R v Hapuku - [2007] NZCA 368

IN THE COURT OF APPEAL OF NEW ZEALAND
CA167/07
[2007] NZCA 368
THE QUEEN
v
MICHAEL TE TAPU HAPUKU
Hearing:20 August 2007

Court:Arnold, Gendall and Priestley JJ
Counsel:A Robles for Appellant

K B F Hastie for Crown

Judgment:28 August 2007 at 4.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
Introduction
[1]       For 30 years the appellant, Michael Hapuku, worked in the aluminium smelter at Tiwai Point.
[2]       In 1994, when he was aged 39, he was diagnosed with a work related illness, occupational asthma. The Accident Compensation Corporation accepted his claim and subsequently, in 1997, began paying him weekly compensation of $751.70.
[3]       A prerequisite to receiving the compensation was providing a medical certificate every three months. Those certificates stated the appellant was totally incapacitated because of his occupational asthma. When the appellant submitted the certificates he represented that they accurately reflected his situation. The appellant was also obliged to inform the Corporation if he began any employment or received any income.
[4]       In 1998 the appellant involved himself in a bricklaying and plastering enterprise for which he was paid. In May 1999 an investigator from the Corporation spoke to him about those activities. He was warned for failing to disclose his work and income. Despite that warning he continued to work. He also continued to receive weekly compensation payments. Between March 1999 and August 2002 those weekly payments totalled $126,877, to which the appellant was not entitled.
[5]       The appellant pleaded guilty in the Invercargill District Court, after arraignment but before trial, to 15 counts of using a document with intent to defraud in order to obtain a pecuniary advantage (s 229A(b) of the Crimes Act 1961). Each count carried a maximum penalty of seven years imprisonment.
[6]       In March 2007 Judge K J Phillips sentenced the appellant to two years and three months imprisonment: DC INV CRI 2005-025-3247 14 March 2007. He challenges that sentence.
The Sentence
[7]       The Judge considered the appellant had “ripped off [his] community in a very large way” (at [3]). He referred (at [4]) to the warning given by the Corporation’s investigator in 1999 and observed the appellant had continued to claim compensation payments. He noted the appellant had given the Corporation a statutory declaration in March 2003 which falsely stated he had not undertaken any work or received any income whilst compensation was being paid to him. (Initially the appellant faced a charge of making a false declaration but this was withdrawn). He referred to the appellant abusing the Corporation’s trust in beneficiaries to be honest (at [5]).
[8]       The Judge noted the appellant’s health difficulties and his activities in the local Maori community (at [6]). He observed that a reparation sentence could not be imposed because the appellant was an undischarged bankrupt (at [7]). He described the offending as “sophisticated”. He did not consider the appellant had been under any misconception about his entitlement to compensation (at [8]).
[9]       The…

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 R v Hapuku

Details

AGLC: R v Hapuku [2007] NZCA 368
Case: [2007] NZCA 368
Decision Date: 28 August 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Michael Hapuku, was convicted of 15 counts of using a document with intent to defraud in order to obtain a pecuniary advantage. Hapuku appealed against his sentence of two years and three months imprisonment. The appellant had been employed at an aluminium smelter for 30 years before being diagnosed with occupational asthma in 1994. He received weekly compensation payments from the Accident Compensation Corporation, contingent on providing medical certificates every three months that he was totally incapacitated due to his condition. Despite being warned in 1999 for not disclosing his employment and income, Hapuku continued to receive compensation payments for his claimed total incapacity, amassing a total of $126,877 to which he was not entitled. The Court of Appeal examined the sentence imposed by the Judge, who had considered the appellant's actions as "ripped off [his] community in a very large way". The Judge adopted a three years and three months start point and deducted one year for the appellant's guilty plea and health, resulting in a final sentence of two years and three months imprisonment. The Court of Appeal considered the arguments made by the appellant's counsel that the sentence was too high, but ultimately found that the sentence was appropriate given the circumstances of the offending and the appellant's culpability. The Court of Appeal dismissed the appeal.

Orders