Brownlow v Ministry of Social Development
[2013] NZHC 3538
•20 December 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-74 [2013] NZHC 3538
STEPHANIE SANDRA BROWNLOW
v
MINISTRY OF SOCIAL DEVELOPMENT
Hearing: 12 November 2013 Counsel:
C Ross for Appellant
M J Ferrier for CrownJudgment:
20 December 2013
JUDGMENT OF WILLIAMS J
[1] The appellant appeals against a sentence of 22 months’ imprisonment imposed by Judge Hobbs in the District Court.1 The essence of the appeal is that the Judge erred in reaching the conclusion that imprisonment was the least restrictive outcome in the circumstances.
Facts
[2] The appellant was convicted of 20 charges comprising:
(a) using a document for pecuniary advantage against now repealed s 229A of the Crimes Act 1961 (x4);
(b) using a document against s 228(b) of the Crimes Act 1961 (x14);
1 Ministry of Social Development v Brownlow DC Wellington CRI-2013-032-111, 11 September
2013.
BROWNLOW v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 3538 [20 December 2013]
(c) obtaining a pecuniary advantage by deception against s 240 of the
Crimes Act 1961 (x1); and
(d)using an altered document to defraud against now repealed s 266B of the Crimes Act 1961 (x1).
[3] A description of the appellant’s offending is as follows.
[4] On 29 March 2000, the appellant applied for a sickness benefit in her married name. She was given a sickness benefit at the single rate when she was living in a de facto relationship. She was aware of, and failed to comply with, her obligations to tell the Ministry of Social Development about that relationship or any change in her circumstances since the grant of the benefit. From 2001 to October 2012, the appellant used a further 17 forms or documents to claim benefits she was not entitled to. In addition to claiming a sickness benefit, the appellant also claimed an accommodation supplement, special benefit, disability allowance and New Zealand superannuation.
[5] On 17 January 2005, the appellant began employment under a different name. She did not tell the Ministry of Social Development of her employment. As a result, she was not entitled to receive the benefit from 2005 to July 2009. On 29 March
2000, the appellant altered an insurance policy schedule in support of her accommodation supplement. The total sum overpaid to the appellant over the period of 12 years was $181,571.59.
[6] The appellant is 69 years of age. She suffers from a number of health issues including asthma, chronic obstructive respiratory disease, high blood pressure, heart irregularities, elevated cholesterol, anxiety and depression.
District Court decision
[7] Judge Hobbs set a starting point of three years’ imprisonment, taking into account the significant amount of money involved, the repetitive nature of the offending over a 12 year period and the high degree of dishonesty on the part of the
appellant.2 The Judge reduced the sentence by six months for the appellant’s personal circumstances, taking into account her personal health problems, feelings of remorse, efforts to repay the sum overpaid and her lack of previous convictions for dishonesty.3 The Judge gave the appellant a 25 per cent discount for her guilty plea.4
[8] In considering whether to impose home detention the Judge identified the appellant’s offending as “clearly serious” and requiring denunciation and deterrence. The Judge acknowledged the appellant’s health issues and her age, but saw no reason why those health issues could not be managed and dealt with by prison authorities. The Judge also noted that the appellant’s health issues were not of such a magnitude
as to stop her from working 32 hours per week at the time of sentencing.5 The Judge
concluded that:6
Your offending was of a most serious kind. It continued for a significant period of time. You were cheating a system designed to help the community’s most needy. That system is paid for by the wider community, the tax-paying community.
Balancing all of the principles and purposes ... I am satisfied that a sentence of home detention would not be an appropriate sentence. In particular it would not be a sentence of sufficient deterrent value notwithstanding the personal issues that you face.
Applicable principles
[9] Section 15A(1) of the Sentencing Act 2002 authorises the imposition of home detention if:
(a) the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by any less restrictive sentence or combination of sentences; and
(b)the court would otherwise sentence the offender to a short-term sentence of imprisonment.
2 At [7].
3 At [11] – [14].
4 At [16].
5 At [18] – [19].
6 At [20] – [21].
[10] Eligibility for home detention depends upon the sentencing Judge deciding that, but for the availability of home detention, the offender would otherwise be sentenced to a sentence of two years’ imprisonment or less. The court is given a discretion to commute to home detention what would otherwise be a short-term sentence of imprisonment. There is no presumption against home detention. The court is required to exercise its sentencing discretion in a way which gives effect to the purposes and principles of sentencing recorded in ss 7 and 8 of the Sentencing
Act 2002.7
Approach on appeal
[11] The parties dispute the correct approach to appeal against refusal to grant home detention. Both sides accept that the court is reviewing the exercise of a discretion so that my role is more narrow than a full merits review.8 Where they part company is whether I can review the weight the sentencing Judge gave to a particular relevant factor. The appellant’s primary argument is that the Judge erred by giving insufficient weight to the appellant’s age and health and excessive weight to deterrence and denunciation.
[12] The appellant submits the approach outlined by the Court of Appeal in James v R in 2010 is the correct test:9
... an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong? ... We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
[13] The respondent submits that the Court of Appeal in James v R misstated the
test by referring to “insufficient or excessive” weight and that I should follow the
orthodox approach to the review of a discretion as set out in May v May:10
7 R v Vhavha [2009] NZCA 588 at [29] per William Young P as cited in Osman v R [2010] NZCA 199.
8 Manikpersadh v R [2011] NZCA 452 at [12].
9 James v R [2010] NZCA 206 at [17] (footnote omitted).
... in ... an appeal of this kind an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant factor or that he took account of some irrelevant matter or that he was plainly wrong.
[14] James v R was cited in four Court of Appeal cases in the last two years:
Manikpersadh v R;11 Bryant v R;12 Polyanszky v R;13 and Tiplady-Koroheke v R.14
[15] In Manikpersadh v R the court set out in full the same passage used by the appellant.15 The court held the sentencing Judge erred by failing to take into account a relevant consideration without assessing whether the Judge gave insufficient or excessive weight to any particular factor or factors.
[16] In Bryant v R the court accepted the respondent’s use of James v R for the following statement:16
an appeal against a refusal to grant home detention is not an opportunity to revisit or review the merits. The critical question is whether the appellant has shown that there was an error made by the sentencing Judge.
[17] In Polyanszky v R, the court cited James v R in the following passage:17
We accept that another Judge might have been persuaded to impose home detention rather than imprisonment, perhaps as a final warning to Ms Polyanszky. But that does not mean that Judge McGuire fell into error in concluding that home detention would provide insufficient deterrence in all the circumstances of this case. Mr Edward was unable to show any error of principle in the Judge’s approach. Nor could he show the sentence was plainly wrong [citing James v R]. His Honour carefully considered the relevant authorities and cogently explained why he was not imposing a sentence of home detention.
[18] The court assessed whether the decision was reasonably open to the sentencing Judge, but did not explicitly address whether the Judge gave insufficient
or excessive weight to a particular factor.
10 May v May (1982) 1 NZFLR 165 (CA) at 170.
11 Manikpersadh v R, above n 8.
12 Bryant v R [2011] NZCA 512.
13 Polyanszky v R [2011] NZCA 4.
14 Tiplady-Koroheke v R [2012] NZCA 477.
15 Manikpersadh v R, above n 8, at [11].
16 Bryant v R, above n 12, at [16].
17 Polyanszky v R, above n 13, at [12].
[19] In the Tiplady-Koroheke v R, the court used the same excerpt from James v R
as the appellant. The court held:18
We agree with the respondent that the Judge took into account all relevant factors and no error can be identified in his refusal to impose home detention.
[20] The court did not explicitly assess whether the Judge gave insufficient or excessive weight to a particular factor. Rather, the court agreed with the Judge’s assessment that certain factors that may have favoured home detention were overwhelmed by the factors favouring a sentence of imprisonment.
[21] The Supreme Court in K v B echoed the standard May v May test: error of law or principle; taking account of irrelevant considerations; failing to take account of a relevant consideration; or the decision is plainly wrong.19 K v B was decided after James v R.
[22] It is useful to look at this issue in a different context, that of name suppression. The case of Commissioner of Inland Revenue v Rowley, which began in the District Court, raised the issue of the correct approach to an appeal against an exercise of discretion.20 The case was appealed to the Court of Appeal partly on the basis that an incorrect approach had been taken. The Supreme Court declined leave to appeal. It is necessary to set out the progression of the case through the courts in order to appreciate the implications of the Supreme Court’s decision.
[23] In the District Court, Judge Behrens granted interim name suppression to the defendants on the basis that of the possible loss of income and revenue as a result of publication. His Honour held that to be a significant factor given the cost of defending the charges faced by the defendants. Publication would therefore affect the defendants’ ability to finance a defence and influence whether or not there was an
“equality of arms” between the prosecution and the defendants.
18 Tiplady-Koroheke v R, above n 14 at [28].
19 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [32] citing May v May 1982) 1 NZFLR 165 (CA)
at 170.
20 Commissioner of Inland Revenue v Rowley DC Wellington CRI-2010-085-6205, 10 November
2010.
[24] The Commissioner of Inland Revenue appealed. In the High Court, Gendall J stated:21
I turn now to consider whether or not the decision of Judge Behrens QC was plainly wrong. If it was not and if he was entitled to exercise his discretion as he did, despite another Judge perhaps reaching a different discretionary decision then this Court will not disturb his decision on appeal. The issue is whether it was wrong in principle, or otherwise shown to be sufficiently clearly wrong.
[25] His Honour dealt with each of the factors identified by the District Court
Judge as follows:
(a) His Honour expressed “some doubts” about whether Judge Behrens was right to put aside the prosecution’s submission that prospective clients have the right to be aware of the prosecution and that publication might cause other offending to become known.22
(b)Judge Behrens had no evidence that finances would prevent the instruction of proper and competent counsel.23
(c) The Judge incorrectly assessed the seriousness of the offending as an “issue [of] the tax efficacy of steps undertaken”. In fact the alleged offending involved serious dishonesty and fraud on the taxpayer. 24
[26] Returning to the issue of the correct approach on appeal, Gendall J
commented:25
… if a Judge simply disagrees with the submissions or propositions advanced by a party ... it does not mean without more that there is error of principle or that the Judge is clearly wrong.
21 Commissioner of Inland Revenue v Rowley HC Wellington CRI-2010-485-123, 20 December
2010 at [17]. Note that he also set out the applicable appeal principles earlier in the judgment. That articulation of the principles formed the basis of an appeal to the Court of Appeal on the ground that Gendall J failed to apply May v May. The appeal was dismissed as, despite the “unfortunate looseness of this part of the judgment”, Gendall J had in fact applied May v May.
22 At [20].
23 At [22].
[27] In the result Gendall J overturned the decision, finding that Judge Behrens had taken into account irrelevant considerations in reaching his decision and that he had applied wrong principles which satisfied His Honour by a significant margin that it was “clearly wrong”.26
[28] In the Court of Appeal, the majority held that Gendall J applied the standard May v May principles.27 Wild J (dissenting) highlighted the distinction between the general approach to appeals and the approach to appeals from the exercise of a judicial discretion as follows:28
The critical difference in the two approaches was put succinctly by William
Young J, then a High Court Judge, in B v C:
The weight to be given to the factors relevant to the exercise of a discretion are primarily for the Judge at first instance.
[29] Wild J commented that the “irrelevant considerations” Gendall J considered Judge Behrens had factored in were not easily identifiable. In his view, Gendall J had actually decided that Judge Behrens placed too little weight on two particular factors and not enough on another.
[30] Wild J also said:29
Gendall J also considered Judge Behrens’ decision was “clearly wrong”. That has been held to mean a decision outside the permissible boundaries to the exercise of the Judge’s discretion: Solicitor-General v Kelly CA215/06, 7
December 2007 at [19]; G v G [1985] 1 WLR 647 at 652. In the name suppression context, the alternatives are publication or suppression of the
accused’s name.
[31] His Honour concluded:30
What drives my dissent is my belief that appellate Judges must guard jealously the right of first instance Judges to exercise their discretion as they see fit, within the permissible bounds. It happens that my own decision on the appellant’s application for name suppression would likely have accorded with that of Gendall J. But the contrary view expressed by Judge Behrens was open to him. As the Judge reached that view by a process I cannot fault, I consider his view should have stood.
26 At [29].
27 Rowley v Commissioner of Inland Revenue [2011] NZCA 160 at [20].
28 At [38] (footnote omitted).
[32] It is helpful to track back and review the cases cited by Wild J. Solicitor- General v Kelly was an unsuccessful appeal against a decision by the District Court declining to make a forfeiture order.31 This is the passage cited by Wild J:32
the decision to decline to order forfeiture was open to the Judge on the material and facts as he found them to be and he did not fall outside permissible boundaries in the exercise of his discretion. That is, it has not been shown that the Judge was clearly wrong.
[33] The decision predates K v B and Austin, Nichols & Co Inc v Stichting
Lodestar.33
[34] Of more interest is G v G.34 In my view, the page cited by Wild J actually establishes that the approach to an appeal against discretion involves an assessment of the balancing undertaken by the Judge at first instance.
[35] In the lead judgment, Lord Fraser quoted from Bellenden (formerly
Satterthwaite) v Satterthwaite:35
We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
[36] Lord Fraser commented that the phrases “clearly wrong”, “plainly wrong” or simply “wrong” were used:36
… in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.
[37] Lord Fraser also set out two further articulations of the test. The first was by
Lord Scarman in B v W (Wardship: Appeal) [1979] 1 WLR 1041:37
31 Solicitor-General v Kelly CA215/06, 7 December 2007.
32 At [19].
33 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).
34 G v G [1985] 1 WLR 647.
35 Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345.
But at the end of the day the court may not intervene unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge's decision being so plainly wrong, he must have exercised his discretion wrongly
[38] The second articulation of the test was contained in In Re F (A Minor) (Wardship: Appeal) where the majority held that the court had jurisdiction to reverse or vary a decision concerning a child made by a Judge in the exercise of his discretion, if they considered that he had given insufficient weight or too much weight to certain factors.38 In that case, Browne LJ held that the Judge at first instance had erred in the balancing exercise. He gave too little weight to the factors favourable, or too much weight to the factor’s adverse to the father’s claim that he should retain care and control of the child.39 Importantly, Lord Fraser described the test articulated by the majority in In Re F (A Minor) (Wardship: Appeal) as a slightly
longer expression of the same “plainly wrong” test enunciated by Lord Scarman.40
[39] The following comment by Lord Bridge in G v G is also helpful:41
I am sure it is important to keep well in view the distinction, although a fine one, between grounds on which the court will allow an appeal from an exercise of a judicial discretion on the one hand and the more restricted grounds on which it will review the exercise of an administrative discretion on the other hand.
[40] Returning to Commissioner of Inland Revenue v Rowley, Messrs Rowley and Skinner argued before the Supreme Court that the High Court and the Court of Appeal had erred in their articulation and application of the approach to an appeal from the exercise of discretion.
[41] The Supreme Court dismissed the application. In its view the difference between the majority members of the Court of Appeal and Wild J was not what the
proper approach to appellate review was, but whether that approach had been applied
37 B v W (Wardship: Appeal) [1979] 1 WLR 1041 at 1055.
38 In Re F (A Minor) (Wardship: Appeal) [1976] 1 All ER 417.
39 At 266.
40 G v G, above n 33, at 652.
41 At 656.
by Gendall J.42 The Court also found that Judge Behrens incorrectly weighed the potential impact of publication upon income.43
[42] Sometimes these distinctions are more apparent than real, but it is important to remember that the May v May standard is not merely a repeat of the orthodox administrative law grounds of relevance and rationality (in the sense of Wednesbury reasonableness). If it was, there would be no point in having an appeal provision at all. The respondent goes too far therefore in suggesting that “plainly wrong” means unreasonable or irrational in the Wednesbury sense. The difference between a general merits appeal and an appeal against a discretion is that in the latter, the appellate court must identify a genuine error in the court at first instance as a pre- condition to interfering in the exercise of that court’s discretion.
[43] It is not enough, as it is on general merits appeals, simply to disagree with the decision at first instance. An error must be found that is so plain that it demands correction. These distinctions are fine in practice, but they are very important in principle. It follows that it is possible for a court to be plainly wrong by according too much weight to one factor or not enough weight to another. But the mistake must be clear. For example – a sentencing Judge may decide to acknowledge but accord very little weight to a relevant sentencing factor – for example the age, background, or culture of the offender. It may well be the case that an appeal court applying a May v May standard could well conclude that such weighting was plainly wrong in principle and requires correction.
Application
[44] In my view, this is not a case where the learned sentencing Judge applied weightings to the admittedly relevant factors he considered in a manner that could be described as “plainly wrong”. He was right to conclude that denunciation is important in cases such as these where the State relies to a significant extent on the honesty of the beneficiary. He was right also to express some degree of scepticism in respect of the appellant’s health given the fact that she was working 32 hours per
week at the time and to conclude the medical condition can be effectively managed
42 Rowley v Commissioner of Inland Revenue [2011] NZSC 76, (2011) 25 NZTC 20-052 at [5].
43 At [7].
in prison. All in all, I do not consider that the weighting of factors for and against home detention was plainly wrong.
[45] The appeal is dismissed accordingly.
Williams J
Solicitors:
Public Defence Service, Wellington
Luke Cunningham & Clere, Wellington
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