Brabender v Ministry of Social Development

[2015] NZHC 2435

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-46 [2015] NZHC 2435

BETWEEN

KAYLA-LEIGH BRABENDER

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	6 October 2015
Counsel:	P Ross for Appellant S C Carter and R Georgiou for Respondent
Judgment:	6 October 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence/reparation)

[1]      Ms Brabender was sentenced having pleaded guilty to charges of obtaining by deception (x2) and using a document (x3).  The context was falsely obtaining a benefit by reason of not declaring a relationship.

[2]      Ms Brabender was sentenced to home detention for five months, 150 hours’ community work and $45,721.58 reparation by way of $20.50 per week instalments. The reparation amount was believed by the Court to have been  agreed prior to sentencing and was imposed without further consideration.1     It is that part of the sentence that is now appealed.

[3]      On appeal Mr Ross explained that the reparation total was not agreed, and he had submitted a lesser sum was appropriate, based on the amount able to be paid and

the length of time for which such an order should ensue.

1      Ministry of Social Development v Brabender [2015] NZDC 13481.

BRABENDER v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 2435 [6 October 2015]

[4]      Mr Georgiou accepted that the current order, which would last for 43 years, was not supportable on the authorities.   He acknowledged a length of around five years was generally imposed but noted that in R v Vallily, eight years had been accepted.2

[5]      As noted, the reparation commitment as it presently stands will continue for

43 years.  Previous authority has indicated such orders are not desirable.  The length is unrealistic and bond the offender for an inordinate period of time.3    An order lasting for between three to five years is commonly substituted.   R v Vallily was somewhat different as the offender was expected to have means, and had agreed to repay at the rate of $5,000 per year.  Even then, the Court limited reparation from the initial order of $87,000 to one of $40,000.

[6]      It is important when reaching agreement and/or making submissions, that an informant has proper regard to these previous authorities.   The appeal is allowed. The reparation order is quashed and in its place there will be an order for reparation

of $4,570 to be repaid at a rate of $20.00 per week.

Simon France J

Solicitors:

Public Defence Service, Wellington

Luke Cunningham & Clere, Crown Solicitors, Wellington

2      R v Vallily CA251/04, 10 November 2004.

3      R v Bailey CA306/03, 10 May 2004; Leighton v Police [2012] NZHC 1925.