Hewitt v Housing New Zealand Corporation
[2012] NZHC 2566
•4 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000198 [2012] NZHC 2566
BETWEEN ALIMINA HEWITT Appellant
ANDHOUSING NEW ZEALAND CORPORATION
Respondent
Hearing: 10 September 2012
Appearances: Appellant in person
E M FitzHerbert for Respondent
Judgment: 4 October 2012
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 4 October 2012 at 12:00 noon
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
Solicitors: Meredith Connell, P O Box 2213, Auckland 1141
Fax: (09) 336-7629 – E FitzHerbert
Copy to: A Hewitt, 2149A Great North Road, Avondale, Auckland 0600
HEWITT V HOUSING NZ CORPORATION HC AK CRI-2012-404-000198 [4 October 2012]
[1] In November 2011 the appellant Alimina Hewitt pleaded guilty to one charge of using a document to obtain a pecuniary advantage contrary to ss 228(b) and 229A of the Crimes Act 1961. At the relevant time Ms Hewitt occupied a Housing New Zealand Corporation (the Housing Corporation) house in Firth Crescent, Otara. The charge arose from her failure to disclose her income and her interest in another property after the Housing Corporation introduced income-related rent (IRR) in
2000.
[2] Judge Strettell imposed a sentence of five months home detention.[1] Ms Hewitt appeals the sentence on the basis that the sentence was manifestly excessive having regard to her personal circumstances.
[1] The Judge also imposed an additional three weeks’ home detention as remittance for existing court
fines, but Ms Hewitt does not appeal against this aspect of the sentence.
[3] Ms Hewitt appeared in person in support of the appeal. She provided a number of documents relating to her personal circumstances and spoke at length about the background to her conviction, without objection from Ms FitzHerbert, who appeared for the Housing Corporation. I note that the matters Ms Hewitt explained were largely covered in material that had been placed before the sentencing Judge.
Nature of offending
[4] The summary of facts does not adequately convey Ms Hewitt’s association with the house in Firth Crescent, Otara. It refers to her having resided at the property between 23 December 2008 until early 2011 and to applications for income- related rent that Ms Hewitt signed every year between 2002 and 2010. However, Ms Hewitt had actually lived in the house for nearly 40 years.
[5] The house was originally tenanted by Ms Hewitt’s paternal grandmother and Ms Hewitt lived there with her grandmother from the age of nine (she is now 49). It is evident from letters, not only from Ms Hewitt herself but also from her siblings, children and nieces, that the whole family felt a very strong bond to Ms Hewitt’s grandmother and to this house which seems to have functioned very much as the family home for the extended family. Ms Hewitt had hoped to purchase the house
from the Housing Corporation. At the time, however, the Housing Corporation was
not making houses available to tenants for purchase. In 1999 Ms Hewitt purchased a house in Avondale which was tenanted from time to time while she continued to occupy the property at Firth Crescent.
[6] In 2000 the Housing Corporation introduced IRR.[2] Housing Corporation tenants were required to disclose their assets and income for the purposes of calculating the correct IRR. Between 2002 and 2007 Ms Hewitt worked full-time, initially as a community health worker and later running her own cleaning business. She signed applications for IRR that did not disclose her income from this work. The result was a debt of $52,704.00 to the Housing Corporation.
[2] Part 5 of the Housing Restructuring and Tenancy Matters Act 1992.
[7] Ms Hewitt maintained (both before me and in documents made available at the sentencing) that she had not fully understood the changes relating to IRR. It appears that her confusion was genuine and the Judge accepted that the debt was accumulated during a period when Ms Hewitt’s understanding of her obligations under the IRR regime were unclear.
[8] In 2008 a Housing Corporation investigator interviewed Ms Hewitt. She claims that it was agreed that there would be no prosecution provided she began repaying the debt and that she would not be required to leave the house. Ms Hewitt did not, however, make the repayments. Personal circumstances overtook her, including the deaths of three family members within a relatively short period. Eventually she approached the Housing Corporation with a view to beginning the repayments. However, the arrangement with the previous investigator had not been documented and a fresh investigation was commenced. It was then that her acquisition of the other house was discovered and a prosecution commenced.
[9] I note that, although the arrangement that was made with the first investigator was not documented, the Housing Corporation does not challenge Ms Hewitt’s account of it. Further, between 2007 and 2011 no additional pecuniary advantage accrued to Ms Hewitt because the first investigator had increased the rent on Firth Crescent to a market rent. The advantage to her was solely the fact that she continued to occupy Firth Crescent.
The sentencing Judge’s approach
[10] Regrettably, the sentencing was not recorded and in July 2012 (presumably for the purposes of this appeal) the Judge prepared a memorandum regarding the sentencing. There is no indication in the memorandum as to the basis on which it was prepared, though counsel had provided written submissions at the time and it seems likely that the Judge used these as a basis for the memorandum. The memorandum accords with the notes that counsel for the Housing Corporation made at sentencing.
[11] In reconstructing the reasons for the sentence the Judge said:[3]
[3] Housing New Zealand Corporation v Hewitt DC Manukau CRI-2010-092-019362, 2 July 2012.
[5] … I had indicated to counsel that it appeared to me that a term of home detention or possibly community detention was an outcome …
[7] In sentencing I considered the offence to be of a moderately serious type having regard to the sum involved, the number of occasions upon which Ms Hewitt was obliged to submit application forms to the Corporation and thus the opportunity to reconsider her position and the period of offending over eight years was also an aggravating feature.
[8] Having heard from counsel, I have concluded that Ms Hewitt did not necessarily understand the seriousness of her position, was remorseful and had pleaded guilty be it not at the first opportunity.
[9] Bearing in mind the relevant authorities Hogan v Ministry of Social Development HC Napier CRI-2005-441-24, 8 July 2005 and Beedell v Ministry of Social Development HC Wanganui CRI-2010-483-9, 11 February
2010, that a starting point was between 16 and 18 months imprisonment. I did not consider the aggravating features required an uplift nor did I consider that the previous history of Ms Hewitt required an uplift. I considered that in mitigation that Ms Hewitt had pleaded guilty although belatedly, but to a more limited number of charges, that she had not fully understood the enormity of her position and that while the matters were certainly deliberate and not spur of the moment, Ms Hewitt nevertheless did not comprehend the full enormity of her offending or its seriousness.
[10] From a starting point of the lower of the range of 16 months I deducted 25 per cent and then took into account her further personal circumstances, her preparedness to meet reparation, her commitment to her family and the impact of her personal circumstances and reduced the end sentence to one of ten months imprisonment.
[11] I considered, bearing in mind her support both within her family and the community, her current attitude to offending, including her remorse and in particular her commitment to her mother, that a home detention sentence of five months upheld the need for accountability and addressed
denunciation and deterrence both generally and specifically and imposed that sentence.
[12] It is evident that the Judge took a starting point of 16 months imprisonment, made a 25 per cent discount to reflect the guilty plea and then made a further reduction to reflect the mitigating factors and personal circumstances. The end sentence suggests that the total discount was about 38 per cent, with 25 per cent allocated to the guilty plea and 13 per cent to the mitigating factors and personal circumstances. That would have brought the sentence to 10 months and on that basis that Judge imposed a term of five months’ home detention.
[13] Although the Judge’s approach did not reflect the accepted approach which involves deduction for the guilty plea as the last step,[4] that fact would not justify my interfering with the sentence unless it was manifestly excessive.
Appeal
[4] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[14] Although the Judge’s sentencing memorandum states that no pre-sentence report was available,[5] counsel for the Housing Corporation advised that a full pre- sentence report was, in fact, provided. In the report the Probation Service records Ms Hewitt’s personal circumstances, including her claim to have been told by the earlier Housing Corporation investigator that if she paid reparation for the rent owing then nothing would happen. The report also refers to Ms Hewitt’s remorse and assesses her as being a low risk of re-offending. The recommendation was for home detention together with a sentence of community work.
[5] At [5].
[15] Ms Hewitt submitted that five months’ home detention was too long and believes that she should, in fact, have been discharged without conviction. She expressed concern at the fact that her counsel had not made an application for a discharge without conviction even though she had understood that that would be done. However, given the nature of the offending, the amount involved and the fact that Ms Hewitt has previous (albeit relatively old) convictions, there was no realistic prospect of such an application succeeding.
[16] Ms Hewitt’s counsel did, however, draw to the sentencing Judge’s attention the mitigating factors that were relevant to sentence. These included Ms Hewitt’s strong remorse, her significant family responsibilities, her financial difficulties, her contribution to the community and her own struggle with depression.
[17] Given the Judge’s acceptance that Ms Hewitt was genuinely confused regarding aspects of her tenancy, the fact that she had sought (albeit belatedly) to begin repayments, her considerable remorse and her personal circumstances, a discount of 25-30 per cent for those factors would not have been excessive. Sixteen per cent was well below the appropriate range. However, that end sentence was not manifestly excessive because the discount given for Ms Hewitt’s guilty plea was very generous; the plea was not entered until shortly before the defended hearing and the Judge would have been entitled to give a lower level of recognition to the plea. While another Judge may have given a greater discount it could not be said that the total discount given was outside the available range.
[18] Further, the end sentence is consistent with other similar cases, particularly Hogan v Ministry of Social Development[6] and Beedell v Ministry of Social Development.[7] Hogan involved five appeals against sentences of between four and nine months’ imprisonment imposed in respect of frauds involving varying amounts between $22,766 and $48,586. All of the appeals were dismissed. In the case of Beedell, fraud leading to an overpayment of $42,522.57 gave rise to a sentence of
five months’ home detention and 50 hours community service.
[6] Hogan v Ministry of Social Development (2005) 23 CRNZ 500.
[7] Beedell v Ministry of Social Development HC Wanganui CRI-2010-483-000009, 11 February 2010.
[19] I am not satisfied that the end sentence was manifestly excessive. The appeal is dismissed.
P Courtney J
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