Charges:

1 charge of fraudulent obtaining Loss of Earning Capacity benefits pursuant to s116 of the Transport Accident Act 1986 and 1 charge of providing false or misleading information pursuant to s117 of The Transport Accident Act 1986.

Plea: Guilty

Result:

At the conclusion of the Appeal, the accused was sentenced to a 12 month Community Correction Order, with conviction, requiring the accused to perform 150hrs unpaid community work. He was ordered to pay compensation in the amount of $22,539 to the TAC and prosecution costs of $3,347 which was made into an aggregate fine and referred to Fines Victoria.

Remarks:

Magistrates Court – 18 December 2023

At the plea hearing on 21 November 2023, Magistrate Stary was concerned that the accused had not made any attempt to repay the money to TAC. The matter was stood down and the accused made arrangements with the TAC to repay a lump sum of $10,000. The matter was adjourned to 28 November 2023 to facilitate this repayment.

On 28 November 2023 upon being notified of the $10,000 repayment, Magistrate Stary indicated that he would be imposing a Community Corrections Order with conviction. On behalf of the accused, it was submitted that a conviction would harm the accused’s ability to maintain employment and that it would impact his ability to obtain a Visa to travel into the USA with his partner (who is from the USA) as an offence of ‘moral turpitude’ for the purposes of US immigration laws. Magistrate Stary was not persuaded on these matters and adjourned the matter for the accused to further evidence.

On 18 December 2023 the accused provided 3 reference letters to the Court and a copy of the US Immigration policy. The prosecution submitted that the offence would constitute one of moral turpitude for the purposes of US immigration policy but may not ultimately preclude him from obtaining a visa. His Honour took the same view. On behalf of the accused, his previous submissions were reiterated and it was indicated that a deed of repayment had been agreed upon and would be entered into following sentencing.

In sentencing the accused, His Honour noted that the accused was entitled to a discount for entering a plea of guilty. If the plea had been made at the earliest availability, this would be a substantial discount. However, His Honour noted that this matter had a very long history before coming to a resolution. He indicated that ordinarily a crime of this nature attracts a serious penalty as it is a serious crime against the community and is often difficult to detect. It was protracted over a long period of time and of significant quantum. His Honour acknowledged that the accused had made a partial repayment to the TAC. His Honour agreed with the prosecution that the primary sentencing considerations had to be specific and general deterrence and denunciation. This was to be weighed against no prior criminal history, the fact the accused was not in permanent employment, and the impact a conviction might have on the accused being granted a visa to enter the USA. His Honour outlined his view that restitution is important as it was an expression of remorse, to restore the community to its previous state. He accepted that while the accused is not obliged to make any repayment until a finding of guilt, it is often done so to demonstrate remorse but is not the sole factor he should have regard to. His Honour opined that balancing the above factors, a conviction was warranted.

Appeal – 8 May 2024

The accused appealed against the sentence imposed by the Magistrate, primarily on the basis that a conviction should not have been imposed in circumstances where they were before the court for the first time for summary offences with no prior history.

The accused provided supporting character references and made submissions about the impact of a conviction on his employment and ability to travel to the USA. The accused made further submissions to explain the circumstances of the offending, and highlighting that the multiple attempts to return to work had not ultimately been successful and had not resulted in any significant income and that the offending reflected a misunderstanding of his obligations rather than multiple wilful attempts to deceive the TAC. Reliance was also placed on published, past TAC prosecution results, in regard to the range of sentencing in similar matters.

The Prosecution submitted that accused had been clearly notified of their obligations, and highlighted that that the offending involved multiple attempts to return to work through a recruitment agency and also involved the creation of his own business with another family member. The prosecution maintained that to satisfy the sentencing principles of general deterrence and denunciation, a conviction was required because of the significance of the offending, substantial quantum, the protracted period of time and that while it may impact the accused’s ability to get a visa, simply the finding of guilt is enough so a conviction is irrelevant.  The prosecution reiterated the level of trust placed in persons who make claims for compensation and the difficulty of detecting offences of this nature and the significant resources required to detect, investigate and prosecute them.

Her Honour Judge Harper raised various concerns during submissions about the nature of the offending, in particular that it was of a persistent nature, involved multiple periods of employment that clearly required preparation which evinced an intention. In her sentencing remarks, Her Honour noted that the persistent nature of the offending, including making applications for work through a job agency, called for general deterrence.

The outcome of the appeal was that the accused received the same sentence that had been previously imposed by the Magistrate below.

Restitution:	$22,539
Total Fines:	$
Disbursements:	$
Statutory Costs:	$
Professional Costs:	$3,347

Stay: