Aupouri v Ministry of Social Development

[2013] NZHC 581

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-22 [2013] NZHC 581

BETWEEN  CAROL AUPOURI Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         25 March 2013

Counsel:         P Attwood for Appellant

RW Jenson for Respondent

Judgment:      26 March 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 26 March 2013 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL

Peter Attwood (Tauranga) for Appellant

Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

AUPOURI V MINISTRY OF SOCIAL DEVELOPMENT HC ROT CRI-2013-463-22 [26 March 2013]

[1]     The  appellant  appeals  her  sentence  of  two  years  eight  months’ imprisonment.1    Her submission is that it is manifestly excessive and wrongly precluded her from being considered for home detention.

Background

[2]      The appellant pleaded guilty to 25 charges of dishonesty.  These related to gaining Social Welfare benefits to which she was not entitled.   The dishonest behaviour occurred over a period of nearly 17 years and the appellant  obtained

$201,978.03 thereby.

[3]      The  appellant’s  dishonesty  centred  on  her  concealment  of  her  domestic situation.   Her eligibility for Social Welfare assistance depended upon her being a solo parent.  In fact, for most of the nearly 17 years she was living with her husband.

[4]      It is important to note that the appellant’s dishonesty was not passive.  It was not just a failure to advise of change in circumstances.   She actively set out to deceive the Social Welfare authorities.  The appellant altered rental agreements, applied for special, additional and supplementary benefits, and changed the types of benefits she received.

[5]      The appellant told investigators that she committed the frauds because she got away with it every year and because she wanted the extra money to put a roof over her children’s head.   The author of the pre-sentence report identified the appellant’s attitude as the key factor in her offending and assessed her as presenting a medium risk of reoffending.

[6]      The appellant is 59 years old.  She suffered a mild stroke in 2006 for which she still receives physiotherapy.   However, the quite extensive medical reports submitted by her counsel show that she is well recovered, but might have left carpal

tunnel syndrome to some degree.

1      Imposed by Judge JP Geoghegan in the District Court at Waihi on 15 February 2013.

(a)       The appellant has no other convictions;

(b)The charges were laid on 20 July 2012.  Pleas of guilty were entered on   19 December   2012.      The   appellant’s   lawyer,   Mr Attwood, conducted a thorough and professional examination of the evidence which  led  to  a  reduction  in  the  amount  of  money  calculated  as obtained fraudulently from about $230,000 to the present level;

(c)       Six of the charges carry maximum terms of imprisonment of 10 years.

For 18 of the charges the maximum is seven years’ imprisonment.

Discussion

[8]      This is an appeal by way of rehearing.  I must make my own assessment of the case.  I will be guided by the District Court Judge’s reasoning but will not afford it special deference.  However, I will be justified in interfering with his sentence only if I conclude it was manifestly excessive.

[9]      The District Court Judge correctly identified the legal principles relevant to the sentencing.  He took into account the appropriate aggravating and mitigating factors.  Mr Attwood rightly takes no issue with any of this.  His submission is that the Judge adopted too high a starting point and therefore finished at too high a level.

[10]     The District Court Judge took a starting point of four years’ imprisonment. There is no tariff case in this area and Social Welfare fraud is not regarded as a separate species of dishonesty.  However, any Judge will be helped in his or her assessment of a case by considering similar cases.   Unfortunately, counsel for the

informant (not Mr Jenson) cited only cases that  were  clearly dissimilar – being patently more serious.2    Mr Attwood, at sentencing, concentrated on persuading the Judge of the inapplicability of the informant’s authorities.  He did not produce any applicable authorities by way of contrast.

[11]     The  District  Court  Judge  recognised  that  he  should  not  rely  on  the informant’s authorities.  He identified the distinguishing factors, the range of starting points, and then made a judgment of where the appellant’s case might fit on the continuum of seriousness.

[12]     I must now make my own assessment.  Neither counsel on appeal produced written submissions and so I am fortunate that I have had a little time to conduct my own research.

[13]     I will refer to three cases which usefully cover a relevant spectrum of benefit fraud offending.   In Ransom v R,3  the Court had to consider a person who started receiving the Domestic Purposes Benefit from June 1997 but in December 1997 got married.    On  11  occasions  during  her  marriage  she  signed  forms  to  continue receiving the benefit, failing to disclose that she was married.  Over a period of nine years, she dishonestly obtained approximately $128,000.  In the District Court, a starting point of two-and-a-half years was assessed.  This was reduced to 18 months’ imprisonment for mitigating factors.  The Court of Appeal substituted a sentence of

nine months’ home detention and 75 hours’ community work.   In doing so it took into account the period that Ms Ransom had already spent in custody, otherwise the sentence would have been the maximum 12 months’ home detention.  From this it can be inferred that the Court would have found an end sentence of two years’

imprisonment to be appropriate save for the home detention decision.

2      Isakko v Police HC Christchurch CRI-2004-409-156, 16 September 2004 (starting point five years’  imprisonment);  Ministry  of  Social  Development  v   Patterson  [2007]  BCL  1110 (Woodhouse J adopted a starting point of nine-and-a-half years’ imprisonment); R v Bartlett DC Auckland CRI-2007-044-7979, 17 October 2008 (starting point five years’ imprisonment); Ministry of Social Development v Diedrichs DC Auckland CRI 2012-004-4660, 22 March 2012 (starting point five years’ imprisonment).

3      Ransom v R (2010) 25 CRNZ 163.

[14]     In  Wilson  v  Ministry  of  Social  Development,4   the  appellant  appealed  a sentence of one year and eight months’ imprisonment.  The appellant had received multiple benefits over a 10 year period.  She had submitted 21 documents claiming she was single.  The amount she dishonestly obtained was about $140,000.  The starting point adopted by the District Court Judge in that case was two-and-a-half years’ imprisonment. The District Court Judge’s decision was upheld on appeal.

[15]    In Isakko,5the appellant had been convicted of benefit fraud by which she dishonestly obtained nearly $251,000.  The offending spanned 11 years.  Her fraud involved receiving multiple benefits under different names while at the same time failing to declare income from employment.  The appellant had received a warning for failing to declare a relationship whilst receiving a Domestic Purposes Benefit and she was also defrauding ACC at the time of her offending.  The sentencing Judge adopted a starting point of five years’ imprisonment, which was reduced to three years and nine months’ imprisonment taking into account mitigating factors.  This sentence was upheld on appeal.

[16]     I consider the current case to be more serious than both Ransom and Wilson. The period of offending is longer, the amount of money received is greater and the appellant’s dishonesty more active in the sense that she altered documents and made a number of applications dishonestly.  Clearly, Isakko is more serious than this case. The sophistication of the offending is greater, as is the financial return from it.

[17]     In my view, a starting point in the range of three years to three years six months is appropriate for this case.  I will adopt three years out of caution.

[18]     There are no aggravating factors which would increase that starting point. As for mitigating factors, there is no room to make an allowance for remorse.  Neither would I reduce the starting point by reason of the age of the appellant or her level of ill health.  I would, as did the District Court Judge, give a full credit of 25% for the

pleas of guilty. Although some time passed between charging and the entry of pleas,

4      Wilson v Ministry of Social Development HC New Plymouth CRI-2011-443-37, 2 November

2011.

5      Isakko v Police, above n 2.

this was a complicated situation and pleas were entered as soon as counsel had negotiated an appropriate factual basis for that.

[19]     The District Court Judge allowed a further 10% discount to take account of the lack of previous convictions and the current state of health.  I would not give that discount.  Lack of previous convictions goes to good character.  The length of offending in this case means that such a claim is not available.   I have already referred to the current state of health.

[20]     On my analysis, that would yield an end point of two years and three months’

imprisonment.

[21]     I now stand back and consider the matter overall.  Sentencing is not a science but an exercise of judgment.   I could have adopted the higher starting point and I could have given credit for age and health.  The outcome would be similar.   I am satisfied that two years and three months’ imprisonment is an appropriate response to the overall criminality of the offending.

[22]     On this analysis, a sentence of home detention is unavailable.6    However, I record that even if the outcome were within the range for home detention, I would not give it.   Deterrence is an applicable sentencing purpose in this area, as is denunciation.  In suitable cases these purposes can be given effect by a sentence of home detention.7    But they would not be given proper effect in this case where the offending  occurred  over  such  a  period,  where  the  amount  defrauded  is  over

$200,000, the dishonesty was active rather than passive, and there is no remorse.

Decision

[23]     I find that the sentence imposed by the District Court Judge of two years and eight months’ imprisonment is manifestly excessive.   The appeal is allowed, the sentence quashed and a sentence of two years and three months’ imprisonment is

substituted.

6      A sentence of home detention is available only where the sentence of imprisonment is two years or less.

7      Ransom v R, above n 3.

[24]     In accordance with s 85(4) of the Sentencing Act, I must attach the sentence to “the most serious offence”.   I choose the information CRN 12079500151 laid under  s 259(1)(a)  of  the  Crimes  Act  1961  which  carries  a  maximum  term  of imprisonment of 10 years. All the other charges will carry nominal sentences of two

years’ imprisonment.

Brewer J