WorkCover Queensland v Stanley [2010] QDC 48

Sandra Stanley pleaded guilty before her Honour Magistrate Cornack in respect of 1 charge of “returning to a calling” pursuant to sections 533 and 535 of the Workers Compensation and Rehabilitation Act 2003 (Qld) and 3 charges of making a false and misleading statement pursuant to section 534.

The “return to a calling” was in the form of part-time work for the Gold Coast Turf Club over the period she received statutory benefits for 13 months.  It was noted that mostly she would earn $40.00 an afternoon when she worked and the sum total of the earnings was $$2,055.00.  However, during the corresponding period she received statutory benefits in the sum of $60,027.12.

The return to calling was not disclosed as required by section 136 of the Act, but rather actively concealed by the 3 false and misleading statements made.

The appeal by WorkCover on the basis the sentence for all offences of 1 month’s imprisonment wholly suspended for 18 months was manifestly inadequate and further in respect of the false and misleading offences, the operational period of 18 months exceeded that allowed by the Act, namely 12 months.

The leading authorities in respect of sentencing for WorkCover fraud are:

David v. Thomas [1997] 156 QGIG 647

Fahey v Keating (2003) QGIG 78

What troubled the magistrate was the amount of the earnings ($2,055.00) and the amount by comparison of the statutory benefits ($60,027.12) and the effect of section 537(3) of the Act, requiring restitution of the entire amount.

In effect the magistrate sentenced on the amount earnt of $2,055.00 as opposed to the statutory benefits during the period of the fraud, namely$60,027.12.

His Honour judge Tutt upheld the appeal by WorkCover and sentenced the respondent to 6 months custody, wholly suspended for 18 months on the “return to calling” and 3 months custody, wholly suspended for 12 months on the false and misleading offences, together with restitution and costs:

[18] On the basis of the submissions made and the material filed I am satisfied that the Magistrate erred in her application of proper sentencing principles within the guidelines set out by de Jersey C.J. in David v Thomas[19], particularly in respect to the “fraud” offence for the following reasons:

(a) The offence of “fraud” is a serious offence for which condign punishment must be imposed to reflect:

(i) The seriousness of the offence and;
(ii) To express “community disapproval of fraud on the public purse” by imposing a penalty to act as a deterrence to others from committing that type of offence;
(b) The Magistrate allowed herself to be unduly influenced by the respondent’s personal circumstances and the range of penalties imposed in what may be described as “social security” fraud, rather than considering the gravamen of the offence under the “WCRA” and the penalties imposed therefor and as such her honour’s sentencing discretion miscarried. Whilst it has been said that ‘Sentencing is never a rigid mathematical exercise”[20] it does require a balancing exercise between the personal circumstances of an offender together with all of those guidelines set out in section 9 of the Penalties and Sentences Act 1992 and a consideration of the nature and consequences of the offence before the Court. I am satisfied in this instance the Magistrate erred in failing to have regard to “the range of penalty applicable to the particular offence as committed”[21] and as a consequence in the circumstances the penalty imposed by her honour in manifestly inadequate. It therefore requires this court to exercise that discretion afresh.

Sentence Imposed:
[19] In respect of charge 1 (the fraud charge), having regard to the nature of the offence; the need for maintaining the “integrity and viability of the scheme[22] (by insisting upon) the honesty and frankness of claimants”; the principles set out in comparable decisions on point,[23] balanced against the respondent’s personal circumstances including her early plea; no previous convictions; her return to work with the same employer and it being mandatory that she be required to repay the whole of the workers’ compensation she received, despite her having received only a relatively small amount (in comparison) as a result of the fraud, I am of the view that an appropriate sentence to be imposed upon her for this offence is as follows:
(a) the respondent be convicted thereof; a conviction be recorded and that she be sentenced to 6 months imprisonment wholly suspended forthwith for an operational period of 18 months i.e. she must not commit another offence punishable by imprisonment within the period of 18 months if she is to avoid being dealt with under section 146 of the Penalties and Sentence Act 1992 for the suspended term of imprisonment;
(b) the respondent pays the sum of $60,027.12 by way of restitution and the sum of $11,732.23 for investigation costs to WorkCover Queensland with reference to S.P.E.R in default levy and distress.
[20] In respect of the 3 “false or misleading information” charges the respondent be convicted thereof; convictions be recorded and that she be sentenced to 3 months imprisonment on each offence to be served concurrently with the sentence above, wholly suspended forthwith for an operational period of 12 months.
[21] I note there was some discussion at the appeal hearing as to whether the Magistrate erred in suspending the sentence imposed on the “false or misleading information” charges for 18 months when the maximum period of imprisonment provided for such an offence is “1 year’s imprisonment”. The consensus of opinion was that the Magistrate was in error in doing so. On reflection there would appear to be no error in the sentencing discretion to suspend a term of imprisonment for longer than the maximum period of imprisonment provided for any such offence as the requirement is that the suspended operational period “must be –
(a) not less than the term of imprisonment imposed; and
(b) not more than 5 years”[24] (emphasis added).

The appeal highlights the serious consequences of fraud, albeit only productive of modest earnings, whilst on statutory benefits. It is also timely to remember WorkCover is facing solvency issues and considering significant changes to its common law damages regime .

Custodial sentence

Last month her Honour Magistrate Hall sentenced a defendent to 18 months custody, with 6 months to serve before wholly suspending the balance. In that instance there were a number of charges:

  • returning to calling where the statutory benefits were $33,920.00;
  • 6 false and misleading statements during the statutory phase;
  • general fraud at common law of accepting a settlement of $95,000.00; and
  • 1 false and misleading statement during the common law phase.

The fraud became known some years after the settlement on information received from a “hotline” call and tip off.

Brisbane Barrister – David Cormack

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