Creeks v The Queen
[2004] NZCA 94
•23 June 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA26/04
THE QUEEN
v
PAULINE CREEKS
Hearing:16 June 2004
Coram:Glazebrook J
Paterson J
Doogue JAppearances: D R La Hood for Appellant
B J Horsley and S P McLaughlan for Crown
Judgment:23 June 2004
JUDGMENT OF THE COURT DELIVERED BY PATERSON J
Introduction
[1] Ms Pauline Creeks, in a judge alone trial, was convicted by Judge Moore of six charges under s127 of the Social Security Act 1964 of knowingly making false statements, and nine charges under s229A of the Crimes Act 1961 of with intent to defraud using a document to obtain a pecuniary advantage. She was sentenced to concurrent terms of imprisonment of 18 months on each of the Crimes Act charges and nine months imprisonment on each of the Social Security Act charges, and now appeals against both conviction and sentence.
Grounds of conviction appeal
[2] In submissions in this Court, Mr La Hood advanced the following grounds of appeal:
a)The Judge erred in law in formulating and/or applying the test for “living apart” pursuant to s63 of the Social Security Act;
b)Psychiatric evidence, unavailable until sentencing, was relevant to and would have significantly affected the determination of the issue of mens rea;
c)The Judge erred in law in formulating and/or applying the test relating to the mens rea element of the charges.
[3] The Crown raised a preliminary objection to ground (b). This ground was not raised in the notice on appeal and was advised to Crown counsel for the first time in the appellant’s submissions received on 3 June last. In the Crown’s submission, it is effectively an application to have fresh evidence adduced on appeal without an application or supporting affidavits being filed. This matter will be dealt with in due course.
[4] We record that in addition to Mr La Hood’s submissions, we received and considered a handwritten submission from Ms Creeks.
Background
[5] Ms Creeks married her co-accused Mr Wilson-Mau on 8 November 1992. At that time, they had four children but both were on single person’s benefits with the Department of Social Welfare.
[6] The Crown’s case against Ms Creeks was that from 23 September 1994 to 6 January 2001 she received social welfare benefits on the basis that she dishonestly represented that she and Mr Wilson-Mau had ceased to live together as a married couple. The total benefits received by them exceeded the aggregate of the benefits they would have received had those benefits been paid on the basis that they were living together as a married couple. An amount of approximately $86,000 was at issue.
[7] The six charges under the Social Security Act were based on representations that they did not live together as a married couple during the period 23 September 1994 to 6 January 2001. The nine charges under the Crimes Act arose from documents which Ms Creeks used from time to time to adjust the benefit and other allowances payable to her and Mr Wilson-Mau during that period.
[8] Mr Wilson-Mau was jointly charged with the offences under the Social Security Act, but was not charged with the offences under the Crimes Act.
Test for “living apart”
[9] Section 63 of the Social Security Act, the relevant statutory provision, states:
For the purpose of determining any application for any benefit, or of reviewing any benefit already granted, or of determining the rate of any benefit … the Chief Executive may, in the Chief Executive’s discretion, -
(a) Regard as an unmarried person any married applicant or beneficiary who is living apart from his wife or her husband, as the case may be:
(b) Regard as husband and wife any man and woman, who not being legally married, have entered into a relationship in the nature of marriage -
[10] The Judge noted that case law had focused on relationships in the nature of marriage, rather than relationships of married persons who were living apart. He referred to Ruka v Department of Social Welfare [1997] 1 NZLR 154, Thompson v Department of Social Welfare [1994] 2 NZLR 369, and Excell v Department of Social Welfare [1991] NZFLR 241, which were cases which dealt with “a relationship in the nature of marriage” for the purposes of s63(b). These noted that there were many factors which the Court was required to take into account when determining whether a relationship is one which has the essential character of a marriage. Such factors, taken from a list in Thompson, included consideration of whether the parties lived in the same house, the frequency of such living together, sexual relationships, emotional support and companionship, socialising together, the arrangements for bringing up and supporting their children, their household and other domestic tasks, the sharing of costs and other financial responsibilities by the pooling of resources or otherwise, the running of a common household even if one of the parties is not present for a time, their holiday arrangements, and whether the parties conduct themselves towards, and are treated by friends, relations and others, as if they were a married couple. The ultimate decision in each case will always be one of fact and degree and a negative answer to any one of the relevant issues will not necessarily mean the absence of a relationship in the nature of a marriage.
[11] The Judge, with an obvious reference to the “living apart” criteria in s63(a) of the Social Security Act stated:
So if the Court, as submitted by the Crown, approaches the issue of ‘living apart or not living apart’ in terms of those authorities, it is taking a view of the law which is either correct or somewhat too favourable to the accused.
The Judge therefore applied the test for determining whether a non-married couple had “entered into a relationship in the nature of marriage” in cases to which s63(b) applied, and stated that this test was either the appropriate test or a test which was perhaps too favourable to Ms Creeks, in determining whether she was no longer living apart from her husband for the purposes of s63(a) of the Social Security Act.
[12] Mr La Hood, for Ms Creeks, submitted that in adopting the test based on s63(b), the Judge erred and took a position that is less favourable to Ms Creeks. He submitted that there were in fact compelling reasons to require more intermingling of lives for a married couple with children than for an unmarried couple before an obligation to inform the Department that the parties had resumed a relationship in the nature of the marriage arises. This is due to the desirability of joint parenting of children and exploring reconciliation. Counsel drew an analogy with cases under s39 of the Family Proceedings Act 1980 where the term “living apart” is used, and where the Courts have determined that persons living under the same roof can be “living apart.” While Mr La Hood submitted that there should be a more stringent test in such circumstances, he did not attempt to define that test.
[13] Mr Horsley, for the Crown, took the opposite view. In his submission, the test applied by the Judge was too favourable to Ms Creeks. He submitted that the test adopted is contrary to the policy of the welfare legislation as set out in Director-General of Social Welfare v W [1997] 2 NZLR 104. Under that policy, it was necessary for one party to repudiate a legal marriage before that party could be said to be “living apart” from his or her spouse for the purposes of s63(a). The Judge in applying his test, had focused on the indicia of being in a relationship in the nature of a marriage. The appropriate test for determining whether a married person no longer lives with his or her spouse should be regarded as an unmarried person for the purposes of s63(a), is whether one of the parties had clearly repudiated the matrimonial relationship. In such circumstances, an exploration of the factors referred to in the Thompson case was not necessary.
[14] In the circumstances of this case, it is not necessary to determine which test is the appropriate one. While there may be arguments for having the one test to apply to both subsections (a) and (b) of s63, particularly in view of the recent law changes in the Property (Relationships) Act 1976, this is a case where, on the basis of the Judge’s factual findings, the test would have been satisfied no matter which test were to be applied.
[15] The Judge noted that the allegation against Ms Creeks was:
that she dishonestly misrepresented their circumstances, but particularly hers, in ways which were designed to achieve for them a combination of benefits yielding significantly more money than they were entitled to as a married couple living in that relationship.
Later in his judgment, he summarised the position in these terms:
In layman’s terms, the Crown case is that each accused, over the period covered by the counts in the indictment, ie 23 September 1994 to 9 January 2001, received social welfare benefits on the basis that they dishonestly represented that having ceased to live together as a married couple, they continued to remain living apart, whereas in fact even if there had been a brief separation around September 1994 (which the Crown did not concede but accepted that it could not, to the criminal standard disprove), they thereafter continued to be a married couple living as such, but wilfully omitted to advise the department of their true situation, those being wilful omissions so that they might each continue to receive benefits which, in total, were worth significantly more than they would have been entitled to as a married couple living together.
[16] The Judge noted the defence position in the following terms:
The case for the defence is that there was no dishonesty; that the couple had ceased to live as man and wife, though they continued – for the benefit of their children and in following other common interests – to be together at various places from time to time; further if, as a matter of law, they did not truly qualify for separate benefits, nonetheless in their dealings with the Department, neither wilfully omitted to advise of relevant matters.
[17] The Judge dealt with a submission that the prosecutions under the Social Security Act were out of time because s127 of that Act required prosecutions to be brought “within twelve months after the facts alleged in the information have been brought to the knowledge of any officer concerned in the administration of this Act.” In rejecting this submission, he said:
Furthermore, having heard Ms Creeks in evidence express – perhaps not consciously – some of her tactics in dealing with Departmental inquiries into her entitlement to benefits, the Court is in no doubt that by a combination of cunning and aggression she created situations where the Department had no facts on which to act and no realistic choice but to accept her assertions (and Mr Wilson-Mau’s) that their marriage relationship had not been resumed and thus they had on-going entitlement to the separate benefits being paid to each of them.
[18] The Judge made a credibility finding in respect of Ms Creeks. He found her manipulative, cunning and determined. He referred to an obsession which she had with genealogy and noted that it was overwhelmingly clear that she arranged her life and controlled the lives of those around her so that she could advance that cause. He noted:
She was not a credible witness. She obviously had a great capacity for untruthfulness. Like all such people she did not tell lies all the time, just distorted the truth when it suited her and dishonestly invented as was advantageous.
[19] Ms Creeks had during the period owned two properties. She had not disclosed the ownership to the Department. In respect of one property, she alleged it was in the hands of a trust. The Judge analysed the evidence in relation to this trust, and determined it “was variously a scam and a sham.” Further, an alleged tenancy agreement in respect of one of those properties, under which Ms Creeks was noted as the tenant, and which was produced to the Department in support of one of the applications, was also held to be a sham. The named landlady was not and could not have been the owner of that property.
[20] Factual findings which were made by the Judge, and which are not under challenge on appeal, were that while there may have been a brief “living apart” in September 1994, it was brief indeed (the Judge was obviously sceptical as to whether there had been such living apart), thereafter, the couple resumed and continued their sexual relationship. They gave each other emotional support and companionship in a wide range of contexts, including Mr Wilson-Mau involving himself to a marked degree in helping Ms Creeks in relation to matters in which she had strongly held beliefs, even when he did not share those beliefs. The One Tree Hill episode (she had been part of the group which cut down the tree) and problems on the marae at Wainui Bay were examples of this support. They shared the upbringing and support of their children, household and domestic tasks. They shared costs and financial responsibilities. Separate bank accounts were a pattern established long before September 1994 and continued throughout the marriage. There was a pooling of resources, not in the sense of one common fund, but in the sense of several bank accounts, all drawn upon for general family use. For the vast majority of the relevant time, there was a common household at Wainui Bay, albeit that Ms Creeks was absent from time to time.
[21] The Judge found that the compelling picture which emerged from the evidence was not of two separate households, but rather of one household at times moving between two places, and at other times to some extent, sharing them. There were two overseas holidays which they shared. Their conduct in and about the community was that of a married couple living as such. The Judge concluded that on the evidence, they were a married couple living as such.
[22] Against these factual findings, summarised in paragraphs 16 to 20 above, it matters not which test is applied in this case. Under any of the possible tests, Ms Creeks and Mr Wilson-Mau were not living apart during the period. This ground of appeal cannot succeed.
Psychiatric report
[23] For sentencing purposes, a report under s121(2)(b)(i) of the Criminal Justices Act 1985 was prepared by a consultant psychiatrist at the Regional Forensic Psychiatry Services. This report noted that “cognitive functions were not formally tested but seemed grossly intact.” Under the heading “Re Mental Illness”, the psychiatrist noted:
Apart from her grandiose and persecutory delusions that she has been holding over the past years, her functioning is not markedly impaired and her behaviour is not obviously odd or bizarre. …
The psychiatrist concluded:
that it is consistent with a clinical picture of a delusional disorder, grandiose type. I do not believe that she meets the criteria of schizophrenia or that her affective disturbances warrant a diagnosis of Affective Disorder.
[24] The psychiatrist also concluded under the heading “Re Mental Disorder as Defined by Section 2 of the Mental Health Act” that:
I believe that Ms Creeks’ presentation is consistent with the definition of an abnormal line because of her disordered thinking and delusional beliefs. However, I do not believe that her symptoms are to such a degree that she may pose a risk to herself or to others or that her self care is significantly diminished at this point.
The psychiatrist then made recommendations as to care if a custodial sentence was imposed and as to referral to the community mental health service if a non-custodial sentence was given.
[25] Mr La Hood did not apply for leave to adduce new evidence. He could not do this because Ms Creeks did not support such a course. However, on the basis that a similar position arose in this Court’s decision in R v Bridger [2003] 1 NZLR 636, he drew to the attention of this Court the terms of the psychiatric report. In his submission, the report was relevant to an assessment of Ms Creeks’ honest belief and, in particular, to the third point of appeal. In Bridger, this Court considered whether a bipolar disorder, which was brought to the Court’s attention after conviction, but before sentencing, was possibly relevant to a defence of self-defence where the disorder was not known to counsel or the Court until the time of sentencing. It was submitted it could have impacted on the subjective state of mind element of self-defence. This Court considered the submission but concluded that the bipolar disorder could not help Mr Bridger because nowhere in any of the material, either at trial or on appeal, was there any indication from Mr Bridger that the disorder from which he was suffering led him to perceive the situation in an abnormal way. Counsel submitted that on the basis of the position taken in Bridger, this Court should consider the psychiatrist’s report on the conviction appeal. He made that submission in the interests of justice acknowledging that he did not have Ms Creeks’ authority to do so.
[26] The psychiatric report in this case does establish that Ms Creeks suffered from a delusional disorder. However, the report did not suggest, and there is no other evidence before this Court which does suggest, that this delusional disorder was such that it impinged upon Ms Creeks’ honest belief required to establish mens rea. It had no effect on Ms Creeks’ knowledge of her obligation to advise the Department of her change in circumstances, and on her deliberate decision to mislead the Department. If the report has any relevance, it is in respect of the sentencing appeal, but it does not assist the appellant on her appeal against conviction.
Mens Rea
[27] The submission on behalf of Ms Creeks was that in analysing the evidence, the Judge failed to consider whether Ms Creeks may have had an honest belief that the nature of the relationship was not that of a married couple and, in particular, failed to consider how any misleading or dishonesty on her part affected her belief. The submission, in short, was that after having determined that Ms Creeks and Mr Wilson-Mau had resumed living together as a married couple, the Judge did not determine whether they honestly believed that they were in such a state. It was said that this was because of the manner in which the Judge analysed the evidence in the charges under s 229A of the Crimes Act.
[28] In describing the elements of the charges under the Social Security Act, the Judge included:
(4)That the particular accused knew that he or she was required so to disclose the circumstances that they had resumed living together but wilfully omitted to do so; that is that he or she made and carried out a conscious and deliberate choice not to do so;
[29] We have analysed the Judge’s findings and are left in no doubt that he did determine that Ms Creeks did not have an honest belief that she was living apart from Mr Wilson-Mau. While he did not expressly state this finding, no other inference is available from the credibility findings which he made against her. He made clear findings that she distorted the truth when it suited her, she dishonestly invented when it advantaged her, she was manipulative, cunning and determined, and she deliberately gave false evidence in respect of an alleged tenancy of one of the houses. He also determined that she failed to disclose the ownership of two houses to the Department, that by a combination of cunning and aggression she created situations where the Department had no facts on which to act, and had no realistic choice but to accept her assertions, that the marriage relationship had not been resumed, and thus, she had an ongoing entitlement to a separate benefit being paid to her. Another finding was that her untruths formed part of a deliberately dishonestly chosen pattern, the purpose and intent of which was to obtain benefits which she knew full well they could not obtain if the truth of their ongoing relationship was known to the Department. These findings were made against a background that, on several occasions, Ms Creeks was advised either verbally or by documents, that she was required to advise the Department of any change in her living status.
[30] These findings were also made after the Judge had reminded himself that his finding on her relationship with Mr Wilson-Mau was:
in no way determinative of the honesty or dishonesty of the various dealings, or lack of dealings, with the Department of Social Welfare. That issue requires consideration of what each of them, separately considered, is proved to have known and understood, both their relationship (or lack of it) with each other and of their obligations to the Department.
[31] In summary, the Judge was satisfied that Ms Creeks was fully aware of her obligations to the Department and that she took many dishonest steps to conceal the nature of her true relationship with Mr Wilson-Mau from the Department. She also took the same sort of dishonest steps to conceal her true financial position from the Department. In these circumstances, there can be no suggestion that the Judge did not appropriately consider the mens rea issue.
Result on conviction appeal
[32] For the reasons given, the appeal against conviction is dismissed.
The sentence appeal
[33] Ms Creeks was sentenced to a term of 18 months imprisonment. The sentencing notes were only partly recorded, and a reconstruction of them has not been supplied. The record indicates that Ms Creeks was sentenced to terms of 18 months imprisonment on each of the Crimes Act charges and to nine months’ imprisonment on each of the Social Security Act charges, all sentences to be served concurrently.
[34] The portion of the Judge’s sentencing notes which was transcribed note that the Judge considered the psychiatric report. After commenting on the problems in defining the limits between mental illness and certain sorts of religious type enthusiasms which have taken control of someone’s life, he stated:
I do not think that there is anything about it which I should take into account on sentencing except one thing which is that, quite clearly, one of the motivations for all your dishonest manipulations of the Social Welfare system was to have the community support you to a greater extent than you are entitled to, in pursuit and promulgation of this construct that you have come up with over the years.
[35] The Judge noted that Ms Creeks was the author of the fraudulent scheme and took a more dominant role than her husband. He did not treat her religious enthusiasm for genealogy as a mitigating factor, and did not give a discount for it. The Judge noted some history of previous dishonesty but noted he was not punishing her for what had happened in the past. He took into account, not only the amount of money that Ms Creeks personally received, but also the amount of money that her husband received under the fraudulent schemes. No other relevant information is disclosed in the partially transcribed sentencing notes.
[36] The first ground of appeal is that a sentence of 18 months imprisonment was manifestly excessive and failed to recognise the appellant’s psychiatric disorder. Counsel submitted that the Judge completely ignored the psychiatrist’s opinion that there was a “clinical picture of a delusional disorder, grandiose type”. He submitted that this mental condition was clearly a mitigating factor that required express recognition in sentencing in accordance with Bridger where it was said that a reduction in sentence should be made to recognise the psychiatric illness that impacts upon culpability.
[37] Further, counsel submitted that on the basis of cases such as R v Prior (1993) 10 CRNZ 147, and R v Harlen (2001) 18 CRNZ 582, a sentence of 18 months imprisonment for fraud amounting to the sum of $44,797.18 is not within the available range. Another issue raised was the apparent disparity with the sentencing of Mr Wilson-Mau, who received a term of nine months imprisonment, to reflect the Judge’s view that it was Ms Creeks who was the main offender, and because Mr Wilson-Mau did not face the charges under the Crimes Act. Finally, it was submitted that the Judge incorrectly refused to grant leave for home detention.
[38] Mr Horsley, for the Crown, noted the Judge’s view that Ms Creeks was a “dishonest, manipulative person whose intentions were to have the community support her to a greater extent than she was entitled to”, and that she had a “shrewd grasp of how the system functions and how it could be used” because she had previously employed by the Department. He submitted that the psychiatric evidence did nothing to dispel the Judge’s finding that this was an elaborate course of offending carried out with full dishonest intent to defraud the Social Welfare system. The offending was motivated by greed.
[39] Mr Horsley also submitted that there was no double counting by the Judge when he took into account the moneys received by Mr Wilson-Mau, as this was a joint operation which netted Ms Creeks close to $45,000 over seven years, and which assisted in netting a further $42,000 for her husband. The amount which the Social Welfare Department lost was $86,000.
[40] Mr Horsley also referred to Prior and Harlen and also to R v Beech (CA314/01, 6 December 2001). In Harlen, this Court upheld a sentence of 15 months imprisonment when he was found guilty of six charges of wilful omission and 20 charges of using a document. He received a total over-payment of $120,000 over a period of four and a half years. In Beech, the offending led to an over-payment of $87,000 over a period of seven years and a first offender, with two young children, received 15 months imprisonment after the sentencing Judge adopted a starting point of 18 months imprisonment. In this case, Ms Creeks was not the sole caregiver of the children as were the wrongdoers in Harlen, Beech and Prior.
[41] We do not accept that the psychiatric report raised factors which required a reduction in the sentence. In Bridger, this Court held that the accused’s inability to control his behaviour was substantially contributed to by his psychiatric illness. This was a fact which went to culpability. There is nothing in the psychiatric report in this case which suggests that the delusional disorder was a factor to be taken into account in assessing culpability. Indeed, the Judge’s findings are to the contrary. While the Judge considered Ms Creeks’ interest in genealogy to be an obsession which may have been the reason for the offending, because she wanted additional money to become further involved in it, there was no suggestion that this interest led to an inability to control her behaviour in respect of the Social Welfare Department. The Judge saw her actions as a deliberate manipulation of the Department.
[42] We do not accept the submission that the Judge erred in taking into account the Department’s losses caused by making additional payments to Mr Wilson-Mau. These were as a direct result of offending in which Ms Creeks was the dominant partner in a joint enterprise.
[43] On our consideration of the authorities, a sentence of 18 months imprisonment, while being, perhaps, at the upper end of the available range, was not manifestly excessive. Nor is the factor that Mr Wilson-Mau only received a nine months sentence for a lesser role, and less offending, a factor which makes Ms Creeks’ sentence manifestly excessive. The appeal against sentence cannot succeed.
[44] Ms Creeks is due for release in approximately one month’s time. In these circumstances, there is no practical significance in determining whether the Judge should have granted leave to apply for home detention. If leave were granted at this time, it is very unlikely that the application would be processed before she is released.
Result
[45] The appeals against both conviction and sentence are dismissed.
Solicitors:
Sladden Cochrane, Wellington for Appellant
Crown Law Office, Wellington
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