Burns v Police

[2016] NZHC 2116

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2016-409-000063

CRI 2016-409-000065 [2016] NZHC 2116

BETWEEN

NIKITA BURNS

Appellant

AND

NEW ZEALAND POLICE Respondent

CRI 2016-409-000064

BETWEEN  NIKITA BURNS Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	6 September 2016
Counsel:	C M Yardley for Appellant E J Henderson for Respondent
Judgment:	7 September 2016

JUDGMENT OF SIMON FRANCE J

[1]      Ms Burns appeals a sentence of two years and three months’ imprisonment

imposed in relation to three discrete incidents of offending.1

Facts

Red Cross offending

[2]      In the immediate aftermath of the Christchurch earthquakes many residents were in dire circumstances.  Amongst other initiatives, the New Zealand Red Cross

1      Burns v NZ Police; Burns v Ministry of Social Development [2016] NZDC 2360.

BURNS v NZ POLICE [2016] NZHC 2116 [6 September 2016]

received donations from the community and made grants of temporary assistance to people  and  families  in  need.    Over  a  six  month  period  Ms  Burns  made  13 applications using false names and other people’s addresses.  She succeeded on ten occasions, obtaining $18,000.

[3]      The offending struck at the heart of a community in crisis.   Its deplorable nature is obvious.   The District Court Judge emphasised this in his sentencing remarks, and no repetition is needed.  He described it as callous and I agree.

[4]      An  aspect  of  the  summary  of  facts  to  which  the  Judge  referred  was  a statement that the true residents of the addresses used by Ms Burns had themselves been disadvantaged as a consequence.   It was suggested that their legitimate applications were declined because the address had already been the subject of a grant.  Enquiries made prior to the appeal suggest this may have been overstated.  It seems the most that can be said is that one family’s application for winter assistance was delayed by two months as a consequence.

Ministry of Social Development offending

[5]      Over a three year period, Ms Burns falsely claimed she had separated from her partner.   She also claimed on two occasions to have obtained employment in other centres for the purposes of obtaining relocation assistance.  This aspect of the offending involved creating false documents which purported to be issued by what were imaginary businesses.

[6]      Ms Burns unlawfully obtained around $28,000.  The Ministry has calculated that had she sought the benefit she may have been entitled to, namely an unemployment benefit, she may have received $15,000 over the relevant period. Somewhat benevolently in my view, the loss to the Ministry is therefore assessed as being only $13,000.

Car rental

[7]      On one occasion Ms Burns hired a rental car.  She failed to return it.  It was located  two  weeks  later.    Loss  of  $2,300  is  claimed.    As  far  as  can  be  now

ascertained, that appears to be a rental figure for the period.  It does not appear that any damage was done.

Ms Burn’s circumstances

[8]      Ms Burns is 40 years of age.  She has two children, neither of whom live with her.  She was assessed as remorseful and somewhat as a product of her upbringing. Prior to this offending Ms Burns had numerous previous convictions, mainly for dishonesty.  Of more recent times there were 12 offences since January 2007, mainly involving dishonestly accessing a computer system.  She had never previously been sentenced to jail.

Sentence under appeal

[9]      The sentencing Judge took the lead offending as being the Red Cross frauds. This attracted a starting point of 27 months’ imprisonment.   There was then 12 months’ added for the Ministry of Social Development offending, and six months’ for the rental car.  A totality reduction of nine months’ meant the total starting point was three years’ imprisonment.  The Judge then added six months’ for past offending and allowed a 25 per cent discount for the guilty pleas.   There was then a further reduction  of  10 per cent  for  rehabilitative  efforts,  remorse  and  offers  to  make amends, all this leaving the final sentence at two years three months.

Appeal

[10]     It is submitted each of the starting points is excessive, as is the six month uplift.  It is noted that for each of the frauds the monetary sum is far from the top of the range.  Concerning the uplift it is submitted that regard should have been had to the fact Ms Burns had never previously been sentenced to jail.   If a reduction is achieved, home detention is no longer pursued.

Decision

[11]     The defrauding of the Red Cross assistance programme arose in a unique context.  Concepts of denunciation and deterrence plainly loom large and a sentence at the top of the range for the underlying culpability factors is to be expected. As the

Judge observed, at a time when acts of bravery and kindness abounded, a minority saw an opportunity to exploit a terrible situation.  Theirs was shameful conduct, and a stern response is appropriate.

[12]     In fixing upon 27 months’ as a starting point, the Judge reviewed various authorities, none of which could be on all fours with the context underlying this offending.  Ms Burns’ fraud was calculated and repeated and I am not persuaded this starting point was excessive.

[13]     The  starting  points  for  the  other  two  sets  of  offending  are  on  less  firm footing.  Six months for the rental car incident is excessive.  There is no evidence of particular  premeditation,  nor  of  damage.    It  was  undoubtedly  an  inconvenience which caused loss, but standing alone it would not merit a jail term.  In terms of an aggravating factor or as an uplift, I consider two months’ is appropriate.  Defrauding of the benefit system always requires denunciation, and an uplift for this offending was appropriate.  The sums involved were not high as that type of offending goes. However, a different feature was the positive deceit involved in creating, on two occasions, the false employment scenarios.   As an uplift at least six months’ imprisonment was appropriate.

[14]     I have analysed the matter this way to fairly respond to the focus of the appeal.  The reality, however, is that although the Judge took starting points that in my view were too high, he also made a significant totality adjustment.  On my lesser starting points I do not consider a totality adjustment is needed.  I would therefore arrive at a starting point of two years, 11 months’ imprisonment.  The Judge’s figure was three years’.  In sentencing discretion terms, bearing in mind this is an appeal, the difference is inconsequential.

[15]     Where I do depart from the Judge is over the uplift.   None of Ms Burns offending had ever attracted a sentence of imprisonment.   She was now facing a significant jail sentence, and I do not consider it was correct to add another six months’ of jail time for offending which itself never attracted jail in the first place.  I do not say such circumstances can never merit a modest uplift, but real care is needed.  In this case an uplift was inappropriate.

Outcome

[16]     I have  concluded the  final  starting point  of three  years and  six  months’ imprisonment was manifestly excessive by six months.  The issue is how this is to be reflected on appeal and I admit to being somewhat hesitant because of the very generous mitigation reduction accorded to Ms Burns.   There seems little in her circumstances to suggest a 35 per cent reduction was merited.  Had a more normal reduction applied, the end sentence would not be that much different.  For example, a more standard 25 per cent reduction to the three year starting point leaves the same end sentence to which Mr Burns is presently subject.

[17]     Although I have analysed the matter in different terms, I am not satisfied it has been shown the end sentence is manifestly excessive.  Accordingly the appeal is

dismissed.

Simon France J