Montgomery v Millikan No. Scgrg-97-1693 Judgment No. S6537

[1998] SASC 6537

MONTGOMERY v MILLIKAN

Magistrates Appeal
Olsson J

The appellant appeals against her conviction by a stipendiary magistrate, on 24 November 1997, of three offences of obtaining a benefit by dishonest means, contrary to the provisions of section 120(1)(a) of the Workers Rehabilitation and Compensation Act, 1986 (“the Act”). She also appeals against the severity of a single, composite sentence imposed on her, pursuant to section 18A of the Criminal Law (Sentencing) Act, in respect of all three offences.

The offences were said to have been committed on 27 May 1994, 9 June 1994 and 24 June 1994, respectively. Somewhat similar particulars were pleaded in respect of each occasion.  Those in respect of 27 May 1994 read as under:-

“ PARTICULARS

1.1... The defendant was paid income maintenance in the sum of $607.21 gross as a result of dishonestly pretending to be incapacitated for work by virtue of injuries received in an alleged motor vehicle collision on 17 May 1984, at approximately 8.45 am, on the way to work.

1.2... The defendant dishonestly represented to WorkCover Corporation, various medical practitioners and other providers that because of injuries suffered to her neck, shoulders, upper and lower back she was unable to perform her normal work duties when she was not incapacitated as she alleged.”

The appellant pleaded not guilty to the charges and the matter went to trial on oral evidence.  Many witnesses were called and the transcript eventually ran to some 652 pages.  That evidence encompassed not only testimony directed at the occurrence and nature of the motor vehicle collision in which the appellant alleged she had been involved, but also medical evidence bearing on the asserted sequalae of it.

It should be noted at the outset that, in what was a long, hard-fought trial, in which the critical issue was the bona fides of the appellant and the genuineness of her presentation at key times - to say nothing of the natural inferences arising from video tapes of her activities - she elected, personally, not to give evidence on oath.  Moreover, the learned magistrate was bereft of any word from her personally to support any factual basis for a possible defence medical thesis to which I will refer in due course.  In essence the evidence of her medical witnesses fell to be examined, in large measure, on the basis of factual case histories stemming from her, which were, for the most part, not the subject of any direct evidence and incapable of being tested before the court, by virtue of her absence.

Let it be said immediately that the appellant was under no obligation to enter the witness box.  She exercised what was her clear legal right.  No inference adverse to her may be drawn by reason of her election.  However, that is not to say that, in the context of the issues arising in this case, such election was without significance in relation to the fact finding process - the more so as important factual aspects bearing on and as to her states of mind and what transpired at given times were matters singularly in her knowledge.  She has never sought to substantiate factual situations averred by her to medical practitioners, which form important foundations for, and go to, the validity of diagnoses suggested, e.g. allegations of actual or perceived sexual harassment or other forms of victimisation or unfair conduct in the work environment, the manner in which her symptoms were said to have increased as she went to work and so on.

In speaking of the need for the prosecution to make out a prima facie case, Napier J (as he then was), in the course of his reasons in Wilson v Buttery (1926) SASR 150 at 154 commented:-

“At this stage and for this purpose the question is not, are the facts proved by the prosecution capable of any reasonable construction consistent with innocence? But this, do they establish a substantial balance of probability in favour of the inference which the prosecution seeks to draw?  When this stage has passed, and the defendant has been called upon for his explanation or answer, and no evidence has been forthcoming, the Court or jury is entitled to take into consideration the probable means of knowledge on either side.  If the truth is not easily ascertainable by the prosecution, but is probably well known to the defendant, then the fact that no explanation or answer is forthcoming as might be expected if the truth were consistent with innocence, is a matter which the Court or jury may properly consider.  They have, then, to say whether in this state of the evidence they have any reasonable doubt of the guilt of the accused.  If they have they must acquit.”

This dictum was accepted as an accurate statement of the law by the High Court in May v O’Sullivan (1955) 92 CLR 654, which also made the point:-

When, at the close of the case for the prosecution, a submission is made that there is ‘no case to answer’, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted.  This is really a question of law.  Unless there is some special statutory provision on the subject, a ruling that there is a ‘case to answer’ has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end.  After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence.  Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty.  This is a question of fact.  In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v Buttery for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear (cf Morgan v Bobcock & Wilcox (1929) 43 CLR 162 at 178.  But to say this is a very different saying that the onus of proof shifts.”

In the more recent case of Weissensteiner v The Queen (1993) 178 CLR 217, Mason CJ, Deane J and Dawson J, in the course of their joint judgment, amplified the concept. They said:-

“We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence.  It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence.  That is almost a truism.  It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.  In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”

In my view the final point made in that dictum is of direct relevance to the instant case and its importance ought not to be under-estimated.

After the conclusion of the trial the learned magistrate published full and carefully drafted reasons for the conclusions to which he came.  It is both impractical and unnecessary to recite the content of them in extenso at this time.

He accepted that, at about 8.45 am on 17 May 1994, the appellant was involved in a motor vehicle accident whilst driving her Holden Commodore along Brighton Road, Glenelg.  He concluded that the collision which occurred was of a minor nature, as had been stated by the appellant herself, following the accident.  She braked suddenly and slid into the back of another vehicle.  The resultant impact caused only slight body damage to the front central portion of the Commodore, in the vicinity of its number plate.  This is depicted in the photographs comprising exhibits P16 and D1.

It is clear that, at about 9.15 am, the appellant telephoned one Barrett, her supervisor, to inform the latter that she had been involved in an accident and was running late.  In response to Barrett’s query in that regard she said that she had not been hurt.

Ironically, the appellant was, at the time, employed as a full time, casual clerical officer by Workcover Corporation.

She in fact arrived at work at about 9.30 am and reported that “she was fine” and did not wish to fill in any reports “because there was no problem”.  However, at Barrett’s insistence, she completed an incident report and then engaged in her normal duties.

As the morning wore on the appellant reported to Barrett that she was experiencing an increasing soreness of her neck.  At Barrett’s suggestion she consulted a doctor at the Mile End “Work Health Clinic” the same day.  She also filled in notice of disability and claim forms in which, as the learned magistrate emphasized, she referred to injury affecting her neck, shoulders, upper and lower back.

According to the doctor who examined her at the Work Health Clinic, at about noon on 17 May 1994, the appellant complained of a stiff neck and mild headache.  She made no mention of pain in the lower back or lumbar spine.  He felt that she was tender to palpation in the neck and mid back.  He diagnosed “a fairly minor soft tissue strain to the neck and mid back area”, which he anticipated would clear up “in three to four weeks at  the most”.  He certified her fit to return to work the next day, provided that she did not do “overhead work or work involving repetitive or prolonged flexion and/or extension of neck”.

On the whole of the evidence the learned magistrate had no hesitation in concluding that the appellant’s report of her symptoms to her employer “was the start of an elaborate and prolonged sham perpetrated by” her.  In his assessment she suffered no significant injury in the accident - she already had a sore neck, independently of that event, upon which she based her sham.

He pointed out that, prior to the accident, she had been unhappy at work and had been criticised by her supervisor for late arrival and inadequate performance of duties.  Comment had been made about her inappropriate attitude to work and making personal telephone calls.  Her employment engagement was due to expire on 30 June 1994 and she was anxious about her future with Workcover.

On return from the Mile End clinic the appellant was critical of Dr Thoo, who had examined her there.  She said that she proposed to see her own doctor.

The appellant actually saw Dr Somers, her general practitioner, at 4.30 pm the same day.  He then noted that she only had about half the normal range of flexion and extension of the neck and about one quarter of lateral rotation to the left and right.  He considered that she was suffering from neck, shoulder, anterior chest and lower rib pain.

When he again saw her two days later she then complained of lower back pain, as well as continuing neck and upper back pain.  On that occasion he noted that x-rays taken on 17 May 1994 were normal.

Dr Somers certified unfitness for work until 22 May, with modified duties only for a further week.  He prescribed physiotherapy.

On 23 May she complained to him of continuing pain in her right upper back, as well as pain in the third and fourth right fingers.  She had a very unnatural gait, with a stiff posture.  She would not move her neck at all.  He continued her on only part time, modified duties.

The appellant was examined by Dr Bastian, a consultant in rehabilitation medicine, on 31 May 1994.  She then exhibited a mood which fluctuated between “being teary and smiling”.  Because of this he had some difficulty in conducting a full examination.  However, he noted a distinct inconsistency of presentation between neck movements in the examination and non examination situations.  Her neck movement was far greater in the non examination setting.  He concluded that “the patient’s presentation did not clearly correlate with her reporting of severity of symptoms”.  It was his opinion that she had a much greater capacity for work than she professed.

There is little doubt that Workcover suspected the bona fides of the appellant, virtually from the outset.  (See endorsement on exhibit P14.)  It caused her to be observed and her activities to be video-taped as early as 28 May and 3 and 4 June 1994.  (See exhibit P17.)  Dr Bastian testified that the tapes disclosed a range and freeness of neck movement considerably greater than that presented to him on examination.  Having refreshed his memory by viewing the tapes in the courtroom, he described the difference as “quite blatant”.  He told the learned magistrate that, having seen the tapes in 1994, he could see no indication that the appellant was not fit to return to full normal duties at that time.

On 1 June 1994, the appellant had presented to Dr Somers indicating that she could not move her head from side to side unless she moved the whole of her upper body.  She also complained of low back pain.  He continued to certify her for modified duties only.

By 6 June her presentation suggested an even worse level of disability.

In his reasons the learned magistrate recounted this feature of the evidence of Dr Somers:-

“On the 9th of June 1994 Somers viewed the video tapes, exhibit P17.  These tapes depicted the activities of the defendant on the 28th of May 1994 and the 3rd and 4th of June 1994.  In his testimony Somers was asked ‘In relation to what you saw on the tapes did you see any restrictions in the movements of the defendant.’  He responded ‘None whatsoever.’  He was asked ‘On the tape of the 28th how did that compare with her presentation to you up to that time.
 He replied ‘It was a different person, there was no similarity whatsoever ... she was able to move freely, she was able to swing her head from side to side, she was turning back, laughing, totally different.’  He was asked ‘Did you see anything at all in the nature of symptoms of pain or discomfort on any of those tapes.’  He replied ‘I saw none.’  He was asked ‘If Ms Montgomery who presented to you in your surgery on any of the occasions you have mentioned in the same way she presented on the tape what would you have done.’  He said ‘I would have cleared her back to work straight away ... that would be a return to normal duties with no limitations meaning she is back to work pre injury work conditions.”

Dr Somers went on to say that what was depicted in the video tapes was inconsistent with the appellant’s former presentations to him and that, had he been aware of her activities as portrayed in them, he would not have provided her with the medical certificates which he had issued.  On 9 June he forthwith issued a certificate of unqualified fitness for work.

As the learned magistrate stressed, this doctor was not only the appellant’s general practitioner, but he also had specific experience and a particular interest in sports medicine and associated traumatic injuries.

Dr Thoo felt that the later presentation of the appellant, as described to him, was not to be expected, based on his examination on 17 May 1994.

On viewing the video tapes Mr Aunello, the appellant’s treating physiotherapist, said that the activities depicted did not indicate the presence of pathology and were different from her presentations to him.  He treated her on 19, 23, 26 and 30 May 1994.

Up until 16 June 1994 the appellant presented for modified work duties as a significantly disabled person.  On that date she was informed of the existence of the video tapes.  After discussion with Senior Employee Advocate of Workcover (the witness Cronin) she tendered her resignation.

Other persons were also called to give evidence bearing upon the inconsistency of the appellant’s presentations.

In his reasons the learned magistrate recited his own summation of what he himself derived from viewing the video tapes.  That summation is expressed in these terms:-

“It is clear from the evidence of the persons who observed the defendant’s presentation depicted on the video tapes and their respective observations of her presentation at her place of work and elsewhere that there was a marked contrast between the two types of presentation by the defendant.  The descriptions of the defendant’s behaviour at her place of employment and elsewhere given by those persons I have mentioned (which descriptions I find as fact) are in marked and significant contrast with the defendant’s behaviour depicted on the video tapes, exhibit P17, when viewed by me.  To me the contrast is startling and has not been explained away by the witnesses called on behalf of the defendant.  The depiction of the defendant’s conduct on those tapes showed her, without any indication of pain or restriction of movement, flicking her head, nodding her head, tilting her head, turning her head from side to side, moving her head forward and backward, bending over, walking, running, jumping and playing with a dog and sitting in and driving a motor vehicle.  While seated in the driver’s seat of a vehicle she vigorously wiped the inside of the car’s windscreen with a cloth and threw the cloth through the open window of the vehicle.  She alighted from the vehicle, bent over and picked up a mat from the ground.  While walking with a dog on a leash the defendant ran up an incline.  During the time the defendant was playing with the dog she was jumping and running backwards and twisting away from the dog.  Moreover the defendant was putting on an overcoat while walking with the dog on a leash.  In the tapes she appeared happy and on occasions was laughing.  In all of her activities depicted on the tapes there did not appear to be any indication of pain being experienced by the defendant or any restriction in any of her movements.  At the time the video tapes were being taken of the defendant’s behaviour she was unaware that this was occurring and she behaved in her natural and normal way.  When she was with the other persons I have mentioned she feigned her behaviour and presented in the way described by those persons.  This behaviour of the defendant was part of the perpetration of the sham that I have already raised.  Upon Somers’ viewing of the tapes he certified the defendant fit for a return to work without any restrictions of her duties.”

That cannot be, and was not, criticised as an accurate summation of the situation.

The learned magistrate said that he had carefully considered the evidence of various witnesses called on behalf of the appellant.  These were, respectively a specialist occupational physician, a psychiatrist and a psychologist.  He said that, like the prosecution psychiatric witnesses Clayer and McFarlane, they saw the defendant what he described as long after the accident.  For reasons expressed by him, he considered that certain of the evidence emanating from Clayer was inadmissible.

I pause to comment that the description “long” may not have been a happy choice of words.  However, the fact remains that none of these medical practitioners saw the appellant until well after the events to which these proceedings relate and at a point when the appellant had, some weeks previously, ceased her employment with Workcover.

However, in any event, the learned magistrate said that he derived little assistance from all of this material.

He also adverted to issues of alleged sexual harassment raised by the appellant at trial which, in his view, had no substance.  As he put it:-

“The first occasion the defendant mentioned any sexual harassment was during an interview with the witness Basey, a senior investigator of WorkCover Corporation, on the 21st of August 1994.  The defendant’s allegations on this occasion are set out in exhibit P12.  I am satisfied that the allegations of sexual harassment the defendant mentioned on this occasion and other occasions to other persons were part of the sham she was perpetrating upon WorkCover Corporation.  The allegations of sexual harassment made by the defendant were designed by her to gild the false story that she was incapacitated to the extent that she indicated.  She used those allegations in an attempt to gain sympathy for her cause.  Those allegations were a belated invention on her part after she had ceased to be employed at WorkCover Corporation.  At the time she was aware that she was the subject of a fraud investigation conducted by the Corporation and she sought to use the allegations of sexual harassment against the persons Lesley Foale, Pederson and Rankine to bolster the story she had been telling about her incapacity to perform her duties with the Corporation.  She told her story, gilded with the allegations of sexual harassment, to others such as Mills, Taylor and Heath.”

On a consideration of the whole of the evidentiary material before him the learned magistrate summarised his conclusions as follows:-

“At the time of submitting the subject notice of disability and compensation claim forms to the Corporation on or about the 24th of May 1994 and receiving the income maintenance on or about the 27th of May 1994, on or about the 9th of June 1994 and on or about the 24th of June 1994 the defendant knew that she was not incapacitated as she had claimed to the Corporation.  The defendant knew that when she received the payments of income maintenance she was not entitled to such payments.  When the defendant made the claim under the Act on or about the 24th of May 1994 she knew that she was not entitled to make such a claim as she was not incapacitated for work as she indicated.  She knew that the means by which she obtained the payments were dishonest.  The means by which she obtained the payments were dishonest according to the ordinary standards of honest and reasonable people and she realised that her conduct according to those standards was dishonest (see R v Ghosh (1982) 2 All ER 689).  Further, the defendant’s conduct in making the claim under the Act was dishonest according to the ordinary standards of honest and reasonable people and she realised that her action in making the claim was according to those standards dishonest.  Clearly, the defendant was dishonest in making the claim and obtaining the respective payments under the Act.

I am satisfied beyond reasonable doubt that the prosecutor has proven each of the charges against the defendant.  The charges are proven.

Having published his reasons the learned magistrate recorded convictions in respect of counts 1 to 3 inclusive.  Certain alternative counts were then withdrawn by the prosecutor.

In considering penalty the learned magistrate noted that the total amount improperly obtained was $1,816.21, over a relatively short space of time.

He took into account the facts that:-

.the appellant was only about 23 years of age when the offences were committed;

.she had no antecedent record and came from a good family;

.she had a consistent employment record and was then currently in employment as an administrative officer with a Government Department;

.she was in a stable de facto relationship with a young man;

.she had, prior to the accident, not pre planned the deception of Workcover;  and

.she was unlikely to re-offend.

He unhesitatingly rejected a suggestion that a conviction ought not to be recorded against the appellant.  What was involved was a serious, dishonest fraud, in relation to which the factor of general deterrence was paramount.  (See Workcover Corporation v Jelfs (Cox J, 8 May 1995, S5088, unreported) (“Jelfs”) and Walsh v Tattersall (Full Court, 2 November 1995, S5323, unreported) (“Walsh”).)

Quoting Cox J in the former case, he accepted that, in cases of this type, it is the obligation of sentencing courts to impose penalties that will deter wrongdoers from engaging in this type of persistent public fraud.  The fact that such persons had no previous convictions availed them little.

Even given the mitigating factors above identified the learned magistrate felt constrained, in recognition of the factors of deterrence, to impose a custodial sentence of three months.  However, he suspended that sentence on entry by the appellant into a conditional bond to be of good behaviour for a period of 12 months.  He also ordered payment of costs, court fees, levies and compensation in the total sum of $14,711.11, but allowed two years within which to pay the bulk of it.

On the appeal the appellant sought to impugn the reasoning of the learned magistrate on a number of bases.

A key issue raised by her was that it was a fundamental element of her defence (and positive evidence was led on her behalf to underpin) that it was reasonably possible that:-

.the disparity between her presentations to medical practitioners and what was depicted in the video films was as a result of a subconscious exacerbation by reason of an overlying pain reaction associated with stress or anxiety and not for a dishonest purpose;  and

.any exaggeration was a subconscious attempt by the appellant to demonstrate to the employer that she did have any injury and was not aimed at dishonestly obtaining a benefit.

Specific reference was made to evidence given by certain of the witnesses called on behalf of the defence and some aspects of the evidence given by various prosecution witnesses.

It is contended that the learned magistrate did not adequately deal with this aspect of the case in his reasons and fell into error by failing “to properly consider, weigh and assess the expert evidence adduced on behalf of the appellant”.  It is also suggested that, his statement that “the contrast is startling and has not been explained away by the witnesses called on behalf of the defendant” constituted an impermissible reversal of the onus of proof.

Reference was further made to evidence said to support the above thesis, to which, it is asserted, the learned magistrate failed to give due consideration and weight.   This included evidence bearing on the topics of:-

..       perceived sexual harassment
..       statements by the appellant concerning attending at football

..evidence that the appellant was disbelieved, picked on and categorised as a liar

..her shy, naive, introverted personality type

..her perception of people watching her at work

..her attempts to obtain a transfer

..her reluctance to make a claim

..evidence of her character

It should be said immediately that there is simply no substance in the suggestions that the learned magistrate reversed any onus of proof.  It is clear that all that he was attempting to say was that the content of the video spoke for itself in stark and unequivocal terms, and that there was simply nothing in the other evidence to gainsay the obvious inferences which naturally arose.  This was, of course, particularly so in light of the absence of the appellant from the witness box.

It is true that, in the course of his lengthy and comprehensive reasons, the learned magistrate did not enter into a fully definitive discussion of the specific defence theses of subconscious exacerbation or exaggeration.

What the learned magistrate said was this:-

1. He had carefully considered the relevant evidence led by the defence.

1. As with the prosecution psychiatric witnesses, the defence experts had not seen the appellant until a significant time after the accident.

1. The evidence of the events and circumstances at and immediately after the accident, coupled with the video evidence (also procured very soon after the accident) spoke compellingly for itself.

1. Having considered the evidence of the defence witnesses he gained little, if any, assistance from it [i.e. he positively rejected their evidence].

1. He positively disbelieved the allegations of the appellant as to alleged sexual harassment, in which she continued to persist at trial [but as to which she gave no evidence].

I have carefully studied the whole of the transcript of evidence in this case.  On conducting an independent review myself, of the nature adverted to by King CJ in Laurie v Nixon (1991) 162 LSJS 16 at 19, I unhesitatingly conclude that the conclusions to which he came were inescapable.

The evidence of what occurred immediately after the accident, the fluctuating symptoms asserted by the appellant (particularly as to pain sites) and the content of the videos leave no room for the ingenious theory of subconscious exacerbation or exaggeration as a real possibility.  I go so far as to say that such theory was, in all of the relevant circumstances and in absence of supporting evidence from the appellant, an affront to common sense.  The learned magistrate’s obvious summary rejection of it was well justified.

Whilst, with the benefit of hindsight, it may have been preferable for the learned magistrate to have dilated upon the above defence thesis in greater degree, his failure to do so is entirely understandable.  It seems to me that the ultimate conclusion to be drawn was so crystal clear as to warrant summary rejection of an alleged possibility that must be regarded as ephemeral and of no substance.  Indeed, I do not take the medical practitioners called by the appellant actually to have made a firm diagnosis of the type relied on by her.  Rather, they spoke in terms of possibilities.  I consider that, in absence of acceptable foundation evidence from the appellant, such possibilities were overwhelmed by the clear inferences arising on the proven facts.

It is firmly to be borne in mind that this was not merely a case in which there were significant, pathologically based symptoms which were exaggerated.  The clear inference is that the appellant sustained no real injury at all, and experienced no substantial symptoms whatsoever as a consequence of the accident.  Her appearance in the videos belied any injury or symptoms of consequence.  Her conflicting statements about what pain killers she did, or did not, take do little to encourage confidence in any thesis based on her fluctuating presentations.

Moreover, it was well open to the learned magistrate to prefer the evidence of the treating doctors and their reactions to the videos, to that of the later medical experts called for defence purposes.  I agree that it was remiss of the learned magistrate not to deal with the conflict of medical opinion in greater detail.  But that was by no means fatal to his decision (Ghys v Crafter (1934) SASR 28 at 33, Hopfner v Flavel (1990) 48 A Crim R 149 at 159-60). That failure cannot, in this case, indicate that he did not have due regard to the basis of the defence case. He had before him a written outline of counsel which fairly laid it out. It was, in fact, the core of the defence.

The proper inference to be drawn is that he considered that, such was the strength of the prosecution case in absence of sworn evidence by the appellant to lay a proper foundation for the medical thesis relied on by her, that, on any view, the psychiatric thesis of unconscious exacerbation or exaggeration simply had no substantial foundation in fact or logic - particularly in light of the unequivocal views of the treating doctors.  As Dr Bastian had said in evidence, the extent of the inconsistency in presentation was so florid that there was more than some subconscious increase of concern about factors arising from the workplace.  Furthermore, at times, the appellant complained of symptoms in locations in which she had not been injured.  This does not sit well with the thesis of her medical practitioners.

Any objective review of the evidence inexorably leads one to that point of view.  Particularly in absence of the appellant from the witness box, the defence was seeking to make bricks with straw.  When one reads the testimony of the medical practitioners it is abundantly apparent that their assessments depended upon the factual accuracy of what she related to them.  (See Mills (T157-159), Heath (T279-283), Taylor 254-5.)  A classic example is Mills’ recitation of the significance of the appellant’s assertion to him that the closer to work she came the worse she was.  Not only was there no evidence to that effect, but also positive evidence before the learned magistrate contra-indicated such a situation.  The lack of necessary factual foundation terminally undermined the medical thesis arrived at as a reasonable possibility.

On the hearing of the appeal Mr Algie sought to raise a series of issues concerning the evidence bearing on the existence of the defence thesis as a real possibility.  I have considered all of these aspects, although I do not see a need to dilate upon each and every point taken.

I agree with him that a finding that there was no substance in the allegations of sexual harassment was, by no means, an end of the matter.  It was, in truth, more a question of the perceptions held by the appellant and the psychological impact of them.  However, the fact remains that, in absence of testimony from the appellant, a finding that any assertions made were patently unsustainable places in question whether there is any basis on which it could be said that it was possible that the appellant held the relevant perceptions at all - much less that they were significant stressors causing some impact on her subconscious reactions.

Much the same must be said of other suggestions of broader issues of intimidation, victimisation or unfair treatment.  There was absolutely no verification of the substance of those, or of any reasonable perception that they existed.  On the contrary, there was material indicating that the appellant was a less than excellent employee, who obviously had a clear motive for deliberate deception.

Nor does the evidence that the appellant freely spoke of attending football matches avail her anything.  As Mr Amey, of counsel for the respondent, pointed out, the real issue was not her attendance at the football matches per se, but her conduct and demeanour when she did so.  As to that there was a penetrating silence on the part of the defence.

In my assessment the conclusion to which the learned magistrate came as to the guilt of the appellant in relation to each count was inevitable.  It fairly reflected the overwhelming weight of the evidence as led.  I see no basis for overturning the findings of guilt against the appellant.  As was said by the High Court in Australian Coal and Shale Employees’ Federation and Anor v The Commonwealth and Ors (1956) 94 CLR 621 at 627, there is a strong presumption in favour of the correctness of the decision of the learned magistrate, which can only be rebutted by demonstrating that he acted upon a wrong principle, gave weight to extraneous or irrelevant matters, failed to give adequate weight to relevant considerations, or made a mistake as to the facts. I do not consider that he erred in any of those respects. I would, inevitably, have come to the same decision. On the state of the evidence as it stood, another conclusion would, as I have indicated, been an affront to common sense.

That aspect of the appeal must be dismissed.

As to the sentence imposed, the essential argument of the appellant is that, having regard to her age, antecedents, prior good character, the nature of the offences and the positive finding that the appellant is unlikely to re-offend, the sentence imposed was manifestly excessive - and that, in any event, convictions ought not to have been recorded against her.

In extension of the material before the learned magistrate, the appellant has sworn an affidavit to the effect that, following the recording of convictions against her, she has been suspended without pay by her Chief Executive Officer pursuant to section 59 of the Public Sector Management Act, 1995.  She obviously apprehends that, if this appeal is dismissed, her employment may well be terminated.

The irresistible conclusion to be drawn, as the learned magistrate correctly assessed, was that these were deliberate offences, designed to enable the appellant to receive benefits to which she was plainly not entitled.  They were committed against a background that the appellant felt that her contract might well not be renewed in the normal course - the obvious inference being that, by indirect means, she was attempting to secure continuity of income by feigning ongoing disability.

True it is that the appellant was a young person of prior excellent character.  It may well be that she was coping with emotional problems at the time, engendered by some stress arising from difficulties in the work environment, albeit at least partly due to her own lack of performance.  Her judgment may have been affected by the perceived probability of termination of her contract.

There were certainly mitigating aspects which had to be taken into account, although she had no entitlement to consideration of timely pleas or co-operation with the authorities.

On the other hand the inherent seriousness of the offending could not be ignored.

This court has made it plain, on numerous occasions, that, in relation to offences of this type, the factors of not only personal, but also of general, deterrence must be paramount considerations.  Such offences are often difficult to detect and prove.  Their commission tends to undermine the financial integrity of social legislative schemes.  At the end of the day they impact on the whole community by reason of the costs which they generate to an undertaking and the general administration of the compensation scheme.  There is a parity of approach with that applicable to more general Social Security fraud cases.  (See Jelfs, Walsh (supra).)

I am unable to perceive any basis on which the learned magistrate could properly have exercised a discretion not to record convictions.  The course of conduct in question was simply too blatant and serious.

Moreover, it is clear that the offences merited imposition of a custodial sentence.  Minds might reasonably differ as to the term which was appropriate in the instant case.  I think that a period of three months was well towards the top end of a reasonable sentencing outcome, bearing in mind that the three offences evidenced what was a single continuing course of conduct over a relatively short period of time.  However, the learned magistrate recognised those mitigating factors which attracted leniency by suspending the sentence imposed.  This was, I consider, an appropriate course to adopt.

I am unable to conclude that there is any proper basis for impugning the sentencing outcome.

Having said that I must express some surprise at the suggestion that this will probably lead to the termination of the appellant’s present employment. Frankly, I would have thought that a draconian and unfortunate outcome.  The suspension of the sentence indicates that, whilst the offences were serious, nevertheless there were substantial mitigating circumstances, including the young age and prior excellent character of the appellant and the fact that, for whatever reason, she suddenly found herself in a situation which clearly developed as an impulse from which she could not subsequently escape.  As the learned magistrate accepted, it is most unlikely that she will re-offend.  Any step which will negate her rehabilitation is to be regretted.

The appeal against sentence must also be dismissed.