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…

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.

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Details

AGLC: R v McDougall [2021] ACTSC 102
Case: [2021] ACTSC 102
Decision Date

CaseChat Overview and Summary

The offender in this case was found guilty of causing a loss to the Commonwealth by being dishonest, contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth). The offender, who has a history of mental health issues, was receiving a Disability Support Pension but did not disclose his employment income, resulting in a loss of $59,731.60 to the Commonwealth. The court was required to determine the appropriate sentence for this offence, taking into account the offender's mental health condition and the principles of sentencing for federal offences.

The court considered the objective seriousness of the offence, which included the significant amount of the loss, the duration of the offence, and the offender's failure to report changes in his circumstances. The court also considered the offender's subjective circumstances, including his mental health condition and history of substance abuse, which impacted his moral culpability and the effectiveness of general and specific deterrence. The court found that the offender's mental health condition somewhat reduced his moral culpability and the significance of sentencing purposes such as general and specific deterrence.

The court imposed a sentence of 14 months’ imprisonment, reduced from 18 months’ imprisonment, with the offender to be released forthwith on entering into a recognizance in the sum of $100 to be of good behaviour for 18 months. The court also ordered the offender to make reparation to Services Australia in the amount of $59,731.60.

The court in this case considered the unique circumstances of the offender, including his mental health condition, in determining the appropriate sentence. The court recognised the importance of general deterrence in sentencing for social security offences but also took into account the offender's reduced moral culpability and the potential impact of a custodial sentence on his mental health. The sentence imposed reflects a balance between the need for general deterrence and the need to consider the individual circumstances of the offender.

Orders