Packer v Ministry of Social Development
[2019] NZHC 2892
•6 November 2019
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2019-454-000021
[2019] NZHC 2892
BETWEEN MELISSA JANE PACKER
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 5 November 2019 Appearances:
L A Caris for the Appellant
E R Pairman and C J Hunt for the Respondent
Judgment:
6 November 2019
JUDGMENT OF DOOGUE J
Introduction
[1] On 17 May 2019, the appellant, Melissa Packer, was sentenced in the District Court at Palmerston North to two years and six months’ imprisonment1 in respect of nine charges of dishonestly using a document2 and two charges of omitting to disclose information for pecuniary advantage.3
[2] Sentenced alongside Ms Packer was her husband and co-offender, Bryce Jeffs. Mr Jeffs was sentenced to 12 months’ home detention in respect of 18 charges of dishonestly using a document.
1 Ministry of Social Development v Jeffs [2019] NZDC 9396.
2 Crimes Act 1961, s 228(1)(b); maximum penalty of seven years’ imprisonment.
3 Sections 240(1)(a) and 241(a); maximum penalty of seven years’ imprisonment.
PACKER v MINISTRY OF SOCIAL DEVELOPMENT [2019] NZHC 2892 [6 November 2019]
[3]Ms Packer now appeals against the sentence imposed on the basis that:
(a)the starting point adopted was too high;
(b)the uplift imposed for prior convictions was too great;
(c)an insufficient discount was given for mitigating features; and
(d)an end sentence of home detention should have been imposed.
[4] Ms Packer submits that these factors that are submitted jointly and separately have resulted in the imposition of a sentence that is manifestly excessive.
The law
[5] This is a first appeal against sentence under s 244 of the Criminal Procedure Act (CPA). First appeals against sentence are governed by ss 244 – 252 of the CPA. Section 250 provides:
250 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow the appeal if satisfied that–
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
(3)The first appeal court must dismiss the appeal in any other case.
[6] In Tutakangahau v R, the Court of Appeal confirmed that s 250 continues and simply codifies the error principle approach to sentence appeals, incorporating the manifestly excessive test.4 The Court of Appeal held (footnotes omitted):
[30] The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentence. Rather, in the words of Shipton, it must be shown that there was an error “whether intrinsically, or as a result of
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
additional material submitted” on appeal. If there is an error of the requisite character, the court will then form its own view of the appropriate sentence. Hammond J used the terminology of an error “vitiating” the sentence but it may be more helpful to consider the issue in terms of whether the error is material. That was the terminology used in Te Aho v R where this Court said:
This Court does not lightly quash a sentence of imprisonment, and in the absence of a material error in the sentencing process which requires a re-assessment of the sentence, or a clearly excessive sentence, will not intervene.
[31] The Court in Te Aho went on to state that “it must be shown that the sentence is manifestly excessive or wrong in principle, or there must be exceptional circumstances”.
…
[35] The concept of manifestly excessive is accordingly well-engrained and we see no reason not to utilise it when considering s 250(2). Indeed, the approach is consistent with the statutory language. Further, the concept is a helpful one and is consistent with the fact that sentencing is not a science.
[7] In Tamihana v R, the Court of Appeal referred to the approach in s 250(2) and held:5
An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge’s reasoning, or as a result of additional materials submitted on the appeal, that vitiates the lower Court’s sentencing discretion. Unless there is a material error in the end sentence, this Court will not intervene. There will be a material error if, for example, the end sentence is manifestly excessive or wrong in principle. In general, the focus is on whether the end sentence is within the available range, rather than the process by which it was reached.
[8] If the Court finds there is a material error affecting the sentencing process, the appropriate way to measure whether or not the end sentence imposed is manifestly excessive is to undertake the sentencing exercise itself in order to compare it with the sentence actually imposed.6 An error that may seem significant, but only results in an end sentence of a month or two difference, in the context of a sentence of imprisonment, is not one that can be said to have rendered the sentence manifestly excessive.
5 Tamihana v R [2015] NZCA 169 at [14].
6 Tutakangahau v R, above n 4, at [30].
[9] Accordingly, the Court must be satisfied that a different sentence should be imposed because the existing sentence is manifestly excessive as a result of an error, if it is to allow the appeal.
[10] Further, where, as in the present case, an offender has been sentenced for multiple offences and those sentences are to apply concurrently, the Court must take into account the totality principle enshrined in s 85 of the Sentencing Act 2002. Section 85 provides:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[11] The fundamental tenet of the totality principle is that the final sentence must reflect the totality of the offending. Where the end sentence is not “wholly out of proportion to the gravity of the overall offending”, no reduction is required.7
The facts of the offending
[12] On 20 January 2010, Ms Packer and her husband, Mr Jeffs, applied for a married rate of Unemployment Benefit, which was granted from 7 January 2010. A condition of the benefit was an agreement to advise the Ministry of Social Development (Ministry) if there were any changes to their circumstances which may
7 Ashcroft v R [2014] NZCA 551 at [32].
affect their entitlement to the benefit, such as changes in employment (for example, starting new employment) or other changes to their financial circumstances.
[13] On 7 January 2012, both Ms Packer and Mr Jeffs were transferred to a Sickness Benefit (now known as Jobseeker Support) after Mr Jeffs was diagnosed with a heart condition.
[14] On 25 May 2014, both Ms Packer and Mr Jeffs were transferred to a Supported Living Payment after Mr Jeffs was deemed to be permanently and severely restricted in his capacity to work because of his health. At the time, the parties were also receiving a Temporary Additional Support payment, made to beneficiaries who represent themselves as being in extreme financial hardship.
[15] While receiving this assistance, Ms Packer and Mr Jeffs acted as agents over each other’s portion of the benefit, which enabled them to act for the other at any time for actions such as completing, signing or submitting forms.
[16] Inquiries were carried out by the Ministry which established that Mr Jeffs was in fact working and receiving income from several companies. The inquiries also established that Ms Packer and Mr Jeffs were receiving income from renting out their family home between 8 August 2014 and 25 February 2015.
[17] Neither Ms Packer nor Mr Jeffs alerted the Ministry of these changes in their circumstances.
[18] During this period, Ms Packer was also granted additional, non-recoverable Special Needs Grants for items such as food and dental treatment, despite having considerable income and cash assets at the time of approval.
[19] While receiving this assistance from the Ministry, Ms Packer and Mr Jeffs submitted numerous documents and had numerous face-to-face interactions with the Ministry and its officers. As a result of submitting forms and attending interviews, Ms Packer’s and Mr Jeffs’ benefit payments continued.
[20] Ms Packer was responsible for signing seven forms in her name which falsely stated that Mr Jeffs was not working, or that they were not receiving any income or had no cash assets. She also signed two forms jointly with Mr Jeffs of the same (false) nature.
[21] As a result of the Ministry’s investigation, Ms Packer’s and Mr Jeffs’ benefit payments were cancelled from 25 September 2017.
[22] As a result of the offending, Ms Packer and Mr Jeffs received overpayments of benefits during the period 3 January 2011 to 3 April 2011 and 23 April 2012 to 24 September 2017. These overpayments can be broken down as follows:
Unemployment Benefit $1,904.12
Sickness Benefit
$15,620.96
Jobseeker Support
$14.701.98
Supported Living Payment
$78,125.72
Accommodation Supplement
$14,465.55
Disability Allowance
$22,131.12
Temporary Additional Support
$18,178.93
Special Needs Grants
$2,960.24
TOTAL OVERPAYMENT
$168,546.52
The District Court decision
[23] Having set out the facts, the Judge turned to the aggravating and mitigating features of the offending. She found that the aggravating features of the offending
included that the offending took place over a period of five years and eight months with a gap between the initial period and the later offending.8 She found further that the total amount involved was significant and that there were a number of false documents submitted by Ms Packer and Mr Jeffs.9 A further aggravating feature was that it was a breach of trust and constituted repeated dishonesty for personal financial gain at the community’s expense.10
[24] The Judge then traversed the purposes and principles of sentencing.11 The Judge referred to the written submissions of the prosecution concerning the starting point. She recorded that neither counsel took issue with the starting point being between two years and nine months and three years’ imprisonment. The Judge adopted the same starting point for Ms Packer and Mr Jeffs at “the bottom of the prosecution’s suggested range, which is a starting point of two years and nine months’ imprisonment”.12 She then imposed an uplift for Ms Packer’s relevant previous convictions and explained that by this she meant 21 convictions from 2007 for offending against the Ministry which had resulted in a sentence of nine months’ imprisonment, and 10 convictions from 2016 again for benefit fraud which had resulted in a sentence of eight months’ home detention.13
[25] A final aggravating feature was that the most recent offending overlapped in time with the offending for which Ms Packer had received home detention.14
[26] The Judge then turned to the issue of the uplift to the starting point. The Judge was careful to ensure that the uplift was proportionate so that it did not amount to double punishment for earlier offending. Again, without counsel taking any issue, she imposed an uplift of seven months. That brought the starting point to three years and four months’ imprisonment.15 She imposed no uplift on Mr Jeffs’ starting point.16
8 Ministry of Social Development v Jeffs, above n 1, at [13].
9 At [13].
10 At [14].
11 At [15].
12 At [16].
13 At [17].
14 At [18].
15 At [19].
16 At [20].
[27] The Judge then addressed Ms Packer and Mr Jeffs’ personal circumstances, acknowledging that Ms Packer is the main caregiver to a grandson with complex special needs. She also referred to the high regard in which Ms Packer was held by her employers.17
[28] The Judge made no discount for remorse. The Judge expressly found that rather than being remorseful, Ms Packer was seeking to justify her actions.18
[29]The Judge gave no discount for reparation as none was offered.19
[30] The Judge then gave a 25 per cent discount for Ms Packer’s guilty plea.20 However, she specifically declined any further reduction in sentence, acknowledging the caregiving of Ms Packer’s grandson and saying:21
However, your position as his caregiver cannot in my view warrant a specific reduction in sentence in circumstances where you have been his caregiver for some five years now, including over the period when you served home detention in 2016. As the pre-sentence report writer pointed out, your commitment to him cannot be seen as a protective factor when you have continued to offend in this dishonest way while caring for him.
[31] From the overall starting point of three years and four months’ imprisonment and after deduction of the 25 per cent credit for Ms Packer’s guilty plea, the end sentence was two years and six months’ imprisonment. The Judge stated that this was not at a length where converting it to home detention was an available option.22
Starting point
[32] Ms Caris, for Ms Packer, submitted that the starting point was too high because the District Court Judge failed to account for the nature of the fraud and the joint culpability of the partners.
17 At [21]-[22].
18 At [23]-[25].
19 At [25].
20 At [26].
21 At [28].
22 At [29].
[33] She submitted that a distinction can be drawn between benefit fraud as a result of failing to declare a relationship and benefit fraud as a result of failing to declare work. She also suggested there ought to be an increase in culpability when the initial application is incorrectly filled out, rather than when there is a change in circumstance which is not notified to the Ministry.
[34] While I accept that failure to declare a permanent or stable relationship or permanent work carries more culpability than a failure to declare intermittent work or an intermittent relationship, in this case the offending was not intermittent. Mr Jeffs was employed for nearly five and a half years. There is also, in my view, no distinction to be drawn between the failure to fill out the application correctly initially, and the failure to make a declaration of change in circumstance. Both failures are fundamentally a failure to provide the Ministry with correct information and it is the responsibility of beneficiaries to ensure the information they provide the Ministry is true and correct. Each time Ms Packer and Mr Jeffs received a payment from the Ministry, they would have been reminded they were receiving a benefit for the circumstances as they had represented them to be.
[35] Further, during the period of offending, Mr Jeffs applied for and was granted an additional Special Needs Grant despite having income and assets at the time the grant was approved. Thus, even if there were some distinction between failing to provide correct information and failing to correctly update information (which I reject), Ms Packer and Mr Jeffs were in fact failing to provide correct information even when applying for grants.
[36] Ms Caris submitted that cases where sole offenders have obtained similar amounts to those obtained in this case are not useful as a comparison. That flies in the face of the relevant authority in Lauina v Ministry of Social Development where Asher J stated:23
[22] I do not accept the submission that there was an error by the Judge in treating the real impact on the taxpayer as being the wrongful receipt of
$32,000.00. Although each received only $16,000.00, they acted jointly in seeking benefits and must take joint responsibility for not notifying Work and Income about Ms Sioli’s work. They were partners and jointly benefitted from
23 Lauina v Ministry of Social Development [2015] NZHC 1507.
the money. Just as two parties to a burglary who might break into a house and take and retain particular items, will have their culpability assessed on the basis of the total losses from the burglary, so should two parties who jointly conduct benefit fraud who as a consequence received particular benefits, be liable for the total losses. Each can be seen as a party to the others’ fraud, and each must be held responsibility for the total losses.
[37] That is the case here. Both Ms Packer and Mr Jeffs were equally liable for the benefits received. They acted jointly in seeking the benefit, demonstrated by acting as agents for one another. They also jointly benefitted from the money received.
[38] Ms Caris has referred me to a raft of cases in support of a lower starting point.24 However, in reviewing those cases and taking into account the joint culpability of Ms Packer and Mr Jeffs and the nature of their offending (including the period of offending and the total value of the overpayments), I find them distinguishable from the present circumstances. None of the cases cited are entirely comparable in respect of either the period of offending or the value of overpayments. What is significant, however, is that the value of benefits received as a result of Ms Packer’s (and Mr Jeffs’) offending is higher than in cases with comparable periods of offending and is also higher than in some of those cases with significantly longer periods of offending. In my view, this justified the starting point adopted by the Judge.
[39] It is also relevant that a majority of the cases cited pre-date a significant amendment to the then-applicable Social Security Act 1964 (SSA). By virtue of s 13 of the Social Security (Fraud Measures and Debt Recovery) Amendment Act 2014, a new s 127A was inserted into the SSA, which made it an offence for a person to benefit from excess benefit payments to their spouse or partner if they knew that, or were reckless about whether, those payments were obtained by fraud. This amendment came into effect on 7 July 2014 and is now enshrined in s 291 of the Social Security Act 2018. Prior to the amendment, only the fraudulent spouse or partner committed an offence under the SSA. Section 127A, therefore, made spouses or partners who had the requisite knowledge under the SSA jointly liable. The fact that a majority of
24 R v Ralph [2018] NZHC 794; Proctor v New Zealand Police [2016] NZHC 2656; Steer v New Zealand Police [2016] NZHC 877; Walker v Ministry of Social Development [2014] NZHC 1386; Lee v Ministry of Social Development [2014] NZHC 3199; Walters v New Zealand Police [2013] NZHC 3425; Aupouri v Ministry of Social Development [2013] NZHC 1224; Aupouri v Ministry of Social Development [2013] NZHC 581; Richardson v Ministry of Social Development HC Napier CRI-2009-441-47, 4 February 2010.
the cases cited pre-date s 127A gives context to their starting points because although the charges in those cases were, as they are here, charges under the Crimes Act 1961, the application of offences under the SSA is informative in the application of dishonesty offences to benefit fraud. That is made clear by Asher J’s approach in Lauina.
[40] For these reasons, I find that the starting point of two years and nine months’ imprisonment was well within the range available to Judge Edwards.
Uplift for prior offending
[41] Ms Caris submitted that the uplift imposed by the Judge to the starting point was excessive. Insofar as Ms Packer’s previous convictions were relevant given some of the offending which is the basis for those convictions overlapped in time with the current charges, Ms Caris submitted that assertion only applies to one of the charges, namely the joint charge of omitting to declare Mr Jeffs’ income.
[42] Ms Caris made two further but related submissions in respect of the magnitude of the uplift. First, had Ms Packer been charged with omitting to declare Mr Jeffs’ income at the same time she was charged for the offending which resulted in her 2016 convictions, that offending is unlikely to have had a significant impact on the magnitude of the uplift. Second, given Mr Jeffs was not prosecuted for the offending which resulted in Ms Packer’s 2016 convictions, his involvement and culpability in respect of that offending which has now come to light is such that Ms Packer should not be further punished to a substantially greater extent than him for the same behaviour.
[43] Ms Pairman, for the Ministry, submitted that an uplift of seven months was appropriate given Ms Packer’s history of offending. Further, the charge of omitting to declare Mr Jeffs’ income was the most serious charge she faced.
[44] In my view, an uplift of seven months to the starting point was available to the Judge.
[45] Ms Packer has an extensive history of similar offending. She has 10 convictions for benefit fraud offending from 2016 and a further 21 convictions for fraud offending from 2007. The latter offending spans back to 2001. For the 2007 convictions, Ms Packer received a sentence of nine months’ imprisonment. For the 2016 convictions, Ms Packer received a sentence of eight months’ home detention. In short, for a large part of the past two decades, Ms Packer has continued to offend in a similar manner and has unlawfully obtained substantial benefit payments.
[46] In Tiplady-Koroheke v R, the Court of Appeal reviewed the case law discussing the rationale for uplifting an offender’s sentence to take into account criminal history.25 The Court agreed with the observations in Beckham v R that courts must not merely increase an offender’s sentence by virtue of the fact they have previously offended, but must ensure those previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted.26 The Court went on to say “that it is also important that there be some proportionality between the starting sentence and any uplift.”27
[47]The principles outlined in Tiplady-Koroheke were again noted in Te Hau v R
as follows:28
The Sentencing Act 2002 requires the Judge to take into account a defendant’s previous convictions.29 This Court has recently reaffirmed that although a prisoner is not to be punished again for past offending, nor should previous convictions be ignored “particularly if the previous convictions indicate a tendency to commit the particular type of offence for which the offender is convicted”.30 Issues of deterrence and protection of the public may bear upon the uplift that may be appropriate,31 but the uplift must remain proportional to the starting point selected.32 Previous convictions may also bear upon character.33
[48] I also note the recent decision of Orchard v R in which the Court of Appeal commented that uplifts for previous convictions ought to be proportionate to the
25 Tiplady-Koroheke v R [2012] NZCA 477 at [22]-[25].
26 At [23], citing Beckham v R [2012] NZCA 290 at [84].
27 At [24].
28 Te Hau v R [2013] NZCA 431 at [18].
29 Sentencing Act 2002, s 9(1)(j).
30 Beckham v R, above n 26, at [84].
31 At [84].
32 Hodgkinson v R [2012] NZCA 478 at [21].
33 Beckham v R, above n 26, at [84].
sentence imposed.34 Uplifts of this nature are mandated by s 9(1)(j) of the Sentencing Act 2002 but limited by s 26(2) of the New Zealand Bill of Rights Act 1990, which provides that no one who has been finally convicted of an offence shall be punished for it again. The Court in Orchard went on to observe that an uplift is unlikely to be proportionate if it exceeds the prior sentence for the relevant offence.35
[49] Ms Packer’s previous convictions clearly indicate a tendency to commit benefit fraud — the type of offences for which she was convicted in the District Court.
[50] Further, and bearing in mind the commentary in Te Hau and in Orchard in respect of the magnitude of uplifts for previous convictions, I do not consider an uplift of seven months to be disproportionate to a starting point of two years and nine months’ imprisonment (33 months). This is because that uplift was imposed for two sets of significant similar offending, all having occurred within a period of around 15 years. Even when looking at the likely uplift applied to each set of previous convictions (which is not possible given the Judge imposed a total uplift of seven months), it is unlikely that either uplift would have been greater than the sentence imposed for the corresponding convictions.
[51] I also do not agree with Ms Caris’ latter two submissions. The fact of the matter is that Ms Packer was not charged with omitting to declare Mr Jeffs’ income in 2016. She was charged in January 2018. It is not this Court’s role to look behind the charges and analyse why she was not prosecuted in 2016, nor is it this Court’s role to hypothesise what her conviction would have been in 2016 had she also been charged with that offence. The same reasoning applies to the fact Mr Jeffs was not prosecuted for his role in the offending which resulted in Ms Packer’s 2016 convictions. That was entirely a prosecutorial decision and is not one on which this Court is required to comment.
[52] Accordingly, I do not consider that Judge Edwards erred in imposing an uplift of seven months to the starting point.
34 Orchard v R [2019] NZCA 529 at [41].
35 At [41], citing Patel v R [2017] NZCA 234 at [61]; Julian v R [2012] NZCA 453 at [17]; and
Taylor v R [2014] NZCA 561 at [13].
Ms Packer’s caregiver role
[53] Ms Caris submitted that the Judge erred in concluding that a discreet discount was not warranted to acknowledge the fact Ms Packer is the main caregiver to a grandson with complex special needs because she had been so for some five years yet had continued to offend in a dishonest way. On the contrary, she submitted, relying on Ransom v R and R v Ralph, that it was appropriate to apply a discreet discount for this factor.36
[54] In Ransom, the appellant, who failed to notify the Ministry of her relationship status, illegitimately received benefit payments to the sum of $127,985.59 over the course of almost 10 years. At sentencing, the District Court Judge took a starting point of two and a half years’ imprisonment and from that deducted six months to recognise the appellant’s need to care for a young child (who had considerable behavioural difficulties), her state of health and the unlikelihood that she would reoffend. This discount was not disturbed on appeal and the Court of Appeal went further by substituting the appellant’s prison sentence for home detention.
[55] In Ralph, Grice J reviewed Ransom and several other cases in which the offender had sought a discreet discount on the ground they were the primary caregiver for a dependent child, or that any dependent children would disproportionately be impacted by a sentence of imprisonment being imposed.37 Grice J noted that competing appellate commentary existed but that in those cases where a discount had been given, the size of that discount had been between 10 and 20 percent. In Ralph, the District Court Judge applied, and Grice J upheld, a discount of six months to a starting point of two years and six months’ imprisonment (20 per cent). However, the District Court Judge noted, and Grice J accepted, that it was a “rare and exceptional case”.38
[56] In my view, Ransom and Ralph do not establish a general principle that where an offender is the primary caregiver of a dependent child, they should be credited with
36 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163; R v Ralph, above n 24.
37 R v Ralph, above n 24, at [34]-[36], citing Lee v Ministry of Social Development, above n 24; and
R v Walker, above n 24.
38 At [33].
a discount at sentencing. Of course, this is a factor to which the sentencing Judge must have regard under s 8(i) of the Sentencing Act 2002 which requires a Court to take into account the offender’s personal, family, whānau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose. However, the strength that this factor has at sentencing will depend entirely on the circumstances of the individual case.
[57] There may also be competing considerations which lessen the force of this factor. As the Court of Appeal stated in McGregor v R, an appeal against sentence for ten charges of theft by a person in a special relationship:39
It is well established that where the offending is serious and premeditated, and particularly where it occurs over a lengthy period of time, the impact of the sentence on the family of the offender can play little, if any, role in sentence.
[58] The Court of Appeal has made similar comments in the past specifically in respect of the impact of an offender’s offending on their children.40 In Skelton v R, the Court stated:41
It is inevitable that serious criminal offending by a child’s parent will result in hardship for the child. It is regrettable that as the result of their mother’s criminal offending the children must be separated from her and she from them. But these unfortunate outcomes are frequently experienced in relation to the children of criminal offenders.
[59] More recently in Brown v Ministry of Social Development, Moore J cited Skelton and said specifically of the Court of Appeal’s commentary in the benefit fraud context:42
Discounts for hardship caused to children are far from automatic and the Courts are frequently inclined to conclude this does not provide a basis for discrete mitigation.
[60] In Ms Packer’s circumstances, I note two things. The first, which was raised by Ms Pairman, is that at Ms Packer’s 2016 sentencing, the District Court Judge took into account the fact Ms Packer was (and still is) “the lynchpin for persons in [her]
39 McGregor v R [2015] NZCA 565 at [46].
40 R v Williams CA23/05, 15 March 2005 at [20]; Skelton v R [2011] NZCA 35 at [40(iv)-(vii)].
41 Skelton v R, above n 40, at [40(iv)-(vii)].
42 Brown v Ministry of Social Development [2018] NZHC 3131 at [21].
family who have the misfortune to suffer from a wide variety of ailments.”43 Despite this recognition, Ms Packer has continued to offend in the same way.
[61] Second, it is evident that Judge Edwards was acutely aware of Ms Packer’s familial responsibilities. The Judge addressed this at some length and noted the concerns expressed by his paediatrician and his social worker of the potential impacts on him if Ms Packer were to be imprisoned.44 The Judge also acknowledged Ms Packer’s commitment to his care over the long-term. Ultimately, however, the Judge was of the view that her son’s condition could not be a protective factor in sentencing given the aggravated factors which she outlined.
[62] Nevertheless, in commuting Mr Jeffs’ sentence to home detention, the Judge expressly stated that such a sentence would enable him to provide his grandson with the stability and care he needs in Ms Packer’s absence.45
[63] Overall, I agree with the Judge’s assessment of this factor. It is extremely unfortunate that Ms Packer’s grandson must live without his primary caregiver for a period of time, but that, in itself, cannot be the sole sentencing consideration. Ms Packer’s recidivism and the gravity of her offending are such that a discreet discount was not warranted to take into account the fact she is her grandson’s primary caregiver.
Reparation
[64] Ms Caris submitted that at Ms Packer’s sentencing, Judge Edwards had no reliable information on which to assess whether reasonable prospects of reparation being payable existed. She submitted that this may warrant reconsideration by way of a rehearing.
[65] I note that prior to sentencing, Judge Edwards suggested that Ms Packer and Mr Jeffs enter into an agreement whereby an interest could be registered over their property by the Ministry. This would allow them to continue living in the property
43 Ministry of Social Development v Packer [2016] NZDC 9997 at [6].
44 Ministry of Social Development Jeffs, above n 1.
45 At [31].
while also recognising an intention to provide reparation to the Ministry. Alternatively, Ms Packer and Mr Jeffs’ could sell their property and pay reparation to the Ministry from the proceeds. It appears the Ministry was open to such an arrangement. However, no such arrangement was entered into. Therefore, the Judge noted that there was no significant offer of reparation before the District Court which she could have taken into account as a mitigating factor at sentencing.46
[66] Given this state of affairs, the Judge properly declined to apply a discount for reparation.
[67] Further, no such agreement is forthcoming nor was it raised as a possibility before me. There being no evidence of reparation before this Court, it is unnecessary to remit it back to the District Court for reconsideration.
Manifestly excessive?
[68] I do not consider Judge Edwards to have erred in sentencing Ms Packer. Nor do I consider the sentence imposed by the Judge to be manifestly excessive.
[69] Having reached this conclusion, the appeal must be dismissed. Given that Ms Packer’s sentence will remain at two years and six months’ imprisonment, there is no jurisdiction to consider home detention.
Result
[70]The appeal is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Palmerston North
46 At [25].
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