Ropitini v Ministry of Social Development

[2021] NZHC 2273

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2021-419-44

[2021] NZHC 2273

BETWEEN

TIPARE HOKIMATE ROPITINI

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing:

31 August 2021

Appearances:

J Keung for the Appellant

K Whyte for the Respondent

Judgment:

31 August 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 31 August 2021 at 4:30 pm

Registrar/Deputy Registrar

ROPITINI v MINISTRY OF SOCIAL DEVELOPMENT [2021] NZHC 2273 [31 August 2021]

[1]Ms Ropitini pleaded guilty to the following 32 charges:

(a)Two charges of obtaining by deception;1

(b)One representative charge of using a document;2

(c)Six charges of using a document;3

(d)Six charges of using a forged document;4

(e)Seventeen charges of using a document.5

[2]        Judge N D Cocurullo sentenced her, on 23 June 2001 in the District Court at Hamilton, to two years and three months’ imprisonment.6

[3]        Ms Ropitini appeals against sentence on the ground that insufficient discounts were given for personal mitigating factors.

Background

[4]        Ms Ropitini deliberately and systematically defrauded the Ministry of Social Development for nine years.

[5]        She made false declarations as to her relationship status, claiming she did not have a partner and lived alone. She also made false claims as to her accommodation status, claiming she (or others) lived at various addresses incurring rents. As a consequence, Ms Ropitini received payments of $85,267.99 from January 2010 to June 2012 and from June 2014 to September 2016 to which she was not entitled.

[6]        Ms Ropitini also engaged in a more elaborate scheme. She provided 14 other individuals with false tenancy agreements (in the name of what appeared to be a

1      Crimes Act 1961, ss 240(1) and 241(a). Maximum penalty: seven year’s imprisonment.

2      Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment.

3      Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment.

4      Crimes Act 1961, s 257(1)(a). Maximum penalty: ten years’ imprisonment.

5      Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment

6      Ministry of Social Development v Ropitini [2021] NZDC 12531.

commercial entity) and other forged documents. Those individuals then applied to the Ministry for financial support for the cost of a bond, rent in advance, rental payments and other assistance. Some of these amounts were paid into a bank account in the name of the entity. Ms Ropitini had access to that account. The amount paid into the bank account between December 2011 and April 2017 was $17,270. The other individuals, using forged documents supplied by Ms Ropitini, were overpaid

$54,410.98 by the Ministry.

[7]        In addition, Ms Ropitini herself used several fictitious names and fraudulent documents to obtain various forms of accommodation assistance for a number of different addresses between August 2008 and February 2013. During this period she was paid $8,517.78 to which she was not entitled.

District Court decision

[8]        The Judge described the scale of Ms Ropitini’s offending as “staggering”. It involved the intentional use of forged documents over an extended period involving a high degree of deception. This included fabricating tenancy agreement and rent books. Ms Ropitini was the primary offender and her culpability was serious. The Judge calculated the total loss as a result of the offending to be $165,466.25. He also noted Ms Ropitini’s extensive history of dishonesty offending.

[9]        Having considered submissions from counsel and the authorities they cited, the Judge adopted a starting point of three years’ imprisonment.

[10]      He added an uplift of six months’ imprisonment for previous convictions. The Judge refused any discount for remorse given the offending was premeditated and went on for many years. He considered a discount of 15 per cent was available for Ms Ropitini’s addiction and other mitigating factors addressed in a s 27 cultural report. He allowed a 20 per cent discount for a guilty plea, accepting that Ms Ropitini pleaded guilty at an early opportunity, but not the earliest.

[11]      The Judge applied the two discounts to the uplifted starting point (42 months) rather than to the starting point of 36 months. This produced an end sentence of two years and three months’ imprisonment (on each charge, to be served concurrently).

[12]      The Judge noted this was not a short-term sentence of imprisonment, so home detention was not available. However, he added that even if home detention had been available as a sentencing option, it would have been “highly unlikely” that he would have imposed a sentence of home detention. The offending was premeditated and seriously culpable. It had occurred over an extended period in several ways and had led to substantial loss. Ms Ropitini was no stranger to dishonesty offending and she had had significant chances in the past to address her behaviour.

Grounds of appeal

[13]      The sole ground of appeal is that the Judge gave insufficient credit for two mitigating factors. One is the role of addiction in the offending and Ms Ropitini’s efforts to address her addiction. Mr Keung, for Ms Ropitini, submits a discount of 20 per cent was warranted on this basis. The other is the personal factors, background and cultural matters set out in the s 27 report. Mr Keung says a further discount of 10 per cent is justified. No issue is taken with the starting point or the uplift for prior offending. Mr Keung submits that if the appeal results in a short-term sentence of imprisonment, then home detention would be the appropriate outcome.

[14]      Mr Whyte, for the Ministry, responds that the end sentence was within the range available to the Judge and was not manifestly excessive. He points out that the way in which the Judge applied the discount for personal mitigating factors (applying it to the uplifted starting point) meant that the effective discount was about 20 per cent.

Relevant principles

[15]      For an appeal against sentence to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.7 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.8

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27] and [31]-[35].

8 At [36].

Analysis

[16]      In Zhang v R, the Court of Appeal addressed the evidence required to support a discount for addiction in serious drug offending. The Court said:9

… any such discount should be based on persuasive evidence, as opposed to mere self-reporting. We agree. Inasmuch as a stage two discount for mitigating circumstances is engaged, the onus of proof (to the civil standard) lies on the offender to establish the extent and effect of addiction.

[17]      Some of the evidence on which Mr Keung relies to establish that Ms Ropitini was addicted to methamphetamine is mere self-reporting. However, I accept that there is also independent evidence (in the form of an Oranga Tamariki report, which references test results) of her addiction. I am satisfied that Ms Ropitini was addicted throughout most if not all of her offending.

[18]      I am also satisfied from the material that has been presented that it is likely that there is some causative link between Ms Ropitini’s addiction and her offending. Her addiction was long term. There is no suggestion that Ms Ropitini enjoyed a high-end lifestyle. In these circumstances it can be inferred that a cause of her offending was to fund her addiction.

[19]      A discount was accordingly warranted for her addiction. In determining the level of that discount, I accept Mr Whyte’s submission that there are two relevant factors. The first is that, although it can be inferred her addiction was a cause of her offending, there is no evidence from which I could find that the addiction was the sole or even primary cause of her offending.

[20]      The second arises from the nature of Ms Ropitini’s offending. It was deliberate, repeated and occurred over many years. This engages the observation by the Court of Appeal in Zhang that “commercial dealing is likely to be inconsistent with the impairment of the ability to exercise rational choice, which is what diminishes culpability and justifies discounting the sentence”.10 That observation was of course made in reference to commercial drug dealing. But it is equally relevant here. Ms

9      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [148].

10     Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [147].

Ropitini’s deliberate and long-term offending is inconsistent with her ability to exercise rational choice having been significantly impaired by her addiction.

[21]      For those reasons, any discount for Ms Ropitini’s addiction could only be modest. I do not accept Mr Keung’s submission that a discount in the order of 20 per cent was warranted.

[22]      The s 27 report shows that Ms Ropitini was raised in modest circumstances by her grandmother and that she [suffered] as a child. In her teenage years she was exposed to violence. As an adult she has been in a number of violent relationships. In recent years she has taken steps to address her addiction.

[23]      The circumstances outlined in the report can warrant a discount when they are shown to contribute causatively to the offending.11 The report itself does not suggest any such causal linkage. As a consequence, the most that Mr Keung could submit was that the circumstances had a direct link to her methamphetamine addiction which in turn was a contributing factor to her offending.

[24]      Mr Keung’s approach risks double counting, in that Ms Ropitini would receive a discount for her drug addiction and a further discount for cultural factors and background which led to that addiction. For that reason, I agree with Mr Whyte that it is appropriate to consider the addiction and the background circumstances together, which was the approach taken by Judge Cocurullo.

[25]      Looking at the addiction and the background circumstances together, and given that any discount for the addiction could only be modest, in my view an overall discount of 15 per cent for these matters is well within range and cannot be criticised.

[26]      As it happens, because the Judge applied the discount to the uplifted starting point of 42 months, rather than (as he should have) to the starting point of 36 months, he effectively allowed a discount of about 20 per cent for Ms Ropitini’s addiction and for her background. The Judge certainly did not impose a sentence that could be characterised as manifestly excessive.

11     Carr v R [2020] NZCA 357 at [58]-[65].

Result

[27]The appeal is dismissed.

Campbell J