Igal v Ministry of Social Development HC Wellington CRI 2010-485-114
[2010] NZHC 2078
•17 November 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2010-485-114
BETWEEN FARHIYO ELMI IGAL Appellant
ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 16 November 2010
Counsel: Mr Hay for Appellant
Ms Murdoch for Respondent
Judgment: 17 November 2010 at 2.30 pm
JUDGMENT OF MALLON J
Introduction
[1] Ms Igal appeals against a sentence of 13 months’ imprisonment imposed in the District Court on various charges involving benefit dishonesty. The appeal is on the ground that the Judge erred in deciding against a sentence of home detention. An alternative appeal ground that the 13 month sentence was manifestly excessive has been abandoned.
Background
[2] Ms Igal is a refugee from Somalia. In 1992, when she was 12, she was separated from her family as a result of the civil war in Somalia and adopted by a
cousin. She was sponsored into New Zealand in 1993 by an uncle. She was
IGAL V MINISTRY OF SOCIAL DEVELOPMENT HC WN CRI-2010-485-114 17 November 2010
subsequently granted residency and then citizenship. In 1996 she learned that members of her biological family were still alive and living in Somalia.
[3] In 2001 Ms Igal left New Zealand and re-entered presenting as a refugee with a different name and date of birth and without any travel or other identification documents. She was granted refugee status in 2002 on the basis of false details she had supplied. In 2006 she submitted a residence application using her false identity, for herself and her 9 brothers and sisters (as her dependents). Ms Igal’s actions were intended to secure entry into New Zealand for her brothers and sisters as she understood that, because of her adoption, she had severed her links with her biological family for the purposes of being able to sponsor them into New Zealand.
[4] When the immigration authorities discovered that Ms Igal had been using a false identity she was charged with a number of offences. The charges were for using a document (x1), supplying false information to an immigration officer (x2) and attempting to assist the unlawful entry of others into New Zealand (x 9). Ms Igal pleaded guilty to these charges and in 2009 was sentenced to 5 months’ home detention and 150 hours’ community work.
[5] Subsequently it was discovered that Ms Igal had been using her false identity to claim various benefits. It was also discovered that, for periods when she had been receiving the unemployment benefit at the full rate under her legal name, she had periods of employment which she had not disclosed. Ms Igal faced further charges as follows: dishonestly using a document (x 1); obtaining by deception (x 3); using a document (x 1); wilful omission (x4).
[6] The first four of these charges relate to claiming various benefits over the period from 1 October 2001 to 31 March 2009. The fifth charge relates to applying for a sickness benefit under her legal name for the period 17 August 2007 to
16 March 2009 while also receiving the unemployment benefit under her false name. The four wilful omission charges relate to failing to disclose periods of employment while receiving a benefit under her legal name over various periods beginning in August 2000 and ending in March 2009.
[7] Ms Igal pleaded guilty to these further charges. She was sentenced in the District Court on 14 September 2010. The summary of facts that was before the District Court Judge on sentencing stated that as a result of the offending covered by the charges Ms Igal had received an overpayment of $106,232.81. She was sentenced on this basis. To some extent that sum overstated the amount received by Ms Igal that she was not entitled to. That is in part because, in relation to the wilful omission charges, it includes charges for two periods of employment which were withdrawn. It is also because it seems that Ms Igal was probably entitled to the benefits she claimed as a student had she applied for them in her own name. Mr Hay’s rough estimate is that for these reasons the amount may be overstated by around $8000.
District Court sentence
[8] The District Court Judge adopted a starting point for all the charges before him, considered together, of two and half years’ imprisonment. This was discounted by one year because of Ms Igal’s unusual and difficult personal circumstances as a Somalian refugee and with her family left back in Somalia. He then applied a 25% reduction for Ms Igal’s guilty plea (it being entered within a reasonable time). This resulted in an end point of 13 months’ imprisonment.
[9] The Judge then turned to consider whether a sentence of home detention would be appropriate. In considering this, the Judge turned first to consider the sentencing remarks of the Judge who sentenced Ms Igal on the earlier charges relating to Ms Igal’s re-entry into New Zealand under a false name (refer [4] above). The Judge then said:
[33] [The Judge sentencing on the immigration charges] noted that your offending was for no financial gain whatsoever but designed to reunify your family. That is rather an ironic statement given what we now know was going on in the background.
[34] When it comes to home detention, the benefit fraud must be seen in the context with this other offending and endeavouring to assist your family and support them and using an identification that you had gained in that way. But I see the offending as quite different. Although there was pressure on you to send money, the decision for you to apply for benefits falsely over a long period of time and gain a substantial sum of money was your decision, your decision alone and you continued to do that when you had passed the
point where naivety or stupidity was an explanation. You could have sent them money that you legally earned or received but you chose to defraud the community and send the money to your family.
[35] To achieve that there was a prolonged deceit on your part and false representations made. Notwithstanding the natural sympathy that anyone would have for your situation, in my view the deterrent penalty in this case that is required to stop you and others tempted to behave in this way of obtaining false identification and claiming benefits and claiming that you were not working, justifies and requires, in my view, a prison sentence.
[36] Judge Davidson’s remarks [on the sentencing on the immigration offending] must be contrasted to what we now know about the extent of your deceit and the fact that you were prepared to branch off into another area of deceit which of course is the subject of these charges.
[37] You may have been naive and desperate at the beginning, when you were 20 years of age but by the time at 28 years of age, this was not naivety but simply deceit. In my view the need to denounce this offending and deter others must result in the following sentences.
[10] He then sentenced Ms Igal to 13 months’ imprisonment.
Consideration of appeal
[11] For Ms Igal it is submitted that the Judge acted on a wrong principle because, contrary to the Court of Appeal’s comments in Ransom v R,1 he ruled out a sentence of home detention on the basis that Ms Igal’s offending was over a long period and involved a substantial sum of money. Counsel for Ms Igal submits that the Judge failed to have regard to Ms Igal’s personal circumstances when those circumstances supported home detention as the appropriate sentence.
[12] The respondent says that there was no error of principle because it is clear from the Judge’s remarks that he was alive to the possibility that home detention was an option. The respondent says that it is also clear that the Judge was aware of Ms Igal’s personal circumstances but decided that, in view of the seriousness of the offending, imprisonment was the appropriate response.
[13] A review of some of the cases which have involved benefit fraud (as provided by the respondent to the District Court Judge) indicate that benefit fraud
1 Ransom v R [2010] NZCA 390 at [41].
may sometimes result in a sentence of imprisonment2 and sometimes a sentence of home detention (or leave to apply for home detention in the period before home detention became a stand-alone sentence).3 In general terms, these cases indicate that the longer the period of the offending and the greater the amount involved, the more likely it is that the sentence will be imprisonment rather than home detention. This reflects the general point that the more serious the offending, absent circumstances relating to the offender which bring to the fore other sentencing considerations, the more likely it is that general deterrence will indicate imprisonment as appropriate.4 But there are cases where comparatively large amounts have been taken over a lengthy period and home detention has been imposed, as was the case in Ransom v R.
[14] In this case it was relevant that the offending occurred over a long period and involved a not insignificant amount of money. Also relevant was Ms Igal’s personal circumstances. The Distict Court Judge who sentenced her for the immigration offending accepted that Ms Igal, as the eldest daughter of her biological parents, was “placed under immense family, psychological and cultural pressure to secure family unity and a place of safety for [her] brothers and sisters” and that he had no doubt that Ms Igal had acted “out of real and genuine concern for [her] biological family”. This was indicated by the risk to Ms Igal when she “effectively downgraded [her] immigration status” by leaving New Zealand and seeking re-entry as a refugee.
[15] As Ms Igal’s counsel submitted, the benefit fraud was to some extent part and parcel of the immigration offending. In an affidavit submitted to the District Court Judge in relation to that offending, and again relied on when Ms Igal was sentenced on the benefit charges, Ms Igal said this:
[14] That through our communications, I was placed under immense pressure and obligation to provide financial and emotional support. My
2 Davey v MSD HC Palmerston North CRI-2009-454-41, 14 December 2009; Richardson v MSD
HC Napier CRI-2009-441-47, 4 February 2010; Matiu v MSD HC Rotorua CRI-2010-470-20,
27 May 2010; Harris v MSD HC Rotorua CRI-2010-463-000022, 28 May 2010.
3 Hogan v MSD (2005) 23 CRNZ 500; Werahiko v MSD HC Rotorua CRI-2008-463-55,
5 September 2008; Beedell v MSD HC Whanganui CRI-2010-483-000009, 11 February 2010; Ransom v R [2010] NZCA 390; see also R v Beech CA314/01, 6 December 2001, R v Batt CA27/01, 31 May 2001 and Cairncruss v The Department of Work & Income New Zealand CRI-
2006-483-25-26.
4 Bargh v Police HC Wellington CRI-2007-485-134, 17 December 2007 at [11].
parents manipulated me by telling me that other families in their region were receiving financial support from offshore family members including family members in New Zealand.
[15] That I increasingly felt guilt about their living situation and hardships. I was worried also about my father’s health problems.
[16] That during 1999, I started my first job in an attempt to earn money to send to my family. During 2000, my financial support enabled my family to move from Somalia to Ethiopia where it was safer for them.
[17] That I consistently sent money to my family despite having little money myself. There was no opportunity to make my parents understand that I had little money myself and that life in New Zealand was hard.
...
[23] That during 2006 I lodged an application to sponsor my biological family to New Zealand under my new identity, while continuing to provide them with financial support.
[24] That throughout this period, I became increasingly aware of the enormity of what I had done, and became burdened with shame and stress, which caused weight loss, health problems and reoccurring nightmares but I believed that I would jeopardise my family’s chances of coming to New Zealand if I were to reveal to anyone what I had done.
...
[26] That due to my inability to continue to support my family financially, they have separated and currently live in different villages with different family members and friends. My siblings are no longer attending school and my father continuously suffers health problems.
[16] The District Court Judge seems to have taken the view that Ms Igal was treated leniently in relation to the immigration charges because it was not then known that she had been using the false identity to claim benefits to which she was not entitled to (refer [33] of his sentencing remarks). The Judge accepted there was pressure on Ms Igal to support her family but he seems not to have regarded that as mitigating and relevant to the appropriateness of home detention. This was even though he had regarded it as mitigating when setting the length of the sentence. As
was said in R v Hill5 mitigating circumstances taken into account in determining the
term of a sentence will also be relevant to the question of whether home detention should be ordered. As well as the pressure on Ms Igal to support her family, it does
5 R v Hill [2008] 2 NZLR 381 (CA) at [36].
not appear that the Judge considered that, having assumed a false identity for the purposes of bringing her family into New Zealand, Ms Igal then may have felt the need to maintain that false identity (and so claim the benefits that would be available to someone in the position she claimed to be in). The pressures on Ms Igal were not those that many New Zealanders would ordinarily face. The need for a strong deterrent sentence by way of imprisonment rather than home detention was to some degree lessened by this.
[17] The Judge commented that a deterrent penalty was required to “stop you and others tempted to behave in this way”. In saying this the Judge seems not to have taken into account that Ms Igal is reported to have been compliant with, and to have successfully completed, her previous sentence of home detention and community work (which was part of a course of conduct arising from essentially the same circumstances) and that the probation officer assessed Ms Igal as having a low risk of reoffending. These factors also point in favour of a sentence of home detention rather than imprisonment.
Conclusion
[18] I consider that the sentence of imprisonment was imposed in error. Home detention was the appropriate response when all the circumstances were taken into account. I consider that a period of community work added to this would also have been appropriate as a way of contributing something back to the community (in addition to the $30 per week that Ms Igal is required to pay the respondent). I do not view Ms Igal’s study commitments as precluding this despite this suggestion from the probation officer. Ms Igal’s counsel agrees that community work coupled with home detention would be appropriate.
[19] At the District Court sentencing, the probation report indicated that Ms Igal had a suitable address for home detention. Assuming that is still the case, and also assuming that Ms Igal has been in custody since the sentencing on 14 September
2010, I would quash the imprisonment sentence and replace it with a sentence of home detention of 6 months together with 100 hours’ of community work. I ask that
counsel confirm that these two assumptions are correct, in which case I will confirm that sentence. The file does not include recommended conditions for a home detention sentence. The standard conditions would apply.
[20] Finally, I note that had the immigration offending and the benefit fraud been dealt with together, the earlier sentence that Ms Igal received (5 months’ home detention plus 150 hours’ community work) together with the sentence of 6 months’ home detention and a further 100 hours’ community work are a deterrent sentence which appropriately reflects the totality of Ms Igal’s offending.
Mallon J
Solicitors:
Michael J Hay, Wellington for Appellant, [email protected]
Crown Solicitors, Wellington for Respondent
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