aware before the resumption of the hearing that there was a dispute about the extent to which the appellant’s symptoms were relevant to the assessment of his culpability. Dr Ravindran’s report bears the date 15 January 2021, and it may be assumed was disclosed to the prosecution some time between then and the resumption of the hearing on 29 January. At the resumed hearing the prosecution relied upon a further written outline (exhibit seven) in which it criticised aspects of the report of Dr Ravindran, arguing that provided an insufficient foundation for a conclusion that the appellant’s culpability was reduced. The issue was raised at the commencement of the resumed hearing, with the appellant’s solicitor implying Dr Ravindran may be able to provide further information in response to the criticisms. The following exchange occurred:[2]
MR SIBLEY: I just wanted to say this though, your Honour. He is available for questioning if required.
BENCH: Look, I don’t have time to do that. If you want to do something, you would have to apply for an adjournment yet again. I have not got time. As you can see, for a lengthy sentence, we do not go into evidence.
MR SIBLEY: No. And I don’t want ---
BENCH: So the sentence will proceed on the basis of the material before us.
- [10]The hearing proceeded. The appellant relied upon the principles identified in decisions such as R v Tsiaris,[3] R v Verdins,[4] and R v Yarwood.[5] It was said by Dr Ravindran that the appellant was suffering ‘paranoid symptoms secondary to PTSD’. He thought the appellant’s paranoid symptoms were persistent and that he was ‘insightless about them’. The symptoms included delusional thoughts that ‘there was a conspiracy of individuals working collaboratively to undermine and attack him’. He though the health professionals involved in his compensation matter were part of this conspiracy and, as a result, he withheld or provided vague histories to protect himself. Dr Ravindran also thought the appellant drove his own car because he was concerned that other drivers would not be sufficiently careful and if he was a passenger, he could not take avoiding action. Dr Ravindran’s report stated that he provided ‘regular psychiatric care’ to the appellant and had reviewed him on 19 November 2020.
- [11]Dr Chung’s various reports were relied upon by the prosecution. His first report, arising from a consultation on 2 August 2018, did not describe any paranoia or delusional thinking. Dr Chung thought the symptoms described by the appellant were consistent with post-traumatic stress disorder. In a short follow-up report of 29 August 2018, Dr Chung opined that the appellant was incapable of work at that time because of his headaches, memory difficulty and reduced energy level. Dr Chung saw the appellant again on 29 November 2018. By this time Dr Chung was concerned about the appellant’s presentation and queried whether ‘Munchausen’s syndrome’ could be dismissed.[6] At this consultation the appellant claimed not to know the name of the President of the United States of America. He was unable to serially subtract seven from 100 at all, a task Dr Chung noted even patients with early dementia could do to a factor of two or three. The appellant was unable to draw a complete clock face, a test of parietal lobe function. An inability to do so is usually the result of severe brain damage from stroke or dementia. Dr Chung thought the appellant’s presentation was due to exaggeration rather than cognitive impairment.
- [12]While the appellant claimed to be unable to remember his wife’s birthday or age, he could recall the level of the building at Spring Hill where the consultation took place. Dr Chung thought this was incongruent. When the appellant’s wife left the room, his demeanour changed, and he appeared more alert and confident. He claimed he had not been able to drive since the collision. Dr Chung noted that on physical examination there was evidence of disuse atrophy of the injured arm. The appellant told Dr Chung he had experienced auditory hallucinations. He also reported persecutory thoughts and some paranoia. Dr Chung was aware of the suggestion that the appellant had been seen driving by a physiotherapist. He thought some of the symptoms reported by the appellant were exaggerated and he was no longer certain that the appellant was unable to return to work. Dr Chung recommended that the appellant be referred to the Medical Assessment Tribunal and was concerned that ‘encouraging [the appellant] to remain in a sick role will likely cause worsening impairment’.
- [13]By December 2018 Dr Chung had seen the surveillance recordings. His report of 21 December 2018 was unequivocal. He said the appellant did not suffer from a psychological or psychiatric injury. He did not consider the appellant was incapacitated and did not require treatment.
- [14]At the resumed hearing the prosecution set out to diminish the opinion of Dr Ravindran. His report was criticised for having been prepared without the appellant’s full medical history, in particular without the reports of Dr Chung and the surveillance recordings. The prosecution also attacked Dr Ravindran’s opinion as it did not disclose the methods he employed or what, if any, checks he employed to detect confabulation, exaggeration or malingering. It was submitted that Dr Ravindran’s opinion was deserving of no weight in light of the comprehensive reporting of Dr Chung. It was further submitted that even if the appellant’s mental state contributed to the offending, the scope for moderating the sentence was limited.[7]
- [15]The Magistrate accepted the criticisms of Dr Ravindran’s report raised by the prosecution. In particular, the Magistrate was concerned that Dr Ravindran had not considered the reports of Dr Chung, and other relevant information. Her Honour concluded that she should not give weight to Dr Ravindran’s opinion, and on that basis thought the principles identified in Verdins and other cases were not relevant.
Consideration
- [16]It is in this context that the appellant appeals against the sentence imposed. The two grounds advanced are that the Magistrate erred by disregarding the opinion of Dr Ravindran and that in any event the sentence was excessive.
- [17]As I have set out above, the Magistrate was confronted with the opinion of Dr Ravindran that the appellant, at the time of the offending, suffered paranoia arising from his post-traumatic stress disorder in a way that contributed to his offending. The opinions of Dr Chung, while not directly addressing this issue, would, if accepted, significantly diminish or destroy the opinion of Dr Ravindran. The opinion that the appellant was paranoid, and that this contributed to the offending was an allegation of fact. As the opinion was challenged by the prosecution the Magistrate was not obliged to act on it but may have done so if satisfied it was probably true.[8] It is inherent in the decision of the Magistrate that she did not accept the opinion was probably true. The real question on this appeal is whether the Magistrate was right to reach that conclusion.
- [18]What I have set out above is sufficient to demonstrate the considerable advantages enjoyed by Dr Chung in comparison to Dr Ravindran. He saw the appellant on several occasions in the latter part of 2018. He saw the surveillance recordings. He was aware of all the other material relating to the appellant’s compensation claim. In contrast, the extent of Dr Ravindran’s contact with the appellant was unclear. He described himself as ‘providing regular psychiatric care’ and reviewing the appellant on 18 November 2020. It is clear from the proceedings below that he was only engaged at some point after the first hearing day in September 2020. Dr Ravindran’s report does not refer to any collateral sources of information for his opinion. Instead, it appears to be based solely on the appellant’s own reporting. In circumstances where the central allegation was that the appellant falsified or exaggerated his symptoms, this is a concerning omission. It is true that Dr Chung recorded the appellant’s report of auditory hallucination and persecutory thoughts, but this was not cited by Dr Ravindran as being relevant to his conclusions.[9] The fact that the appellant reported this to Dr Chung in 2018 does not add much weight to Dr Ravindran’s opinion.
- [19]It is no response to claim, as the appellant does, that Dr Ravindran was aware of the nature of the allegations and had the agreed statement of facts. This was a summary, and no substitute for the detailed reports of Dr Chung. It was also of concern that Dr Ravindran did not detail his examination and methodology in a manner that made his opinion susceptible to scrutiny. The appellant called no evidence to remedy this deficiency. In this appeal the appellant implied it was for the prosecution, as a model litigant, to draw the alleged deficiencies in Dr Ravindran’s report to the attention of the appellant before the hearing. The prosecution in this case was of course an arm of government. They can be expected to conduct proceedings in a manner consistent with both model litigant principles and prosecutorial ethics. But these do not require the prosecution to point out the inadequacies of material proffered in mitigation. Rather the prosecution can be expected to appropriately test all claims,[10] and to fairly assist the court to arrive at the truth.[11] In any event the appellant was made aware of the alleged deficiencies at the resumed hearing. If it was thought the deficiencies could and should be remedied, the appropriate application was for an adjournment. It may be accepted that the appellant’s lawyer at the hearing felt such an application would not be well received by the Magistrate. But as there was no application made (the prospect appears to have been eschewed by the appellant’s solicitor) it cannot be known what the Magistrate may have done. The appellant should be held to the way he chose to conduct the hearing. It is also to be noted that the appellant has not in this appeal sought leave to put on any further evidence that might address the criticisms of Dr Ravindran’s report at first instance. This is perhaps unsurprising, as the capacity of a court accept an opinion based upon the self-reporting, two years after the relevant time, of an offender who falsified or exaggerated his symptoms must be very limited.
- [20]It was in my view plainly correct for the Magistrate to reject the opinion of Dr Ravindran about the extent to which the appellant’s symptoms contributed to the offending.
- [21]At the hearing of the appeal, it was said by the appellant that the Magistrate erred by ignoring the fact the appellant had suffered from post-traumatic stress disorder. This contention must also be rejected. It is true the Magistrate made no specific mention of the fact in her sentencing remarks. But in the preceding discussion it is plain that her Honour was aware the mere existence of post-traumatic stress disorder was a relevant consideration. After hearing submissions about the relevance of the principles identified in Verdins, the Magistrate indicated she did not think there was evidence the offending was ‘caused by the mental health condition’ but went on to say that the appellant’s post-traumatic stress disorder was something she could ‘take into account generally on sentence’.[12] It could not be said her Honour was unaware of the potential relevance of the appellant’s condition. That it was not mentioned in sentence may suggest that her Honour, as she was entitled to do, did not consider it a matter of much weight.
- [22]Having concluded the Magistrate was correct to place no weight on the opinion of Dr Ravindran, I turn to the question of whether the sentence was in any event excessive. In doing so I note the appellant has not directed any submissions specifically toward this issue. The appellant engaged in a protracted course of dishonesty. He deceived medical practitioners and others during this time. His offending resulted in a significant financial gain to the appellant, and a concomitant loss to the insurer. The system for workers’ compensation relies upon the honesty of claimants. Deterrence and denunciation were important to the exercise of the sentencing discretion. That was to be balanced against the appellant’s personal circumstances. He had no prior convictions and had co-operated in the administration of justice. The offending was also of a kind for which a sentence of imprisonment was to be considered a sentence of last resort, and order permitting the appellant to remain in the community were to be preferred.[13]
- [23]A consideration of the schedule of comparable cases to which the Magistrate was referred indicates that the sentence of imprisonment, immediately suspended, was within the permissible range for offending of this kind. Such a sentence properly balanced the need for deterrence and denunciation with the appellant’s personal circumstances and the statutory principles noted above. The nature of the offending meant that a sentence of imprisonment was the only appropriate sentence. I am not persuaded the sentence was excessive.
- [24]In the circumstances the appeal must be dismissed. The respondent has sought an order that the appellant pay their costs of the appeal.[14] The appellant did not at the hearing argue that if he was unsuccessful a different order should be made. It is appropriate that the appellant pay the respondent’s costs.
- [25]The orders will be:
- The appeal is dismissed;
- 2.The appellant pay the respondent’s costs of the appeal not exceeding the scale amounts in Schedule 2 of the Justices Regulation 2014 (Qld) to be paid to the registrar to be paid over to the respondent within six months.
Footnotes
[1] Teelow v Commissioner of Police [2009] 2 Qd R 489.
[2] Transcript of 29 January 2021, T.1-8.27-36.
[3] [1996] 1 VR 398.
[4] (2007) 16 VR 269; [2007] VSCA 102.
[5] [2011] QCA 367; (2011) 220 A Crim R 497.
[6] Sometimes called factitious disorder.
[7] Citing R v Ahmetaj [2015] QCA 248; (2015) 256 A Crim R 203.
[8] Evidence Act 1977 (Qld), section 132C.
[9] Dr Ravindran had not seen Dr Chung’s reports until after he had written his own.
[10] Department of Justice and Attorney-General, ‘Model Litigant Principles’, 4 October 2010.
[11] Bar Association of Queensland, Barristers’ Conduct Rules.
[12] Transcript of 29 January 2021, T.1-18.4-11.
[13] Penalties and Sentences Act 1992 (Qld), section 9(2)(a).
[14] Justices Act 1886 (Qld), section 232.