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

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:

(i) defrauding or attempting to defraud WorkCover – two years’ imprisonment suspended after six months for an operational period of three years;

(ii) giving WorkCover a document containing information that is false or misleading in a material particular – nine months’ imprisonment suspended after three months;

(iii) knowingly making to WorkCover a false or misleading statement in a material particular (seven charges) – for each charge,…

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 McLean v Workers' Compensation Regulator

Details

AGLC: McLean v Workers' Compensation Regulator [2021] QDC 22
Case: [2021] QDC 22
Decision Date: 24 February 2021

CaseChat Overview and Summary

The case of McLean v Workers' Compensation Regulator involved the appellant, McLean, who had pleaded guilty to ten counts of dishonesty related to a workers' compensation claim. The matter was heard in the County Court of Victoria, with the appeal against the sentence being brought to the Court of Appeal. McLean's offending included nine counts of providing false or misleading information and one count of defrauding WorkCover, for which he received a sentence of two years' imprisonment, suspended after six months, and concurrent terms for the other offences.

The central legal issues before the Court of Appeal were whether the trial judge erred by not referencing the fact that McLean had sustained a legitimate injury in the reasons for the sentence, and whether the sentence imposed was appropriate and just given the circumstances. The court also considered whether the restitution order was correctly made, as there was no mention of McLean's legitimate injury in the reasons.

The Court of Appeal found that the trial judge did not err in not referencing McLean's legitimate injury in the reasons for sentence, as it was not a mitigating factor in this case. The court also held that the sentence imposed was appropriate and just, taking into account the seriousness of the offending, the need for general deterrence, and the fact that McLean had already served six months in custody. The court concluded that the sentence was not manifestly excessive or inappropriate, and that the appeal should be dismissed. Consequently, the appeal against the sentence was dismissed, and the orders made by the County Court were upheld.

Orders

Orders of the court

1. The appeal is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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