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 Judge adopted a three years and three months start point and deducted one year, which he described as a “merciful allowance” to reflect the appellant’s guilty plea and his health.  The final sentence, in respect of all 15 counts, was thus two years and three months imprisonment.

Discussion

[10]     Ms Robles submitted the Judge was wrong to describe the offending as sophisticated.  The start point was too high, particularly having regard to sentences imposed in cases where the deception was sophisticated or in breach of a position of trust.  She submitted the Judge was wrong to describe the offending as a breach of trust.  In counsel’s submission an end sentence in a 15-18 month band should have resulted.  This was, she submitted, a discernible sentencing band in cases involving Accident Compensation fraud.

[11]     Counsel referred us to several authorities, some of which were considered by the Judge.  In R v Beech CA314/01 6 December 2001 the Court of Appeal upheld a 15 month term in a domestic purposes benefit fraud case which involved $87,000 of over-payments during a seven year period.  In R v Harlen (2001) 18 CRNZ 582 (CA), another domestic purposes benefit fraud case, a 15 month term was upheld.  The fraud there resulted in $120,355 being received over a five and a half year period.  In R v Creeks CA26/04 23 June 2004 an 18 month term of imprisonment was upheld.  Convictions flowed from false representations about a de facto relationship. Approximately $86,000 was gained from the fraud over a six-year period.  In many of the authorities family circumstances have been regarded as mitigating factors. 

[12]     Both counsel accepted the force of observations contained in Hogan v Ministry of Social Development HC NAP CRI 2005-441-24 22 July 2005, which contains a useful review of benefit fraud authorities.  In particular, welfare fraud should not be regarded differently from other types of fraud and dishonesty, nor should it be regarded as less serious (at [10] – [12])

[13]     There is little to be gained from comparing and contrasting fraudulently obtained sums or the duration of the offending in cases of this type.  Those are but two of the many relevant factors a sentencing court must weigh.  Other aggravating features and the personal circumstances of the offender must be considered.  What is required of a sentencing court is a carefully exercised discretion, bringing into play the provisions of the Sentencing Act 2002 relevant to the circumstances before it.

[14]     Counsel did not attack the one year reduction from the start point.  Rather the thrust of her submissions was that the start point was too high.

[15]     The weekly sum which the appellant fraudulently obtained was high, doubtless reflecting the level of his wages at the smelter.  There was premeditation and repetition.  Despite the warning he received in 1999 the offending continued.  The offending spanned almost three and a half years.

[16]     Although the Judge categorised the offending as “sophisticated” we do not consider his description resulted in a false appreciation of the offending or its culpability.  The context suggests he could have been referring to a submission that the appellant did not fully appreciate the ramifications of this fraud.  In any event the Judge clearly considered all relevant sentencing factors.  We also consider the Judge correctly characterised the offending as an abuse of trust.  Inevitably the Corporation relies on claimants being honest.

[17]     We consider the start point reflected the circumstances of the offending and the appellant’s culpability.  It reflects too, the aggravating features of the appellant continuing after a warning and providing a false declaration.

[18]     A discount was given to reflect the appellant’s poor health and his guilty plea. 

[19]     We thus reject the submission that the two year three month end sentence was manifestly excessive.

Result

[20]     The appeal is dismissed.

Solicitors:
French Burt Partners, Invercargill for Appellant
Crown Law Office, Wellington