Alves v State Insurance Regulatory Authority

Court of Appeal (NSW)|2023-09-26|Before: Ward P, Gleeson JA, Leeming JA

Solicitors: Luis Alves (Applicant - self-represented) State Insurance Regulatory Authority, Department of Customer Service (First respondent) Crown Solicitor's Office (Second respondent - submitting) File Number(s): 2023/40721 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 13 January 2023 Before: M L Williams SC DCJ File Number(s): 2021/223833

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On the first day of his trial on 20 June 2022, the applicant, Luis Alves, pleaded guilty to one count of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) in that he dishonestly obtained a financial advantage by deception. The applicant had received some $170,000 of overpayments of workers' compensation benefits over a 6.5-year period, in circumstances where he failed to disclose that he had commenced employment as a bus driver. On 5 October 2022, the applicant was sentenced to imprisonment for 12 months to be served by way of an intensive correction order (ICO) in the community pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In addition to the standard ICO conditions, the magistrate imposed a home detention condition for 9 months commencing 5 October 2022 and expiring 4 July 2023. The Local Court also made orders that the applicant pay reparation to the workers' compensation insurance fund in the amount of $170,000 and pay the prosecutor's costs in the sum of $38,630. The applicant brought an appeal in the District Court against the severity of his sentence. He was self-represented on that appeal. The District Court dismissed the sentence appeal on 13 January 2023. On 7 February 2023, the applicant filed a summons seeking judicial review of the District Court's decision (the review application). The issue for determination in the review application was whether the District Court committed jurisdictional error in disposing of the severity appeal. The Court held (Gleeson JA, Ward P and Leeming JA agreeing), dismissing the review application: It was not open to the applicant to disavow his guilty plea and contend on the review application that he was criminalised for no reason because: (i) the applicant was legally represented at all stages in the Local Court by solicitors and the plea of guilty was entered by him through his counsel; (ii) there is no basis for doubting that the plea of guilty entered by the applicant's counsel in the Local Court was made freely or voluntarily; (iii) the applicant did not seek leave to appeal against his conviction, including making an application to withdraw his guilty plea; and (iv) the District Court judge correctly observed that the applicant's submission that he never received any money dishonestly, as his wages as a bus driver together with the workers' compensation benefits did not exceed his income earned as a tiler, did not address the criminality involved in the offending to which the applicant had pleaded guilty: [20]-[26]. There was no jurisdictional error by the District Court in disposing of the applicant's sentence appeal: [27].

Judgment

WARD P: I agree with Gleeson JA.
GLEESON JA: The applicant, Luis Alves, who is self-represented in this Court, seeks judicial review of a decision of the District Court dismissing his appeal against the severity of the sentence imposed in the Local Court. He has no right of appeal from the decision of the District Court in a criminal matter and therefore seeks to invoke the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Although not expressly stated in his summons, the relief which the applicant effectively seeks is an order quashing the decision of the District Court. To obtain such relief it is necessary for the applicant to demonstrate jurisdictional error on the part of the District Court.
For the reasons that follow, the application should be dismissed with costs.

Background

The applicant was a tiler. He suffered a workplace injury in February 2000 and from April 2001 received workers' compensation benefits. He commenced work as a bus driver on 1 June 2011, but did not report the change in his employment status to the relevant insurer. He continued to receive workers' compensation benefits until they ceased on 25 December 2017.
The applicant was charged by a Court Attendance Notice dated 5 August 2021 with one count of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) in that he dishonestly obtained a financial advantage of $170,000 by deception. The particulars of the charge included that (i) the financial advantage of $170,000 related to overpayments of workers' compensation benefits, and (ii) the applicant's deception was practised over the 6.5-year period whilst he was in receipt of workers' compensation benefits by failing to disclose that he had commenced employment as a bus driver on 1 June 2011.
The proceedings were fixed for a 5-day trial in the Local Court commencing on 20 June 2022. The applicant was represented by solicitors and counsel. On the first day of the trial, the applicant pleaded guilty. The proceedings were adjourned to 24 June 2022, when the parties handed up an agreed statement of facts on sentence. In a sentencing assessment report by Community Corrections dated 22 August 2022, it was noted that the applicant (i) claimed that he was unaware at the time of his offending that his actions constituted an offence, (ii) stated he believed it is "wrong" that he had been charged with an offence for working, and (iii) stated he believed that he was entitled to be employed and earn additional money whilst he received workers' compensation payments.
At the sentence hearing on 24 August 2022, the Magistrate ordered a home detention assessment. A report by Community Corrections dated 27 September 2022 assessed the applicant's accommodation as suitable for a home detention order.
On 5 October 2022, the applicant was sentenced to imprisonment for 12 months to be served by way of an intensive correction order (ICO) in the community pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act). The ICO commenced on 5 October 2022 and expires on 4 October 2023. In addition to the standard ICO conditions, Magistrate Stapleton imposed a home detention condition for 9 months commencing 5 October 2022 and expiring 4 July 2023: Sentencing Procedure Act, ss 73(2) and 73A(2)(a). The Magistrate also made orders with respect to reparation and costs as follows: 1. the applicant pay reparation to the workers' compensation insurance fund in the amount of $170,000; and 2. the applicant pay the prosecutor's costs in the sum of $38,630.
A person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both): Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), s 11(1). However, there is no right of appeal, except by leave of the District Court, in respect of a conviction following a guilty plea: ss 11(1A) and 12(1). The applicant did not seek leave to appeal against his conviction.
The applicant brought an appeal in the District Court against the severity of his sentence: Appeal and Review Act, s 11(1). He was self-represented on that appeal. His sentence appeal was dismissed by M L Williams SC DCJ on 13 January 2023 who delivered short ex tempore reasons and "confirmed" the conviction and orders of the Magistrate. It is not necessary for the disposition of this application to say anything about whether the District Court still has power to "confirm" a conviction on appeal: see the discussion in South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183 at [44]-[46] (Bell P, Macfarlan JA agreeing). It is sufficient to observe that, on a sentence appeal, the matter of conviction is not before the District Court: Lazarus at [49], citing Roads and Traffic Authority of New South Wales v Higginson [2011] NSWCA 151 at [123] (Young JA).
In his judgment, Williams SC DCJ referred at [2] to the agreed facts which were included in the bundle of documents tendered on the severity appeal, and noted that the applicant was represented in the Local Court by Mr Gollan of counsel, who had prepared very comprehensive submissions putting all that could possibly be put by the applicant's representative and had ultimately submitted that if the s 5 threshold was crossed, that is, no penalty other than imprisonment is appropriate (Sentencing Procedure Act, s 5), the penalty should be served by way of an intensive correction order.
His Honour found at [4] that the orders made by the Magistrate were well-justified by the evidence in light of the submissions before him and determined that the severity appeal was dismissed. His Honour observed at [5] that the applicant's essential contention on the sentence appeal was that he saw himself as being punished for working and paying taxes, however, this did not deal with the criminality of his offending.
On 7 February 2023, the applicant filed his summons in the Common Law Division seeking judicial review of the decision of the District Court. His summons was removed to this Court by an order made on 29 March 2023. The applicant did not attempt to comply with the requirements in r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). No proper relief is pleaded in the summons and no grounds are identified. In his summons, the applicant claimed the following relief: To dismiss all proceedings against me, and to consider that I was a person looking after myself and family. And my wife doesn't drive. I just work, produce, pay taxes, look after my family and clear my [name] from any wrong things. Such names they added to punish.

The basis of Mr Alves application

As indicated, to obtain relief by way of judicial review it is necessary for the applicant to demonstrate jurisdictional error on the part of the District Court: District Court Act 1973 (NSW), s 176; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Morgan v District Court of NSW (2017) 94 NSWLR 463; [2017] NSWCA 105 at [10].
In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ explained the concept of jurisdictional error at [24] (citations omitted): To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. …. a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void".
In Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; (2019) 367 ALR 274 Meagher JA (Basten JA and Sackville AJA agreeing) said at [4]: … there will be jurisdictional error if the District Court in exercising criminal appellate jurisdiction "[misconstrues] the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case": Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72].
These remarks concerning the concept of jurisdictional error direct attention, relevantly, in this case to the nature of the function of the District Court when hearing a sentence appeal. Under the Appeal and Review Act, s 17, the sentence appeal is to be "by way of rehearing"; that is, a rehearing of the evidence given in the Local Court, with the opportunity to adduce "fresh" evidence. The District Court is to determine an appeal against sentence by either setting the sentence aside, varying the sentence, or dismissing the appeal: Appeal and Review Act, s 20(2).
The issues and matters which the District Court is to address in the sentence appeal are informed by the matters raised by the applicant and the prosecutor's responses to those matters: Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 at [25]. In this case, the same material was placed before the District Court as was before the Local Court. The applicant did not adduce any fresh evidence on his appeal.

The applicant's submissions

In his written submissions in this Court, the applicant complained that he was criminalised for no reason, asserted that he had not been dishonest and said that it was never his intention to commit a fraud or any act of dishonesty, only to be active and prosperous. He complained that the first respondent or the insurers did not properly consider his workers' compensation case, and that prevented him from doing an architectural design course. He also complained about the consequences of the home detention condition of the ICO, given that he was required to wear an ankle bracelet.
In oral argument, the applicant said that he had pleaded guilty on the advice of his lawyers, that he asked his lawyers about an appeal, and as a result brought his appeal in the District Court against the severity of the sentence, and "they" being a reference to the District Court judge, "ignored me". He said that he was disappointed with the result, he considered the outcome is wrong, he was unfairly punished because as he was simply working to support his family. He described the punishment imposed in the Local Court as a "deception to working class people".

Disposition of the judicial review application

The contention that the applicant did not act dishonestly when he obtained the workers' compensation benefits is not open to the applicant in this Court. First, dishonesty was an element of the offence in s 192E(1)(b) of the Crimes Act and by his plea of guilty in the Local Court, the applicant expressly acknowledged that he was dishonest when he obtained the sum of $170,000 from the workers' compensation insurers over a 6.5-year period in circumstances where he had failed to disclose that he had commenced employment as a bus driver in June 2011.
Second, the applicant was legally represented at all stages in the Local Court by solicitors and the plea of guilty was entered by him through his counsel who also appeared at each stage of the sentencing process in the Local Court. In written submissions on sentence, the applicant's counsel acknowledged (at pars 10 and 32):

"It is accepted that the failure [of the applicant] to advise the Insurer of his acquired employment was dishonest", and consequently, the applicant received compensation benefits in excess of his entitlement; and
"[The applicant], by his guilty plea, has accepted the responsibility for his actions and expressed an intention to pay back all amounts overpaid".

Third, the applicant tendered on the sentence hearing a report of Dr Matthew Jones, psychiatrist, dated 19 July 2022, which recorded (at page 7) that the applicant effectively told Dr Jones that he was justified in doing what he did because he "never received more than he would have as a fulltime tiler and therefore believed he was entitled to the money he was receiving". That asserted justification of his conduct is not an answer to the offence to which the applicant had pleaded guilty.
Fourth, the applicant did not seek leave to appeal against his conviction, which would have also required seeking leave to withdraw his guilty plea. Having not sought and obtained such leave, the applicant cannot now disavow his guilty plea. Moreover, there is no basis for doubting that the plea of guilty entered by the applicant's counsel in the Local Court was an acknowledgment by the applicant of his guilt to the charge made freely or voluntarily.
The complaint about having to wearing an ankle bracelet is misconceived. The home detention condition imposed by the Magistrate and confirmed by the District Court was within jurisdiction. The imposition of such a condition of an ICO is permitted by the Sentencing Procedure Act, ss 73A(2)(a) and (3), provided an assessment report states that the offender is suitable to be subject to such a condition. As indicated, the applicant's accommodation was assessed as suitable for a period of home detention.
One further matter should be mentioned. The applicant said that the decision of the District Court was wrong because his Honour did not take into consideration his submission that he "never received any money dishonestly", since his wages as a bus driver, together with the workers' compensation benefits, did not exceed his income earned as a tiler. Aside from not identifying any jurisdictional error, the premise of this submission is flawed. As noted at [12] above, Williams SC DCJ expressly referred to and rejected this submission. His Honour correctly observed that the submission did not deal with the criminality involved in the offending to which the applicant had pleaded guilty. The applicant has failed to demonstrate that the District Court misunderstood its function when disposing of his severity appeal.
It is not necessary to address the applicant's other complaints about the way in which his workers' compensation claim has been managed and of the way in which he was treated by the insurers and the first respondent. None of those complaints provides any basis for judicial review of the District Court's decision.
It should be noted for the sake of clarity that the first respondent accepts that the ICO expires on 4 October 2023.

Conclusion

For the above reasons, the summons must be dismissed. The first respondent has sought costs and there is no reason why costs should not follow the event: UCPR, r 42.1.
I propose the following orders: 1. The summons filed 7 February 2023 be dismissed. 2. The applicant to pay the first respondent's costs of the proceedings.
LEEMING JA: I agree with Gleeson JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2023

both): Crimes (Appeal and Review) Act 2001(NSW)

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