Steer v Police

[2016] NZHC 877

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2016-470-8 [2016] NZHC 877

BETWEEN

MICHELLE ILENE STEER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

3 May 2016

(Heard at ROTORUA)

Appearances:

W T Nabney for Appellant
N T C Batts for Respondent

Judgment:

4 May 2016

JUDGMENT OF LANG J [on appeal against sentence]

This judgment was delivered by me on 4 May 2016 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

STEER v NEW ZEALAND POLICE [2016] NZHC 877 [4 May 2016]

[1]      Ms  Steer  pleaded  guilty  in  the  District  Court  to  15  charges  of  using  a document to obtain a pecuniary advantage and one charge of obtaining a pecuniary advantage by deception.1    On 18 March 2016, Judge Coyle sentenced Ms Steer to concurrent sentences of 16 months imprisonment on all charges.2

[2]      Ms Steer appeals against sentence.  She contends that the Judge ought to have sentenced her to home detention rather than imprisonment.

The offending

[3]      From mid-November 2005 to 12 April 2015 Ms Steer was in receipt of various benefits under the Social Security Act 1964.  She commenced living with her partner in March 2008, but failed to advise the Ministry of Social Development of that fact in forms that she filled in thereafter.  Had she advised the Ministry that she was living with her partner, her entitlement to the benefits would have terminated. Ms Steer received overpayments totalling $143,634.90 as a result of her fraudulent conduct.

The sentence

[4]      The Judge fixed a starting point of 24 months to reflect Ms Steer’s overall culpability.  He applied a discount of four months to reflect mental health issues that also form the basis of the present appeal.  This produced a provisional sentence of 20 months imprisonment before taking into account guilty pleas.  The Judge applied a discount of four months, or 20 per cent, to reflect this factor.  This produced the end sentence of 16 months imprisonment.

[5]      The  Judge  declined  to  convert  the  end  sentence  to  a  sentence  of  home

detention.   That aspect of the Judge’s sentencing decision is the sole issue on the present appeal.

1      Crimes Act 1961, ss 228(b) and 240(1)(a).

2      Ministry of Social Development v Steer [2015] NZDC 4749.

Admission of fresh evidence on appeal

[6]      Ms Steer has applied for an order that she be permitted to file an affidavit dated 29 April 2016 in support of her appeal.   This relates to events that have occurred since she began serving her prison sentence.  Although the Crown opposes admission of the evidence, I am satisfied that it should be admitted in the interests of justice. The reasons for this will become obvious during the course of the judgment.

The argument on appeal

[7]      Mr Nabney submits that the Judge failed to give adequate weight to the fact that a sentence of home detention is a deterrent sentence.  He submits that, had the Judge given this factor  adequate weight, he would inevitably have come to the conclusion that Ms Steer’s personal circumstances warrant a sentence of home detention rather than imprisonment.

[8]      This argument is based on the fact that Ms Steer suffers from a chronic eating disorder.  This has caused her to lose a considerable amount of weight.   She now weighs approximately 51 kilograms.   The disorder has required Ms Steer to have significant  medical  help  in  the past.   The  sentencing in  the  District  Court  was delayed on at least one occasion because Ms Steer was hospitalised due to the disorder.

[9]      Mr Nabney submits that the Judge based his decision on a belief that Ms Steer’s  disorder  could  be  adequately  treated  within  a  prison  environment.    He submits that this has proven not to be the case because Ms Steer deposes in her affidavit that she has continued to lose weight whilst in prison despite the fact that she has eaten all the food that she has been given.  Ms Steer is lactose and gluten intolerant, and as a result cannot eat the food eaten by most of the other prisoners. She deposes that the food she has received in prison is insufficient for her to gain weight, and that her condition is currently worsening.

Relevant principles

[10]     The imposition of a sentence of home detention is the exercise of a fettered statutory discretion.  The discretion must be exercised in a manner that is consistent with the purposes and  principles of sentencing contained in the Sentencing Act

2002.3   Provided a sentencing Judge takes into account relevant factors and does not

take into account irrelevant considerations, an appellate court is unlikely to disturb the exercise of the discretion unless it produces a result that is plainly wrong.  The weight that a sentencing Judge may give to a relevant factor does not provide a basis to challenge the exercise of a discretion.4

Decision

The exercise of the discretion

[11]     The Judge explained his decision not to impose a sentence of home detention in the following paragraphs of his sentencing remarks:5

[38]      I  recognise  that  the Appellate  Courts  have  made  it  clear  that  a sentence of home detention is a realistic and viable alternative to a sentence of imprisonment and I do not underestimate the difficulties of undertaking a sentence of home detention, particularly a long one.

[39]     What I need to weigh up is the principles in the Sentencing Act to which I have referred, together with your personal circumstances and give consideration as to whether those principles can be met through a sentence short of imprisonment and that is through one of home detention.

…

[42]      There is a need, in my view, to send a strong deterrent message that sustained, prolonged, deliberate offending of this nature which results in a significant amount of money being taken from the taxpayer needs to be strongly denounced and deterred.

[43]      Those  principles  of  deterrence need to be  balanced against  your personal circumstances, in particular the mental health issues I have referred to.  The information I have in the [pre-sentence] report indicates that those issues  can  be  addressed  by  the  prison  service.    Mr  Nabney  is  not  as confident, but I have no reason to disbelieve the Department of Corrections when they set out that information.

3      R v Hill [2008] NZCA 41 at [34].

4      McConell v R [2013] NZCA 303 at [15].

5      Ministry of Social Development v Steer, above n 1.

[44]     In  my  view,  a  sentence  of  home  detention  will  not  meet  the principles in the Sentencing Act.   It would be inadequate deterrent to you and to the wider community.

[12]     These passages make it clear that the Judge was alive to the manner in which he needed to approach the exercise of his discretion.  He placed to the forefront the sentencing purposes of denunciation and deterrence.6   Those were obviously relevant factors in the present case given the serious and prolonged nature of Ms Steer’s offending.   The Judge then balanced those purposes against Ms Steer’s personal circumstances, and in particular the health issues from which she suffers.  The Judge

concluded that these issues could be addressed by the prison service.   He then concluded that a sentence of home detention would not meet the sentencing purposes he had identified.

[13]     This was an orthodox approach to the exercise of the statutory discretion. The Judge did not place weight on irrelevant factors or fail to take into account relevant factors.  The only issue is whether the Judge’s confidence in the ability of the prison service to address Ms Steer’s health issues was misplaced having regard to events that have occurred since Ms Steer began serving the sentence.  The thrust of Ms Steer’s affidavit is to the effect that it was.

[14]     In this context, however, I accept Mr Batt’s submission for the Ministry that there is no evidence that Ms Steer’s health issues would be better addressed by serving a sentence of home detention rather than a term of imprisonment.  It is clear from  the  material  before  the  Court  that  Ms  Steer  has  suffered  from  the  eating disorder for a considerable period.   The fact that sentencing had to be adjourned whilst she was hospitalised suggests that Ms Steer was not managing the disorder well whilst in her home environment.  Furthermore, a report from a clinical dietician dated 19 January 2016 contains the following observations:

Social: Has 4 children and a partner.  Reports being very stressed about the amount she has to get done each day – the stress of looking after her family potentially adding to her already severe anxiety.   Ms Steer reports recent input from mental health services.

…

6      Sentencing Act 2002, s 71(e) and (f).

I am very concerned about Ms Steer’s current nutritional status, given her already compromised physical status (recent chest pain, no longer able to exercise).  In my opinion her weight is likely to continue to drop as she is unwilling to make significant changes to her diet (she was willing to trial one cracker, but nothing else I suggested as she found trialling more than one intervention at a time too overwhelming to even consider).  I would suggest considering  whether  admission  to  the  mental  health  ward  for  treatment would be the most appropriate course of action for her given her home environment appears to be adding to her anxiety.

[15]     These passages suggest that Ms Steer’s home environment was causing her stress and that this was exacerbating her condition.  There is no evidence to confirm that she would now be better served by being back in that environment rather than subject to the care of the health professionals engaged by the prison service.

[16]     The prison medical notes Ms Steer has produced also contain some pertinent observations.  They suggest the fact that Ms Steer is continuing to lose weight whilst in prison is at odds with what should be happening given the dietary supplements she has been given.  This has led to an observation that Ms Steer may not be consuming all her meals and supplements.  This possibility gains support from the fact that on

21 April 2016 Ms Steer refused to eat her dinner because it did not come with a salad.

[17]     The material now before the Court does not demonstrate that the Judge erred in concluding that Ms Steer’s health concerns can be adequately met within the prison environment.  The prison authorities are now well aware of the fact that Ms Steer requires sufficient food and dietary supplements in order to stem weight loss and promote weight gain.   If weight loss continues, they may need to review the extent to which they monitor Ms Steer’s consumption of both food and dietary supplements.

Result

[18]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Tauranga