Osborne v Ministry of Social Development

[2005] NZCA 4

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/04

THE QUEEN

v

LINDA MARIE OSBORNE

Hearing:14 February 2005

Court:McGrath, William Young and O'Regan JJ

Counsel:S C Abernethy for Applicant

M F Laracy for Crown

Judgment:14 February 2005 

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

(Given by William Young J)

Introduction

[1]       Linda Marie Osborne was found guilty, following summary trial, on a number of charges of using a document with intent to defraud.  As a result of her frauds she obtained overpayments of approximately $173,000 in respect of the domestic purposes benefit, special benefits and accommodation benefits.

[2]       On 4 March last year she was sentenced to three and a half years imprisonment.  Her appeal against that sentence was dismissed in the High Court by Gendall J on 27 August 2004.  She then sought leave to appeal to this Court, an application which was dismissed by Heath J on 9 November 2004.

[3]       She now seeks leave from this Court to appeal.

[4]       In her submissions in support of the application for leave to appeal, Ms Abernethy for Ms Osborne suggested that the sentencing approach taken in the District Court and the High Court was flawed in that the Judges made the mistake of equating the apparent loss to the public purse with the gain made by Ms Osborne. She argued that in benefit fraud cases, the Courts should, but do not, analyse culpability by reference to careful assessment of the actual gain derived by the offender. She maintained that the Courts may have to distinguish between frauds affecting private individuals and those which affect public funds and should develop tariffs in relation to benefit fraud.

[5]       The distinction between sentencing principles and legal rules may be subtle and perhaps a little murky (especially as the Sentencing Act 2002 sets out a number of sentencing principles) but it is going to be a rare case where a sentencing exercise gives rise to a point of law warranting a second appeal.

[6]       There is not much doubt that much, perhaps most, of the money Ms Osborne obtained went on what could broadly be regarded as the necessities of life for herself, her children and her partner.  But likewise, it is clear that the Judges in the District Court and High Court recognised the nuances of the situation. Sentencing is often necessarily carried out without detailed inquiry into all the minutiae which collectively provide the context to the offending.  Broad-brush assessments are necessary.  A sentencing approach which treats as relevant the amount of money which was obtained by fraud seems to us to be acceptable.

[7]       We are left with the view that Ms Abernethy did not come close to identifying a genuine question of law capable of serious argument in this Court. 

[8]       The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington