R v McDougall
[2021] ACTSC 102
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McDougall |
Citation: | [2021] ACTSC 102 |
Hearing Date: | 24 May 2021 |
DecisionDate: | 24 May 2021 |
Before: | Murrell CJ |
Decision: | Offender sentenced to 14 months’ imprisonment to be released forthwith on entering into a recognizance in the sum of $100 to be of good behaviour for 18 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth offence – Dishonestly causing loss to the Commonwealth – Social security benefits – Failure to declare income – Offender with mental health condition |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 17A, 20, 21B Criminal Code Act 1995 (Cth) s 135.1(5) |
Cases Cited: | R v Pham [2015] HCA 39; 256 CLR 550 Thomsonv The Queen [2014] NSWCCA 88 |
Parties: | The Queen ( Crown) Adam John McDougall ( Offender) |
Representation: | Counsel D Bloomfield ( Crown) G Meikle ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 255 of 2020 |
MURREL CJ:
Introduction
The offender pleaded guilty to the offence that, between 18 March 2015 and 25 October 2017, he dishonestly caused a loss to the Commonwealth knowing or believing that the loss would occur, contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth).
The prosecution was initiated by information on summons, first returnable in December 2019. The offender was committed for trial. He pleaded guilty at a criminal case conference on 1 March 2021. The plea has significant utilitarian value and is evidence of some contrition and willingness to facilitate the course of justice, albeit in the face of a strong Crown case.
The maximum penalty is five years’ imprisonment, a fine of $51,000, or both.
Facts
From 1996, the offender received social security benefits. At the time of the offence, he was in receipt of a Disability Support Pension (DSP). A DSP is payable to persons who have been assessed as having a physical, intellectual, or psychiatric condition. The rate of benefit is affected by income earned from employment.
The offender signed a DSP claim form on 27 February 2003 in which, among other things, he stated that he understood that deliberately giving false or misleading information was a serious offence.
On 21 April 2003, he was granted a DSP on the basis that he was suffering from schizophrenia. The rate of DSP was based on the offender’s inability to work for more than 14 hours per fortnight. The grant letter stated that he was required to notify the Commonwealth if he worked for more than 30 hours in any fortnight.
While receiving the DSP, the offender did not have to report regularly. However, he was required to report any relevant change in circumstance, including a change to his income. The offender reported no change.
Between 6 March 2015 and 22 January 2016, the offender was employed by McGrath Canberra Pty Ltd as a full-time trade assistant earning $31,723.36 gross.
Between 22 January 2016 and 25 October 2017, the offender was employed by Johnson Truck Bodies Pty Ltd as a casual auto electrician, earning $84,378.41 gross.
During the offence period, the offender earned a total of $116,101.77 gross—an average of $1,682.63 gross per fortnight. Typically, he worked 76 hours per fortnight.
The offender’s income from employment was deposited into a bank account in his own name. His social security benefits were paid into the same account.
Because he was assessed as able to undertake some work, from 2009, the offender was subject to a Jobseeker plan which involved an undertaking to work 14 hours a fortnight and report the earnings to Centrelink. During the offending period, the offender received letters from Centrelink reiterating the basis upon which his payments were evaluated and his reporting requirements. The offender regularly accessed his Centrelink portal.
Between 2006 and 2011, on five occasions, the offender incurred an overpayment assessment in relation to the DSP because he had underreported his income. The most recent overpayment was in 2011, for an amount of $13,007. On 16 April 2014, the offender received an accounts payable notice relating to this overpayment, which clearly explained the link between his under-declaration of income and the assessment of an overpayment. Earlier overpayments had resulted in similar accounts payable notices. In 2008, 2010, and 2013, Commonwealth officers spoke to the offender and explained his obligations.
The offence was detected by way of internal review on 22 September 2017.
The loss to the Commonwealth was $59,731.60.
Objective seriousness
The following factors are relevant to an assessment of the objective seriousness of the offence.
(a)The amount of the loss was significant. Offending of this kind causes indirect losses because of the cost of monitoring and investigating for fraud.
(b)The period of the offence was two years and seven months.
(c)For the entire period of the offence, the offender was on the full rate of DSP, which was awarded on the basis that he could work up to 14 hours per fortnight. However, he maintained physically demanding work on a full-time basis.
(d)The offence was detected by way of internal review and, presumably, but for detection, it would have continued indefinitely.
(e)The inescapable inference is that the motivation for the offence was financial gain. That said, the offender's thinking was confused, particularly because of drugs that he was consuming in an attempt (largely) to counteract the effect of drugs prescribed for his mental health condition. Accordingly, it was not a straightforward case of greed.
(f)The offence was not sophisticated. The offender deposited his earnings from employment into the same account that he used for the DSP.
(g)To date, the offender has repaid none of the loss.
Also informing the objective seriousness of the offence is the offender's reduced moral culpability, deriving from the fact that he has a long-standing and very severe mental health condition. Although his mental health condition was relatively stable during the period of the offending, it nevertheless continued to impact significantly upon him through that period. To quote from the report of Dr Clout, clinical psychologist:
There is still evidence of impaired thought processes and periods of delusional thinking, chronic drug use, poor impulse control, anger and deficits in judgment and insight throughout (the period of offending).
Subjective circumstances
At the time of the offence, the offender was between 41 and 43 years old. He is now 47 years old.
The offender’s prior criminal history includes offences of assault. Some offences have been committed since the offence before the Court. Most recently, in March 2019, he committed an offence of assault and, in May 2019, an 18-month good behaviour order was imposed for that offence.
Among other driving offences, he has been convicted of several offences of driving with a prescribed drug in his oral fluid or blood which, again, post-date the offence before the Court. In May 2019, he was sentenced to a short period of imprisonment for driving with methylamphetamine in his system.
There are no prior convictions for offences of dishonesty.
The offender was assessed by Dr Danielle Clout, clinical psychologist, on 23 April 2021. She found him to be in a floridly psychotic condition which was quite severe. She referred to a significant deterioration in his mental health over the past two years.
The offender had childhood attention deficit hyperactivity disorder. He managed to complete Year 10 at school. He did vocational training after completing his schooling. He worked as an auto electrician until the onset of mental illness in his 20s. Since then, he has worked only sporadically.
The offender has a supportive family but, because of his mental health difficulties, he is unable to take full advantage of the support that they offer.
Unfortunately, the offender was abused as a child. The abuse has had a long-term impact on him which, to date, he has been unable to address.
In 1998, the offender first received significant treatment for a mental health condition. He was about 24 years old. Initially, it was thought that his psychotic condition was drug-induced and reflected personality disorders. In the following decade, he was hospitalised on numerous occasions for acute psychotic episodes. Over that period, the more consistent diagnosis became that of schizophrenia (together with personality disorders).
Between 2011 and 2014, there were periods of stability during which the offender worked, usually of no more than three months in duration. His condition became more consistently stable from about 2015.
Dr Clout reported that:
He continued to be able to function at work at times but throughout 2017 drug use, chronic gambling and periods of delusions appeared to be ongoing problems. Towards the end of the offending period Mr McDougall's long-term girlfriend, Danielle, completed suicide.
He seemed to initially cope with this but the experienced a significant decomposition in his mental state and began breaching his orders.
Since then, the offender has been struggling with mental health problems.
The offender was admitted to the Adult Mental Health Unit shortly before sentence. He was discharged on the day of the sentence hearing.
That admission is indicative of the severity of his current mental health condition. He has been on psychiatric treatment orders for many years, including throughout the period of the offending. The offender’s legal representative informed the Court that a treatment order was recently renewed for a period of approximately six months.
Comparable sentences
In sentencing for federal offences, a court must have regard to national sentencing patterns: R v Pham [2015] HCA 39; 256 CLR 550.
Bare statistics are of limited value. However, for what they are worth, the Commonwealth Sentencing Database indicates that, for offences against s 135.1(5), 74 per cent of offenders received a sentence of imprisonment, typically between one and three years’ duration.
The prosecutor referred the Court to two comparative cases. In Thomsonv The Queen [2014] NSWCCA 88, the Court dismissed an appeal against a sentence of full-time imprisonment totalling two years and six months for two offences committed over a total of four years and involving a total loss of $54,771.60.
Principles
The Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act 1914 (Cth) (Crimes Act).
Section 16A(2) of the Crimes Act contains a non-exhaustive list of factors that are to be taken into account when sentencing, insofar as they are known and relevant.
A sentence of imprisonment may be imposed only if, having considered all the available sentences, the Court is satisfied that no other sentence is appropriate in the circumstances: s 17A(1) of the Crimes Act.
In sentencing for social security offences, general deterrence is usually of paramount importance. This is because the social security system is based on trust that is open to abuse, such offences are prevalent and relatively easy to commit, dishonesty by some claimants can cause injustice and reputational injury to legitimate claimants, and the social security system is a major impost on the Australian government’s revenue, the burden of which falls on the whole community.
Generally, for offences of this type, personal deterrence is also an important sentencing consideration. As noted, since 1996, the offender has intermittently received social security benefits. He was well aware of his reporting obligations.
However, having regard to the offender’s severely disabling and chronic condition of schizophrenia and personality disorders, sentencing purposes such as general deterrence and specific deterrence are somewhat impacted. The offender is a less suitable vehicle for a message of general deterrence. It is uncertain whether the personal deterrence that usually flows from a sentence will apply to the offender.
Similarly, having regard to his mental health condition, it is unclear as to the impact that a sentence of full-time custody would have on the offender. He would suffer greatly if he was to be separated from his pet dogs, who provide one of the few sources (perhaps the only source) of stability in his life. A person who is psychiatrically vulnerable like the offender is more likely to be stressed by the custodial environment, which would tend to exacerbate his paranoia.
Consequently, the offender’s mental health condition plays into the sentencing process in three ways. First, it somewhat reduces his moral culpability for the offence. Second, it moderates the significance of sentencing purposes such as general deterrence and specific deterrence. Finally, I infer that a prison environment would have greater impact on the offender than it would on other people.
Order
The offender is sentenced to 14 months’ imprisonment (reduced from 18 months’ imprisonment), from 24 May 2021 to 23 July 2022.
Pursuant to s 20(1)(b) of the Crimes Act, I order that the offender be released forthwith on the offender giving security in the sum of $100 on the condition that he be of good behaviour for a period of 18 months.
Pursuant to section 21B of the Crimes Act, I order that the offender make reparation in respect of the offence to Services Australia in the amount of $59,731.60.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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