Transport Accident Commission v Middleton

[2024] VCC 1964

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

Case No. CR-22-00254

TRANSPORT ACCIDENT COMMISSION	Plaintiff
v
GLYN MIDDLETON	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2024
DATE OF JUDGMENT:	10 December 2024
CASE MAY BE CITED AS:	Transport Accident Commission v Middleton
MEDIUM NEUTRAL CITATION:	[2024] VCC 1964

REASONS FOR JUDGMENT
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Subject:s86(1) Compensation Application

Catchwords:              Compensation order – Fraudulent transport accident claim – Statutory benefits – Impecunious respondent

Legislation Cited:      Sentencing Act1991 (Vic); Wrongs Act1958 (Vic); Transport Accident Act 1986 (Vic)

Cases Cited:R v Mirik [2009] VSC 14; Esso Australia Pty Ltd v Robertson [2005] VSCA 138; Norman v The King [2023] VSCA 213; Stevens v Baxter [2009] VSC 257; Kaplan v Lee-Archer (2007) 15 VR 405

Judgment:                  Compensation order in the sum of $150,753.10

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Locke	Transport Accident Commission
For the Respondent	Mr P Gordon	Slades & Parsons Criminal Lawyers

HIS HONOUR:

1This is an application made by the Transport Accident Commission (“TAC”) for a compensation order against the respondent, Mr Glyn Middleton. The application is made pursuant to s 86(1) of the Sentencing Act 1991 (“the SA”). The applicant seeks a compensation order in the sum of $150,753.10. The parties agree that this is the relevant amount the TAC paid and was received by the respondent.

Relevant background

2The relevant offending occurred in September 2017: the respondent sent an email to Metro Trains claiming he had fallen on the train due to sudden braking and jolting which worsened his back problems. He subsequently made a (fraudulent) TAC claim which was accepted and as a result he was paid statutory benefits of at least $150,753.10. The respondent was sentenced by his Honour Judge Mullaly on 4 July 2024 for five charges of obtaining financial advantage by deception and one charge of perjury for swearing a knowingly false affidavit.

3He was convicted and sentenced to serve a Community Correction order for a period of 42 months. At that time the TAC made an application pursuant to s 86 of the SA. The making of the order was opposed by the respondent on the basis that:

(a)   He is impecunious in that he has no assets and no real income after expenses;

(b)   The imposition of an order would have a deleterious effect on his mental health;

(c)   The TAC is significantly resourced; alternatively

(d)   An exceptionally modest amount ought be awarded by way of compensation order.[1]

[1]Submissions of the respondent at [21]

Consideration

4The parties are not in dispute as to the legal principles to be applied.  Those principles first require the Court to consider whether the circumstances of the offending are clearly laid out in such a way as the parameters of the claim for compensation can be clearly identified.[2] In this case I am satisfied that is the situation. By its amended application the TAC seeks only those sums of money it paid to the respondent by way of direct weekly payments of compensation. It has excluded all claims for medical expenses paid to third party providers. This makes the parameters of the claim concise and clearly understood. The plea of guilty covers these payments. It is clear that the claim made by the applicant has occurred directly as a result of the offending. The terms of s 86(1) are satisfied.

[2]Kaplan v Lee-Archer (2007) 15 VR 405, 412 [30].

5Turning to the first real ground of opposition. Section 86(2) of the SA permits a Court to take into account the “financial circumstances of the offender and the nature of the burden that its payment will impose.”

6The respondent points to his lack of assets, income and wherewithal at age 62 to pay any sum of money now and in the future: he is impecunious. To this end the respondent has filed an affidavit as to his financial circumstances sworn 2 December 2024 which was tendered. These matters were uncontested and I accept them.

7However, it is to be noted that an inability to pay a compensation order by itself does not necessarily mean that such an order ought not be imposed. In considering analogous provisions in s 85B J Forrest J noted that financial circumstances, while relevant, are not a controlling factor in deciding whether a compensation order ought be made.[3]  Similarly in R v Mirik[4] though there was no capacity to pay the award of compensation the Court imposed a compensation order. In J Forrest J’s words from Stevens v Baxter “…the circumstances of the crime and the consequences for the two children…”[5] (my emphasis) were relevant in considering what effect an offender’s financial position would have on whether an order would be made and in what amount. 

[3]Stevens v Baxter [2009] VSC 257 at [5] relying on R v Mirik [2009] VSC 14 at [135]

[4]        R v Mirik [2009] VSC 14

[5]        Stevens v Baxter [2009] VSC 257 at [35]

8Utilising those principles the Court here is faced with a situation where there has been a sustained pattern of behaviour to defraud a statutory agency of significant public funds over years. To the extent that it is suggested Metro Trains, and the TAC should have acted with greater vigilance in assessing the claim initially by viewing the video and rejecting the claim, I would simply repeat the statements of His Honour Judge Mullaly that the respondent was the one who bears responsibility for his actions. To the extent that the respondent places reliance on s 24AF(1)(a) of the Wrongs Act 1958, I consider this section to apply to damages and not compensation as s 86 of the SA deals with.[6]  Mr Gordon, who appeared for the respondent at the application, but had not drawn the submissions, properly conceded that the Wrongs Act had no role to play in the determination of this application.

[6]The Respondent’s submissions refer to the Wrongs Act 1958 at [20] however as to the distinction of compensation and damages see Stevens v Baxter [2009] VSC 257 at [5] relying on Esso Australia Pty Ltd v Robertson [2005] VSCA 138 at [21] – [30]

9If it were necessary, I would accept the applicant’s submission that there is good reason why there is almost immediate acceptance of TAC claims with little investigation: to ensure injured members of the public receive their compensation quickly. However, I need not go further than I have.

10As to the consequence of the criminal activity I consider the sum defrauded from the TAC to be significant. It is not a trifling sum incurred by one criminal act but rather a substantial amount of benefit obtained by a sustained pattern of fraudulent behaviour. It is capped by the signing of an affidavit in support of a serious injury determination in accordance with s 93 of the Transport Accident Act 1986 in pursuant of common law damages.

11Turing to consider the respondent’s personal circumstances it can be accepted that he is an elderly man with significant health issues; both physical and psychological. I have read Exhibit GM 7 to his affidavit which contains the medical notes relating to his treatment – primarily this deals with his psychological condition. The respondent deposes that the thought of going back to Court for the compensation order has caused him to have suicidal ideations.[7]  This evidence is not contested. Neither is it in contest that he suffers from significant underlying physical and psychological issues. On that basis I accept that the imposition of a compensation order will have an effect on his mental health.

[7]At paragraph [1] of the respondent’s affidavit which appears as the last paragraph of his affidavit and should properly be numbered [26]

12In Norman v The King,[8] the Court of Appeal considered the imposition of a compensation order in favour of a home insurer. In that case the accused had burnt the home deliberately, had limited means to pay back the sum the insurer had paid out but had no psychological injury. [9]  The Court said:

“The amount, that was the subject of the compensation order in this case, was particularly substantial. It is apparent that the applicant is of limited means. At the time of the order he was facing a term of imprisonment in excess of 3 years, after which it was most probable that he would be deported. It may readily be concluded that the applicant’s capacity to pay the compensation order, on his release, would, at the very least, be most limited. It might also be fairly inferred that that consideration may well render the applicant’s rehabilitation into society, after his release from prison, significantly more difficult. On the other hand, it was the intentional criminal actions of the applicant, in setting fire to his ex-partner’s bedroom, that directly caused the damage in respect of which the compensation had been ordered to be paid. The party which ultimately bore the loss arising from the applicant’s offending — AAI Ltd — had a just claim to be appropriately compensated for that loss. It was for the Judge, pursuant to the discretion contained in s 86(1) of the SA, to balance those two competing considerations...”[10]

[8]        Norman v The King [2023] VSCA 213

[9]In the Court below Judge Hogan had found she could not accept the expert evidence as to the psychological injury

[10]        Norman v The King [2023] VSCA 213 at [71] – [73]

13Thus, while the circumstances are somewhat different the guiding principles remain. In undertaking that discretionary exercise I record that the applicant undertook in open Court that if an order were made in its favour that it would not enforce payment of the order if the respondent’s circumstances remained as he deposed they were in his affidavit. The respondent submitted that even if this was the position he opposed the making of an order as it would hang over his head for an unknown period and effect his mental health.

14Balancing those matters I consider that I must take into account the particular circumstances of the respondent and the offending that he has engaged in.  I have found the amount outstanding is significant. It arose from a sustained pattern of deception. The respondent was prepared to endure that period of wrongdoing for a considerable period. He proceeded to committal and sought a sentence indication hearing just prior to the listed trial date. This indicates an ability to withstand the stress occasioned with the wrongdoing and the trial process. It guides my assessment that he has the capacity to tolerate the stress caused by imposition of a compensation order into the future with his health conditions – as he has done in the past. This stress is ameliorated by the fact that he is now no longer dealing with (i) being engaged in a deception and the possibility of being found out and (ii) the uncertainty of the trial process.  To this can be added the fact that he has some real certainty that the applicant will not enforce the compensation order if his financial position remains as he has deposed. I do not consider his rehabilitative prospects will be harmed by the imposition of the order.

15In these circumstances I will make a compensation order in the sum sought of $150,753.10.

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