Napier v Police - [2017] NZHC 2176

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-000055

[2017] NZHC 2176

BETWEEN
CATHERINE ANNE NAPIER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 September 2017

Appearances:

G A Walsh for Appellant M L Dillon for Respondent

Judgment:

8 September 2017

JUDGMENT OF PALMER J

Counsel/Solicitors:
G Walsh, Barrister, Hamilton

NAPIER v NEW ZEALAND POLICE [2017] NZHC 2176 [8 September 2017]

Crown Solicitor, Hamilton

Facts

[1] Ms Catherine Napier, aged 24, was convicted of eight charges related to benefit fraud. The offending occurred over a period of about a year and a half, between 22 December 2014 and 7 July 2016. The Ministry of Social Development established, on the basis of information received, that Ms Napier was living in a relationship in the nature of marriage with her partner, Mr Mark Houltham. She had not advised the Ministry of this.

[2] One of the charges was obtaining a benefit by deception, which carries a maximum penalty of seven years’ imprisonment.1 Six charges were for dishonestly using a document,2 which were application forms for different benefits, in which Ms Napier falsely stated she was single. Those offences each carry a maximum of seven years’ imprisonment. The last, and most serious charge, was of using an altered document to obtain a benefit which carries a maximum penalty of ten years’ imprisonment.3 The document was a tenancy agreement in Ms Napier’s sole name whereas the original tenancy agreement was in joint names.

[3]As a result of the offending Ms Napier received an overpayment totalling

$19,755.13. Ms Napier pleaded guilty at her first appearance in the District Court. She has made arrangements to repay the overpayment. At the time she appeared for sentence she had already repaid somewhere between $700 and $1000. She has no previous convictions.

Pre-sentence Report

[4] The Department of Corrections recommended home detention with post- detention conditions, as well as attendance at an appropriate budgeting programme and a short rehabilitative programme. It considered that was more appropriate than imprisonment to address Ms Napier’s offending and rehabilitative needs.

1      Crimes Act 1961, ss 240(1) and 240(2).
2      Crimes Act 1961, s 228(1)(b).
3      Crimes Act 1961, s 258(1)(a).

[5] The Department identified the key offending factor as her attitude of an increased sense of entitlement. She was able to justify to herself her sustained misleading of MSD. However, the Department noted she now took full responsibility for her actions and has expressed remorse for her offending. She has been repaying her debt weekly with $50 and $100 amounts.

[6] Ms Napier expressed a willingness and strong motivation to comply with any sentence and to complete any programmes required to address her offending. But the Department noted she was at that time, pregnant, with the possibility of complications in the late stages of her last pregnancy. A letter from Ms Napier’s midwife was also made available to the District Court Judge. That outlined Ms Napier’s issues in relation to her pregnancy and some…

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 Napier v Police

Details

AGLC: Napier v Police [2017] NZHC 2176
Case: [2017] NZHC 2176
Decision Date: 8 September 2017

CaseChat Overview and Summary

The case of Napier v Police involves Catherine Anne Napier, who was convicted of eight charges related to benefit fraud. The offences occurred between December 2014 and July 2016, during which time Napier falsely stated that she was single to receive various social benefits, leading to an overpayment of $19,755.13. Napier pleaded guilty at her first appearance in the District Court and had begun repaying the overpayment at the time of sentencing. The key legal issue in this case is whether the sentence of four months’ home detention, imposed by Judge Connell in the Huntly District Court, was appropriate given the nature and extent of Napier's offending and her personal circumstances.

The Court of Appeal was required to determine whether the sentence imposed by the District Court was an error and warranted a different sentence under section 250 of the Criminal Procedure Act 2011. The appeal hinged on whether a less restrictive sentence could have achieved the purposes of sentencing, particularly deterrence and denunciation. Napier's counsel argued that community detention should have been considered due to Napier's guilty plea, remorse, and the lesser sentence imposed on her partner, Mark Houltham, who had committed similar offences. In contrast, the Crown argued that the sentence of home detention was appropriate given the seriousness of the fraud and Napier's personal circumstances, which did not warrant a lesser sentence.

The Court of Appeal found that the sentence of four months’ home detention was appropriate and did not constitute an error. The court considered the totality of the sentence and the purposes of sentencing, including deterrence and denunciation. The Court noted that the Ransom decision rejected the idea that higher-scale fraudulent offences necessarily attract significant terms of imprisonment, and that home detention could be appropriate in some benefit fraud cases. The Court also compared Napier’s case to Maa v MSD, where a similar sentence was upheld, noting that Napier did not have the exceptional personal circumstances present in Maa. The Court concluded that a less restrictive sentence would not have achieved the purposes of sentencing in this case, and thus, the appeal was dismissed.

Orders