Larkin v Ministry of Social Development

[2015] NZHC 680

IN THE HIGH COURTOF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-000004 [2015] NZHC 680

BETWEEN

MELISSA JANE LARKIN

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	30 March 2015
Appearances:	P Ross for Appellant M Mitchell for Respondent
Judgment:	13 April 2015

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 13 April 2015 at 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

LARKIN v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 680 [13 April 2015]

Summary

[1]      Melissa Larkin appeals  against a sentence of nine months’ imprisonment imposed by Judge AJ Adeane in the Napier District Court on 27 January 2015 after she pleaded guilty to eight charges of benefit fraud.1   The appellant’s offending was spread over seven years and involved her receiving approximately $27,200 worth of social welfare benefits to which she was not entitled.

[2]      The Judge  considered  a  sentence of  home detention  as  an  alternative  to imprisonment  but  the  appellant  did  not  then  have  an  address  suitable  for  that sentence.  The Judge declined to adjourn the sentencing for six weeks to enable the appellant to find one, but reserved the appellant leave under s 80I of the Sentencing Act 2002 to apply for home detention.2

[3]      The appellant argues that the Judge failed to take into account relevant considerations identified in the pre-sentence report and that the sentence imposed was manifestly excessive.

Factual background

[4]      The appellant was granted an Invalids Benefit in April 2003, which required her  to  sign  standard  forms  requiring  her  to  inform  the  Ministry  of  Social Development (“MSD”) if her living situation changed.  In March 2007, the appellant rented a flat and had her accommodation supplement reviewed and increased.  That tenancy ended on 29 September 2007.  The appellant moved in with her mother in Greenmeadows and ceased paying rent, but she did not inform MSD.  She did not inform the Ministry when she rented a separate property in Napier in November

2008 and lived there until her offending was discovered in April 2014.

[5]      During that latter period, her rent in Napier remained at $156 per week.  In forms submitted to the Ministry, and orally, the appellant claimed falsely that she was living at an address, which was in fact her mothers, and that she was paying at

first $270 and then $300 per week to live there. Through this misinformation, the

1      Ministry of Social Development v Larkin [2015] NZDC 1097.

2      Above n 1, at [3] and [4].

appellant was granted further Accommodation Supplements and obtained Temporary

Additional Support totalling $27,220.84.

[6]      The appellant is now 43 years old, and is a single mother to a 20 year old daughter and 10 year old son. She has no current employment.   At the time of sentencing the appellant had lost the tenancy on her previous rental property, was engaged with WINZ, and was also seeking accommodation through private rentals. According to the pre-sentence advice from Corrections, Ms Larkin’s son spent a significant amount of time with her father while searched for an appropriate place to live her son and daughter, the son.

Previous Convictions

[7]      The appellant has nine previous convictions, all of which are for shoplifting under $500, or receiving stolen property under $500. The most recent was in November 2012, and the next most recent from August 2010.   She has received sentences of community work and fines for the most part, apart from non-residential periodic detention sentences in 1998 and 1999.  The appellant has one conviction for breaching that sentence.

The District Court’s decision

[8]      The appellant pleaded guilty to four charges of using a document to obtain a pecuniary advantage under s 228 Crimes Act 1961, for which she was liable to a maximum sentence of seven years imprisonment.   She also pleaded guilty to two charges under s 127 Social Security Act 1964 of wilfully omitting to tell Work and Income she was no longer paying rent, and two charges under that section of making false statements.  On those charges she was liable to pay fines of up $5,000 and to

12 months’ imprisonment.

[9]      Judge Adeane considered the case was entirely on all fours with Hogan v

Ministry of Social Development3, a guideline case on benefit fraud, and other cases involving approximately $30,000 having been obtained by dishonesty over a long

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

period.  He held the offending was aggravated by the appellant’s “extensive history”

of previous criminal convictions for dishonesty.

[10]     The Judge adopted a starting point of 12 months’ imprisonment, and reduced it to nine months’ imprisonment on account of the early guilty pleas.   He fixed reparations  at  $27,193,  taking  into  account  repayments  already  made  by  the appellant at a rate of $5 per week.

Department of Corrections Provision of Advice to Courts

[11]    In the pre-sentence advice to the Court prepared by the Department of Corrections, the appellant was reported as saying she offended simply because she needed more money to live on, and that there was no financial gain on her part.  She was seen by the report writer as having limited remorse, meaning her risk of reoffending was moderate when taken in conjunction with her entrenched attitudes and previous dishonesty offending. The appellant did not perceive there were any victims of her offending.

The  report  also  records,  however,  that  the  appellant  spoke  of  wishing  to  make changes in her life, and to commence study in order to get a good job.

Appellant’s submissions

[12]     For the appellant, Mr Ross referred to a table of 24 cases in which benefit fraud of between $23,913.17 and $30,395.83 was committed and in which none resulted in a sentence of imprisonment. He argued that, although there is no tariff case for fraud, consistency with other cases is an important principle of sentencing.

[13]     Counsel submitted that the sentencing ought to have been adjourned because that would have allowed for a separate fraud charge to be determined and an appropriate sentence to be imposed on all convictions.  He argued that the possibility of commuting a prison sentence to home detention is a far harsher sentence than delaying sentencing and imposing home detention from the outset:

(a)      Even if an address becomes immediately available, there is a delay of around five to six weeks while Corrections checks the address.

(b)A sentence of imprisonment which is cancelled under s 80K of the Sentencing Act 2002 is a custodial sentence; meaning Ms Larkin will not be eligible for the benefits provided by Criminal Records (Clean Slate) Act 2004.

(c)      It is significantly more difficult for a prison inmate to find a suitable home detention address than someone who is at large or on reasonable bail conditions.

[14]     Mr Ross further submitted that although the appellant’s past convictions are an aggravating factor, they should have resulted only in an uplift from what would otherwise had been imposed by way of home detention or community work hours.

[15]     Counsel argued that ordering imprisonment with leave to apply for home detention was common prior to 2007 only because that was the only way home detention could be imposed at that time.

[16]     Mr Ross submitted that, in making the initial assessment, a starting point of six months’ imprisonment, with a one-month uplift for prior offending, would have been appropriate.  He submitted that the mitigating factors include the early guilty plea; the fact that full reparations were being paid (albeit at a low rate); that the appellant has a ten year-old son who usually lives with her; and her attempts to quash a drug habit. The factors suggest a rehabilitative sentence was warranted.

[17]     Counsel submitted that as the appellant has been in prison now for two and a half months, the sentence should be reduced to four and a half months imprisonment which would allow her immediate release.

Respondent’s submissions

[18]     The Crown  submits  that  the starting point  was  appropriate.  Ms  Mitchell relied  on  Frost  v  Ministry  of  Social  Development  as  authority  for  12  months’

imprisonment as an appropriate starting point for fraud amounting to $27,200.4    In that case, no issue was taken with the starting point of 12 months’ imprisonment, but less restrictive penalties had not been considered by the sentencing judge and a sentence of five months’ home detention was imposed.

[19]     Ms Mitchell argued that the offending in this case was relatively serious, given the high level of premeditation; the total sum obtained; the high degree of wilful dishonesty; and the duration of the offending over seven years.  There are no particularly mitigating circumstances which would warrant a discount, as the appellant was identified as having entrenched attitudes, limited remorse and previous dishonesty offending.

[20]     Counsel for the Crown submitted that in this case, unlike Frost, the District Court  Judge  considered  home  detention  and  acknowledged  that  if  a  suitable residence had been available he would have imposed that sentence.   Use of s 80I should be seen as an appropriate alternative mechanism to adjournment, there being no authority requiring the Judge to adjourn the sentencing in such circumstances. The Crown emphasised that, given that the appellant has been unable to find accommodation in the 10 weeks between sentencing and the hearing of the appeal, this approach was appropriate.

[21]     The Crown submits that the appellant’s ineligibility for the relief under the Clean Slate legislation is not a relevant factor because, given her circumstances, she is unlikely to meet the requirements of the statute.  Section 7(1)(3) of the Criminal Records  (Clean  Slate)  Act  2004  only  allows  eligibility  if  the  full  amount  of reparation is paid off. At the present rate, full repayment is untenable.

[22]     Finally,  the  Crown  submitted  that,  although  Ms  Larkin  had  previously complied with community-based sentences, her offending had escalated in seriousness, so previous compliance is only a factor pointing toward home detention

or community detention, not the appropriate starting point.

4      Frost v Ministry of Social Development [2013] NZHC 1239.

[23]     Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow a sentence appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.  In any other case, the Court must dismiss the appeal.5

[24]     The  Court  of Appeal  in  Tutakangahau  v  R  has  recently  confirmed  that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.6     Further, despite s 250 making no express reference  to  “manifestly  excessive”,  this  principle  is  “well-engrained”  in  the approach of the courts to sentence appeals.7

[25]     The approach taken under the former Summary Proceedings Act was set out in R v Shipton:8

(a)      There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”

(b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)      It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.  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.9

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

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

7      At [33], [35].

8      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

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

[27]     Judge Adeane’s  approach  to  setting  the  starting  point,  allowing  the  plea discount and fixing the appropriate term of imprisonment was entirely conventional and appropriate.  His decision that a sentence of home detention was an appropriate substitute is also not open to criticism.  The essential issue on appeal, therefore, is whether it was open to the Judge to decline to adjourn the sentencing to allow the appellant further time to find a suitable detention address, and to grant the appellant leave to apply for home detention if a suitable address became available.

[28]     Section 80I of the Sentencing Act says:

(1)      This section applies if—

(a)       a court has sentenced an offender to a short-term sentence of imprisonment; and

(b)       at the time of sentencing, the court would have sentenced the offender to a sentence of home detention if a suitable residence had been available.

(2)       At the time of sentencing, the court must make an order granting the offender leave to apply to the court of first instance for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if the offender finds a suitable residence at a later date.

[29]     The section  gives  no  guidance  about  when  it  should  be used  instead  of adjourning the hearing and there does not appear to have been any judicial analysis of where the use of s 80I is appropriate in place of an adjournment. In Police v Tiatia, adjournment or the granting of leave under s 80I were described as alternatives.10      Each approach appears to have been used frequently, and interchangeably, although consideration of the cases suggests that adjournment is typically used where a report regarding home detention has not been provided, or a suggested address has not been assessed, rather than in cases where it is clear that no

suitable address is currently available.11

10     Police v Tiatia HC Auckland CRI-2010-404-304, 8 April 2014.

11     See, for example, cases in which adjournment has been used: Petersen v Department of Internal

Affairs [2012] NZHC 1749; Jones v Police [2013] NZHC 1732; Williams v Police [2014] NZHC

2666; Watt v Police [2014] NZHC 3055 compared to cases in which s 80I has been used: Tihema v Police [2012] NZHC 1329; Dyer v Police [2014] NZHC 2961; Leisi v Police HC Auckland CRI-2011-404-24, 18 May 2011.

[30]     The effect of using the statutory mechanism under s 80I is that the appellant has now been imprisoned for two and a half months, in circumstances where the Judge accepted that home detention was the proper outcome if a suitable place had been available.    While I accept that it will often be more difficult for a sentenced prisoner  to  find  accommodation,  the  appellant’s  dilemma  is  a  feature  of  her particular circumstances which include, as I understand from Mr Ross, two possible arrangements for accommodation with family members having fallen through.

[31]     I accept also that imposing a short sentence of nine months’ imprisonment meant that the appellant would be eligible for release after four and a half months12 and that finding suitable accommodation and having it assessed for suitability would be likely to consume a significant portion of that time.  That may have been a factor for the Court to take into account, but since there was no immediate prospect of a suitable address, I am unable to say in the circumstances that the Judge was wrong

not to refer to it.

[32]     The practical position is that the appellant will be due for early release in about two months.  Even if she was able to propose an address immediately, I am informed by Mr Ross that up to six weeks is likely to elapse while the address is assessed.

Decision

[33]     In the circumstances, I am not persuaded that the Judge was not entitled to adopt the course he followed, or that a miscarriage of justice has occurred in this case.

[34]     I dismiss the appeal.

……………………………

Toogood J

12     Parole Act 2002, ss 20 and 84.