Beedell v Ministry of Social Development HC Wang CRI 2010-483-000009

[2010] NZHC 48

IN THE HIGH COURT OF NEW ZEALAND

WANGANUI REGISTRY

CRI-2010-483-000009

DONNA MIQUEL BEEDELL

Appellant

v

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         10 February 2010

Counsel:         S Burlace for appellant

J M Woodcock for respondent

Judgment:      11 February 2010

RESERVED JUDGMENT OF DOBSON J

[1]      On 20 January 2010, Ms Beedell  was  sentenced  by  Judge  Radford  in  the

Wanganui  District  Court  on  seven  convictions  for  using  a  document  to  obtain  a pecuniary advantage, contrary to s 228(b) of the Crimes Act 1961, and one of wilful omission under s 127(a) of the Social Security Act 1964.  She was sentenced to eight months’  imprisonment  and  now  appeals  that  sentence  as  manifestly  excessive. Specifically, she has pursued the appeal on the basis that she ought instead to have been sentenced to home detention.

BEEDELL  V MINISTRY OF SOCIAL DEVELOPMENT HC WANG CRI-2010-483-000009  11 February

2010

Circumstances of offending

[2]      In June 2005, Ms Beedell applied for and was granted a domestic purposes benefit.        In  completing  the  application,  she  agreed  to  advise  the  respondent  (the Ministry) of any changes to her circumstances that could affect her entitlement to the benefit.

[3]      Subsequently on 1 February 2007, Ms Beedell began living in a relationship

in the nature of marriage with a partner with whom she has resided until committed

to prison on the present sentence.   That partner stands by her, and one of numerous letters addressed to the Court in support of the appeal is from him.  Notwithstanding working long hours himself, he is presently bearing the principal burden of caring for her two children.

[4]      Ms Beedell’s  domestic  situation  was  the  subject  of  interviews  with  the Ministry  in  July  2009,  at  which  time  her  benefit  was  withdrawn. In  the  period between  1  February 2007 and  early July 2009,  Ms Beedle had wilfully omitted to advise  the  Ministry  of  the  change  in  her  circumstances  and  had  made  three applications to review her entitlement to a benefit, all of which specified that she was not  living  with  anyone  in  a  relationship  in  the  nature  of  marriage.  She  had  also submitted  one  application  for  an  accommodation  supplement,  two  special  needs grant   applications   and   an   application   for   an   advance   of   benefit. The   total overpayment of benefits to her was $45,522.57.

[5]      She  promptly  entered  guilty  pleas  to  all  the  charges,  has  shown  genuine remorse and was working at two jobs in an attempt to repay the overpayments at a rate greater than that stipulated by the Ministry.  She has no previous convictions and was to be treated as of good character.

District Court decision

[6]      The Judge treated the decision in Hogan v Ministry of Social Development[1]

as a leading authority in  what is generally called  “benefit fraud”.   The Judge took from that:

...the  view  that  for  significant  dishonesty  offending  a  prison  sentence  is appropriate.

[1] Hogan v Ministry of Social Development HC Napier CRI-2005-441-24, 22 July 2005.

[7]      The Judge considered that 17 months’  imprisonment  was  the  appropriate starting  point  for  the  level  of  benefit  fraud  involved. The  reasoning  suggests  an approach that in cases of benefit fraud, the extent of over-claimed benefits is a direct reflection of the seriousness of the fraud because, in essence, each time the benefit is wrongly claimed, there is further fraudulent behaviour.

[8]      The Judge  took  substantial  account  of  the  numerous  mitigating  factors  and determined  that  those,  plus  the  entry  of  guilty  pleas  at  the  earliest  opportunity, warranted a reduction in the sentence to eight months’ imprisonment.

[9]      The Judge then acknowledged that a sentence of home detention is available, and that pre-sentence reports acknowledged it as feasible and practical. In the end, however, he considered that the important principle of deterrence could not be met

by a sentence of home detention or a community-based sentence.

Approach on appeal

[10]     As Ms Woodcock reminded me, the Court’s task  on  an  appeal  against sentence  is  not  an  exercise  in  re-sentencing  the  offender. An  appeal  such  as  this cannot succeed merely because, had I been in the shoes of the sentencing Judge, I would  have  determined  a  different  outcome. This  Court  is  urged  not  to intervene where to do so would be to “merely tinker with the sentence”.[2]

[2] Morgan v R HC Hamilton CRI-2008-419-000032, 13 June 2008 at [12].

[11]     A decision to substitute home detention for a short period of imprisonment is ultimately a matter of discretion for the sentencing Judge.   As the Court of Appeal has observed:[3]

[18]     An appeal against refusal to grant leave to apply for home detention

is an appeal against the exercise of a discretion, and the appellant must show that the discretion was exercised on a wrong principle or was plainly wrong. Leave to apply may only be granted if the Court is satisfied that that would

be appropriate, taking into account the nature and seriousness of the offence and the circumstances and background of the offender.

[3] R v Stoves CA264/06, 7 November 2006. 

[12]     More   recently,   French J   has   put   the   restricted   nature   of   the   Court’s consideration on such appeals in the following terms:[4]

[4] Ebdell v Police HC Christchurch CRI-2009-409-4831, 30 July 2009.

Most importantly, the Judge was not saying the sentence of home detention does not have a deterrent aspect, but simply that in this case the particular circumstances required more.  That was a view that was clearly open to him. As recent Court of Appeal decisions such as R v Edmonds [2009] NZCA 152 and R v Taiepa [2009] NZCA 120 make clear, there is no prevailing presumption as such in favour of home detention, and that in cases where denunciation, individual and general deterrence are of particular significance, the Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative or not.

Discussion

[13]     Having considered the Judge’s reasoning in light of everything put to me in argument  of  the  appeal,  I  am  concerned  at  two  aspects  of  the  approach  that  was taken.    First,  the  reasoning  suggests  that  the  extent  of  the  benefit  fraud  is  of pre-eminent  importance  in  rating  the  relative  seriousness  of  the  offending,  and  in setting  the  sentence.   Undoubtedly  the  amount  (often  reflecting  no  more  than  the period in which benefits were wrongly claimed) is important, but that aspect should not dictate the sentence, without due regard for the circumstances of the offending and the offender.

[14]     Secondly, notwithstanding the caution in French J’s approach in Ebdell, I am concerned that the rejection of home  detention  as  an  option  in  this  case  depended

primarily on a view that a sentence of home detention could not meet the deterrent

requirement  for  benefit  fraud  on  this  scale.   That  perhaps  reflects  an  approach  to Hogan,  that  the  cut-off  point  between  home  detention  or  other  community-based sentences on the one hand, and imprisonment on the other, will be dictated by the amount of benefits wrongly claimed.

[15]     Here, Ms Beedell is apparently not under any illusion that a sentence of home detention is easier to serve than a term of imprisonment. Particularly  for  home detention sentences near the upper end of the 12 month limit, there is no doubt that the  constraints  whilst  living  in  the  community  make  them  difficult  sentences  to complete in a range of  domestic situations.   Here, Ms Beedell is motivated by her wish to be with her children and her partner, and to be in work.

[16]     A sample of decisions since Hogan shows that the amount of benefit over- claimed should not, of itself, constitute  any  bright   line   dividing   those   cases warranting custodial and those where non-custodial sentences will be appropriate.

[17]     Ms Burlace instanced Werahiko v Ministry of Social Development[5]  involving fraud  of  some  $85,000  over  10  years  committed  by  a  person  with  no  previous criminal convictions resulted in four months’ home detention.   In R v Taylor[6], the fraud was some $63,000 over two years and leave to apply for home detention was granted  where  there  was  a  need  for  the  appellant  to  stay  in  employment  to  meet reparation payments, and was expecting a child.

[5] Werahiko v Ministry of Social Development HC Rotorua CRI-2008-463-55, 5 September 2008.

[6] R v Taylor HC Auckland CRI-2006-092-1488, 6 July 2007.

[18]     I am satisfied that when appropriate account is taken of  all  the  mitigating circumstances in Ms Beedell’s case,  a  term  of  imprisonment  is  not  required  for deterrent purposes.  In this regard, considerable weight should be given to:

·   her clear and apparently genuine remorse for the offending;

·complete absence of any prior convictions and early guilty pleas entered to the present charges;

·   the  genuineness  of  her  attempts  to  repay  the  benefits  over-claimed  by working at two jobs; and

·the positive consequences of her being available to continue the care of her two relatively young children.

[19]     I  have  not  overlooked  the  circumstances  of  her  offending,  in  which  she acknowledged   that   the   wrongful   benefits   were   not   claimed   as   a   matter   of desperation, but rather to help repay debts that she was straddled with by a former partner, who was an alcoholic gambler and was apparently primarily responsible for substantial debts for which she must share liability.

[20]     Nor  do  I  overstate  the  importance  that  can  be  attributed  to  her  personal circumstances as a mother, given the Court’s frequent recognition that this is not a circumstance that justifies a decision against a sentence of imprisonment when that would otherwise be appropriate.

[21]     I  am  satisfied  that  a  wrong  approach  to  the  alternative  of  home  detention influenced the outcome here.  I am particularly mindful of s 16(1) of the Sentencing Act 2002 that provides:

16       Sentence of imprisonment

(1)When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability

of keeping offenders in the community as far as that is practicable

and consonant with the safety of the community.

[22]     Ms Beedell has now served some three weeks of her eight month sentence. Assuming good behaviour, Ms Burlace suggests that is the equivalent of six weeks, given the reasonable anticipation of an early release.

[23]     When considering the length of a term of home detention in substitution for a prison sentence, it is clear that there  can  be  no  arithmetic  precision. This  is notwithstanding a rule of thumb frequently referred to  that  half  the  term  of imprisonment in terms of home detention is a reasonable comparator. Certainly, four

months’ home detention in lieu of eight months’ imprisonment is not the sentence that  would  send  a  sufficient  deterrent  signal.  Had  home  detention  been  imposed originally, a term of six months together with some community service would have been appropriate.

[24]     Giving some allowance for the time spent in prison, I intend now to substitute

a sentence of five months’ home detention in respect of the convictions for using a document contrary to s 228(b) of the Crimes Act, and six weeks’ home detention for the conviction under s 127(a) of the Social Security Act.  Those sentences are to be served concurrently.

[25]     In terms of the deterrent, it is an alternative to imprisonment because of the extent  of  credit  able  to  be  given  for  the  relatively  strong  mitigating  factors  in Ms Beedell’s  favour.   Further,  it  is  only  adequate  when  it  is  supplemented  with  a period  of  community  work  which,  as  is  submitted,  puts  something  back  into  the community from which Ms Beedell has taken.  Accordingly, the substituted sentence will include a sentence of 50 hours’ community service.

[26]     The  appeal  is  therefore  allowed  and  I  substitute  concurrent  terms  of  five months’ and six weeks’ home detention on the following conditions:

a)        On  release  from  prison,  Ms Beedell  is  to  travel  directly to  2A  Miro Street, Wanganui, to await the arrival of the Probation Officer and a representative from the monitoring company;

b)She is to reside at 2A Miro Street, Wanganui for the duration of the sentence of home detention, subject to travel for the purposes of work

as previously agreed to by her Probation Officer;

c)        She is to attend and complete any appropriate relationship counselling programmes   to   the   satisfaction   of   the   Probation   Officer   and programme provider;

d)She  is  to  attend  and  complete  any  other  appropriate  counselling programme to the satisfaction of the Probation Officer     and programme provider.  The details of any appropriate programmes are to be determined by her Probation Officer.

[27]     In  addition,  Ms Beedell  is  to  complete  a  sentence  of  50  hours’  community service.

Dobson J

Solicitors:

Treadwell Gordon, Wanganui for appellant
Armstrong Barton, Wanganui for respondent