Tawhai v Ministry of Social Development

[2017] NZHC 392

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-3 [2017] NZHC 392

BETWEEN

FREINHILGA TAWHAI

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	9 March 2017
Appearances:	E J Forster for Appellant C R Stuart for Respondent
Judgment:	9 March 2017

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TAWHAI v MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 392 [9 March 2017]

[1]      Ms Tawhai pleaded guilty in the District Court to ten charges of dishonestly using a document and one charge of obtaining by deception.  On 23 December 2016, Judge Adeane sentenced her to two  years one month imprisonment.1     She now appeals against sentence on the basis that the Judge failed to take into account two mitigating factors.  As a result, she contends that the Judge imposed a sentence that was manifestly excessive.

The facts

[2]      The offending occurred over a period of eight years.   During that period, Ms Tawhai was in receipt of a benefit from the State.  She also received reductions in rent based on her personal circumstances.  During the whole of this time, Ms Tawhai was living in a domestic relationship with her partner.   He, too, was receiving a benefit from the State.

[3]      Both Ms Tawhai and her partner regularly submitted documentation to the Ministry  of  Social  Development  confirming  that  their  circumstances  had  not changed and they were not living in a relationship with another person.  Based on these assertions the Ministry continued to pay the benefit, and to provide Ms Tawhai with a reduction in her rent.  In all, she received benefits totalling $126,000 to which she was not entitled.

The Judge’s decision

[4]      The Judge considered that the offending warranted a starting point of two and a half years imprisonment.  He applied a discount of five months, or approximately

17 per cent, to reflect Ms Tawhai’s guilty pleas.   These were entered three weeks

before a four day Judge alone trial was due to commence.  This resulted in the end sentence of two years one month imprisonment.

1      Ministry of Social Development v Tawhai [2017] NZDC 26693.

The arguments

[5]      Mr Forster submits on Ms Tawhai’s behalf that the Judge ought to have provided a further discount to reflect two factors.   These were an expression of remorse that Ms Tawhai made to the probation officer who prepared the pre-sentence report.  The second is the fact that Ms Tawhai will be repaying the amount that she wrongfully received by means of future deductions from benefit payments.

A discount for remorse?

[6]      The expression of remorse is found in the following passage of the pre- sentence report:

Remorse and offers to make amends

Ms  Tawhai  has  accepted  responsibility  towards  her  fraudulent  actions. Having had time to reflect on her actions and the position she finds herself in, Ms Tawhai expressed regret and remorse for her decision-making.

[7]      Mr Forster points out that in R v Hessell the Supreme Court observed that sentencing Judges may provide a discrete credit to reflect situations in which an offender has expressed genuine remorse.2    This, however, requires robust analysis because sentencing Judges are regularly confronted with expressions of remorse that relate primarily to the situation in which the offender finds himself or herself.

[8]      The Judge was clearly alive to the comments made in the pre-sentence report. He said that he bore in mind Ms Tawhai’s personal circumstances, but considered that the need for deterrence and the requirement to send a clear message to the community prevailed over her own interests.3

[9]      I see Ms Tawhai’s expression of remorse in the pre-sentence report as being directed primarily to  the situation  in  which  she found herself,  namely facing  a sentence of imprisonment.  It was this prospect that appears to have prompted her feelings  of  regret  and  remorse  rather  than  any  insight  into  the  harm  that  her

offending has caused.

2      R v Hessell [2010] NZSC 135; [2011] 1 NZLR 607 at [74].

3      Ministry of Social Development v Tawhai, above n 1, at [7].

[10]     A sentencing Judge always has a discretion whether or not to apply credit to reflect factors such as remorse.   Some judges may have applied a discount in the present case.  Others would not.  For myself, I see no error in principle in the Judge declining to provide Ms Tawhai with a discrete reduction to reflect the expression of remorse that she made to the probation officer.  I would not be justified in interfering with the Judge’s decision on that ground.

Payment of reparation

[11]     The second ground of appeal is based on the fact that when Ms Tawhai is released from prison she will have deductions of approximately $30 per week taken from any benefit to which she might be entitled.   As a result, she will repay the amount she was overpaid over a very lengthy period.  Mr Stuart for the respondent calculates this to be approximately 80 years.

[12]     I do not consider the Judge was obliged to apply a discount in respect of this factor.    Ms  Tawhai  will  not  be  making  the  payments  voluntarily,  nor  has  she borrowed  money or  sold  assets  to  make  a  lump  sum  payment.    Those  are  the situations  in  which  the  Court  will  usually  provide  a  discrete  credit  to  reflect reparation paid by the offender.  Ms Tawhai has not sought to make amends herself in any other way.  For that reason no credit was open to her for this factor.

Was the sentence manifestly excessive?

[13]     Another issue arises, and this relates to the overall appropriateness of the end sentence.  This Court may only interfere when it is satisfied that the end sentence imposed in a Court below is manifestly excessive.4

[14]     In the present case Mr Forster sought a reduction of just one month so as to enable Ms Tawhai to be eligible for a sentence of home detention.  That fact alone speaks against the strength of the appeal.  A reduction of just one month would, in my view, amount to tinkering with the sentence imposed.  A sentence of 25 months imprisonment rather than 24 months imprisonment cannot by any stretch of the

imagination be described as manifestly excessive.

4      Tutakangahau v R [2014] NZCA 279 at [33].

Result

[15]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Napier