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 additional stressors in her life.

District Court Decision

[7]    On 28 July 2017, Judge Connell  in  the  Huntly  District  Court  sentenced Ms Napier to four months’ home detention with the conditions as recommended by Corrections. The Judge took a starting point of eight months’ imprisonment. He substituted that with a sentence of four months’ home detention, after taking into account a guilty plea discount. He did not impose any sentence of community work because of Ms Napier’s pregnancy.4 He considered this was not a case where imprisonment was necessary, but he rejected a submission that community detention would suffice. He considered the amount involved required at least a sentence of home detention.5

Arguments

[8]    Mr Walsh, for Ms Napier, submits community detention should have been considered. He notes Mr Houltham, her partner, pleaded guilty to offending resulting, in dollar terms, to “a little under half” of that of Ms Napier, and he was sentenced to community work. He pointed to Ms Napier’s previous good character and remorse and pleaded guilty at the first opportunity.

4      Ministry of Social Development v Napier [2017] NZDC 17782 at [8].

5 At [6].

[9]    In his  written  submissions,  without  Judge  Connell’s  sentencing  notes,  Mr Walsh objected to the proposition that the Court was constrained by authority from imposing a sentence of community detention. He still contends that factoring in the guilty plea and any discount for a first offence the effective starting point was really between 12 and 15 months which, he says, is out of kilter.

[10]   Mr Walsh refers to the Court of Appeal decision in Ransom v R for an approach to sentencing charges for fraud.6  He also submits Maa v MSD is instructive.7  There, a first time offender pleaded guilty to fraud of almost $35,000. The High Court, on appeal, substituted a sentence of seven months’ home detention with community detention, taking into account personal mitigating factors relating to the defendant and a guilty plea. On that basis Mr Walsh submits the point where community detention can be a consideration has clearly been reached here and so the sentence imposed was manifestly excessive.

[11]   Mr Dillon, for the Crown, accepts that Maa shows something less than home detention can be appropriate in some cases but he submits, in comparison to other cases,8 that Maa is an anomaly. The ordinary sentence for this kind of offending, he says, is imprisonment or home detention. The key issue between them is whether Ms Napier’s personal circumstances, like Ms Maa’s, call for a lesser sentence. The Crown submits they do not. Mr Dillon says this was low to moderate offending which cannot be dealt with by community work and/or supervision. Rather, having regard to the authorities, it is at the lower end of the range where home detention is appropriate. Unlike Ms Maa, he says, Ms Napier does not have such exceptional personal circumstances. She is not the sole parent to two children – she has shared care of her child and she lives with her partner. There is no evidence her employment will be suspended because of home detention. Mr Dillon acknowledges he cannot speculate about that. Additionally, her pregnancy, he says, can be managed within the terms of home detention. The Crown submits the appeal should be dismissed.

6      Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.

7      Maa v MSD [2013] NZHC 1846.

8      Hogan v Ministry of Social Development (2005) 23 CRNZ 500; Larkin v Ministry of Social Development [2015] NZHC 680.

Law

Sentence Appeal

[12]   Under s 250 of the Criminal Procedure Act 2011 I am required to allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed. Otherwise, I must dismiss the appeal. The High Court does not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. I take into account the purposes and principles of sentencing identified by ss 7 and 8 of the Sentencing Act 2002.

[13]   I note that s 15A states home detention is only to be imposed where the court is satisfied that the purposes for which the sentence is being imposed cannot be achieved by any less restrictive sentence and the court would otherwise sentence the offender to a short-term sentence of imprisonment of 24 months or less. Because home detention is served in full, whereas an offender sentenced to imprisonment is eligible for parole, a term of imprisonment is seen as equivalent to half a term of home detention.9

Decision

[14]   I have considered all of Ms Napier’s, and the Crown’s, submissions. I consider the starting point is less important when considering the totality of the sentence which is the real crux of this appeal. The issue is whether the total sentence reflects the overall criminality of the offending and the offender and the question there, in this case, is whether a less restrictive sentence could have achieved the purposes of sentencing. I consider the legal authorities are against that, here.

[15]   The Court of Appeal in Ransom rejected the submission that fraudulent offending on a higher scale than that here must ordinarily attract a significant term of imprisonment, in favour of the view that “in some benefit fraud cases, home detention will be an appropriate sentence”.10

9     R v Hill [2008] 2 NZLR 381; (2008) 23 CRNZ 744 (CA).

10     Ransom v R, above n 6, at [39].

[16]   In Maa the amount of fraud was some $35,000, over about two and a half years. Collins J upheld an appeal from a sentence of seven months’ home detention and 100 hours community work. But he stated that, absent additional evidence that Ms Maa would lose her employment if sentenced to home detention, he would not have hesitated to conclude the original sentence was entirely appropriate.11

[17]   In this case, because of Ms Napier’s state and stage of her pregnancy, the additional community work was not on the table. I accept there is no evidence that Ms Napier has the same personal circumstances that was present in Maa. Equivalence with Maa, suggests the sentence here of four months’ home detention is relatively generous and not out of whack in her disfavour. That is particularly so, given the unavailability of community work and the more serious charge here of using an altered document to obtain a benefit.

[18]   I consider community detention alone, or even in combination with supervision, would have been insufficient to meet the purposes of deterrence and denunciation, in light of the duration and extent of the fraud, as well as the seriousness of some of the deception. I do not consider a less restrictive sentence than home detention would have been able to achieve the purpose or purposes for which the sentence was being imposed.

[19]I am not satisfied Judge Connell erred. I decline the appeal.

..................................................................

Palmer J

11     Maa v MSD, above n 7, at [16].