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Workers' Compensation Regulator v Crowder[2023] QDC 95

Workers' Compensation Regulator v Crowder[2023] QDC 95

DISTRICT COURT OF QUEENSLAND

CITATION:

Workers’ Compensation Regulator v Crowder [2023] QDC 95

PARTIES:

WORKERS’ COMPENSATION REGULATOR

(appellant)

v

LEANNE CROWDER

(respondent)

FILE NO:

BD 1341/22

DIVISION:

Criminal

PROCEEDING:

Appeal

Magistrates Court at Brisbane

DELIVERED ON:

9 June 2023

DELIVERED AT:

Brisbane

HEARING DATES:

19 April 2023 (further written submissions on 5, 6 and 7 June 2023)

JUDGE:

Rosengren DCJ

ORDER:

  1. The appeal is dismissed.
  1. The application by the Regulator for leave to adduce new evidence is refused.

CATCHWORDS:

CRIMINAL LAW – s 222 APPEAL – APPEAL AGAINST SENTENCE – APPEALS BY THE REGULATOR – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to fraud and attempted fraud in relation to a WorkCover claim – where the respondent was sentenced to two years’ imprisonment wholly suspended for four years and ordered to perform community service – where there were errors in the sentencing discretion – where the sentence was manifestly inadequate

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY THE REGULATOR – RESIDUAL DISCRETION – where one year has passed since the respondent was sentenced to a wholly suspended term of imprisonment – where the respondent has performed the community service and is in employment – whether the Court should exercise its residual discretion not to return the respondent to custody

Justices Act 1886 (Qld) s 222

Penalties and Sentences Act 1992 (Qld) s 9(1), s 9(2)(a), 9(10)

Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 537(5)

DPP (Cth) v Gregory (2011) 211 A Crim R 147

McLean v Workers’ Compensation Regulator [2021] QDC 22

R v Chmieluk; Ex parte Attorney-General (Qld) [2018] QCA 271

R v Hopper; Ex parte Attorney-General [2014] QCA 108

R v Major; Ex parte Attorney-General [2012] 1 Qd R 465

R v Osenkowski (1982) 30 SASR 212

R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131

R v Tout [2012] QCA 296

R v Yarwood [2011] QCA 367

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

Walia v Workers’ Compensation Regulator [2021] QDC 235

COUNSEL:

B Pitkeathly for the appellant

T Ryan KC the respondent

SOLICITORS:

Crown Law for the appellant

Ly Lawyers for the respondent

  1. [1]
    Ms Crowder was initially charged with one count of defrauding WorkCover Queensland (‘WorkCover’), four counts of knowingly making a false or misleading statement to WorkCover and one count of attempting to defraud WorkCover. These offences related to a claim for compensation she made to WorkCover Queensland under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the WCR Act’). 
  1. [2]
    On 21 January 2022, Ms Crowder pleaded guilty in the Brisbane Magistrates Court to the count of fraud and the count of attempted fraud. No evidence was offered in relation to the remaining four counts (which were in effect the particulars of the fraud charge). On 13 May 2022 Ms Crowder was sentenced as follows:
  1. (i)
    defrauding WorkCover – two years’ imprisonment, wholly suspended for an operational period of four years; and
  1. (ii)
    attempted fraud – 200 hours of community service, with a conviction being recorded.   
  1. [3]
    Further, Ms Crowder was ordered to pay restitution to WorkCover in the sum of $85,379.81 which was referred to SPER for enforcement of it.
  1. [4]
    There are five grounds of appeal, namely:
  1. (i)
    the penalty imposed was inadequate;
  1. (ii)
    the magistrate erred in that he:
  1. (a)
    sentenced the appellant on the basis that the quantum of the fraud was less than the charged amount;
  1. (b)
    made an assessment that there had been extra-curial punishment without hearing submissions;
  1. (c)
    did not give adequate weight to the appellant’s criminal history; and/or
  1. (d)
    erred in the application of R v Yarwood [2011] QCA 367 in that the medical evidence relied on by the appellant was insufficient.  
  1. [5]
    For the reasons set out below, while I am satisfied that the magistrate erred and the sentence was manifestly inadequate, the appeal should be dismissed. Further the application by the Regulator to adduce new evidence is refused.

Nature of s 222 appeals

  1. [6]
    The Justices Act 1886 (Qld) governs this appeal.  The disposition of it is by way of rehearing of the evidence. Given that Ms Crowder has pleaded guilty, it can be brought by the Regulator on the sole ground that the penalty or punishment was inadequate.
  1. [7]
    There is no right penalty in any case. There is always a range of permissible sentences. Different judicial officers legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range or is otherwise affected by an error of law.[1]  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 a material consideration, then the appellate court may intervene and exercise its own discretion.[2]
  1. [8]
    Given that this is an appeal by the Regulator, the Court in R v Chmieluk; Ex parte Attorney-General (Qld)[3]confirmed the following remarks of King CJ in R v Osenkowski[4]:

“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crimes, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”

  1. [9]
    For the Court is to accede to the Regulator’s submission that Ms Crowder ought to have been sentenced more heavily, it must not only identify an appellable error in the discretion exercised by the magistrate. It must also negate any reason why the residual discretion of the Court not to interfere should be exercised.[5]  

Circumstances of the offending

  1. [10]
    On 15 August 2017, Ms Crowder was working as a social worker at Baillie Henderson Hospital when she tripped on a telephone cable and sustained injuries to her left hand, shoulder and wrist. She also fractured her left big toe and sustained some scrapes and bruises (‘the work incident’). On the following day she made a workers’ compensation claim for these physical injuries. This claim was accepted by WorkCover a few weeks later. A claim for a secondary psychiatric injury in relation to the work incident was subsequently made on 6 November 2017. This was also accepted. It is common ground that Ms Crowder was diagnosed with a psychiatric injury as a consequence of the work incident.
  1. [11]
    Relevantly, prior to the work incident, Ms Crowder had:
  1. (i)
    received treatment for mental health conditions, including post-traumatic stress disorder, depression and anxiety dating back to at least 2010; and
  1. (ii)
    taken two anti-depressant medications for many years, namely Fluoxetine and Dothep.
  1. [12]
    It seems from the material tendered at the hearing, that in June 2011 Ms Crowder was diagnosed with a post-traumatic stress disorder arising from an injury to her bowel during surgery in 2009. Between 2014 and 2017 several general practitioners had recommended that Ms Crowder undergo psychological treatment to manage symptoms of depression, anxiety and stress, and to resolve her long-standing conflict with family members. She was also prescribed the antidepressants under a series of mental health care plans. Further, during the period of the compensation claim, Ms Crowder attended upon two separate general practitioners and requested mental health care plans for issues unrelated to her work incident.
  1. [13]
    Despite the above, between 7 November 2017 and 6 August 2019, Ms Crowder represented to psychologists, psychiatrists and the Medical Assessment Tribunal (‘the MAT’) on five separate occasions that she did not have a history of past psychological conditions and/or treatment. In particular:
  1. (i)
    On 7 November 2017, Ms Crowder told Mark Kirk, psychologist that she was not taking any medications for mental health related issues.
  1. (ii)
    On 13 June 2018, Ms Crowder told Dr Prabal Kar, psychiatrist that she had no mental health history. She disclosed that she took Dothep but told Dr Kar that it was to treat a bowel condition she had.
  1. (iii)
    On 18 October 2018, Ms Crowder told Dr Malcolm Frost, psychologist that she had no history of suicidal thoughts, anxiety or other mental health conditions.
  1. (iv)
    On 14 May 2019, Ms Crowder told Dr Vladan Ljubisavljevic, psychiatrist that she had no history of psychological conditions.  She disclosed that she had been prescribed an antidepressant but said that she did not take it.
  1. (v)
    On 6 August 2019, Ms Crowder attended the MAT.  She told the tribunal that at the time of the workplace incident she had been functioning normally with no psychological symptoms.  She also said that she had been taking Dothep for a number of years for irritable bowel syndrome.  She further said that the only medication she was continuing to take was Coloxyl and this was for her bowel problems.    
  1. [14]
    Ms Crowder received compensation payments of $85,379.81, comprised of $75,729.91 for loss of income and the remaining $9,649.90 for treatment and other rehabilitative services.
  1. [15]
    A common law claim was made for both physical and psychological injuries arising out of the work incident. In the Notice of Claim dated 30 December 2019, damages were claimed in the sum of $520,045.08. One of the questions in the form enquired of Ms Crowder as to whether she had ever sustained any injury, illness, impairment or disability which may have affected the quantum of damages claimed.  The response was provided “No”.   Ms Crowder signed a declaration confirming the accuracy of all responses provided in the form. 

Sentencing framework

  1. [16]
    The Penalties and Sentences Act 1992 (Qld) (‘the Act’) creates the regulatory framework relevant to a consideration of Ms Crowder’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. [17]
    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.

Sentencing submissions and remarks

  1. [18]
    The Regulator made the following sentencing submissions:
  1. (i)
    The maximum penalty for both offences is five years’ imprisonment.
  1. (ii)
    The fraud related to Ms Crowder’s statutory claim was $85,379.81 and of that amount $75,729.91 was compensation payments.  The attempted fraud related to her common law claim and involved an amount of $520,045.08.
  1. (iii)
    Ms Crowder’s offending was serious because it prevented WorkCover from properly assessing her claim. 
  1. (iv)
    The offending was committed over a period of approximately two years and involved making false statements not only to WorkCover but also to health practitioners.
  1. (v)
    The workers’ compensation system is heavily reliant on the honesty of claimants and therefore the system is at great risk of exposure to acts of fraud.
  1. (vi)
    Ms Crowder’s dishonesty was deliberate and deceitful and was designed to result in a pecuniary benefit to her.
  1. (vii)
    Ms Crowder had a relevant criminal history, including a conviction for obtaining a financial advantage. The offending period in relation to this earlier dishonesty encompassed the period that immediately preceded her offending the subject of this appeal.  She was still subject to a probation order at that time of this offending.
  1. (viii)
    The offending only came to light when WorkCover was preparing for the compulsory conference in respect to the common law claim.
  1. (ix)
    Ms Crowder’s criminal history and the quantum of the fraud and attempted fraud meant that an appropriate penalty would include a head sentence of imprisonment for two years with a parole release date being set after eight months.  
  1. [19]
    On behalf of Ms Crowder, the following submissions were made:
  1. (i)
    The attempted fraud in relation to the common law claim was a continuation of the fraud and occurred in circumstances where the Notice of Claim was completed by Ms Crowder’s solicitors and presented to her to sign.
  1. (ii)
    The quantum of damages claimed in a Notice of Claim rarely represents the quantum of a WorkCover settlement or judgment.   Had Ms Crowder disclosed her pre-existing mental health history in the Notice of Claim, there would not have been a significant reduction in the compensation she would have been entitled to.
  1. (iii)
    Her offending was detected by WorkCover at a relatively early stage, before the parties had attended a compulsory conference where attempts would have been made to resolve the common law claim.     
  1. (iv)
    The feature that sets this matter apart from other sentences involving defrauding WorkCover, is that Ms Crowder had a legitimate claim for physical and psychological injuries, meaning that she was entitled to claim and receive some workers’ compensation payments.
  1. (v)
    The illness of Ms Crowder’s partner is relevant to explain why the offending occurred.   
  1. (vi)
    Ms Crowder sustained a serious bowel injury in 2009 and continues to experience problems stemming from this.  
  1. (vii)
    Prior to the bowel injury, Ms Crowder had a good work history.  She is now in receipt of a disability support pension and a carer’s allowance in relation to her partner.
  1. (viii)
    An appropriate sentence would involve a head sentence up to two years imprisonment wholly suspended with a significant operational period of up to four years.
  1. [20]
    The sentencing remarks of the magistrate reveal that the following matters were taken into account:
  1. (i)
    The pleas of guilty.
  1. (ii)
    The references to remorse in some of the references tendered on her behalf were hearsay and questionable given Ms Crowder’s previous offending.  She was sorry that she had been caught but there was little observable contrition. 
  1. (iii)
    Ms Crowder had previously been sentenced to an intensive corrections order for offending of a similar nature and the rehabilitative aspects of that order had failed to have a positive effect on her.  
  1. (iv)
    The offending for which she was being sentenced was more serious than her previous offending of dishonesty.
  1. (v)
    As to the fraud, Ms Crowder made the claim and took the payments.  As to the attempted fraud, she would probably have settled for a quantum substantially smaller than the quantum claimed.
  1. (vi)
    There had been practical demonstration in relation to restitution, although the respondent was already paying restitution in relation to her earlier offending.
  1. (vii)
    Ms Crowder was providing a caring role for her partner and has her own medical issues, particularly in relation to her bowel.
  1. (viii)
    Applying the principles in Yarwood, moral culpability may well have been reduced and imprisonment would represent a greater burden on Ms Crowder because of her bowel issues and mental health.  
  1. (ix)
    Ms Crowder was unlikely to be employed as a social worker again and this was a form of extra-curial punishment.  

Considerations

Yarwood principles

  1. [21]
    A report of Julie Dombrowski, psychologist dated 13 April 2022 was tendered at the hearing as exhibit 8. Ms Crowder was assessed by Ms Dombrowski for about five and a half hours over three separate occasions in March and April 2022.
  1. [22]
    As to the circumstances surrounding the offending, it is said in the report that Ms Crowder had several stressors in her life.  She was living with her partner who has schizophrenia and he was not complying with his treatment for it.  He had returned to gambling and illegal substance abuse.   He was also associating with anti-social peers.  Further, Ms Crowder was experiencing some mood and trauma symptoms for which she was taking medication.   She also had ongoing conflict with her children for which she was receiving psychological treatment.   In addition, she had sustained a bowel injury in 2009 that was not only causing ongoing physical discomfort and incontinence but was also impacting upon her mentally.  
  1. [23]
    Ms Dombrowski opined that Ms Crowder’s depression and anxiety helped to explain her offending behaviours, as did the financial strain she was under, and the potential for financial reward. It seems that in reliance on this opinion, the magistrate considered that Ms Crowder’s moral culpability may well have been reduced. I am persuaded this amounted to an error, in that the opinion expressed by Ms Dombrowski did not provide a proper evidentiary foundation for the magistrate to be satisfied that Ms Crowder’s moral culpability for her offending ought to be reduced.
  1. [24]
    There are three principal reasons for this. First, Ms Crowder’s criminal history is summarised in paragraphs 33 to 35 below. It is unclear from Ms Dombrowski’s report whether she was aware of Ms Crowder’s most recent conviction in the Grafton Local Court on 9 December 2019. Even if she was aware of the entry, there is no suggestion from her report that she was aware of the nature or protracted period of the offending. This is very relevant because it is another concerning offence of dishonesty.  When the criminal history is considered in totality and in its proper context, it shows an escalating pattern in the seriousness of Ms Crowder’s offending involving dishonesty.  Further, it reveals that for part of the offending she was in breach of a probation order and at the time she committed the attempted fraud, she was in breach of an intensive corrections order.  This is discussed further in paragraph 36 below.
  1. [25]
    Second, the opinion is based on information Ms Crowder provided to her, including Ms Crowder’s responses in the MCMI-III psychometric assessment. This is in circumstances where Ms Dombrowski’s summary of Ms Crowder’s behavioural observations, included her being garrulous throughout the assessment and her providing contradictory information requiring the clarification of inconsistent responses.
  1. [26]
    Third, the report does not adequately address the nature of the impairment on Ms Crowder’s mental functioning, nor how the impairment was affecting her for the more than two year period over which the offending was committed.  It is not opined that the nexus between Ms Crowder’s depression and anxiety rose so high so as to deprive her of the capacity to understand the nature of her actions, control them or to have known that she should not have been engaging in this criminal conduct.  

Extra-curial punishment

  1. [27]
    Ms Crowder had worked as a social worker and apparently hopes to return to this occupation. The magistrate considered that while her expectations in this regard were naïve, her loss of employment prospects could be considered to be a form of extra-curial punishment. The weight attributed to this by the magistrate cannot be discerned from the sentencing remarks.
  1. [28]
    In my view, it was an error of principle for the magistrate to characterise this as extra-curial punishment, or for any other reason give it any weight as a mitigating factor.  She already had three previous entries for dishonesty in her criminal history.  The most recent of those was for protracted dishonesty and the seriousness of it was reflected in her being sentenced to a term of imprisonment with a conviction recorded.  
  1. [29]
    Given that I am satisfied that the Regulator has demonstrated that the magistrate erred in at least these two respects, it is unnecessary to reach a conclusion as whether the magistrate made any further errors as detailed in paragraph 4 above.

Resentencing

  1. [30]
    The question to be determined is whether the Regulator has shown that it is appropriate to exercise the residual discretion in favour of allowing the appeal.
  1. [31]
    Both offences carry maximum penalties of five years’ imprisonment. This taken and balanced with all other relevant factors provides a yardstick for the courts.
  1. [32]
    Ms Crowder was between 54 and 56 years of age at the time of the offending. She is now 60 years old. She is a qualified social worker and was in gainful employment until 2007. She has worked intermittently since this time and has otherwise been a carer for her partner.              
  1. [33]
    As discussed above, Ms Crowder has Queensland and Commonwealth criminal histories for offences of dishonesty. On 19 November 2014 she was sentenced in the Redcliffe Magistrates Court for a minor offence of unauthorised dealing with shop goods on 11 October 2014.  She was 51 years of age at the time.  The minor nature of this offending is reflected in the punishment, being a fine of $250 with no conviction being recorded. Restitution in the amount of $80.01 was also ordered. 
  1. [34]
    During the period of the offending the subject of this appeal, Ms Crowder committed a separate offence of dishonesty on 24 June 2017, for which she was sentenced in the Ipswich Magistrates Court on 9 October 2017. The offence committed was fraud – dishonestly making off without paying. She was placed on probation for 18 months and ordered to pay $4,404.17 in restitution.
  1. [35]
    Ms Crowder was sentenced in the Grafton Local Court on 9 December 2019, after pleading guilty to the offence of receiving a financial advantage from a Commonwealth entity over a period of about 20 months, between 29 January 2016 and 22 September 2017. She was between 52 and 54 years of age over the period of this offending.  For this offending she was sentenced to imprisonment for nine months to be served by way of an intensive correction order.  She was also ordered to perform community service for 100 hours, which I am told she has completed.  In addition, she was ordered to make reparation in the sum of $24,752.39.  At the time of sentence, she was making small, but regular payments for this out of her Centrelink benefit.  
  1. [36]
    Ms Crowder’s criminal history cannot result in her receiving a penalty which punishes her again for these previous offences. However, pursuant to s 9(10) of the Act it is appropriate to treat the previous convictions imposed on 9 October 2017 and 9 December 2019 as aggravating factors. The reason for this is they also involved offences for dishonesty. She commenced the subject offending within a month of her appearance in the Ipswich Magistrates Court on 9 October 2017. She was subject to the probation order imposed when she provided the dishonest information to Mr Kirk, Dr Kar and Dr Frost on 7 November 2017 and 13 June and 18 October 2018 as summarised in paragraph 13 above.  Further, she committed the attempted fraud only three weeks after being sentenced in the Grafton Local Court.  She was in breach of the intensive corrections order imposed on that occasion.   It is of concern that the penalties imposed did not deter her from engaging in further offending of dishonesty.  Her history shows an escalation in the seriousness of the dishonesty she has engaged in. The subject offending cannot be regarded as an uncharacteristic aberration.  There is clearly a need for personal deterrence.  
  1. [37]
    Counsel for Ms Crowder sought to minimise the seriousness of this offending in the submissions before the magistrate. There are a few points to be made about this. First, I do not accept this matter is unusual because Ms Crowder had a legitimate injury. Several of the comparables relied on at the sentence had this feature. Second, there is no evidence to support the submission that had Ms Crowder not deceived WorkCover in relation to the attempted fraud, there would not have been a significant reduction in the compensation she would have been entitled to.  Third, whether the Notice of Claim was completed by Ms Crowder or her lawyers is of marginal relevance.  There is no reason to believe that it did not reflect her instructions.  This is in circumstances where the dishonest component of it is consistent with the dishonest information provided by her in respect of the fraud charge.  Fourth, I do not accept that there was any element of naivety to her offending.  Ms Crowder deliberately misled or lied to health care providers and the MAT as to the existence of her previous longstanding and significant mental health problems.  This pattern of dishonesty was replicated in the Notice of Claim.  Fifth, the offending was over a protracted period.   Sixth, her offending only came to an end after it was detected by WorkCover.   Seventh, the amount of the fraud and the attempted fraud are significant, even accepting that Ms Crowder may well have been entitled to some compensation.   
  1. [38]
    Frauds of this character, whether it be actual or attempted, must be strongly discouraged. They are prevalent and the community expectation is that such conduct will be met with salutary penalties. It involved deliberate dishonesty in which Ms Crowder set out to benefit from payments which she knew she was not entitled to. She was exploiting a system, which has as its principal objective, the provision of compensation to injured workers with genuine claims.
  1. [39]
    While I have expressed my reservations in relation to some aspects of Ms Dombrowski’s report, I accept that it is relevant to the sentencing discretion in that it assists in understanding the factual background against which the offending occurred and Ms Crowder’s personal circumstances.  I do not accept Ms Dombrowski’s opinion that Ms Crowder’s risk of recidivism is low, given that the report does not demonstrate an understanding of the full extent of Ms Crowder’s criminal history.   I accept Ms Crowder requires psychological treatment, in particular to explore the factors that may have contributed to her offending. I have read the treatment plan of Rachel Mellor, psychologist.  
  1. [40]
    Ms Crowder continues to have ongoing problems with her bowel, manifesting in faecal incontinence and defaecatory dysfunction issues. She was due to undergo a procedure in mid last year to assist with this. It is not known whether this was performed. It is accepted that Ms Crowder’s ongoing mental health symptoms and bowel condition mean that a sentence of imprisonment will weigh more heavily on her than a person in normal health.
  1. [41]
    As mentioned above, Ms Crowder is the carer for her long-term partner. There is medical material evidencing that he suffers from schizophrenia and is effectively without social support, apart from Ms Crowder. Brendan Mooney is his treating psychologist and has provided a letter to the court dated 28 February 2022. He considers that if Ms Crowder were to be incarcerated, this would have a substantial detrimental effect on her partner. He apparently becomes emotionally overwhelmed if in daily contact with several people, which would be the reality for him, if he was required to relocate to a hostel or similar accommodation. Although this ought not be allowed to overwhelm the punishment that would otherwise be appropriate, it is clearly a relevant consideration.
  1. [42]
    The magistrate ordered Ms Crowder to make restitution to WorkCover in the sum of $85,379.81 to be referred to SPER for enforcement of it. This is a direct consequence of her criminal conduct and is not a factor in mitigation of the sentence. If Ms Crowder does not pay the restitution ordered, s 537(5) of the WCR Act provides that the order may only be enforced against her as if it were made by a court in civil proceedings for a debt. There is no evidence that Ms Crowder has any intention to repay the outstanding amount. The evidence suggests that she has no capacity to repay it. There is no evidence that WorkCover will take steps to recover it if she does not repay it.
  1. [43]
    I do not consider that Ms Crowder’s guilty pleas are an indicator of remorse. They have been entered in the context of a strong case against her. I have read Ms Crowder’s letter to the court and the references tendered on her behalf. I agree with the magistrate that it is questionable whether Ms Crowder’s remorse is genuine. While I have no doubt that she is sorry that her offending has come to light, there is little indication of real contrition. As explained above, personal deterrence remains relevant as does the need for denunciation.
  1. [44]
    Ms Crowder began seeking assistance from Ms Gousteris, financial counsellor in October 2019. Ms Gousteris’s reference does not address the fact that within weeks of Ms Gousteris commencing to treat Ms Crowder, she committed the attempted fraud.
  1. [45]
    Erin Quinlan is a friend of Ms Crowder and lives in the Northern Territory. She talks of her shock and dismay on learning that Ms Crowder had committed these offences and describes them as being “so out of character for her”.  This suggests that Ms Quinlan was unaware of the other entries in Ms Crowder’s criminal history.  
  1. [46]
    As to comparable authorities, the magistrate was referred to several decisions of other magistrates. While they may be examples of how the sentencing discretion has been exercised in other cases, they do not set a range of permissible sentences and nor do they create a binding precedent. Further, in relation to some of these other sentences, the magistrate was not provided with the sentencing remarks but rather with a summary of them, which raises questions as to their accuracy.
  1. [47]
    The magistrate was provided with two decisions from this court, namely McLean v Workers’ Compensation Regulator[6] and Walia v Workers’ Compensation Regulator[7].  In McLean the magistrate imposed the following sentences:
  1. (i)
    defrauding or attempting to defraud WorkCover – two years’ imprisonment suspended after six months for an operational period of three years (maximum penalty - five years’ imprisonment);
  1. (ii)
    giving WorkCover a document containing information that is false or misleading in a material particular – nine months’ imprisonment suspended after three months (maximum penalty - 12 months’ imprisonment);
  1. (iii)
    knowingly making a false or misleading statement to WorkCover in a material particular (seven charges) – for each charge, nine months’ imprisonment suspended after three months (maximum penalty - 12 months’ imprisonment); and
  1. (iv)
    failing to notify WorkCover of a return to work or an engagement in a calling – convicted but not further punished (maximum penalty - 50 penalty units).
  1. [48]
    In 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’). A few weeks later, he lodged a claim for compensation with WorkCover Queensland in relation to the injuries. He had a legitimate claim, meaning that he was entitled to some compensation.
  1. [49]
    Mr McLean’s offending occurred over a period of approximately 14 months and involved providing false payslips and failing to inform WorkCover that he had returned to work as a real estate agent. Further, 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 involved his son in providing him with the fraudulent payslips. Mr McLean had received $265,774.21 by way of WorkCover payments. He had repaid $4,250 by the time of the sentence.
  1. [50]
    The factors in mitigation included Mr McLean’s timely plea, his remorse, his lack of a criminal history as a mature man, his otherwise good character, his solid work history and his low risk of reoffending. It was accepted that his ongoing mental health problems reduced his moral culpability in a limited way and would mean that there may well have been some adverse consequences for him in custody beyond what would be the norm for a person being sentenced to a term of imprisonment.
  1. [51]
    Mr McLean appealed the sentence on the basis that there had been an error of law and that it was manifestly excessive requiring him to serve a period of six months in prison. The appeal was dismissed.
  1. [52]
    In Walia, the magistrate imposed a sentence of 12 months imprisonment wholly suspended for two years for defrauding WorkCover.   The maximum penalty for the offence was five years’ imprisonment.   He was also ordered to pay compensation in the sum of $5,000.   Mr Walia appealed the sentence on the basis of alleged errors and also that it was manifestly excessive.  The appeal was dismissed.
  1. [53]
    Mr Walia was working as a casual van driver and in June 2018 he was involved in a collision with a car. He suffered an injury to his arm from broken glass. He made a claim for a physical injury and a secondary psychological injury. There is no dispute that he suffered these injuries. For a period of about three months, Mr Walia 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.
  1. [54]
    WorkCover arranged surveillance which demonstrated Mr Walia’s claims to be false. It showed him driving a car without apparent difficulty on three occasions. On another occasion he was seen visiting a gym and using exercise machines. On yet another occasion, one of his physiotherapists observed him driving for about fifteen minutes. A psychiatrist ultimately formed the opinion that the appellant was malingering. The amount Mr Walia dishonestly claimed was just over $30,000.
  1. [55]
    As to mitigation, Mr Walia indicated he would plead guilty at an early stage. He was aged 29 and had no prior convictions. He was involved in community work and risked losing his licence to drive taxis if a conviction was recorded.
  1. [56]
    Turning to the subject offending, balancing all of the relevant considerations, in my view, the absence of the requirement for Ms Crowder to serve an actual period of imprisonment rendered the sentence imposed by the magistrate to be manifestly inadequate. This is having regard to the relevance of personal deterrence, given her criminal history. It is also having regard to the need to deter others from committing the same or similar offences and to make it clear that the community, acting through the court, denounces this sort of fraudulent conduct.
  1. [57]
    In my view, the appropriate period of actual custody would have been some four to six months. 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. [58]
    The question becomes whether Ms Crowder should be taken into custody now after the magistrate imposed a non-custodial sentence some 12 months ago. Courts are hesitant to incarcerate persons who have already been granted their liberty. It can interfere with rehabilitative steps being taken. It also places the person in a state of uncertainty between the imposition of the sentence at first instance and the appeal. Further, it can damage public confidence in the justice system.[8]
  1. [59]
    In imposing the sentence now, I am required to consider any change in circumstances, since the magistrate imposed the sentence in May last year. Relevantly there has been no further re-offending and Ms Crowder has been working casual/part-time as a field educator at James Cook University. Further, she has completed the 200 hours of community service ordered by the magistrate. She has also completed the 100 hours of community service imposed by the Grafton Local Court in December 2019.
  1. [60]
    I have ultimately formed the view that while the sentence imposed by the magistrate was infected by error and was manifestly inadequate, it would not be desirable to interrupt Ms Crowder’s steps towards rehabilitation by imposing a relatively brief period of actual custody. In these circumstances I consider it appropriate to exercise the residual discretion to decline to intervene.

Adducing new evidence

  1. [61]
    As discussed above, Ms Crowder has a history of committing offences of dishonesty. While her Queensland and Commonwealth criminal histories were an exhibit before the magistrate, unfortunately no information was provided as to the circumstances in which these offences were committed. This remained the position on the hearing of the appeal. The applicant seeks leave to adduce new evidence being transcripts of the sentencing remarks for the sentences imposed on 9 October 2017 and 9 December 2019 for previous offences of dishonesty. The latter of these was only provided last week. Written submissions about this issue were provided by the Regulator and the respondent on 4, 5 and 7 June 2023.
  1. [62]
    The sentencing remarks for the sentence imposed on 9 October 2017 reveal that on 24 June 2017 Ms Crowder attended the Brisbane Anti Wrinkle & Skin Studio and received treatments for which she was charged $4,404.17.  She purported to pay for the services with a bank cheque linked to an account that had been closed several years earlier.  The magistrate observed that the treatments were a luxury experience and that she had received them with no intention of paying for them. 
  1. [63]
    Turning to the sentence imposed on 9 December 2019, the remarks reveal that Ms Crowder was in receipt of a disability support pension. The rate of the benefit payable to her was affected by other monies being received by her.  She deliberately omitted disclosing that she was also earning an income as a social worker.  The sentencing remarks reveal that on 8 January 2016, enquiries were made of Ms Crowder as information had been received that she was employed.  She was told how to comply with her obligations by reporting her income.  She was requested to provide payslips.  She falsely said that she had no expected earnings for the reporting period between 31 December 2015 and 13 January 2016.  In fact, she had worked on three days in this reporting period prior to this conversation, namely on 4, 5 and 6 January 2016. She then worked on 11 and 12 January 2016.
  1. [64]
    On 18 January 2016, Ms Crowder again spoke with a representative of the Commonwealth government. She provided further false information in that she said she had been unable to access her payslips as she was not working, even though she worked that very day and the following two days. She did not provide the payslips which had been requested.
  1. [65]
    Ms Crowder had in fact earned $105,801.30 from employment as a social worker. These monies were deposited into a different account than that used to deposit her pension payments. Due to her dishonesty, she received $27,454.02 in pension payments, rather than the $1,999.23 that she was legitimately entitled to receive. The difference is $25,454.79. Her fraudulent conduct was ultimately detected in early November 2019 by way of a data match with the Australian Taxation Office.
  1. [66]
    It was considered that Ms Crowder’s risk of reoffending was low based on the contents of a sentence assessment report. This was a relevant factor in determining the penalty to be imposed. Ms Crowder’s subsequent offending has proven this optimism to be misplaced.
  1. [67]
    While it would be expected that the circumstances of these previous offences would have been before the magistrate and this Court, I have ultimately come to the view that leave should not be granted. This is because, as explained above, for reasons unrelated to this new evidence, I am satisfied that the magistrate erred in the exercise of the sentencing discretion and that the sentence imposed was manifestly inadequate. Further, while this information would have provided additional information about these previous offences of dishonesty and confirmed the consequential need for personal deterrence, so much was readily apparent from the entries for these previous offences as detailed Ms Crowder’s criminal histories.   Relevantly, those entries revealed that:
  1. (i)
    Ms Crowder had previously committed deliberate offences of dishonesty, meaning the subject offending could not be characterised as an uncharacteristic aberration.
  1. (ii)
    One of those offences was committed during the same period as her dishonest offending the subject of this appeal, and Ms Crowder was subject to the probation order imposed in relation to this earlier offending when she committed most of her conduct comprising the subject fraud offence.
  1. (iii)
    Ms Crowder committed the attempted fraud, the subject of this appeal within weeks of the sentence imposed on 9 December 2019 and she was at the relevant time subject to the intensive corrections order that had been imposed on that occasion.
  1. (iv)
    Both the offending for which Ms Crowder was sentence on 9 December 2019 and the subject offending were protracted.
  1. (v)
    The subject offending represented an escalation in the seriousness of her offending comprising dishonesty.

Order

  1. [68]
    The following orders are made:
  1. (i)
    The appeal is dismissed; and
  1. (ii)
    The application by the Regulator to adduce new evidence is refused.

Footnotes

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

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

[3] [2018] QCA 271.

[4] (1982) 30 SASR 212 at 212-3.

[5] R v Schenk; Ex parte Attorney-General (Qld) [2016] QCA 131.

[6] [2021] QDC 22.

[7] [2021] QDC 235.

[8] DPP (Cth) v Gregory (2011) 211 A Crim R 147 at 169 [79]; R v Major; Ex parte Attorney-General [2012] 1 Qd R 465 at 482; R v Hopper; Ex parte Attorney-General [2014] QCA 108 at [37].

Close

Editorial Notes

  • Published Case Name:

    Workers' Compensation Regulator v Crowder

  • Shortened Case Name:

    Workers' Compensation Regulator v Crowder

  • MNC:

    [2023] QDC 95

  • Court:

    QDC

  • Judge(s):

    Rosengren DCJ

  • Date:

    09 Jun 2023

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Director of Public Prosecutions (Cth) v Gregory (2011) 211 A Crim R 147
2 citations
Jump To
Cite 1 - (2011) 211 A Crim R 147
Cite 2 - (2011) 211 A Crim R 147
McLean v Workers' Compensation Regulator [2021] QDC 22
2 citations
Jump To
Cite 1 - [2021] QDC 22
Cite 2 - [2021] QDC 22
R v Chmieluk; ex parte Attorney-General [2018] QCA 271
2 citations
Jump To
Cite 1 - [2018] QCA 271
Cite 2 - [2018] QCA 271
R v Hopper; ex parte Attorney-General[2015] 2 Qd R 56; [2014] QCA 108
2 citations
Jump To
Cite 1 - [2014] QCA 108
Cite 2 - [2014] QCA 108
R v Major; ex parte Attorney-General[2012] 1 Qd R 465; [2011] QCA 210
2 citations
Jump To
Cite 1 - [2012] 1 Qd R 465
Cite 2 - [2012] 1 Qd R 465
R v Osenkowski (1982) 30 SASR 212
2 citations
Jump To
Cite 1 - (1982) 30 SASR 212
Cite 2 - (1982) 30 SASR 212
R v Schenk; ex parte Attorney-General [2016] QCA 131
2 citations
Jump To
Cite 1 - [2016] QCA 131
Cite 2 - [2016] QCA 131
R v Tout [2012] QCA 296
2 citations
Jump To
Cite 1 - [2012] QCA 296
Cite 2 - [2012] QCA 296
R v Yarwood [2011] QCA 367
2 citations
Jump To
Cite 1 - [2011] QCA 367
Cite 2 - [2011] QCA 367
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 489
Cite 2 - [2009] 2 Qd R 489
Walia v The Workers Compensation Regulator [2021] QDC 235
2 citations
Jump To
Cite 1 - [2021] QDC 235
Cite 2 - [2021] QDC 235

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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