Heta v R

Case [2012] NZCA 267 22 June 2012

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/2012
[2012] NZCA 267

BETWEEN MARGARET DOREEN HETA
Appellant

AND THE QUEEN
Respondent

Hearing: 15 May 2012

Court: Randerson, Keane and Asher JJ

Counsel: R Vigor-Brown for Appellant
K A L Bicknell for Respondent

Judgment: 22 June 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

The appeal is allowed. The sentence of 12 months imprisonment is quashed and a sentence of eight months imprisonment substituted.

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REASONS OF THE COURT

(Given by Keane J)

The appellant Ms Heta appeals against a sentence of 12 months imprisonment imposed on 2 March 2012 for three offences of benefit fraud. She was tried before Judge Weir and a jury but pleaded guilty after an amended indictment was presented part way through her trial.
As initially presented, the Crown case was that Ms Heta had lived with her partner Suresh Singh and their four children throughout a period of five years and had received welfare benefits totalling nearly $87,000 for all of that time. The original indictment contained eight counts to reflect that.
The amended indictment much reduced the number and scope of the charges. It contained three counts. The first reduced the period over which benefits were wrongly claimed to five specific periods totalling 19 and a half months in all. The amount of the benefits obtained in those periods was reduced to $51,000. The other two counts alleged Ms Heta fraudulently completed work and income review forms on two occasions.
The Judge said on sentence that Ms Heta never had a defence and the only issue was quantum. He held that Ms Heta’s plea had been “very belated”. She was not entitled to any credit for it. He considered she showed no remorse. Rather, she showed a continuing sense of entitlement. He said her ability to make good the loss she had caused to the state, was miniscule. She remained a beneficiary. He considered he had no choice but to imprison her.

Issues on appeal

Ms Heta contends that the issue at trial was not merely one of quantum. It was one of culpability. In amending the indictment the Crown conceded that she was significantly less culpable than first alleged.
Ms Heta contends that she was obliged to go to trial. During her trial she pleaded immediately when the Crown correctly expressed her culpability. The Judge materially overstated her lack of remorse and her continuing sense of entitlement. He overrated these factors, and her inability to pay adequate reparation because she remained a beneficiary. Conversely he underrated the effect of a sentence of imprisonment on her family, especially her younger children, and on her son by an earlier relationship, who now cares for them.
Ms Heta submits she ought to have been sentenced to home detention, emphasising the Judge’s remarks when he remanded her for sentence and ordered a pre-sentence report containing a home detention appendix:
I do not know what your personal circumstances are, but bearing in mind the amended charges, I would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heta v R

Details

AGLC: Heta v R [2012] NZCA 267
Case: [2012] NZCA 267
Decision Date: 22 June 2012

CaseChat Overview and Summary

Margaret Doreen Heta appealed against a sentence of 12 months imprisonment imposed for three offences of benefit fraud. She was tried before Judge Weir and a jury but pleaded guilty after an amended indictment was presented during the trial. The original indictment contained eight counts, but the amended indictment reduced the number and scope of charges to three counts. The appellant argued that the issue at trial was not merely one of quantum but also one of culpability. She contended that the Crown conceded she was significantly less culpable than first alleged. The appellant further argued that the Judge materially overstated her lack of remorse and her continuing sense of entitlement, and underrated the effect of a sentence of imprisonment on her family.

The Court of Appeal held that the Judge made a material error of law in assessing the appellant's culpability when he held that the only effect of the Crown's amended indictment, to which she pleaded, was to reduce the quantum of her offending and not its intrinsic seriousness. The Court held that the Judge should have recognised the difficulty a sentence of imprisonment would cause the appellant's two young children, justifying a discount of at least another month. The Court also held that the appellant was entitled to a 25 per cent discount for her plea, almost another three months. Therefore, the appellant's sentence ought not to have exceeded eight months imprisonment.

The Court allowed the appeal and quashed the sentence of 12 months imprisonment. A sentence of eight months imprisonment is substituted. The Court held that the appellant's release date would be in early July 2012, and it would be unjust to impose an additional period of home detention beyond her release date if an eight-month sentence were imposed. The Court's decision was based on the true extent of the appellant's culpability, the effect of a sentence of imprisonment on her family, and the discounts she was entitled to.

Orders