Gudex v Ministry of Social Development

[2014] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000075 [2014] NZHC 2506

BETWEEN

AARON RAYMOND GUDEX

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	17 September 2014
Counsel:	M M Cole for Appellant S J Jamieson for Respondent
Judgment:	13 October 2014

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.30 pm on the 13th day of October 2014.

Solicitors:           Crown Solicitor, Christchurch, for Respondent

Public Defence Service, Christchurch, for Appellant

GUDEX v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 2506 [13 October 2014]

[1]      The  appellant  was  sentenced  in  the  District  Court  at  Christchurch  on

31 July 2014 to 14 month’s imprisonment on 12 charges of benefit fraud.  He appeals against that sentence.  The essence of the appeal is that imprisonment was not, in the circumstances, an appropriate sentencing outcome and the appellant should have been sentenced to home detention.

[2]      The appellant was granted a sickness benefit from 1 November 2006.   He failed to disclose to the Ministry of Social Development that he worked for six different employers up to December 2013.  He signed documents stating that he had no income.   He pleaded guilty to seven charges under the Crimes Act 1961 (six charges of dishonestly using a document for pecuniary advantage and one charge of obtaining by deception) and five charges under the Social Security Act 1964 of omissions with the purpose of misleading.

[3]      In her written submissions at sentencing, counsel submitted that a sentence of community detention and community work would be the least restrictive outcome. Counsel sought an adjournment of sentencing because the appellant’s housing situation was then uncertain as the appellant’s family had received notice to vacate their current home.   Also, the appellant had recently changed jobs.   In her oral submissions, counsel raised as an additional reason for adjournment that the appellant’s partner had rheumatoid arthritis.  The Judge said that he would take that into account and proceeded with sentencing.

[4]      In sentencing the Judge considered whether home detention was appropriate. He noted some factors which would favour home detention, particularly that the appellant was currently living with his partner and their infant child and they might benefit  from  his  continued  presence,  notwithstanding  the  difficulties  that  the appellant may have had with them at time.   However he noted the Community Probation Service’s concerns about friction between the couple and also apparent alcohol issues.  He noted that Child Youth and Family Services regards the appellant as a potential risk in the home.  He then said that the most persuasive factor was the need to achieve the purposes of sentencing, in particular deterrence and accountability, and the appellant’s criminal history and concluded nothing short of imprisonment was an appropriate sentence.

[5]      The grounds of the appeal are that the Judge did not give sufficient weight to a relevant matter, namely the health of the appellant’s partner, Ms H, who has been diagnosed with rheumatoid arthritis, and accordingly failed to give sufficient weight to  all  mitigating  circumstances  when  considering  whether  he  would  impose  a sentence of home detention.   Counsel for the appellant advises that the issue of Ms H’s health was not addressed in written submissions as it came to counsel’s attention after the submissions were filed with the Court.

[6]      Counsel has provided further material on this issue before this Court.  There is a medical certificate which confirms the diagnosis of rheumatoid arthritis which the doctor says is causing Ms H significant generalised joint pain.  As a result Ms H is having great difficulty coping with work and caring for her son.  Ms H has filed an affidavit in which she advised she has been in a relationship with the appellant for four and a half years.   She acknowledges that the relationship was not all smooth sailing, with both partners having an issue with alcohol.  She deposes that after their son was born, two years ago, their alcohol use subsided and they have focused on their family.  She deposes that the rheumatoid arthritis has resulted in inflamed joints from her elbow to her fingers and from her hips through her knees to her toes.  She has painful joints and swollen knuckles.  The couple’s two year old son is big for his age and she has difficulty in caring for him because of the physical handicap arising from  her  condition.    Counsel  has  also  produced  a  letter  from  Ms H’s  mother confirming the difficulties which her daughter faces.

[7]      Counsel  has  also  produced  a  letter  from  the  appellant’s  employer.    The employer confirms that if the appellant is released from prison they will offer him a fulltime position with hours of work varying between 6 am to 8 pm, Monday to Friday and  6 am  to  2 pm  on  Saturdays.    His  duties  would  include loading and unloading of freight, delivering goods within the greater Christchurch area and general store movement.   He would be in a vehicle installed with GPS, enabling vehicle movements to be monitored.  That employment would be possible if home detention conditions could be structured to meet those requirements.   In the alternative, Ms Cole submits that community detention would be appropriate, to facilitate this employment

[8]      In the light of this material, which was not available to the sentencing Judge, I formed the view that it was appropriate to consider sentence afresh.  I accordingly directed, at the hearing, that a report be obtained on the suitability of the appellant’s new address for home detention, and on the possibility of formulating conditions of home detention or community detention which would enable the appellant to work during his sentence, so that these options could be properly considered.

[9]      The  home  detention  appendix  requested  has  now  been  received.    The Probation Service has also helpfully provided an update of the pre-sentence report, cognisant of the comment I had made at the hearing to the effect that I considered it appropriate to approach the question of sentencing anew.

[10]     The home detention appendix indicates that the home at the address proposed is suitable for electronic monitoring.  It is the home of Ms H and their son.  Ms H indicated a wish to support the appellant if he was to be subject to electronic monitoring.  She has support from her parents who live locally in the event of any relationship problems with the appellant which might arise.  However, both Police and Child, Youth and Family have expressed concerns about home detention.  Both services note issues related to family violence involving alcohol.  Child, Youth and Family believe the appellant’s offending history indicates that he is a potential risk in the home.     Concern is expressed that the heavily restrictive sentence of home detention might add to the family pressure, so that home detention is not considered suitable because of safety and welfare concerns.  The view was also expressed that the appellant would not be granted an approved absence to leave the home to participate in his proposed employment.

[11]     The material which I now have does not persuade me that home detention is an appropriate sentence.  The stresses likely to be imposed upon the family unit if the appellant were confined to the home weigh strongly against that sentencing option. The difficulties of formulating appropriate terms of absence from the home for the purposes of employment, which have led to the indication that an approved absence would not be granted, is a further factor weighing against home detention.

[12]     That means that the next available sentence in the hierarchy of sentences below imprisonment is community detention.   Community detention would be an inadequate sentencing response to meet the relevant principles and purposes of sentencing, including in particular the need for deterrence, both individual and general, and to hold the appellant accountable for the harm he has done.   As the sentencing Judge observed, benefit fraud is serious and must be deterred.  Those who commit  it  must  be held accountable for it.   The appellant’s  criminal  history is considerable.  It includes numerous convictions for dishonesty offending, as well as a variety of other offences, including violent offending.  His risk of re-offending is assessed as being at a medium level, and his risk of harm to others is also considered at a medium level.   He is described as having a sense of entitlement, which is identified as the key offending related factor in relation to this offending.

[13]     A further consideration is that a rehabilitative component to this sentence is required.   The report writer expresses the view that the appellant’s attitudes and entitlements would be best targeted with the departmental medium intensity rehabilitation programme.   That runs over 13 weeks, with sessions four times per week for two and a half hours at a time.  It is available both in custody and in the community.  The appellant has been waitlisted to complete the programme while in custody.  If he were to undertake it in the community it would curtail his ability to work to a considerable extent.

[14]     When these factors are weighed in the scale, the difficulties which Ms H will face as a result of her illness during the appellant’s incarceration cannot be mitigated, paying proper regard to the hierarchy of the sentences.

[15]     For these reasons, I agree with the Judge that nothing short of imprisonment is an appropriate sentence in this case.   The end sentence of 14 months which he imposed was within the available range, and was not manifestly excessive.

[16]     The appeal against sentence is accordingly dismissed.

A D MacKenzie J