Green v Ministry of Social Development HC Christchurch CRI 2010-409-48

[2010] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000048

WENDY ALICE GREEN

Appellant

v

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         6 May 2010

Counsel:         R G Glover for Appellant

D J Orchard for Respondent

Judgment:      6 May 2010

ORAL JUDGMENT OF PANCKHURST J

[1]      This is an appeal against an end sentence of two years and four months’

imprisonment imposed in relation to multiple charges of benefit fraud.

[2]      The facts are succinctly outlined in the sentencing remarks of Judge Couch which I therefore adopt:

[2]  ...  In May 2002 you applied for and were granted a sickness benefit.  In July 2004 that was converted to an invalid’s benefit.  You also sought and received  additional  payments  by  way  of  accommodation  supplements, special benefits and a disability allowance.   All of those benefits were on condition that you inform the Ministry of other income or of any change in your circumstances.  You failed to advise the Ministry of ACC payments and

WENDY ALICE GREEN V MINISTRY OF SOCIAL DEVELOPMENT HC CHCH CRI-2010-409-000048  6

May 2010

of income from working.   Out of those facts the charges of using the documents arise.

[3]     You also applied for and received additional benefits under another name and it is those actions that have led to the three charges of obtaining a pecuniary advantage by deception.

[4]     It has to be said that your offending was extensive.   You received income from working for 13 different employers during this period.   You completed 11 false declarations in your own name and you completed three deceptive applications in another name.  Over a six year period you received a total overpayment of $36,495.83.

[3]      Arising from this background Ms Green was charged with 12 offences of using a document to obtain a pecuniary advantage contrary to s228 of the Crimes Act.  In substance she completed periodic certificates for Social Welfare which were entirely false as to their relevant contents.   There were a further three charges of obtaining monies by deception contrary to s240 of the Crimes Act.  These were self- initiated applications signed by the appellant by which she obtained special needs grants or, I think in one instance, the renewal of a community card.

[4]      The appellant is aged 58.   She has, it seems, a raging gambling problem probably accentuated by issues with alcohol as well.  She lost her second husband some years ago and since then her life has been in turmoil to some degree.

[5]      A fundamental aspect of the case concerned her past offending record.  It is lengthy, extending back to the 1960s when she appeared in the Youth Court.  But relevant for present purposes are subsequent appearance in the 1970s upon charges of forgery and false pretences which attracted a short prison sentence.  Even more relevant are previous offences of Social Welfare fraud committed over a period in the 1990s and which attracted a sentence of probably five months’ imprisonment in

1997.   I say probably because the criminal history sheet appears to be wrong in referring to multiple cumulative sentences of three months, when the likelihood appears that there were two types of offending which attracted cumulative terms, but that multiple Social Welfare offences, while cumulative on the other offending, was concurrent between the individual charges.

[6]      If this was not enough there were then a further 12 charges of Social Welfare fraud which, in 2002, attracted a prison sentence of nine months’ imprisonment.

Subsequent to that I note that the appellant has appeared for breaches of supervision and in relation to a breath alcohol offence.

[7]      The Judge viewed the offending as serious indeed.  The amount involved was

$36,495.83  over  a  six  year  period.    He  was  concerned  at  the  duration  of  the offending, its systematic nature and the lengths to which the appellant went in order to obtain money to which she was not entitled.  In particular she used a false identity and part of the money was therefore paid to a fictitious person who held an account with a bank other than the one which Ms Green ordinarily used.

[8]      The Judge adopted a starting-point of three and a half years’ imprisonment, without elaboration.  There was no reference to previous cases or explanation as to how  that  starting-point  was  arrived  at.    He  then  reduced  the  starting-point  by

14 months, or one-third, to recognise early guilty pleas and hence arrived at the end sentence of two years four months which was imposed in relation to the document charges.   The three charges of obtaining by deception attracted sentences of two months which were concurrent.

[9]      I need not traverse the submissions I have heard from counsel in any detail. It was common ground in this Court that the sentencing exercise suffered from a difficulty in that the R v Taueki [1] approach was not followed, that is there was not a starting-point struck which reflected the circumstances of the offending alone before an uplift was made (as was undoubtedly required) on account of the appellant’s past offending.  Instead, as I have already noted, the Judge went direct to what he termed

a “starting-point” of three and a half years and did not separately address the issue of an uplift.   This, it seems to me, is a case which demonstrates the wisdom of the Taueki approach and the advantage to be had where there is a starting-point followed by an uplift which produces a transparent sentencing exercise.

[1] R v Taueki [2005] 3 NZLR 372 (CA).

[10]     In the end result I invited counsel to indicate how the sentencing exercise might, in their submission, have been undertaken on a Taueki basis.  Mr Glover, in what I think can be said was a very realistic assessment, indicated that at worst a starting-point of 18 months might have been available and an uplift of 12 months.

Even on this basis the end sentence, after allowance for the guilty pleas, would have been  no  more  than  20  months’  imprisonment which,  of  course,  rendered  home detention a sentencing option.  He then made submissions directed to that aspect, to which I will return in a moment.

[11]     Mrs Orchard appropriately referred me to the Full Court decision in Hogan v Ministry of Social Development [2].  Constrained I think by the sentence levels in the cases reviewed in that decision she suggested a starting-point of 12-18 months’ imprisonment could be justified.  She urged the view that a significant uplift had to be imposed  in  this  case given  the fact  that  the  appellant  is  plainly a  recidivist offender in relation to welfare fraud.  Candidly, counsel said that she could not point

to an authority which identified what the level of uplift should be, although a substantial uplift was suggested which might even double the starting-point.

[2] Ministry of Social Development [2005] 23  CRNZ 500 (HC).

[12]     It is regrettable that I must effectively go through the sentencing exercise afresh; but it seems to me there is no option given the difficulties to which I have just referred and which, in a sense, are reflected in the problems which counsel encountered in seeking to undertake the exercise in the course of their submissions.

[13]     With the judgment of Hogan in mind and also fortified by reference to the Court of Appeal decision in R v Iosefa [3], which of course deals with solicitors’ defalcations, I am of the view that a starting-point of no more than 12 months could be justified in this case.  As to the uplift, I agree with Mrs Orchard’s observation that appellate guidance is not so readily available.

[3] R v Iosefa CA472/08, 3 November 2008.

[14]     Doing the best I can I am of the view that nine months is as much as could be justified in this case.  That produces a notional sentence of 21 months’ imprisonment to which a one-third discount must be applied, producing a sentence of 14 months’ imprisonment.  I take comfort when I compare that sentence arrived at in terms of Taueki against the sentences previously imposed on the appellant, because the end sentence is one which does seem to me to be proportionate given her recidivism and in light of her past sentences.

[15]     That brings me to the issue of home detention.   There was an appendix available to the Judge in the District Court but for obvious reasons he did not need to concern himself with this aspect.  Hence it too effectively falls to be assessed afresh in this court.  Mr Glover faced two difficulties.  In the first place the appendix writer concluded that there was no then available home address to which the appellant could be released on home detention.  She apparently occupies a flat and it seems has a good relationship with her landlord.  He, however, works out of Christchurch and apparently could not be contacted in order to confirm his consent to the use of the address for home detention purposes.  Hence, on this score, the appendix writer said that there was no available approved address.

[16]     More  importantly,  however,  the  report  writer  (who  also  produced  the appendix), did not recommend home detention as a suitable sentence.   I think this reflected in large measure an assessment that, not only had Ms Green offended while previously on home detention, but that there was a real risk of reoffending if she received a similar sentence on this occasion.

[17]     I am in no doubt that home detention is inappropriate in this case.  I accept the submission made by Mrs Orchard that for a repeat offender, who has received sentences of imprisonment in the past, but nonetheless shortly after release from such sentences has embarked on further Social Welfare offending, it would be wrong in principle to now impose a sentence of home detention.  The sentencing hierarchy would be turned upside down.

[18]     For these brief reasons I conclude that home detention was not an available option in this case.  I allow the appeal to the extent that the sentence of two years four months’ imprisonment on the major charges is quashed and for the reasons I

have endeavoured to explain I substitute a sentence of 14 months’ imprisonment.

Solicitors:

Rupert Glover Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent