| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- MONYENYE [2011] WADC 200 CORAM : MARTINO CJDC HEARD : 25 AUGUST, 22 SEPTEMBER & 10 NOVEMBER 2011 DELIVERED : 10 NOVEMBER 2011 FILE NO/S : POC 8 of 2011 MATTER : IN THE MATTER OF an application pursuant to the Crimes (Superannuation Benefits) Act 1989 (Cth)
AND IN THE MATTER of property of a person convicted BENARD NYANGWESO MONYENYE
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Applicant
AND
BENARD NYANGWESO MONYENYE
Respondent Catchwords: Criminal law - Confiscation of property - Superannuation benefits Legislation: Crimes (Superannuation Benefits) Act 1989 (Cth)
Criminal Code Act 1995 (Cth)
Medicare Australia Act 1973 (Cth)
Public Service Act 1999 (Cth)
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Result: Superannuation order made Representation: Counsel:
Case(s) referred to in judgment(s):
DPP (Cth) v Della-Vedova [2010] NSWC 8
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1 MARTINO CJDC: The plaintiff, the Commonwealth Director of Public Prosecutions, has applied under s 17 of the Crimes (Superannuation Benefits) Act 1989 (Cth) for a superannuation order under s 19 of that Act against the respondent, Mr Monyenye. The application is made by reason of Mr Monyenye's conviction in the District Court of Western Australia on 17 September 2009 of 24 offences of dishonestly obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth), one offence of attempting dishonestly to obtain a financial advantage by deception and one offence of dealing with money that was the proceeds of crime by exporting $19,324 from Australia, contrary to s 400.6(1) of the Code.
2 On 17 September 2009 Sleight DCJ sentenced Mr Monyenye to 12 months imprisonment on each charge, counts 1 to 4 were to be served cumulatively, the remaining counts were to be served concurrently. His Honour fixed a non-parole period of 2 1/2 years. 3 Section 18(1) of the Crimes (Superannuation Benefits) Act (Cth) provides that: In determining an application for a superannuation order in respect of a person, the appropriate court may have regard to the transcript of any proceedings against the person for the offence to which the application relates and to the evidence given in any such proceedings. 4 Section 18(2) of the Crimes (Superannuation Benefits) Act (Cth) provides that: … any finding of fact made by a court in any proceedings for the offence to which the application relates, is prima facie evidence of that fact and the finding may be proved by the production of documents, under the seal of the court, in which the finding appears. 5 Edward William Ley Greaves, a principal legal officer in the Perth office of the Director of Public Prosecutions (DPP) has sworn an affidavit dated 8 June 2011 in support of the DPP's application. Annexed to that affidavit is a copy of the transcript of the sentencing hearing before Sleight DCJ on 17 September 2009, including his Honour's sentencing remarks. The DPP has not provided any document under the seal of the court. The provision in s 18(2) that provides that a finding may be proved by the production of a document under the seal of the court is permissive, not mandatory. It does not detract from the provisions of s 18(1) that a court may have regard to transcript. I do have regard to the transcript of the sentencing hearing on 17 September 2009 and any finding of fact (Page 4)
made by Sleight DCJ on the sentencing of Mr Monyenye is prima facie evidence of that fact. 6 Section 17(1A) of the Crimes (Superannuation Benefits) Act (Cth) provides that if the DPP is authorised to apply for a superannuation order in respect of a person who is convicted of one or more offences and, where the person was convicted of two or more offences, the person was sentenced in respect of those offences to imprisonment for a single term longer than 12 months or to cumulative terms that together add up to longer than 12 months, the DPP must make the application to the appropriate court. 7 On 25 October 2010 the Minister for Justice authorised the DPP to apply to the appropriate court for a superannuation order in respect of Mr Monyenye. Appropriate court is defined in s 2(1). The definition includes within the meaning of the term the court before which the person was convicted of the offence. As Mr Monyenye was convicted in this court it is the appropriate court for the purposes of s 17(1A). I conclude that the requirements of s 17(1A) are satisfied. 8 Section 19(1) of the Crimes (Superannuation Benefits) Act (Cth) provides that: … where an application is made for a superannuation order in respect of a person, the court must, if satisfied that the offences to which the application relates is a corruption offence, by order declare: (a) that the person was convicted of a corruption offence; and (b) that this Part applies in relation to the rights of, and benefits paid, or payable to or in respect of, the person under any superannuation scheme. 9 Section 19(1) is subject to s 19(2). Section 19(2) applies where a person is deemed under s 6(1)(b) to have been convicted of an offence and it has no application in this case. 10 Corruption offence is defined in s 2(1). It means: an offence by a person who was an employee at the time which it was committed, being an offence: (a) whose commission involved an abuse by the person of his or her office as such an employee; or (b) that, having regard to the powers and duties of such an employee was committed for a purpose that involved corruption; or (Page 5)
(c) that was committed for the purpose of perverting, or attempting to pervert, the course of justice. 11 Section 7 defines an employee as meaning a person employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a state or territory, or under a contract or service or apprenticeship. 12 At the time that he committed the offences Mr Monyenye was employed at Medicare Australia. He commenced that employment on 20 August 2007. Prior to that employment Mr Monyenye had been employed at Centrelink from 4 January 2005 to 29 December 2006. Whilst employed at Medicare Mr Monyenye browsed the Medicare computer system to locate details of deceased persons. He then used the information to access the records of the deceased in the Centrelink system, where he obtained their tax file number. He used those tax file numbers to process and grant claims for the baby bonus and the maternity immunisation allowance into bank accounts that he had opened. 13 On 26 November 2008 the Australian Federal Police executed search warrants on Mr Monyenye's car, his home and the Morley office of Medicare and found documents he had obtained or created to commit the offences. Mr Monyenye claimed a total of $328,286.70 in false payments for the baby bonus and the maternity immunisation allowance. He received a total of $318,286.70 as the last payment of $10,000 was blocked by Centrelink. Mr Monyenye committed the offence of dealing with money that was the proceeds of crime by exporting $19,324 from Australia by sending that amount to various accounts overseas. 14 In his sentencing remarks Sleight DCJ said of Mr Monyenye's conduct in committing the offences: The scheme used by you to obtain money from Centrelink involved an elaborate manipulation of information obtained by you from your employer's records. The scheme was well-planned, skilful and involved considerable cunning and boldness (ts 25). 15 His Honour also said at ts 27: Large amounts of money were defrauded deliberately in breach of trust you owed to your employer and also to the wider Australian community. 16 Mr Monyenye's employment at Medicare terminated following his entry of pleas of guilty to the charges in the Magistrates Court on 10 July 2009. During the period of Mr Monyenye's employment at (Page 6)
Medicare the legislation which provided for Medicare was known as the Medicare Australia Act 1973 (Cth). That Act provided, in s 20, that the staff of Medicare Australia are to be persons engaged under the Public Service Act 1999 (Cth), that for the purposes of the Public Service Act (Cth) the Chief Executive Officer and the Australian Public Sector employees assisting the Chief Executive Officer together constitute a statutory agency and that the Chief Executive Officer is the head of that statutory agency. Under s 22 of the Public Service Act (Cth) an agency head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the agency. At the time that he committed the offences Mr Monyenye was employed by the Commonwealth as he had been engaged on behalf of the Commonwealth as an employee for the purposes of an agency. He was an employee within the meaning of that term in s 7 of the Crimes (Superannuation Benefits) Act (Cth). 17 I have quoted earlier in these reasons Sleight DCJ's finding as to Mr Monyenye's offending conduct. In my view the conduct involved in each of the 24 offences of dishonestly obtaining a financial advantage by deception and the one offence of attempting dishonestly to obtain a financial advantage by deception constituted an abuse by Mr Monyenye of his office as an employee of Medicare. The offences were corruption offences within the meaning of that term in s 2 of the Crimes (Superannuation Benefits) Act (Cth). I am not convinced that the one offence of dealing with money that was the proceeds of crime comes within the definition of a corruption offence, but it is unnecessary to come to a concluded view on that question as the other offences clearly do. 18 Pursuant to s 19(1) of the Crimes (Superannuation Benefits) Act (Cth), I declare that Mr Monyenye was convicted of 25 corruption offences and that pt 2 of the Act applies in relation to the rights of, and benefits paid or payable to or in respect of the person under any superannuation scheme. 19 Section 21(1)(a) provides that: (1) Where a court makes a superannuation order in respect of a person:
(a) all rights of, and benefits payable to or in respect of, the person or a dependant of the person which (being rights or benefits arising out of the person's membership of any superannuation scheme) cease, or cease to be payable, on the day on which the order takes effect and the person ceases to be a member of the scheme on that day.
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20 Section 21(5) provides that where a superannuation order is made, the person in respect of whom the order is made is entitled to be paid moneys that relate to contributions to the scheme by that person. 21 Superannuation scheme is defined in s 2 in relation to a person as meaning a superannuation scheme (other than a scheme established under a law of a State) under which employer contributions or benefits are paid or payable, or have at any time been paid, by the Commonwealth or a Commonwealth authority to or in respect of the person, and includes any scheme or arrangement under which such contributions are vested in the person. I am required by s 19(3) to work out and specify in the superannuation order the amount that I think reflects the value of the sum of contributions made by the Commonwealth in respect of Mr Monyenye under any superannuation scheme plus the accrued interest. Under s 18(3) a certificate signed or sealed by the person's superannuation authority stating that employer contributions or benefits made or payable by the Commonwealth or a specified Commonwealth authority in respect of the person are held in a specified fund under the relevant superannuation scheme and stating the amount that equals the sum of those contributions or benefits as at the specified day plus the amount of interest on those contributions or benefits accrued under the scheme before that day is prima facie evidence of the matters stated in the certificate. 22 As I have mentioned, Mr Monyenye was employed by Centrelink from 4 January 2005 to 29 December 2006. The DPP does not seek a superannuation order in respect of that period of employment. The DPP concedes that a superannuation order should not be made in respect of that period of employment because, as Harrison J held in DPP (Cth) v Della-Vedova [2010] NSWC 8, the Crimes (Superannuation Benefits) Act (Cth) applies only to superannuation benefits under a scheme from the period of employment during which the offending was committed. 23 Mr Monyenye has submitted that a superannuation order ought to be limited to the period during which he committed the offences, ie between about 16 June 2008 and 27 November 2008. I do not accept that submission. 24 Section 19(1) provides that where a person has been convicted of a corruption offence the court is to declare that the Part applies 'in relation to the rights of, and benefits paid or payable to or in respect of the person under any superannuation scheme.' There is nothing in the Act to limit the operation of a superannuation order to benefits that arise out of the period during which the offending took place only. (Page 8)
25 I conclude that the DPP is entitled to a superannuation order that applies in respect of the whole of the period of Mr Monyenye's employment by Medicare from 20 August 2007 until the termination of that employment.
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