Re the Crimes (Superannuation Benefits) Act 1989 Re An Application By the Commonwealth Director of Public Prosecutions of A Superannuation Order In Respect of Wendy Hogarth [1995] ACTSC 27 (27 March 1995)

SUPREME COURT OF THE ACT

IN THE MATTER OF THE CRIMES (SUPERANNUATION BENEFITS) ACT 1989
IN THE MATTER OF AN APPLICATION BY THE COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS FOR A SUPERANNUATION ORDER IN RESPECT OF WENDY HOGARTH
No. SC863 of 1994
Number of pages - 5
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Criminal Law - member of the Commonwealth Public Service convicted of corruption offences - application in respect of superannuation benefits under the Crimes (Superannuation Benefits) Act 1989 (Cth) - meaning of "corruption offence" - equivalent to "abuse of office" - forfeiture of superannuation.

Crimes (Superannuation Benefits) Act 1989 (Cth), ss2(1), 19

Crimes Act 1914 (Cth), s29D
Superannuation Act 1990 (Cth)

Re Austin (1994) 1 Qd R 225
Re Lane, unreported, Supreme Court, Queensland, Ryan J, 9 October 1992

HEARING

CANBERRA, 3 February 1995
27:3:1995

Counsel for the Applicant: Mr Charles Giles

Instructing solicitors: Commonwealth Director of Public Prosecutions

No appearance for the Respondent

ORDER

THE COURT DECLARES THAT:

1. The respondent was, on 30 March 1994 convicted of 13 corruption
offences within the meaning of the Crimes (Superannuation Benefits)
Act 1989 (Cth).
2. Part 2 of the said Act applies in relation to the rights of, and
benefits paid or payable to, or in respect of the respondent under
the superannuation scheme established by the Commonwealth of
Australia pursuant to the Superannuation Act 1990 (Cth) and known
as the Public Sector Superannuation Scheme.

THE COURT ORDERS THAT:

1. The Commonwealth Superannuation Board of Trustees No. 1 pay to the
Commonwealth the sum of $2,242.11 being the amount that reflects
the value of the sum of employer contributions made by the
Commonwealth in respect of the respondent under the Public Sector
Superannuation Scheme and held in the Superannuation Fund
established under clause 2(2) of the Trust Deed made pursuant to s4
of the Superannuation Act 1990 as at 3 February 1995 plus the
interest on those contributions accrued under the said Scheme
before 27 March 1995.
2. There be no order as to costs of this application.

DECISION

HIGGINS J This is an application by the Commonwealth Director of Public Prosecutions (the DPP) for an order under the Crimes (Superannuation Benefits) Act 1989 (Cth) (the C(SB) Act) in respect of one Wendy Hogarth. There was no appearance by or on behalf of Ms Hogarth, although she had been duly notified of the intention of the DPP to apply for an order in respect of her superannuation benefits under the C(SB) Act. I granted leave to the DPP to proceed ex parte accordingly.

2. The superannuation order is sought pursuant to s19 of the C(SB) Act. The provisions of that section relevant for present purposes are as follows:

(1) ... where an application is made for a superannuation order in
respect of a person, the court must, if satisfied that the offence to
which the application relates is a corruption offence, by order,
declare:
(a) that the person was convicted of a corruption offence; and
(b) that this Part applies in relation to the rights of, and benefits
paid or payable to or in respect of, the person under any
superannuation scheme.

3. The term "corruption offence" is defined by s2(1) of the C(SB) Act to mean:

... an offence by a person who was an employee 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 an employee; or
(b) that, having regard to the powers and duties of such an employee,
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.

4. The reference to an "employee" is a reference to the definition thereof contained in s7 of the C(SB) Act. The employment of the respondent as an officer employed by the Commonwealth in the Department of Veterans' Affairs clearly meets that definition.

The Facts
5. On 28 March 1994, the respondent pleaded guilty to 13 counts contained in an indictment presented against her. Those counts each alleged that the respondent had defrauded the Commonwealth by dishonestly obtaining Reserve Bank of Australia cheques drawn on the Department of Finance account in favour of one K L Markotany contrary to s29D of the Crimes Act 1914 (Cth) (the Crimes Act). The 13 offences allegedly occurred between 1 April 1992 and 17 September 1992. The total amount involved was $98,568.27.

6. The facts alleged upon the sentencing hearing and admitted by the respondent were that, on 13 February 1992, the respondent was promoted to an Administrative Service Officer 2 (Certifying Officer) in the Department of Veterans Affairs (DVA). She had been permanently appointed to the Commonwealth Public Service on 10 July 1986. She resigned on 1 September 1993. However, as a result of the charges referred to in the indictment, she was suspended from duty as from November 1992.

7. The respondent's duties had included paying accounts on behalf of the DVA.

8. A co-offender, Kirsti Markotany, opened two bank accounts. One was with Westpac, the other with the Advance Bank. She first had reported the loss of the identification provided by her to open the accounts. She had opened the accounts at the request of another co-offender, Richard Murfet. Mr Murfet was a mutual acquaintance of the respondent and Ms Markotany. The latter was to receive $5,000.00 for opening these accounts.

9. The respondent then supplied false information to the DVA's computer system resulting in the cheques referred to in the indictment being generated by Department of Finance and paid into one or other of the bank accounts referred to. The false information suggested "K L Markotany" was a person entitled to payment by the DVA.

10. Mr Murfet and the respondent apparently shared the ongoing proceeds of the 13 cheques operating upon the bank accounts opened by Ms Markotany.

11. On 30 March 1994, the Chief Justice pronounced sentence on the respondent pursuant to her pleas of guilty in relation to the charges contained in the indictment.

12. The offences each carried a maximum sentence of 10 years imprisonment or $100,000.00 fine or both.

13. His Honour imposed a sentence of 2 1/2 years imprisonment on each count to be served concurrently. It was further ordered that the respondent be released after serving 12 months of that sentence upon entering into a recognisance in the sum of $10,000.00 to be of good behaviour for three years.

14. It is necessary before an application for a superannuation order may be made that, per s17(1)(b), "... the person is sentenced in respect of the offence to imprisonment for life or for a term longer than 12 months".

15. The sentences imposed by his Honour clearly answered that description.

16. All other preconditions for the making of a superannuation order have been satisfied, subject only to this court being satisfied that each conviction was entered in respect of "a corruption offence".

A corruption offence
17. Mr Giles, for the DPP, drew my attention to previous matters in which superannuation orders had been made under the C(SB) Act. It can be seen that a number of those matters were not relevantly distinguishable from the present case. However, the question as to whether such offences or series of offences involved "corruption" or "abuse of office" was not raised as an issue in those matters.

18. The case of Re Austin (1994) 1 Qd R 225, referred to by Mr Giles, seems to me to be of assistance. It related to similar State legislation. The respondent, a Minister of the Crown, had claimed for expenses and used government credit cards where no justification existed and for his own private gain.

19. McPherson SPJ held that a person "corruptly" used a public office if he or she corruptly used a power incidental to that office. Such a power would be used corruptly if it was used to obtain some private advantage or for any other purpose foreign to that power. The use of credit facilities given to an office holder for use in connection with that office for private gain or advantage was, therefore, a corrupt use of the office.

20. In Re Lane, unreported, Supreme Court, Queensland, Ryan J, 9 October 1992, a similar conclusion was reached in relation to a similar fact situation. In that case, his Honour stated at 10:

In my opinion in this context (that is, that of legislation similar to
the C(SB) Act) it (that is, corrupt conduct) means conduct which is
done deliberately and contrary to the duties incumbent upon the person
by virtue of his (or her) public office, as a result of which the
person has sought to gain an advantage for himself (or herself) or
another.
I consider that the word "corruptly" is not to be equated with
"dishonestly", and that dishonesty does not necessarily connote
corruption, but if a person who holds a public office dishonestly
applies public monies to his (or her) own use, then his (or her)
conduct is properly describable as corruptly using a public office
held by him (or her).

21. The above definition seems to me, with respect, to be equally apt to define "abuse of office" a concept also referred to in the definition of "corruption offence" in s2(1) of the C(SB) Act. In any event, it seems to me that the commission of the offences admitted by the respondent involved "corruption" within the meaning of that definition.

22. It follows that I am satisfied that this respondent has been convicted of offences which were "corruption offences" within the meaning of s19 of the C(SB) Act. They involved an "abuse of office" and were committed for a purpose which involved corruption.

23. I am, therefore, required by s19(1) of the C(SB) Act to make, by order, the following declarations:

1. That the respondent was, on 30 March 1994 convicted of 13
corruption offences within the meaning of the C(SB) Act.
2. Part 2 of the said Act applies in relation to the rights of, and
benefits paid or payable to, or in respect of the respondent under
the superannuation scheme established by the Commonwealth of
Australia pursuant to the Superannuation Act 1990 (Cth) and known
as the Public Sector Superannuation Scheme.

24. It is further ordered that:

1. The Commonwealth Superannuation Board of Trustees No. 1 pay to the
Commonwealth the sum of $2,242.11 being the amount that reflects
the value of the sum of employer contributions made by the
Commonwealth in respect of the respondent under the Public Sector
Superannuation Scheme and held in the Superannuation Fund
established under clause 2(2) of the Trust Deed made pursuant to s4
of the Superannuation Act 1990 as at 27 March 1995 plus the
interest on those contributions accrued under the said Scheme
before 27 March 1995.
2. There be no order as to costs of this application.