Kepa v Ministry of Social Development

[2016] NZHC 2997

IN THE HIGH COURT OF NEW ZEALAND

WHANGAREI REGISTRY

CRI-2016-488-53

[2016] NZHC 2997

BETWEEN

WIRAHA ARAMA KARAKAPI KEPA

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:	12 December 2016
Appearances:	L Smith on behalf of J Moroney for the Appellant H Wall for the Respondent
Judgment:	12 December 2016

ORAL JUDGMENT OF EDWARDS J

Solicitors:           Crown Solicitors, Whangarei

Thode Utting, Albany, Auckland

KEPA v MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 2997 [12 December 2016]

Introduction

[1]  Mr Kepa pleaded guilty to six charges of dishonestly using a document, and   two charges of obtaining by deception. He appeared for sentence in the District Court at Whangarei on 26 October 2016, where he was sentenced to six months’ imprisonment on all charges, and subject to standard and special release conditions. Mr Kepa appeals his sentence on the basis that it was manifestly excessive.

The Offending

[1]The charges arise out of events between 2009 and 2014.

[2]        On 9 September 2009, Mr Kepa and his then-partner, Ms Snowden, applied for and were granted a joint sickness benefit, accommodation supplement, disability allowance and temporary additional support. Mr Kepa agreed to inform the Ministry of Social Development (Ministry) if he gained employment at any stage in the future.

[3]        On 5 October 2009, Mr Kepa commenced working for McCully Farms Ltd and on 1 November 2009, he commenced working for Wallace Investments Ltd. He continued working for those two companies until 5 April 2012 and 4 June 2014, respectively. Mr Kepa did not advise the Ministry that his employment status had changed. This omission gives rise to the two charges of obtaining by deception.

[4]        Between 2010 and 2012, Mr Kepa made six other applications to the Ministry. In each case, he stated that he was unemployed. These applications give rise to the six charges of dishonestly using a document.

[5]As a result of his offending, Mr Kepa obtained an overpayment of $8,596.47.

[6]        His former partner, Ms Snowden, was also charged. She pleaded guilty and was sentenced on three charges of obtaining by deception and seven charges of dishonestly using a document. The total overpayment to Ms Snowden was

$35,329.17. She had ten previous convictions for similar offending between 1991 and 2002. Ms Snowden received a final sentence of five months’ home detention.

Personal circumstances

[7]        Mr Kepa’s criminal history comprises a number of convictions going back a number of years, although the majority of his convictions are now historic. He has convictions from 2011  but prior to that, his most recent conviction was in 2003.    Mr Kepa does not have any previous convictions for this type of offending.

Pre-sentence report

[8]        The pre-sentence report noted Mr Kepa had an attitude of entitlement. He is recorded as saying that he only pleaded guilty when a deal was completed reducing the amount owing, and that if he was expected to pay the money back, it would have to be by completing community work hours. Mr Kepa showed no remorse for his offending commenting that “the system is already ripping us off”.

[9]        Mr Kepa’s risk of reoffending was considered low, and risk of harm to others was also assessed as low. He was assessed as suitable to complete a community based sentence, but the report notes that he refused to consent to an electronically monitored sentence. Ms Smith, for Mr Kepa, today explains that Mr Kepa did not have a suitable address available to him for the imposition of an electronically-monitored sentence and that is the context in which he made those remarks to the report writer.

[10]      Nevertheless, because of these remarks, and his attitude, a sentence of imprisonment was recommended with release conditions to complete a department programme.

District Court judgment

[11]      In sentencing Mr Kepa, Judge McDonald placed emphasis upon the need to hold Mr Kepa accountable for his actions and to deter future offending of a similar nature. He noted that he was required to impose the least restrictive sentence that was appropriate in the circumstances and that it was necessary to provide for Mr Kepa’s rehabilitation.

[12]      The Judge referred to a number of relevant sentencing authorities and adopted a starting point of eight months’ imprisonment. He acknowledged Mr Kepa’s previous

convictions but did not impose any uplift. The Judge gave a 10 per cent discount in “mitigation” but did not further specify the reason for that reduction. Finally, the Judge gave a discount of 10 per cent to reflect Mr Kepa’s guilty plea, which came on the first day of a three day Judge-alone trial. This resulted in a presumptive end sentence of six months’ imprisonment.

[13]      Judge McDonald acknowledged the Ministry’s submission that community work would be an appropriate sentence for Mr Kepa. However, in his view there was no justification to “come down three rungs in the ladder” of sentencing options. Mr Kepa had refused to consent to home detention. As already noted, that was disputed by Mr Kepa. He apparently stated that he was unable to serve an electronically- monitored sentence at the particular proposed address. The Judge found that there was no option but to impose a sentence of six months’ imprisonment.

Grounds of appeal

[14]      Mr Kepa appeals on the basis that the sentence imposed by Judge McDonald was manifestly excessive and that there were a number of errors in the sentence imposed.

[15]      Mr Kepa says that when setting  the  starting  point,  the  Judge  dealt  with Mr Kepa as though he had been jointly charged with Ms Snowden, rather than dealing with his culpability on the basis of the discrete charges to which he had pleaded guilty. Counsel for Mr Kepa also submits that Mr Kepa has no previous dishonesty offending and had received payments of almost a quarter that of Ms Snowden.

[16]      Finally, Mr Kepa says that the Judge did not adequately consider the appropriateness or otherwise of an electronically-monitored or community-based sentence or Mr Kepa’s personal mitigating circumstances.

[17]      Counsel for Mr Kepa submits that, taking into account the relevant authorities and Mr Kepa’s personal circumstances, a sentence of at least 200 hours’ community work would meet the purposes and principles of sentencing. That is in line with what the prosecution had originally sought before Judge McDonald.

[18]      In reply, counsel for the respondent submits that the sentence of six months’ imprisonment was neither unlawful, nor manifestly excessive. Mr Wall submits that the Judge was simply exercising a discretion and there was no error in that approach. Mr Wall submits there is no jurisdiction to disturb the end sentence.

Approach to appeal

[19]      Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[20]      In any other case, the Court must dismiss the appeal.1 An appeal court will not intervene unless there is a material error, and if so, the appeal court will then go on to form its own view of an appropriate sentence.2 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.3

Analysis

[21]      The approach to benefit fraud sentencing was set out in Hogan v Ministry of Social Development as follows4 :

[12] … The tests or approaches to be adopted for sentencing fraud in circumstances such as these should be no different to that adopted in respect of other fraud cases. The starting point has to be the nature of the crime, its seriousness, the amount obtained over what period, other aggravating features, personal circumstances of the offender and all those matters which are set out as being required to be taken into account pursuant to s 8. They must then be viewed as in the context of the s 7 purposes which may be relevant to the offending and a judgment reached by the sentencing Judge based upon a combination of all those matters which are regarded as relevant to the individual case, The prohibition of imposing sentence of imprisonment contained in s 16 must be kept in mind although in the end if the relevant

1      Criminal Procedure Act 2011, s 250(3).

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

3      Ripia v R [2011] NZCA 101 at [15].

4      Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC).

purposes of sentencing cannot be achieved by a sentence other than imprisonment and no other sentence would be consistent with achieving that end after applying the s 9 considerations, then a Judge in any individual case is quite entitled to impose a term of imprisonment.

[22]      In Huddleston and Kawenga v Ministry of Social Development, the second appellant had received overpayments of $6,968.76 over the space of nearly two years.5 He was convicted on five charges and was sentenced on appeal to six weeks’ imprisonment. Lang J held that, but for the fact that the appellant had already served part of a prison sentence, he would have imposed a sentence of 200 hours’ community work.

[23]      Judge McDonald referred to Anderson v Ministry of Social Development in his sentencing notes. That case involved fraud over 13 years and overpayment of $13,745. The end sentence of 300 hours community work was upheld on appeal.

[24]      In Lauina v Ministry of Social Development, the appellants had each received overpayments totalling approximately $16,000 over two years and nine months.6 They were convicted on four and five charges respectively. On appeal, the court imposed sentences of 300 and 400 hours’ community work respectively, as well as a reparation order to repay the full sum.

[25]In Ataata v Ministry of Health, the appellant received overpayments of

$18,950.20 over four years.7 The appellant was convicted on six charges in that case. On appeal, the High Court upheld a sentence of six months’ community detention, 100 hours’ community work, 12 months’ supervision and a reparation order to repay the full sum.

[26]      In this case, Mr Kepa illegally obtained $8,596.47  over  four  years  and  nine months. There were no particularly aggravating features of the offending, nor were there any mitigating features.

5      Huddleston and Kawenga v Ministry of Social Development HC Napier CRI-2007-441-19, 20 June 2007.

6      Lauina v Ministry of Social Development [2015] NZHC 1507; Lauina v Ministry of Social Development [2015] NZHC 1937.

7      Ataata v Ministry of Health HC Auckland CRI-2010-404-479, 21 June 2011.

[27]      When those features of Mr Kepa’s offending are compared to cases involving fraud at a similar or higher level, it is clear that the final sentence of six months’ imprisonment was manifestly excessive. I also consider it to be disproportionate to the sentence his co-offender received.

[28]      I am not persuaded that the judge erred in the discounts he applied for mitigating factors. Mr Kepa showed no remorse, and an embedded attitude of entitlement to receiving benefits at the cost of the community. The Judge also took into account the appropriateness of an electronic sentence, noting that Mr Kepa had not agreed to such a sentence as set out in the pre-sentence report. I accept, having heard from Ms Smith this morning, that perhaps that arose out of a misunderstanding about the context in which Mr Kepa’s comments were made to the pre-sentence report writer.

[29]      I consider an end sentence of between 250 and 300 community work hours would have appropriately reflected the gravity of Mr Kepa’s offending. Such a sentence would be consistent with s 16(2) of the Sentencing Act 2002, the principle in s 8 which is that the court must impose the least restrictive outcome, and the principle of consistency.

[30]      Mr Kepa has already served nearly seven weeks of his sentence of imprisonment. In Huddleston and Kawenga v Ministry of Social Development, Lang J quashed a sentence of six months’ imprisonment and replaced it with a sentence of six weeks’ imprisonment as the offender had already served four weeks of his term of imprisonment in that case.8 I respectfully follow that approach, although note that the amount received was higher in this case, than in that case. A slightly longer term of imprisonment is therefore justified. The standard and special release conditions contained in the pre-sentence report which were imposed for a period of six months following release also remain appropriate to assist with rehabilitation and reintegration.

8 At [30].

Result

[31]      The appeal is allowed. The sentence of six months’ imprisonment is quashed. A sentence of eight weeks’ imprisonment is substituted. The standard and special release conditions outlined in the pre-sentence report apply, and shall continue for a period of six months after release.

Edwards J