Maloney v Workers' Compensation Regulator - [2022] QDC 216

DISTRICT COURT OF QUEENSLAND

CITATION:

Maloney v Workers' Compensation Regulator [2022] QDC 216

PARTIES:

TAMARA ELIZABETH MALONEY

(appellant)
v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

16/22

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

21 September 2022

DELIVERED AT:

Cairns

HEARING DATE:

19 August 2022

JUDGE:

Morzone KC DCJ

ORDER:

1.   Appeal allowed in part.

2.   The sentence and orders of the Magistrates Court made in Cairns on 17 January 2022 are varied by substituting the following orders in lieu of the sentences of imprisonment for counts 2 and 3:

(a)     For count 2 – A conviction is recorded but the appellant is not further punished.

(b)     For count 3 – A conviction is recorded but the appellant is not further punished.

CATCHWORDS:

CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – evidence of appellant’s intention amount to excusal and absolute defence instead of mitigation – whether prosecution did not exclude a “reasonable excuse” under s 535(1)(c) of the Act – whether sentence manifestly excessive.

LEGISLATION:

Justices Act 1886 (Qld) s 222, s 223(1) & 227

Workers’ Compensation and Rehabilitation Act 2003

CASES:

Ajax v Bird [2010] QCA 2
Latoudis v Casey (1990) 170 CLR 534
Lowe v The Queen (1984) 154 CLR 606
Meisser v R (1994-5) 184 CLR 132
R v Lomass (1981) 5 A Crim R 230
R v McIntosh [1923] St R Qd 278
R v Morse (1979) 23 SASR 98
Scanlon v Queensland Police Service [2011] QDC 236

COUNSEL:
MJ Jackson for the Appellant
AL Bain for the Respondent

SOLICITORS:
Fisher Dore for the Appellant.

Workers Compensation Regulator Prosecutions Unit

Introduction

On 17 January 2022, the appellant was convicted on her plea of guilty to six dishonesty offences against the Workers’ Compensation and Rehabilitation Act 2003 (‘Act’) in the Magistrates Court held in Cairns. She was sentenced for charge 1 to 6 months imprisonment, wholly suspended for an operational period of 12 months, and for the other charges 2 to 6 she was sentenced for each and separately to 3 months imprisonment, wholly suspended for 6 months. It was further ordered that the appellant pay restitution of $15,386.59 and costs of $5191.30. Convictions were recorded.
The appellant now appeals her convictions in relation to counts 1, 4, 5 & 6 on the ground that the learned magistrate erred in not rejecting the appellant’s pleas of guilty because on the evidence the absence of “reasonable excuse’ is not made out. She also argues that sentences of imprisonment imposed for charges 2 and 3 as being contrary to law where they are only punishable by fine under s 136 of the Act. The respondent concedes that the sentences for charges 2 and 3 are erroneous, but otherwise contests the appeal.
The determinative issues are:
(a)As to counts 1, 4, 5 and 6 - did the prosecution exclude a “reasonable excuse” under s 535(1)(c); if so what are the consequential orders?
(b)As to counts 2 and 3 - what other sentence or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maloney v Workers' Compensation Regulator

Details

AGLC: Maloney v Workers' Compensation Regulator [2022] QDC 216
Case: [2022] QDC 216
Decision Date: 21 September 2022

CaseChat Overview and Summary

In the case of Maloney v Workers' Compensation Regulator, the court considered an appeal against the appellant's sentence for various offences related to workers' compensation fraud. The appellant was convicted on six counts including defrauding an insurer, failing to notify of a return to work, and making false statements to WorkCover. The court examined whether the appellant's evidence regarding her intention could be considered as an excusal and absolute defence, and if the prosecution had adequately excluded a "reasonable excuse" under the relevant legislation. Additionally, the court assessed whether the sentence imposed was manifestly excessive.

The legal issues before the court involved determining the nature of the appellant's intention and its impact on the charges. The court had to consider whether the prosecution had excluded a "reasonable excuse" as per the statutory provisions. The court also assessed the proportionality and fairness of the sentence, particularly in light of the appellant's evidence and submissions regarding her lack of intent to defraud and her understanding of her obligations.

The court found that the appellant's evidence about her intention and her understanding of her obligations was compelling. The contemporaneous file note and the psychiatric report supported the appellant's claim that she did not intend to deceive or financially benefit from the incident. The court concluded that the prosecution had not sufficiently excluded a "reasonable excuse" based on the appellant's evidence. Moreover, the court deemed the sentence to be manifestly excessive given the appellant's lack of intent and her subsequent compliance with the reporting requirements.

In light of these findings, the court allowed the appeal in part and varied the sentence. The court recorded convictions for counts 2 and 3 but ordered that the appellant would not be further punished for these offences. The other aspects of the sentence were upheld, maintaining the conviction for the remaining counts.

Orders

Orders of the court

1. Appeal allowed in part.

2. The sentence and orders of the Magistrates Court made in Cairns on 17 January 2022 are varied by substituting the following orders in lieu of the sentences of imprisonment for counts 2 and 3:

(a) For count 2 – A conviction is recorded but the appellant is not further punished.

(b) For count 3 – A conviction is recorded but the appellant is not further punished.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I will order accordingly.Is the evidence of the appellant’s intention such that the prosecution did not exclude a “reasonable excuse” under s 535(1)(c) of the Act?? At the commencement of the sentence hearing, the prosecutor sought without objection and upon notice, and obtained leave, to amend the particulars of the complaint. The appellant was then arraigned in bulk in accordance with ss 145(2)-(4) of the Justices Act 1886 (Qld), and was convicted on her plea to six offences:(1)Defraud or attempted to defraud an insurer against 533(1) of the Act; (2)Worker receiving compensation for injury must notify of return to work or engagement in a calling against s 136 of the Act;(3)Worker receiving compensation for injury must notify of return to work or engagement in a calling against s 136 of the Act;(4)Knowingly make a false or misleading statement to an authority, WorkCover or self-insurer against s 534(2) of the Act;(5)Give authority, WorkCover, self-insurer or registered person a document containing information that is false or misleading in a material particular against s 534(2) of the Act;(6)Knowingly make a false or misleading statement to an authority, WorkCover or self-insurer against s 534(2) of the Act;. The appellant’s plea of guilty will be vitiated if she so pleaded to a charge that is not made out at law, and this Court has power to receive, hear and determine the appeal in that context.[1][1] Cf. Ajax v Bird [2010] QCA 2, Meisser v R (1994-5) 184 CLR 132 at 141, Meisser v R (1994-5) 184 CLR 132 at 141 The appellant points to the submission made by the prosecutor after the arraignment of the defendant, that: “it’s incontrovertible that she did understand her obligations because she went on to fulfil them for several months until the second undisclosed job came to light”. On hearing this, the learned Magistrate was concerned about a contest on a critical issue as distinct from a plea on an agreed statement of facts. The appellant’s then solicitor affirmed that the facts “are agreed” and that “references in the medical report really go to moral culpability as opposed to legal responsibility”. The appellant relies upon the following evidence and submissions below:(a)Firstly, a contemporaneous file note recording the defendant saying: “I apologise for the lack of clarity and confusion that this has likely caused. It has never been my intention to gain financially from my employer as a result of the incident which took place”.(b)Secondly, Dr O’Hare opined in her psychiatric report that: “… rigid thinking style and strong moral compass made the plea of guilty a difficult one for her as she genuinely did not intend to mislead Workcover but rather failed to interpret the forms she was required to fill in in an appropriate way…”. (c)Thirdly, the solicitor’s submission that: “From then on it was made clear to her that the payslips from Big W needed to be remitted every fortnight and that occurred for the rest of the claim period. At that point it would be reasonable to assume that any person would think that maybe other employment would also be relevant, however, my client due to reasons specific to her just simply failed to understand that all of that information was needed by the insurer in order to correctly calculate her entitlements”.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Maloney v Workers' Compensation Regulator [2022] QDC 216
PARTIES:	TAMARA ELIZABETH MALONEY (appellant) v WORKERS’ COMPENSATION REGULATOR (respondent)
FILE NO:	16/22
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	21 September 2022
DELIVERED AT:	Cairns
HEARING DATE:	19 August 2022
JUDGE:	Morzone KC DCJ
ORDER:	1. Appeal allowed in part. 2. The sentence and orders of the Magistrates Court made in Cairns on 17 January 2022 are varied by substituting the following orders in lieu of the sentences of imprisonment for counts 2 and 3: (a) For count 2 – A conviction is recorded but the appellant is not further punished. (b) For count 3 – A conviction is recorded but the appellant is not further punished.
CATCHWORDS:	CRIMINAL LAW - appeal pursuant to s 222 Justices Act 1886 – evidence of appellant’s intention amount to excusal and absolute defence instead of mitigation – whether prosecution did not exclude a “reasonable excuse” under s 535(1)(c) of the Act – whether sentence manifestly excessive.
LEGISLATION:	Justices Act 1886 (Qld) s 222, s 223(1) & 227 Workers’ Compensation and Rehabilitation Act 2003
CASES:	Ajax v Bird [2010] QCA 2 Latoudis v Casey (1990) 170 CLR 534 Lowe v The Queen (1984) 154 CLR 606 Meisser v R (1994-5) 184 CLR 132 R v Lomass (1981) 5 A Crim R 230 R v McIntosh [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 Scanlon v Queensland Police Service [2011] QDC 236
COUNSEL:	MJ Jackson for the Appellant AL Bain for the Respondent
SOLICITORS:	Fisher Dore for the Appellant. Workers Compensation Regulator Prosecutions Unit