Paul v Ministry of Social Development HC Tauranga CRI 2010-463-64

[2010] NZHC 2072

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2010-463-000064

BETWEEN  GLADYS PHILLIPA WHIUWHIU PAUL Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         4 November 2010

Appearances: H Phillips for the Appellant

S A Wootton for the Crown

Judgment:      4 November 2010

ORAL JUDGMENT OF PRIESTLEY J

Counsel:

H Phillips, P O Box 147277, Ponsonby, Auckland 1144. Fax: [phone]. Email: [email protected]

S A Wootton, P O Box 740, Rotorua 3040. Fax: [phone]

Email: [email protected]

PAUL V MINISTRY OF SOCIAL DEVELOPMENT HC TAU CRI-2010-463-000064  4 November 2010

Introduction

[1]      The appellant was charged with 12 offences involving welfare benefit fraud. Ten of the charges were laid under ss 228 and 229A of the Crimes Act 1961.  Two further charges were laid under the Social Security Act 1964.

[2]      The  appellant’s  offending  spanned   a  period  of  over  12   years  from approximately 1995 to 2008.  Effectively her offending comprised receipt of benefit payments in a situation where, because she was living in a stable relationship (and in the latter part was indeed married), the appellant had no entitlement to the monies she was receiving.

[3]      In  total,  over  the  relevant  periods,  the  appellant  received  2,912  benefit payments  to  which  she  had  no  entitlement.    The  sum  of  money  involved  was

$81,300.

[4]      The various informations were laid in May 2010.   It is apparent that the appellant did not contest her guilt and pleaded guilty at an early opportunity (14 June

2010).  Her sentencing was, for various administrative reasons, delayed.

[5]      Ultimately she appeared for sentence in the District Court at Rotorua before Judge Weir.  She was represented by counsel, Mr Foote.  The Judge had the benefit of a probation report.  There was also a home detention appendix which made it clear that the appellant’s address in Rotorua, which she shared with her husband Mr Canterbury, would have been a suitable address had home detention been imposed.

[6]      The Judge imposed a sentence of 12 months’ imprisonment.   He rejected home detention as an appropriate sentence.  This appeal challenges that sentence.

[7]      Ms Phillips’ submissions were initially focused, and understandably so, on the issue of whether the Judge had erred in rejecting home detention.   A home detention sentence was the appellant’s preferred option.

[8]      Nonetheless, during the course of argument, and having heard what I regard as being a proper concession by the respondent’s counsel Ms Wootton, Ms Phillips developed an alternative argument which was to reduce the 12 month prison term, on the grounds that insufficient weight had been given to other personal and mitigating factors to which I shall shortly refer.

The sentencing process

[9]      The appellant has filed an affidavit which in the area of her relationship with her counsel Mr Foote is somewhat vague.  She deposes that prior to the sentencing, because she and her counsel did not “get on too well”, Mr Foote asked the Judge for leave to withdraw.  The Judge did not permit this.  Doubtless he would have been concerned  by the  fact  that  an  earlier  sentence  date  had,  for  some  reason,  been vacated.

[10]     The appellant also deposes that there were no written submissions from her counsel, although this would not have been a factor one would expect the appellant to have any personal familiarity with.   The Judge’s sentencing notes make little reference to the prisoner’s submissions.   Nonetheless, there is nothing from the sentencing notes which raise any concerns in my mind about whether the Judge was unaware of what might have been favourable factors.

[11]     To the extent that this appeal might have contained an element of counsel incompetence, I consider there is no basis for such a claim.  Nor would a different sentence have resulted.

[12]     Turning now to the Judge’s sentencing methodology, he correctly set out the background.  He referred to the pre-sentencing report which opined that the appellant had displayed little genuine remorse.  The report also contained (as the Judge said), references to the appellant’s own assessment that she had been “greedy”.

[13]     During the course of the Corrections Department’s investigation into the suitability of the home detention address there had clearly been a falling out or misunderstanding between the probation officer and the appellant’s husband, Mr

Canterbury.     Such  a  misunderstanding  was  regrettable.     Nonetheless  I  note Mr Canterbury had written an apology to the probation officer.  I see no basis for any finding that the probation officer’s recommendations and assessment had been influenced by any antagonism she might have had towards Mr Canterbury.

[14]     The Judge also was alert to the appellant’s chronic health conditions.   The pre-sentence report referred to the fact that indeed the appellant was largely confined to  her  home  because  of  her  health  issues.    The  Judge  replicated  the  probation officer’s comment that, to that extent, a home detention sentence would “serve little punitive purpose”.   More importantly he referred to a medical certificate obtained from one of the appellant’s general practitioners which referred to smoking and related lung diseases.  Rightly so, the Judge reminded himself of what he termed “the other side of the question”, being the difficulties the appellant would encounter whilst serving a term of imprisonment.   The Judge stated he had considered this carefully.  I am sure he did.

[15]     The Judge then turned to the relevant authorities, both at High Court, Full High Court, and Court of Appeal level, discussing sentences imposed for benefit fraud.   In that regard the Judge was well served by submissions presented by the Ministry, which I have perused.  Together with appendices they ran to well over 35 pages and contained a detailed and comprehensive analysis of a large number of benefit fraud cases, setting out amounts and resulting sentences.

[16]     The Judge correctly referred to the judgment of Lang J in Huddlestone & Kawenga v Ministry of Social Development[1]  which emphasised that it was of the utmost importance that people who wished to receive Social Welfare benefits must be completely honest in their dealings with the Ministry.  He also referred to dicta of MacKenzie J in Davey v Ministry of Social Development,[2] to the effect that benefit

fraud,  particularly on  an  extensive  scale,  needed  to  be  met  by “a  tangible  and measurable deterrent”.

[1] Huddlestone & Kawenga v Ministry of Social Development HC Napier CRI-2007-441-19, 20 June 2007

[2] Ministry of Social Development HC Palmerston North, CRI-2009-454-47, 15 December 2009.

[17]     The Judge then turned to what was clearly a submission that home detention, rather than imprisonment, should be imposed.  Seeing some similarities with Davey the Judge said:

[10]      In that case, in fact, the appellant was similar to you.  That appellant had medical problems and also personal issues.  Put simply, Ms Paul, there comes a time in offending such as yours where enough, really, is enough and in your case, the amount that you took and the period of time over which you took it, means, in my view, that a sentence of home detention would clearly be inappropriate.   The message has to be sent out to the community that offending, sustained as this is, at this level involving these amounts has to be met with a sentence of imprisonment, notwithstanding your age and your infirmity.

[18]     In the last paragraph of his notes the Judge fixed on an appropriate start point of 18 months imprisonment, to which there is no challenge.  He stated that he would reduce that period to one year (being effectively a 33⅓% discount) for the earlier guilty plea.   Thus, in terms of Ms Phillips’ alternative grounds, the issue on this appeal is whether the Judge was correct to reject home detention or whether, in all the circumstances, the end sentence was manifestly excessive.

Discussion

[19]     Ms Phillips has valiantly advanced a number of points.   She submitted in general terms, and correctly so, that benefit fraud of this magnitude did not necessarily rule out home detention sentences.   In that regard she referred to the recent Court of Appeal judgment Ransom v R.[3]    That too involved a benefit fraud case where the offending amounted to $128,000, purloined over a period of almost ten  years.   The sentencing Judge had stated that defalcations of this type were

[3] Ransom v R [2010] NZCA 390.

“usually met by a term of imprisonment”.  At [14] the Court of Appeal considered that by using the adverb the Judge had conveyed an understanding that imprisonment was almost inevitable in a case of that type.  The Court of Appeal went on to address the history of home detention sentences in the context of the Sentencing Act and

relevant authorities.  The judgment is comprehensive in that regard.  The Court of

Appeal then said:

[39]     In our view, the High Court cases demonstrate that, in some benefit fraud cases, home detention will be an appropriate sentence. Since Hill, it has been necessary for sentencing Judges to determine, on a case by case basis, whether a sentence of home detention will respond to the particular offending or whether, in terms of s 16(2) of the Sentencing Act, a sentence of imprisonment is required.  There is no prescriptive or usual sentence in cases of this type.

…

[41]     In our view, Judge Roberts appears to have ruled out a sentence of home detention solely on the grounds that the fraud was too serious. With respect, whether home detention or imprisonment is the appropriate sentencing option in cases of this kind requires a more detailed and nuanced analysis than that. The cases we have cited above show that offending of equivalent seriousness has been held amenable to home detention in the past. In light of Judge Roberts’ error in approach, we must reconsider what sentence should be imposed.

[20]     Ms  Phillips  saw  considerable  similarities  between  the  appellant  and  the Ransom situation, although I note that an important personal factor which weighed with the Court of Appeal in Ransom was the dependence on the prisoner of a six year old child who had been exhibiting behavioural problems.

[21]     The approach of the Court of Appeal in Ransom is not new.  The Court of

Appeal had earlier, in R v Iosefa[4]  and also in Osman v R,[5]  made it clear that, since

[4] R v Iosefa [2008] NZCA 453.

[5] Osman v R [2010] NZCA 199

2007 at least, home detention was a real alternative to a sentence of imprisonment, and also carried with it, in considerable measure, the purposes of deterrence and denunciation.

[22]     There were a number of other matters, besides the authority of Ransom, on which Ms Phillips relied.  She submitted that s 16(2) of the Sentencing Act had not been  considered  or  mentioned  by the  Judge.    I accept  that  s 16(2),  which  tilts sentencing courts somewhat against sentences of imprisonment, was a relevant factor here.   I do not accept, however, that an experienced sentencing Judge would have been oblivious to the policy of that provision.

[23]     In particular Ms Phillips submitted that a number of personal matters should have been explored and weighed.  These included the appellant’s age (61), her low risk of re-offending, remorse (although I tend to the view that this was not expressed in any real or compelling way at the time), and in particular, her health.

[24]   Counsel also pointed out that, given the appellant’s health situation, imprisonment would weigh very heavily on her.  There is certainly ample authority for the proposition that in tailoring a sentence of imprisonment, a sentencing court needs to be alert to the fact that for prisoners of some type (such as foreigners, the elderly, and people in bad health), a term of imprisonment will be more onerous and harsher than imprisonment imposed on the stereotypical prisoner of a male in his

20s.

[25]     Turning to the evidence relating to the appellant’s health, I do not accept for one moment that the Judge overlooked this.  He had the benefit of a certificate, as I have said, which referred to the appellant’s chronic obstructive pulmonary disease (being smoking related), her high blood pressure, her osteoarthritis in the hips, and the fact that she was dependent on a walker.

[26]     However,  for  the  purpose  of  this  appeal,  further  information  has  been obtained from the same health centre, which expands somewhat on these maladies and refers in greater detail to pain, reduced mobility, quality of life, wheeziness, the need for a special shower seat, and the risks of living in crowded conditions and being exposed to second hand cigarette smoke.

[27]     The appellant’s affidavit, filed for the purpose of this appeal, makes it clear that the conditions inside prison are having an arguably adverse effect on her health. She has had recent recourse to a nebulizer; she frequently has to go into the medical clinic in prison; she has difficulties in dressing; and is adversely affected by what she calls the “stale air” inside the prison flowing from inmates smoking in their cells. Air conditioning at night triggers her respiratory problems.

[28]     All these matters, as I have said, have been bundled together by Ms Phillips in an attempt to show that the Judge did not exercise his discretion correctly.

Decision

[29]     Although the Judge has dealt succinctly with the matters with which he had to grapple, I am unable to identify any error by him in exercising his sentencing discretion in the way that he did by rejecting home detention.  The Judge was rightly concerned with the extent and duration of the appellant’s offending.  Although he did little more than state that home detention would “clearly be inappropriate” he made this observation in tandem with the purpose of deterrence, particularly in the area of sustained offending.   Certainly this was a case of sustained offending given its temporal duration.

[30]     The Judge reached this view being fully alert to the appellant’s age and infirmities.  Indeed he expressly referred to those as factors.  Were the Judge to have approached the matter (as had the sentencing judge in Ransom) on the basis that this type of offending should invariably or inevitably be met by imprisonment, or had his sentencing notes been structured in such a way it became apparent the Judge had not turned his mind to the individual circumstances of the offender before him, then Ms Phillips’ broad submission might succeed.  But, that is not the case here.

[31]     However, what does concern me about the end sentence of one year is that there are, with respect, relevant mitigating factors which the Judge does not appear to have weighed.  First there is the appellant’s age.  Secondly, her previous criminal history, apart from Borstal training for begging when she was aged 17, discloses no offences involving dishonesty and indeed no convictions for 30 years.  In terms of R v Hessell[6] (which still remains operative), the Judge has given her, and correctly so, a  full  ⅓rd  discount,  but  he  has  not  given  any  further  discounts  to  reflect  the undoubted physical infirmities of the appellant and the fact that imprisonment would

[6] R v Hessell [2010] 2 NZLR 298 (CA).

weigh much more heavily on her than would, for instance, have been the case with the prisoner in Ransom.

[32]     My concluded view, which counsel for the respondent accepts, is that by failing to give additional discounts for these mitigating and personal factors, the Judge has, by a small margin, imposed a sentence which is manifestly excessive.

[33]     In summary, I am not prepared to interfere with the sentence of imprisonment by substituting a sentence of home detention in lieu.  However, I do consider that some modest adjustment (not being tinkering), is justified to reflect, in the special circumstances of this case, the Judge’s failure to give further mitigating credits.

Result

[34]     For these reasons therefore, and to reflect the fact that it is clear on the fresh evidence that the sentence of imprisonment is biting hard on the appellant, I quash the sentence of 12 months imprisonment imposed in the Rotorua District Court on 19

August 2010.   I substitute in its place a sentence of nine months and two weeks imprisonment.

.......................................… Priestley J