Ataata v Ministry of Health HC Auckland CRI 2010-404-000479
[2011] NZHC 668
•21 June 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-404-000479
KELEI TONGA ATAATA
Appellant
v
MINISTRY OF HEALTH
Respondent
Hearing: 20 June 2011
Appearances: V Letele for the Appellant
H Ifwersen for the Respondent
Judgment: 21 June 2011
JUDGMENT OF WYLIE J
Distribution:
V Letele: [email protected]
H Ifwersen: [email protected]
K T ATAATA V MINISTRY OF HEALTH HC AK CRI 2010-404-000479 21 June 2011
[1] Mrs Ataata appeals a sentence imposed on her by Judge GF Hikaka in the
District Court at Manukau on 16 November 2010.
[2] Mrs Ataata was sentenced on six charges; two of making false declarations under the Crimes Act 1961, and four of obtaining pecuniary advantage by way of support claims for a caregiver benefit and allowance. She was sentenced in totality on all charges to:
(a) one hundred hours’ community work;
(b) six months’ community detention on conditions which were recorded
in a pre-sentence report;
(c) supervision for 12 months, with a special condition that she undertake budgetary advice, and
(d)a reparation order of $18,950.20 to be paid at $50 a week, commencing 29 November 2010.
Relevant Facts
[3] Mrs Ataata orchestrated the fraudulent claims with the assistance of two friends.
[4] Monies are available from the Ministry of Health to enable care and support for families in real need. There are restrictions on who can provide such support. Informal providers are able to be engaged by full-time carers and an application can be lodged for that purpose.
[5] Here, Mrs Ataata claimed that she had obtained the assistance of two friends. They, with Mrs Ataata’s assistance, submitted claims. They did not provide the care that was claimed for. They gave the money to Mrs Ataata. This process was pre-arranged by Mrs Ataata, and she gained $18,950.20 over the period mid 2005 to October 2009.
[6] Mrs Ataata pleaded guilty at the first appropriate opportunity. It is common ground that she had no previous convictions.
The District Court’s Sentencing Decision
[7] Judge Hikaka noted the parties’ respective submissions in regard to the appropriate starting point. He acknowledged that there was no established tariff for offending of this kind, and that both parties had referred to benefit fraud cases. He adopted submissions by the informant that a starting point of between six and nine months’ imprisonment was appropriate.
[8] The Judge then took into account Mrs Ataata’s personal circumstances, including her early guilty plea. He noted that the offending had aggravating features, in particular that there has been an abuse of the trust placed on Mrs Ataata as a member of the community to properly use benefit support, that the offending was premeditated, and that it occurred over a period of time. He then noted the mitigating factors, including the guilty plea, and the fact that Mrs Ataata was of great assistance to the investigating authorities and that she accepted full responsibility for the offending.
[9] The Judge recognised the variations in the sentences imposed in such cases, and the appropriateness of a term of imprisonment. However, he chose to accept the recommendations of the pre-sentence report, and impose the least restrictive sentence which was available, to enable Mrs Ataata to undertake rehabilitation by way of receiving budgetary advice. He also considered that it was important that she should serve a sentence which recognised denunciation and deterrence. In this regard, he referred specifically to the community work order imposed, and to the fact that Mrs Ataata’s freedom would be restricted by a community detention order.
Submissions
[10] Ms Letele suggested that the sentence was clearly excessive. She argued that the case is similar to WINZ benefit fraud cases, and that customarily the District Court in such cases would sentence offenders to community work and
require the payment of reparation. She submitted that the Judge had erred when he adopted a starting point of six to nine months’ imprisonment. She also noted that the Judge had ordered that reparation should be paid at the rate of $50 per week, but submitted that Mrs Ataata had been required to pay reparation at $125 per week which was causing financial stress to her and her family. She also queried whether a community detention sentence could be appropriately served, given that Mrs Ataata’s son is currently subject to electronic monitoring and is living with his mother. She advised me that she had been told by Mrs Ataata that two people cannot serve sentences involving electronic monitoring at the one residential address. She submitted that the least restrictive sentence should have been imposed, and that in the circumstances of this case, a sentence requiring the payment of reparation, and imposing a community work order, should have sufficed.
[11] She also drew my attention to the fact that Mrs Ataata’s co-offenders received significantly lesser sentences. One was sentenced to 70 hours’ community work, and required to pay $800 in reparation. The other was also sentenced to 70 hours’ community work, and directed to pay $1,500 in reparation.
[12] Ms Ifwersen for the Crown submitted that the question of whether the sentence was clearly excessive should be determined with regard to the sentence actually passed, rather than the precise process by which it was reached. She noted that the maximum penalties for the charges are three and seven years’ imprisonment respectively, although noting that the appellant was dealt with summarily, and that the District Court’s jurisdiction was limited to five years’ imprisonment. She argued that the starting point adopted by Judge Hikaka was appropriate, and that significant allowance was made for mitigating features peculiar to Mrs Ataata. She argued that the Judge appropriately took into account the aggravating features of the offending, and that the end sentence was within the appropriate range, and not clearly excessive. She referred me to a number of authorities in support of that proposition. Finally, she argued that each of the components of the sentence imposed by the Judge was appropriate, and met one or other of the purposes of sentencing.
Analysis
[13] The appeal is brought pursuant to s 121 of the Summary Proceedings Act
1957. Relevantly, that section provides as follows:
121 High Court to hear and determine appeal
…
(3) In the case of an appeal against sentence, the High Court may—
(a) confirm the sentence; or
(b) if the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefore as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) quash any invalid part of the sentence that is severable from the residue; or
(iii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
…
[14] There is no tariff case for the lead offence in this case – namely using a document to obtain pecuniary advantage.
[15] There are however a number of authorities which support the proposition that the starting point adopted by Judge Hikaka was appropriate. I refer in particular to the decision in Hogan v Ministry of Social Development1 where Gendall and
MacKenzie JJ, sitting as a full bench of the High Court, reviewed the sentences
1 Hogan v Ministry of Social Development HC Napier CRI 2005-441-24, 8 July 2005.
imposed on five appellants who had been convicted of benefit fraud. The appellants received end sentences of between four and nine months’ imprisonment in the District Court. The High Court on appeal was not persuaded that any of those sentences could be described as manifestly excessive. The sentences, together with the financial level of their offending, were as follows:
(a) Hogan – $22,766 – six months’ imprisonment with leave to apply for
home detention;
(b) Hawkins – $22,800 – six months’ imprisonment with leave to apply
for home detention;
(c) Sapati – $48,586 – nine months’ imprisonment with leave to apply for
home detention;
(d)Kupa – $48,322 – nine months’ imprisonment with leave to apply for home detention, and
(e) Hapi – $38,600 – four months’ imprisonment with leave to apply for
home detention.
Other authorities in point include Kemble v Ministry of Social Development,2
Huddleston v Ministry of Social Development,3 and ACC v Whare Kura.4
[16] Relevantly, in Ransom v R,5 the Court of Appeal reviewed the key authorities relating to benefit fraud. The Court noted as follows:
…the High Court cases demonstrate that, in some benefit fraud cases, home detention will be an appropriate sentence. Since Hill,6 it has been necessary for sentencing Judges to determine, on a case by case basis, whether a sentence of home detention will respond to the particular offending or whether, in terms of s 16(2) of the Sentencing Act, a sentence of
2 Kemble v Ministry of Social Development HC Auckland CRI 2008-470-8, 1 May 2008.
3 Huddleston v Ministry of Social Development HC Auckland CRI 2007-441-19 & CRI 2007-441-
20, 20 June 2007.
4 ACC v Whare Kura HC Hamilton CRI 2003-419-061, 22 April 2004.
5 Ransom v R [2010] NZCA 390.
6 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].
imprisonment is required. There is no prescriptive or usual sentence in cases of this type.
The Court concluded that in the case before it, a sentence of home detention, totalling 12 months, and in addition with 75 hours’ community work, would adequately respond to the sentencing goals of accountability, denunciation and deterrence.
[17] In the circumstances, I am not persuaded that the Judge’s starting point was inappropriate. It seems to me to be clearly within the range of sentences appropriate to offending of this kind.
[18] Nor am I persuaded that the end sentenced imposed by the Judge was inappropriate. Judge Hikaka carefully considered the aggravating features of the offending, and the mitigating circumstances personal to Mrs Ataata. He accepted that she had entered a plea of guilty at the first opportunity, and that she had been of assistance to the Crown. His end sentence was, in my judgment, carefully tailored to address the requirements of the Sentencing Act, as well as Mrs Ataata’s personal circumstances.
[19] The order for reparation was available to the District Court pursuant to ss 12 and 32 of the Act. It was clearly appropriate, given the financial loss to the Ministry, and to the wider community. I am advised by Ms Ifwersen that Mrs Ataata volunteered to pay an additional sum by way of reparation on a weekly basis in November 2010. I agree with Ms Letele that Mrs Ataata cannot be required to pay at a rate above that specified by Judge Hikaka, but she can volunteer to pay more if she wishes to do so. If she wishes to resile from her offer to pay more, then it would seem to me that there can be no bar to her doing so. She will however, have to pay reparation at the minimum rate specified by Judge Hikaka.
[20] The supervision order imposed by the Judge was again available pursuant to ss 45 and 56 of the Sentencing Act. The Court was satisfied that supervision would reduce the likelihood of reoffending through rehabilitation and reintegration. That is why it required that Mrs Ataata obtain budgeting advice. The Judge specifically
considered that the sentence should ensure that there would be no further issues which would predispose Mrs Ataata to further offending.
[21] The sentence of community work was again available pursuant to ss 55 and
56 of the Sentencing Act. Such sentence was to my mind clearly appropriate, given the nature and circumstances of the offending. Such offending is regrettably not uncommon. It is easy to commit and difficult to detect. Here, the offending was prolonged, and it resulted in significant benefit to Mrs Ataata. It is appropriate that she should be held accountable to the community by making compensation to it in the form of community work. This part of the sentence met the purposes of denunciation and deterrence.
[22] So did the community detention aspect of the sentence. Section 69C of the Sentencing Act permits community detention, if the Court is satisfied, inter alia, that such a sentence would achieve one or more of the purposes set out in ss 7(1)(a), (b), (e) or (f) of the Act. Here, the sentencing Judge considered that a sentence of community detention was appropriate, to recognise denunciation and deterrence. These factors are identified in ss 7(1)(e) and (f) respectively. I am mindful of the advice that Ms Letele had received from Mrs Ataata, namely that two persons who are electronically monitored cannot both be at the same premises at the same time. Ms Letele was unable to confirm the advice. Nor was Ms Ifwersen. If this issue constitutes a difficulty, then I reserve the right for the parties to come back to the Court in this regard.
[23] In the interim, the appeal is dismissed. There was no error of principle by the sentencing Judge, and in my judgment, the final sentence was not clearly excessive.
Wylie J
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