Millin v The Queen - [2013] NZCA 375

IN THE COURT OF APPEAL OF NEW ZEALAND

CA158/2013
[2013] NZCA 375

BETWEEN	MARK MILLIN Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2013
Court:	White, Goddard and Simon France JJ
Counsel:	G W Calver for Appellant M H Cooke for Respondent
Judgment:	16 August 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is dismissed.
BThe appeal against the order of reparation in the amount of $362,895 is allowed, and the order is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr Millin was convicted following a jury trial on one count of using a document with intent to defraud and one count of attempting to pervert the course of justice. The context was Mr Millin’s entitlement to weekly compensation following a back injury he suffered in 1998. It was alleged that he had misrepresented his employment situation at the time of the accident, as a result of which he had received nearly 13 years of Accident Compensation Corporation (ACC) weekly compensation to which he was not entitled. It was further alleged that when an inquiry into the legitimacy of his payments began, he tried to arrange for a witness to give false evidence.
Mr Millin was sentenced by Judge Adeane to two years’ imprisonment on the fraud charge, with a cumulative sentence of 12 months imposed in relation to the perverting the course of justice charge. He was also ordered to pay more than $360,000 in reparation.[1]
[1]R v Millin DC Napier CRI-2011-088-3323, 1 March 2013.
Mr Millin appeals his sentence on the basis that the Judge was not entitled to find that all the money he had received was fraudulently obtained. Rather, he should have been sentenced on the basis that his offending was only to wrongly inflate the level of pay he was receiving immediately prior to the accident. Mr Calver submitted that the consequence of this offending, and therefore the basis on which he should have been sentenced, was a total windfall over the 13 years of as little as $5,000–$10,000.
The reparation order is challenged on the basis that Mr Millin cannot pay it, and has no realistic prospects of doing so.

Facts

Mr Millin worked for a fruit packing company. It was seasonal work which ended on 20 June 1998. Nine days later, while at home, Mr Millin hurt his back. He has been incapacitated since and is unable to work.
In between the end of the fruit packing job and the accident, Mr Millin did some carpet laying work for a friend’s carpet laying firm. It was this work that was used to calculate his entitlements in the following 13 calendar years. The Crown case was that the form filed by Mr Millin in relation to this work was deliberately incorrect. It claimed that Mr Millin:
(a)had started work on Monday 22 June 1998;
(b)had worked 60–65 hours in the week 22–28 June and that these hours were to be his usual hours…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Millin v The Queen

Details

AGLC: Millin v The Queen [2013] NZCA 375
Case: [2013] NZCA 375
Decision Date: 16 August 2013 at 10.00 am

CaseChat Overview and Summary

Mark Millin appealed his conviction and sentence for charges of using a document with intent to defraud and attempting to pervert the course of justice. The charges related to Mr Millin’s receipt of weekly compensation payments from the Accident Compensation Corporation following a back injury in 1998. Mr Millin was sentenced to two years' imprisonment for the fraud charge and 12 months for the perverting the course of justice charge. He was also ordered to pay more than $360,000 in reparation. Mr Millin argued that the sentencing basis was incorrect, as his offending was only to wrongly inflate the level of pay he was receiving immediately prior to the accident, and not to fraudulently obtain weekly compensation payments. The reparation order was also challenged on the basis that Mr Millin cannot pay it and has no realistic prospects of doing so. The Court of Appeal dismissed the appeal against sentence, finding that the trial Judge was entitled to accept the basis on which the Crown presented its case and that the Judge was entitled to accept that was what had been proved. The appeal against the order of reparation in the amount of $362,895 was allowed, and the order was quashed as it was pointless in the circumstances.

Orders