DPP (Cth) v Mitchell [2025] ACTSC 412

1. By originating application filed on 13 May 2025 (Originating Application), the Commonwealth Director of Public Prosecutions (CDPP) applied for orders under Pt VA of the Australian Federal Police Act 1979 (Cth) (AFP Act) relating to the employer-funded component of the defendant’s superannuation entitlements under two different federal schemes: (a) the Public Sector Superannuation Scheme (PSS Scheme); and (b) the Australian Defence Force Super Scheme (ADF Super Scheme).

2. In May 2024, the Commissioner of the Australian Federal Police (Commissioner) had obtained orders under the Proceeds of Crime Act 2002 (Cth) (POC Act) restraining all property of the defendant, including after-acquired property. Orders were made on 25 July 2025 stating that nothing in the orders made under the POC Act prevented the present application being made.

3. On 31 July 2025, I made the orders sought in the Originating Application pursuant to s 46 of the AFP Act. The effect of those orders was to: (a) require the defendant to repay to the Commonwealth an amount reflecting the employer-funded component of superannuation entitlements already paid to him under the PSS Scheme, being an amount of $98,121.10; and (b) confiscate the employer-funded component of superannuation entitlements not yet paid to the defendant under the ADF Super Scheme, being an amount of $1,198.51.

4. The making of those orders also had the statutory consequence under s 47 of the AFP Act that any entitlement of the defendant to receive ongoing payments under the PSS Scheme ended and an amount equivalent to his employee contributions to that scheme would be paid out to him.

5. These are my reasons for the making of those orders.

6. The only question ultimately necessary to determine was whether or not the relevant offence of which the defendant had been convicted was a “corruption offence” within the meaning of the AFP Act. However, it is necessary to explain a little bit more about the statutory context in which that became the critical issue. Legislative framework

Overview

7. Since 1989, federal legislation has provided for the confiscation of the employer-funded component of superannuation entitlements of Commonwealth employees convicted of, and sentenced to imprisonment in respect of, “corruption offences”. So far as employees of the Australian Federal Police (AFP) are concerned, the relevant provisions are contained in Pt VA of the AFP Act, entitled: “Loss of certain superannuation rights and benefits”. Equivalent provision is made in respect of other Commonwealth employees (including members of the Parliament and judges of federal courts) by the Crimes (Superannuation Benefits) Act 1989 (Cth) (CSB Act). The schemes in the Acts are similar, but because the defendant was an employee of the AFP, he was subject to the provisions of the AFP Act.

8. The provisions of Part VA of the AFP Act relevantly apply to a person who is or was “an AFP employee”. “AFP employee” is defined in s 4 of the AFP Act to mean “a person engaged under section 24” of the AFP Act. Section 24 of the AFP Act provides, in short, that the Commissioner may, in writing, engage persons as employees of the AFP.

9. Section 44 of the AFP Act provides that, where a relevant employee is convicted of an offence and the relevant Minister forms the opinion that the offence is a “corruption offence”, the Minister “shall” authorise the CDPP to apply to “the appropriate court” for “a superannuation order” in respect of the person.

10. Where the Minister so authorises the CDPP, and the relevant person is ultimately sentenced to imprisonment for a term longer than 12 months in respect of the relevant offence (or to cumulative terms of more than 12 months if there are multiple relevant offences), the CDPP “must” apply to the appropriate court for a superannuation order: s 45.

11. If the court to which the CDPP applies is satisfied that the relevant offence is a “corruption offence”, the court “shall” make “a superannuation order” in accordance with the provisions of the Act: s 46.

Section 46

12. Section 46 of the AFP Act provides as follows: 46 Superannuation orders (1) Subject to subsection (2), where an application is made to an appropriate court for a superannuation order in respect of a person, the court shall, if satisfied that the offence to which the application relates is a corruption offence, by order, declare that: (a) the person was convicted of a corruption offence; and (b) this Part applies in relation to: (i) the rights of, and benefits paid or payable to or in respect of, the person under any superannuation scheme; and (ii) any entitlement of the person to receive an adjustment payment. … (3) Where: (a) employer contributions or benefits made or payable by the Commonwealth or a Commonwealth organisation in respect of the person under any superannuation scheme for any period of employment (not just a period during which the offence was committed) have been paid into, and are held in, a fund under the scheme; and (b) the person would, but for subsection 47(1), become entitled, subject to and in accordance with the scheme, to the benefit, or to a benefit attributable to the employer contributions, as the case may be; the court must: (c) work out, and specify in the superannuation order, the amount that it thinks reflects the value of the sum of those contributions or benefits as at the day on which the order is made, plus the interest on those contributions or benefits accrued under the scheme before that day; and (d) include in the superannuation order an order that the amount so specified be paid to the Commonwealth or Commonwealth organisation, whichever the court considers appropriate. (4) Where any benefits have been paid to the person under any superannuation scheme (whether before, on or after the commencing day) the court must: (a) specify in the superannuation order the amount worked out using the formula: AB – EC where: AB (amount of benefits) is the amount that the court thinks reflects the value of the sum of the benefits paid by the Commonwealth or Commonwealth organisation to the person under the scheme for any period of employment (not just a period during which the offence was committed) as at the day on which the order is made. EC (employee contributions) is an amount that the court thinks is equal to the part of AB that is attributable to the sum of the employee contributions paid under the scheme by the person as at that day plus the interest on those contributions accrued under the scheme before that day; and (b) include in the superannuation order an order that the person pay the amount so specified to the Commonwealth or Commonwealth organisation, whichever the court considers appropriate. (4A) Where the person has received an adjustment payment, the court must: (a) work out, and specify in the superannuation order, the amount that it thinks reflects the value of the amount of the payment as at the day on which the order is made; and (b) include in the superannuation order an order that the person pay the amount so specified to the Commonwealth. (5) For the purposes of subsection (4), the value of an amount of employer contributions or benefits, and of accrued interest, is their value worked out having regard to any decline in the purchasing power of money between the day on which the contributions or benefits were made or paid, or the interest accrued, as the case may be, and the day as at which their value must be worked out. (5A) For the purposes of subsection (4A), the value of an amount of an adjustment payment is its value worked out having regard to any decline in the purchasing power of money between the day on which the amount was paid and the day as at which its value must be worked out. (6) The DPP must give written notice of a superannuation order to the person’s superannuation authority. “Corruption offence”

13. “Corruption offence”, referred to in s 46(1)(a), is defined in s 41 of the AFP Act to mean: an offence by a person who was an AFP employee or an old law member or staff member at the time when it was committed, being an offence: (a) whose commission involved an abuse by the person of his or her office as such a person; (b) that, having regard to the powers and duties of such a person, … was committed for a purpose that involved corruption; or (c) that was committed for the purpose of perverting, or attempting to pervert, the course of justice.

14. The terms “abuse of office” and “corruption” are not defined. The manner in which these concepts have been approached is described later in these reasons.

15. The term “office” likewise is not defined in the AFP Act. The Macquarie Dictionary (6th ed, 2013) is appropriate: a position of duty, trust, or authority, especially in the government or in some company, society, or the like.

16. Although the reference to “office” could be interpreted as drawing a distinction between an employee and an officeholder, in the context in which the expression is used in the definition of “corruption offence”, that is not the case. Rather, given the way in which the word is used both in the CSB Act and in the AFP Act, the word “office” is used as the equivalent of “position”, whether as an employee or an officeholder.

“Appropriate court”

17. “Appropriate court” is relevantly defined in s 41 of the AFP Act to mean, in relation to a person’s conviction of an offence, “the court of the State or Territory before which the person was convicted”. As the defendant was convicted in the ACT Supreme Court, this court is plainly the “appropriate court”. Absence of discretion

18. Where the relevant Minister authorises the CDPP to apply for a superannuation order in respect of a person, the CDPP “must” bring the application: DPP (Cth) v Petroulias [2017] NSWSC 1290; 325 FLR 160 at [52]. Likewise, if the court is satisfied as to the relevant requirements, primarily that the offence in question is a “corruption offence”, the court has no discretion but to make orders under Pt VA of the AFP Act or under the CSB Act (whichever is applicable): Petroulias at [52].

19. Given the limited nature of the court’s task under Pt VA, the court has no discretion to consider the harshness of an order under that Part or its consequences for an offender’s rehabilitation.

Other matters arising from the authorities

20. The authorities referred to in the CDPP’s submissions which relate either to the provisions of AFP Act or the CSB Act disclose the following propositions relevant to the operation of Pt VA of the AFP Act: (a) Although in DPP (Cth) v Della-Vedova [2010] NSWSC 8; 75 NSWLR 602 Harrison J held that, under the version of the CSB Act then in force, only the period of employment in which the offending had occurred was to be taken into account when calculating the employer contributions recoverable under that Act, the CSB Act and the AFP Act were subsequently amended so as to make it clear that: (i) a superannuation order will relate to employer contributions made or payable in respect of a person “for any period of employment (not just a period during which the offence was committed)”: s 46(3)(a); (ii) a superannuation order will affect employer contributions made or payable under “any [federal] superannuation scheme”: s 46(3)(a); and (iii) these changes apply to offences committed before the amendments’ commencement: see Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth), Sch 3 items 10-11 and 14. (b) The provisions are not relevantly retrospective and do not involve an acquisition of property otherwise than on just terms, even though they may apply to entitlements that had accrued prior to the offending: DPP (Cth) v Pirone (1997) 68 SASR 106 at 112-115. Rather, they involve forfeiture of entitlements which the person has at the time of the making of the order. (c) Each of the paragraphs of the definition of “corruption offence” are to be read disjunctively, not cumulatively, so that each paragraph provides an alternative definition of “corruption offence”: Pirone at 109; DPP (Cth) v Harney [2003] NSWCA 350; 59 NSWLR 9 at [14]-[15].

Corruption and abuse of office

Authorities

21. The CDPP’s submissions included a summary of other cases under the AFP Act or the CSB Act in which an abuse of office had been found so as to bring criminal conduct within the scope of the definition of “corruption offence”.

22. DPP (Cth) v Hogarth (1995) 93 A Crim R 452 involved a public servant whose duty included paying accounts on behalf of the Department of Veterans Affairs. The offender put false information into the department’s computer system resulting in cheques being drawn in favour of the co-offender in circumstances where there was no entitlement to those cheques. Higgins J relied upon earlier authorities relating to corrupt conduct to find that a person who holds a public office and dishonestly applies public monies to her own use commits an abuse of office within the CSB Act.

23. Pirone involved a person employed as a finance officer with the AFP who pleaded guilty to 110 counts of imposing upon the Commonwealth by making untrue representations. His duties included responsibility for the petty cash system. The amount obtained was $2,260. Doyle CJ (with whom Bollen and Duggan JJ both agreed) said at 109: In my opinion nothing could more clearly be an abuse by Mr Pirone of his office, treating the office as embracing the particular position which he occupied, as in my opinion one should. It was an abuse of that office because he made use of his office, including his knowledge of the system and his authority to authorise payment, to facilitate the commission of the offences. Should it be necessary, one can add that the office was used for a dishonest purpose involving personal gain.

24. Harney involved an employee of Australia Post who stole articles from the post. Giles JA (with whom Meagher and Ipp JJA agreed) said at [15]-[16]: It was submitted that there was not [abuse of his office], in that there had to be some making use of his office as an employee to achieve a dishonest objective. A distinction between abuse in office and abuse of office was posed, and it was submitted that it was not enough that the opponent may have taken advantage of the opportunity which his office offered. It was said that it was necessary that he did more, and misused the power which his office offered. With due respect to the submissions put to us, I do not think that in the present case there can be any real doubt. If one looks at para (a) and the facts before us, the opponent was able to steal the articles in the course of post because of his employment by Australia Post in the parcel centre, and did so contrary to the duty which as a person in that employment he owed to his employer and in disregard of his responsibility as such an employee to the members of the public who committed articles to the postal system. In my opinion, that is clearly and aptly described as an abuse of his office as an employee. (Emphasis omitted.)

25. Theophanous v Commonwealth [2006] HCA 18; 225 CLR 101 involved a member of Parliament. He held certain positions concerned with immigration. He was found guilty of defrauding the Commonwealth by making false representations in relation to an immigration matter, taking an unlawful inducement and soliciting an unlawful inducement. In High Court proceedings, he challenged the validity of the CSB Act. The joint judgment of a majority of the court indicated (at [43]) that the offences “answer the description of either or both paras (a) and (b) of the definition of ‘corruption offence’” and noted that the plaintiff did not submit to the contrary.

26. DPP v Dwayhi [2009] NSWSC 1025 involved an offender who was employed at the Australian Taxation Office verifying business activity statements. The offender verified four claims which were sham claims made by four different entities known to the offender. Credits or payments were made totalling $857,357. Buddin J adopted the reasoning in Harney and said (at [10]): It is apparent that the defendant committed corruption offences, within the meaning of the Act, in that he committed offences of the relevant kind and that they involved him in an abuse of his office as an employee of the Commonwealth.

27. Della-Vedova involved an employee of the Australian Defence Force who possessed a prohibited weapon without a permit, and dishonestly appropriated property of the Commonwealth. He acknowledged that the offences were “corruption offences” within the meaning of the CSB Act. The issue in the case was in relation to what period of employment the superannuation order should be made. The decision and the legislative response is referred to earlier in these reasons.

28. DPP (Cth) v Gok [2011] WADC 199 involved an employee of the Australian Taxation Office. Like Mr Dwayhi, he was responsible for verifying business activity statements. He made claims on behalf of businesses associated with relatives of his resulting in GST refunds. Martino CJDC said: “In my view that conduct involved an abuse by Mr Gok of his office as an employee at the ATO”.

The defendant’s offending

29. On 25 July 2002, the defendant commenced employment as a Youth Sports and Recreation Officer at the Police Community Youth Club (PCYC) in Canberra. For the purposes of this employment, the defendant was formally engaged, by a delegate of the Commissioner of the AFP, as an employee of the AFP pursuant to s 24 of the AFP Act. The defendant remained an “AFP employee” of the PCYC until 19 September 2005, when he resigned.

30. Between 2007 and 2024, the defendant went on to engage in other employment with the Commonwealth or Commonwealth agencies and with the Australian Defence Force. For present purposes, it is only necessary to note that, in these positions, he continued to accrue superannuation entitlements either under the PSS Scheme or the ADF Super Scheme.

31. On 29 November 2022, the defendant pleaded guilty to various child sex offences committed against six victims between 1994 and 2008. The defendant was initially sentenced on 22 May 2023: DPP v Mitchell [2023] ACTSC 117 (Mitchell (No 1)).

32. Following a successful appeal by the defendant, he was resentenced by me on 29 August 2024: DPP v Mitchell (No 3) [2024] ACTSC 274. In the sentencing reasons, the victims of the offending were referred to as A, B, C, D, E and F. He was also sentenced on an additional charge relating to the provision of false or misleading information to a Commonwealth entity (in relation to an application for, or maintenance of, an Australian Government security clearance).

33. Relevant for present purposes is the defendant’s offending against E. This occurred between 25 July 2002 and 16 January 2004, and involved a single count alleging a course of conduct which amounted to an act of indecency upon a young person under the age of 16 years, contrary to s 61(2) of the Crimes Act 1900 (ACT) (CAN 11741/2022) by virtue of s 66B of the same Act (the relevant offence). On that count, the defendant was sentenced to imprisonment for 18 months, ordered to be 12 months cumulative on sentences imposed on the defendant for other offences.

34. The sentence was imposed on the basis of facts which I found consistent with an agreed statement of facts: see Mitchell (No 1) at [7] and Mitchell (No 3) at [18]. Pursuant to s 45A(2) of the AFP Act, those findings of fact may be relied upon for present purposes. Although I find the relevant facts as they are recorded in those judgments, it is sufficient to record them in a summary way by reference to the description given in Mitchell (No 1), which was relevantly as follows: 41. In 2001 E was 11 years old. She did youth gymnastics at the PCYC in Canberra. When the offender was employed there he took over the gymnastics coaching. E was then 12 years old. He asked her to start wearing tight-fitting leotards while training. He did not ask any other young persons to do so. He trained her from July 2002 until January 2004. Shortly after she started to wear leotards, the offender followed E into the change room and watched her as she got changed. He regularly stretched her by placing his hands on her thighs and pressing down. During that, his hands would touch E’s vagina and buttocks through the leotard. He would also get her to perform handstands and place his hands on her breasts while she did so. This occurred for longer than necessary even as she got better at the handstand. 42. On multiple occasions the offender sought her out and stood behind her while she was waiting in line to use a piece of equipment. He pressed his erect penis into her back as they waited in line. Similarly, he called her to sit on his lap. She could feel that his penis was hard and erect. 43. E also participated in rock climbing sessions following the gymnastics sessions. On multiple occasions, when she was on the climbing wall, he reached between her legs and placed one hand on her crotch with his fingers placed on her vagina. This was unnecessary as she was secured to a rope and there was no need for any spotting or assistance from the coach. During the rock climbing sessions he would also call her to sit on his lap and she could feel his penis was hard and erect. Submissions

35. The plaintiff contended that the offending against E involved a “corruption offence” because it involved “an abuse by the person of his … office” as an AFP employee.

36. In particular, the plaintiff relied upon the following matters: (a) the defendant’s employment, by its nature, brought him into contact and required him to deal with “youth” (children); (b) the defendant’s employment role as a gymnastics and rock-climbing coach placed him in a position of authority, as well as in a position of trust, in relation to the children he coached; (c) the defendant’s employment role as a coach provided him with the opportunity to interact physically and socially with the children he coached; (d) it was specifically by virtue of the defendant’s position as a Youth Sports and Recreation Officer that he came into contact with E; (e) the defendant abused the position of authority he held in relation to, and/or his opportunity to interact with, E by using that authority and/or that opportunity, among other things, to engage in the conduct described in the agreed statement of facts summarised at [34] above; and (f) the defendant’s interaction with E therefore involved an abuse of his “office” as a PCYC Youth Sports and Recreation Officer, namely, a use of that position for a purpose which was both improper and foreign to the proper execution of that role.

37. The defendant only made limited submissions. While recognising the limited role of the CDPP and the court, the defendant pointed to: (a) the fact that his accounts had already been targeted by the AFP under the POC Act; (b) the adverse consequences that orders would have for his capacity to support himself when released on parole; and (c) the impact that orders would have on his capacity to repay certain debts which he has incurred and wishes to repay.

38. He also provided a letter prepared by his former solicitor, which made a submission about whether or not the conduct was within the definition of a “corruption offence”. That submission is referred to in the next section.

Decision

39. Having regard to the treatment of the concept of abuse of office in the authorities referred to at [21]-[28] above, the circumstances of the present case clearly fall within the scope of that concept. It was by reason of his employment at the PCYC that he came into contact and had authority in his dealings with E. His offending against E involved an abuse of that position and the authority that it carried.

40. I do not accept the submission that was made at an earlier stage of the present application by a solicitor on behalf of the defendant to the effect that, having regard to the defendant’s broader history of offending against other victims, his employment at the PCYC was not sufficiently significant to allow his conduct to be described as abuse of his office. That the defendant might have previously and subsequently engaged in other offending unrelated to his office at the PCYC is not sufficient to indicate that the offending did not involve an abuse of the office. Similarly, the possibility that he might have engaged in other offending against E or some other victim even if he had not held the office does not avoid the significance of what in fact occurred and the actual connection between his office and the offending.

41. For those reasons, I was satisfied that the defendant had committed a corruption offence within the meaning of Pt VA and, in particular, for the purposes of s 46 of the AFP Act.

Defendant’s superannuation entitlements

42. Pursuant to s 45A of the AFP Act, a certificate signed by a person’s superannuation authority stating benefits paid, and stating that part of the benefit that is attributable to employee contributions plus interest, is prima facie evidence of the matters stated in the certificate. In the present case, two certificates were relied upon. They disclosed figures which indicated: (a) the sum of employer contributions accrued under the ADF Super Scheme in respect of the defendant as at 30 July 2025, plus interest, was $1,198.51; and (b) the sum of all benefits paid to the defendant by the PSS Scheme not attributable to employee contributions or interest on those contributions was $98,121.10

43. As pointed out earlier, the making of a superannuation order under s 46 of the AFP Act will have, pursuant to s 47 of the AFP Act, other consequences for the ongoing payment of superannuation entitlements of the defendant under the PSS Scheme. However, those consequences flow from the statute after a superannuation order is made.

Orders

44. Because the offending against E was a “corruption offence” within the meaning of s 46, and the evidence disclosed the amounts that may be the subject of orders under ss 46(3) and (4), it was appropriate to make the declarations and orders sought.

45. For those reasons, the orders that I made on 31 July 2025 were as follows: (1) Declare that, on 29 August 2024, the defendant was convicted of a “corruption offence” within the meaning of Part VA of the Australian Federal Police Act 1979 (Cth) (AFP Act). (2) Declare that Part VA of the AFP Act applies in relation to the rights of, and benefits paid or payable to or in respect of, the defendant under: (a) the superannuation scheme established by the Commonwealth of Australia pursuant to the Superannuation Act 1990 (Cth) and known as the Public Sector Superannuation Scheme (PSS Scheme); and (b) the superannuation scheme established pursuant to the Australian Defence Force Superannuation Act 2015 (Cth) and known as Australian Defence Force Super (ADF Super Scheme). (3) Declare that the amount worked out for the purposes of the formula specified in s 46(3)(c) of the AFP Act, in respect of monies held in relation to the defendant in a fund under the ADF Super Scheme, is $1,198.51. (4) Order, pursuant to s 46(3)(d) of the AFP Act, the sum referred to in order 3 is to be paid to the Commonwealth. (5) Declare that the amount worked out for the purposes of the formula specified in s 46(4)(a) of the AFP Act, in respect of benefits paid to the defendant under the PSS Scheme, is $98,121.10. (6) Order, pursuant to s 46(4)(b) of the AFP Act, the Defendant is to pay the amount referred to in order 5 to the Commonwealth I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: