Henderson-Newport v Ministry of Social Development
[2015] NZHC 1815
•3 August 2015
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2015-403-10 [2015] NZHC 1815
UNDER the Criminal Procedure Act 2011 IN THE MATTER
of an appeal against sentence pursuant to s
244 of the Criminal Procedure Act 2011BETWEEN
JON LEITRIM HENDERSON- NEWPORT
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 30 July 2015 Counsel:
S J Burlace for Appellant
N A Refoy-Butler for RespondentJudgment:
3 August 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] Jon Henderson-Newport pleaded guilty to charges of welfare fraud involving some $40,000 of benefit overpayments and was sentenced by Judge Cameron in the District Court at Whanganui on 25 March 2015 to eight months home detention.1
Mr Henderson-Newport’s partner, Ms Ngaheke, also pleaded guilty to similar charges, in her case involving benefit overpayments of some $45,000. Judge Cameron sentenced Ms Ngaheke to five months community detention, with nightly curfews (8.00 pm to 3.00 am) and a full weekend curfew. In addition, Ms Ngaheke
was sentenced to 150 hours community work.
1 Ministry of Social Development v Henderson-Newport [2015] NZDC 4984.
HENDERSON-NEWPORT v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 1815 [3 August 2015]
[2] Mr Henderson-Newport now appeals his sentence. He says that, like
Ms Ngaheke, he should have been sentenced to community detention.
Facts
[3] Mr Henderson-Newport and Ms Ngaheke were living in a relationship together at the time of their offending.
[4] Ms Ngaheke and Mr Henderson-Newport were both sentenced on the same day: Ms Ngaheke first, and then Mr Henderson-Newport. No doubt given their very similar offending, the Judge fixed a starting point of 20 months imprisonment in both their cases.
[5] When sentencing Ms Ngaheke, the Judge first reduced that starting point sentence to 18 months, on the grounds that Ms Ngaheke was a first offender. He then applied a 20 per cent discount for her guilty plea, resulting, at that point, in a sentence of 14 months imprisonment. The Judge went on to consider whether that sentence could be commuted to home detention or community detention. Ms Ngaheke was responsible for the care of her 11 year old daughter. The Judge observed:
I do not want to make her life any more difficult than it needs to be and am satisfied that a combined sentence including community detention would be sufficiently punitive, particularly as it will include a weekend curfew.
[6] In addition to the sentence of community detention, and community work the Judge ordered Ms Ngaheke to pay reparation of $44,936.51, the precise amount of the benefit overpayment.
[7] When sentencing Mr Henderson-Newport, the Judge also allowed a 20 per cent discount for his guilty plea. Like Ms Ngaheke’s, that plea had not come at the earliest opportunity. The Judge did not recognise any other mitigating factors. In particular, I note that Mr Henderson-Newport has what the Judge called, in my view fairly, something of an unenviable history. There could, therefore, be no first time offender discount for Mr Henderson-Newport. The Judge did not consider community detention in Mr Henderson-Newport’s case. Rather, he recorded that he
was prepared to commute the sentence of 16 months imprisonment to one of home detention. As with Ms Ngaheke, the Judge also required Mr Henderson-Newport to pay reparation in the precise sum of his benefit overpayments, namely $39,146.20.
Appeal
[8] Mr Henderson-Newport appeals his home detention sentence by reference to Ms Ngaheke’s sentence of five months community detention and 150 hours community work. Mr Henderson-Newport says, if anything, Ms Ngaheke’s offending was more serious than his. He should not have received a sentence that much greater than hers. Ms Burlace argued the sentence involved disparity that in the words used by the Court of Appeal in Rameka appeared unjustifiable and was
gross.2 In fact, she submitted, the reason for leniency (if that is what it was) in
Ms Ngaheke’s case applied equally to Mr Henderson-Newport. Ms Ngaheke had the care of her 11 year old daughter, who was suffering from mental health problems at the time. Mr Henderson-Newport has full time care of a four year old child, and fortnightly weekend care of at least two, if not three, other children.
[9] Moreover, Ms Burlace argued, the Judge had not given any reason for the difference in treatment between Mr Henderson-Newport and Ms Ngaheke. That disparity was not justifiable by Mr Henderson-Newport’s, admitted, history of previous offending. In particular, and as regards dishonesty offending, he only had two previous, and historic, offences: in 1989 and 1992, shoplifting charges in the Youth Court and the District Court respectively.
Analysis
[10] The fact that the Court has extended leniency to one offender will not necessarily create an expectation that other offenders will receive the same treatment.
[11] As the Court of Appeal said in R v Lawson:
A number of expressions have been used to capture this concept, namely
“the disparity is so gross that a justifiable sense of injustice would persist”,
2 R v Rameka [1973] 2 NZLR 592 (CA).
that right thinking members of the public are likely to say “there is something wrong here” – R v Potter [1977] Crim LR 112. But the test is objective; not subjective. It is merely whether the offender thinks he has been unfairly treated but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[12] Based on the Judge’s sentencing notes, his end sentence in Ms Ngaheke’s case responded to two matters: first, she was a first offender and had no previous convictions. Secondly, her responsibilities as regards her 11 year old, mentally ill, daughter. Mr Ross, who represented both Mr Henderson-Newport and Ms Ngaheke at sentencing, had drawn that matter to the Judge’s attention. Based on the Judge’s sentencing notes, when making submissions as regards Mr Henderson-Newport Mr Ross had focused on putting Mr Henderson-Newport’s criminal history in its proper context.
[13] In Mr Henderson-Newport’s case, not only was he not entitled to any discount as a first offender, he also had a less favourable pre-sentence report. Whilst both Mr Henderson-Newport and Ms Ngaheke were assessed as having a sense of entitlement and showing a lack of remorse, Ms Ngaheke was assessed as being at a low risk of reoffending, whilst Mr Henderson-Newport was assessed to be medium. At the same time, the report noted that his history of offending showed little or no thought for other members of the community. In my view, that history also shows an ongoing disregard for Court imposed sanctions.
[14] In my assessment, therefore, this is a situation where a Judge has responded to the different circumstances of individual offenders who, I agree, can properly be considered co-offenders. Both offenders received the benefit of a community based sentence. When the terms of Ms Ngaheke’s curfew are considered, the difference between home detention in Mr Henderson-Newport’s and community detention in Ms Ngaheke’s case is not as significant as it might first appear. Ms Ngaheke also has a sentence of community work to perform. Mr Henderson-Newport does not.
[15] I acknowledge Mr Henderson-Newport’s child-caring responsibilities. It is not clear whether those were drawn to the Judge’s attention. Certainly they were matters that could have been raised at the time. Having said that, I do not think the
fact that Mr Henderson-Newport also has child-care responsibilities in these circumstances means that, objectively speaking, the difference between his sentence and that of Ms Ngaheke is unjustifiable or gross.
[16] I therefore dismiss Mr Henderson-Newport’s appeal.
Clifford J
Solicitors:
Debbie Goodlet, Whanganui for Appellant
Crown Solicitor, Whanganui for Respondent
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