Richardson v Ministry of Social Development HC NAP CRI 2009-441-47

[2010] NZHC 100

IN THE HIGH COURT OF NEW ZEALAND

NAPIER REGISTRY

CRI 2009-441-47

CHRISTINE ALICE RICHARDSON

Appellant

v

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:         4 February 2010

Counsel:         E Forster for Appellant

N M Graham for Respondent

Judgment:      4 February 2010

JUDGMENT OF SIMON FRANCE J

(Appeal against sentence)

[1]      Ms Richardson appeals a sentence of  2 years’  imprisonment  imposed  for

benefit fraud.   Over a period of 14 years, Ms Richardson failed to declare that she was living in a relationship in the nature of marriage.  Indeed, during the period she married her partner.  The total overpayment was $159,120.39.

[2]      The Judge took a starting point of 3½ years.   One third discount for a guilty plea  was  given,  and  the  Judge  indicated  some  consideration  should  be  given  to Mr Richardson’s  health  situation.   The  final  sentence  was  2 years;  home  detention was rejected for deterrence reasons given the scale of offending and the time over which it extended.

CHRISTINE ALICE RICHARDSON V MINISTRY OF SOCIAL DEVELOPMENT HC NAP CRI 2009-441-47

4 February 2010

Appeal grounds

[3]      It  is  submitted  the  starting  point  is  disproportionate  with  like  cases.     A starting  point  of  3 years  was  appropriate. If  the  same  discount  is  applied  the outcome would be twenty months, which is the sentence sought on appeal.

Decision

[4]      The pool of cases relied on  by  the  appellant  where  between  $100,000  and

$200,000 was the quantum illegitimately obtained numbers five.  They do not, in my view, establish that the starting point is excessive.  Whilst two around $110,000 had starting  points  of  2½ years,  another  at  $105,000  had  3 years  for  offending  over 5 years.

[5]      Mr Forster places weight on Osborne CRI 2004-404-000309, 27 August 2004.  There a starting point of 4 years was taken for fraud over 9½ years, with the total loss of $173,120.10.  In my view that case is broadly comparable to the offending here which is 14 years and $160,000.

[6]      The last case mentioned by  the  appellant  was  Williams  HC  Auckland

28 May 2002,  AP 28/02.   O’Regan J  viewed  3 years  as  stern  but  available. The figures there were 5 years and $105,000.  Here one has nearly half as much again in terms  of  the  sum  defrauded,  and  offending  carried  on  over  almost  three  times  as long.

[7]      Overall,  I  see  nothing  to  satisfy  me  3½ years  is  manifestly  excessive  as  a starting point.   Nor would I have regarded 3 years as manifestly inadequate had the Judge  begun  there.   What  I  do  not  accept  is  the  proposition  that  3 years  was  the highest available for offending of this nature.  It is offending that involves sustained cheating  of  a  system  designed  to  help  those  most  in  need;  it  is  open  to  self-help abuse and it was open to the Judge to be firm when presented with fraud carried on over such a period.

[8]      Since   I   consider   the   starting   point   was   within   discretion,   the   appeal necessarily fails and is dismissed.

Solicitors:

E Forster, Barrister, PO Box 838, Hastings

Simon France J

N M Graham, Elvidge & Partners, PO Box 609, Napier, email:  [email protected]