Huirua v Ministry of Social Development
[2013] NZHC 2785
•23 October 2013
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2013-441-0020 [2013] NZHC 2785
BETWEEN EMMARINA HUIRUA Appellant
ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 23 October 2013
Counsel: S J Jefferson for Appellant
J Rielly for Respondent
Judgment: 23 October 2013
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, Napier
Counsel:S J Jefferson, Napier
HUIRUA v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 2785 [23 October 2013]
The appeal
[1] On 3 July 2013, Ms Huirua pleaded guilty to 12 charges of using a document to obtain a pecuniary advantage and one of using an altered document for the same purpose. The purpose for which the documents were used was to commit what is commonly known as “benefit fraud”.
[2] Ms Huirua was sentenced on 30 August 2013, in the District Court at Napier. Judge Adeane imposed a term of imprisonment of one year and four months.1 The Judge considered that the relevant sentencing goals required a term of imprisonment to be imposed rather than one of home detention.
[3] Ms Huirua appeals against the sentence imposed. On her behalf, Mr Jefferson submits that a sentence of home detention ought to have been imposed in order to ensure the least restrictive outcome occurred. In order to succeed on appeal, Ms Huirua must persuade me that the District Court Judge made an error when sentencing and that a different sentence should have been imposed.2
The facts
[4] On 21 May 2007, Ms Huirua sought and obtained a domestic purposes benefit, effective from 15 May 2007. She advised that she and her former partner had separated in 2004 and that he had not provided financial assistance since April
2007.
[5] In addition to the initial application form, Ms Huirua falsely completed no less than 11 forms designed to establish her eligibility to receive State welfare benefits. On each of those occasions Ms Huirua declared either that she was not living with a partner, or that she was single. On occasion she declared that she was not in full-time employment, even though she was.
[6] On those false premises, benefits continued to be paid until the domestic purposes benefit was cancelled on 27 June 2011. On one occasion, Ms Huirua
1 Ministry of Social Development v Huirua DC Napier CRI-2013-041-779, 30 August 2013 at paras [5] and [6].
2 Criminal Procedure Act 2011, s 250(2).
presented an altered tenancy agreement for a residential address in Napier. That was done on 7 June 2011. The document was presented to an official within the Ministry of Social Development. It showed Ms Huirua as the sole tenant, whereas she and her “former” partner were named as tenants on the true version.
[7] As a result of information received, the Ministry undertook inquiries. It established that Ms Huirua was living with her partner from the time she made her initial application until the domestic purposes benefit was cancelled. In the period between 15 May 2007 and 26 June 2011, Ms Huirua received benefits to which she was not entitled, totalling $53,172.99.
[8] While acknowledging that she was aware of her obligations at the time that she made her declarations, Ms Huirua sought to excuse her actions because she and her partner were having “money issues” and she had a “gambling problem”.
[9] Ms Huirua had previously appeared before the Court. Most relevantly, in July 2003 when she was sentenced to 175 hours community work on a similar charge of benefit fraud. As in this case, the offending included the concealment of a relationship in the nature of marriage. On that occasion, the benefit to which she was not entitled, totalled $15,892.16. Accordingly, the Judge was faced with a situation in which about four years after her earlier conviction Ms Huirua was prepared to offend in the same way for a period of another four years.
Sentencing in the District Court
[10] After referring to the nature of the charges and the maximum penalties prescribed for each of them, Judge Adeane considered the circumstances in which the offending occurred. The Judge did not accept Ms Huirua’s explanation that the offending resulted from gambling and alcohol abuse. Judge Adeane said:3
[2] ... It seems to me that these are not offences committed out of any need but rather out of greed and self-indulgence, whether it was a profitable self-indulgence materially is a little bit beside the point. This lady had a full- time job and also had a full-time benefit to which she was not entitled. At 47 years of age, she is old enough to take responsibilities for her actions. She
has two dependent children with her partner. The dominating aggravating feature in my mind is that in 2004, Ms Huirua was previously convicted of benefit fraud involving the sum of $16,000 which would have appeared rather greater in the scheme of things then than it does today. But nevertheless, she is someone who has now twice been convicted of dishonestly stealing funds from the community when she was not entitled to them.
[11] The Judge then considered relevant authorities, referring, in chronological sequence, to Faiers v Police,4 Hogan v Ministry of Social Development5 and Ransom v R.6 He continued:
[3] ... The question today is to what extent can personal compete with the needs of deterrence and denunciation for repeat benefit fraudsters. The answer, in my view, is significantly less than the degree to which her personal circumstances must have been relevant in 2004. Ransom reminds us that a nuanced approach to benefit fraud is necessary. There was no question of a prior conviction for like offending in Ransom. Nor were the collection of cases cited as Hogan involving defendants who have previously committed benefit fraud and of course, the rationale in the Full Court in Hogan is underpinned by the fact that every sentence in that case was ameliorated by the availability of home detention reserved to the sentenced prisoners. The short point in Hogan of course, is that the availability of starting points of imprisonment for benefit fraud were endorsed in each case. So far as Faiers is concerned, it dates back to 1989 and much water has gone under the bridge since that time but the words of Anderson J still resonate:
If the judicial response were to impose periodic detention or community care or some other community based sentence after years of fraud, there would be an incentive on the part of some people to commit the fraud because the financial gains were so favourably disproportionate to the price that has to be paid.
[12] Judge Adeane took the view that the duration and extent of the offending justified a starting point in the order of 18 months imprisonment. That was uplifted by four months to mark the earlier offending. From a period of one year 10 months imprisonment, a full credit of 25% was allowed for the early guilty pleas. The end
sentence imposed was one of one year four months imprisonment.7 As to the
possibility of imposing home detention, Judge Adeane said:
[6] The question whether home detention would adequately meet the circumstances in my view, is met by the earlier assessment of personal circumstances, their place in the case and the needs for denunciation and
4 Faiers v Police (1989) 5 CRNZ 186 (HC).
5 Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC).
6 Ransom v R [2010] NZCA 390.
deterrence. Home detention would not suitably meet these objectives in my view in the circumstances of this case.
Analysis
[13] No complaint is or could be made about the length of the sentence of imprisonment if that were the right sentencing option. The question is whether home detention should have been imposed to ensure the least restrictive outcome eventuated.
[14] In this regard, Ransom has importance. I am aware that Ransom has been seen by some District Court Judges as signalling a more lenient approach towards sentencing for benefit fraud. That was not its purpose. As the author of the Court’s judgment in that case, I can say that the Court was making the point that it was necessary to consider, in each individual case, whether home detention or imprisonment was the appropriate sentencing outcome. The Court of Appeal said that that required “a more detailed and nuanced analysis than had been undertaken in the District Court in that case”. In other words, an individualised approach is required as opposed to one that tended to treat imprisonment as a presumptive option.
[15] In my view, Judge Adeane properly applied Ransom. He reminded himself that a more “nuanced” approach was necessary. There is no reason to believe that the Judge did not genuinely consider home detention as an option. Rather, he considered that the prior offending, coupled with the nature of the misrepresentations made in respect of the offending with which he was dealing, the amount of money illegally obtained and the duration of the offending meant that relevant sentencing goals could not be achieved in the absence of a sentence of imprisonment. I take those relevant goals to be the need to hold the offender accountable for the harm done to the community, the need to denounce the conduct in which the offender was involved, the need to deter the offender and others from committing the same or similar offences and the need to protect the community from a recidivist offender such as Ms Huirua.
[16] In my view, the Judge was correct to take that view. If it were necessary, support for that approach can be found in an earlier judgment of the Court of Appeal in R v D(CA253/2008),8 a decision to which Randsom expressly refers. In that case, in the context of whether it was appropriate to impose imprisonment or home detention as a sentencing response on a case involving domestic violence, the Court of Appeal said:
[61] In each case it will be necessary to make an assessment of whether a sentence of imprisonment is required to meet the sentencing goals identified in s 16(2)(a). The relevant sentencing purposes listed in that provision are set out in s 7 of the Act:
7 Purposes of sentencing or otherwise dealing with offenders
(1) The purposes for which a court may sentence or otherwise deal with an offender are—
(a) to hold the offender accountable for harm done to the victim and the community by the offending; or
(b) to promote in the offender a sense of responsibility for, and an acknowledgement of, that harm; or
(c) to provide for the interests of the victim of the offence; or
…
(e) to denounce the conduct in which the offender was involved; or
(f) to deter the offender or other persons from committing the same or a similar offence; or
(g) to protect the community from the offender; or
…
[62] Section 16 also requires the Court to satisfy itself that no other sentence would be consistent with the application of the principles set out in s 8 of the Act; for present purposes, the most important of which is the need to impose the least restrictive outcome, having regard to the hierarchy of sentences set out in s 10A(2): s 8(g).
[63] Section 7(1)(d) and (h) of the Act (to which reference is not made in s 16) refer to the need to provide reparation for harm done by the offending or to assist in rehabilitation and reintegration. Ordinarily, where rehabilitation and reintegration is the primary sentencing objective, a community-based sentence will be imposed.
...
[66] In a case like this, the sentencing Judge is required to form a judgment on whether imprisonment is necessary or home detention can respond adequately to the seriousness of the offending. The closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other. In such cases, the view of a sentencing Judge from the jurisdiction in which crimes of the type in issue are frequently tried assumes greater weight. He or she will be in a much better position than an appellate Court to determine which type of offending falls on one side of the line or another. The broader the base of similar offending a particular Judge sees, the more likely it is that the chosen sentencing response will be appropriate.
[17] A similar approach is now being taken in respect to appeals from decisions in which home detention is declined as a sentencing option. An illustration is Fraser v R,9 a decision to which Mrs Rielly, for the Ministry, referred me. In particular, on that occasion, Wild J, for the Court said:
[20] As this Court has previously pointed out, an appeal against a Judge's refusal to impose home detention rather than a short-term sentence of imprisonment is an appeal against the exercise of a “fettered discretion” — a discretion constrained by the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act 2002. There is nothing in the Sentencing Act suggesting a presumption for or against imposing home detention rather than imprisonment, only the sentencing principle that the Court must impose the least restrictive outcome appropriate in the circumstances. Further, this Court has made it clear that an appeal against a refusal to grant home detention is not an opportunity to review or revisit the merits. What the appellant must do is demonstrate an error by the Judge in exercising his sentencing discretion.
(footnotes omitted)
Result
[18] I am not satisfied that the District Court Judge made any error in imposing a term of imprisonment. That being so, the appeal is dismissed.
P R Heath J
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