Te Weri v Ministry of Social Development HC Napier CRI 2010-441-49

[2010] NZHC 2108

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2010-441-49

BETWEEN  KELLIE TERESA TE WERI Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         23 November 2010

Appearances: A Malik for Appellant

J D Lucas for Respondent

Judgment:      25 November 2010

JUDGMENT OF BREWER J

This judgment was delivered by me on 25 November 2010 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Amit Malik (Hastings) for Appellant

Elvidge & Partners (Napier) for Respondent

TE WERI V MINISTRY OF SOCIAL DEVELOPMENT HC NAP CRI-2010-441-49  25 November 2010

Introduction

[1]      Ms Te Weri appeals against a sentence of 20 months' imprisonment imposed on her in the District Court at Napier on 29 March 2010 for benefit fraud.  The notice of appeal was filed on 29 October 2010 and is approximately six months out of time.[1]    Accordingly, leave to appeal out of time is sought also.   Due to the circumstances related below, leave is granted.

[1] Section 115 Summary Proceedings Act 1957.

[2]      The ground of appeal is that the sentence of imprisonment was inappropriate in  the  circumstances  and  that  a  sentence  of  home  detention  should  have  been imposed.  The appellant's complaint is that the sentencing Judge, having regard to the amount of the fraud, gave undue emphasis to the sentencing purposes of deterrence and denunciation.

[3]      Counsel for the appellant at the time of sentencing accepted that a sentence of imprisonment was inevitable.   However, since the sentencing the Court of Appeal has delivered its judgment in Ransom v R.[2]    It is that decision which has triggered this appeal.

The facts

[2] Ransom v R [2010] NZCA 390.

[4]      The appellant pleaded guilty to 15 charges of using a document and one of wilful omission.   Her partner was also charged with six charges of benefit fraud. The  factual  background  can  be  taken  from  the  sentencing  notes  of  Judge B M Mackintosh as follows:[3]

[3] Ministry of Social Development v Ria & Anor DC Napier CRI-2009-041-4337, 29 March 2010.

[2]       Essentially, the facts are these.  That back in September 1998, both of you were granted a sickness benefit as a couple because you, Ms Te Weri, were pregnant.  On 22 October, you were transferred to the community wage as a single person.   As a result of information received, inquiries were carried  out  which  established  that  both  of  you  reconciled  on  about

7 December  1998  and  did  not  advise  the  Ministry  of  this  change  in circumstances.  On 7 December 1998, you gave birth to a daughter, who is a

child of you both.  On 18 August 2000 you had a son, who was also the child of you both.

[3]       On 11 September 2000, Mr Ria, your benefit was suspended because your address was unknown. On 21 September 2000, you, Mr Ria, completed a change of address, accommodation costs, lodged it with WINZ and stated that you were living with your sister in Onehunga.  As a result of that, your community wage job search was resumed.  In fact, you were actually living with your partner, Ms Te Weri, at the time.  On 6 March 2001, your benefit was stopped because you went back to work.

[4]       On 19 November you, Ms Te Weri, telephoned the Ministry’s call centre and advised that your children had gone out of your care and were now in the care of their father, Mr Ria.  As a result, your domestic purposes benefit was cancelled from 11 November 2003.

[5]       On 19 November 2003, Mr Ria, you completed an application for a domestic purposes benefit, lodged it at the Napier office of WINZ, and stated that you were living apart from your partner, Ms Te Weri, and said that you had your two children living in your care.  On the same day, upon a request from you, Ms Te Weri wrote a letter in which she said she had signed her children over to you and that you were also taking over the rental property.  You then presented that letter to WINZ in support of your claim and, as a result of completing the requisite forms, you were granted a domestic purposes benefit in October 2003.  In fact, you were not separated from Ms Te Weri at this time; you were living in a relationship in the nature of marriage and she was, in fact, in fulltime employment.

[6]      On or about 28 June 2004, Mr Ria, you commenced fulltime employment.   On 30 June, Ms Te Weri completed a domestic purposes benefit, lodged it at Flaxmere and stated that she was living apart from you and that she had the children living in her care.   Upon a request, you, Mr Ria, wrote a letter which said that you had given the children back to her and that you were returning to work.  On 30 June she presented that letter to WINZ in support of her claim.

[7]       As  a  result  of  completing  those  forms,  Mr  Ria,  your  domestic purposes benefit was stopped and, Ms Te Weri, you were granted one as a sole parent from 7 July 2004.   In fact, you were not separated from her, Mr Ria; you were still living in a relationship in the nature of marriage and Mr Ria was, in fact, at the time, in full-time employment.

[8]       In  July  2004,  Mr  Ria  telephoned  the  Ministry’s  call  centre  and advised that his two children had left his care and gone to live with you, Ms Te Weri.  In fact, you were both living together with your children.

[9]       On 8 December, Ms Te Weri, you applied for a special benefit which was granted from 10 December 2004.  Then on various dates between March 2005 and May 2009, you completed special benefit review forms, in each one of those stating that you were single.  Of course, because of that, the special benefit continued to be paid to you.

[10]     On 4 May 2005, Mr Ria, you completed an application for sickness benefit, said that you did not have a partner and were living apart.   As a result of that, you were granted a sickness benefit on 28 April 2005.  In fact,

you were living in a relationship in the nature of marriage with Ms Te Weri at the time, who herself was claiming a benefit as a sole parent.

[11]      On 9 May, Ms Te Weri, you completed an application to review your benefit entitlement.  On that form, you maintained you were not living in a relationship in the nature of marriage and, as a result of completing that document, your benefit (that is, the domestic purposes benefit) continued to be paid to you.

[12]      On 4 July, Mr Ria, your sickness benefit was stopped.

[13]     On 29 May 2006, Ms Te Weri, you completed an application to review your benefit entitlement and stated that, of course, you were not living in a relationship in the nature of marriage.

[14]      On   17   July   2006,   Ms   Te   Weri   you   commenced   part-time employment at a school in Auckland.   Then on 21 November 2006 and

19 June 2007, completed special benefit review forms stating that you were

single and that you had not been in paid employment and received no other income over the last 26 weeks.  As a result, a special benefit continued to be paid to you.  In fact, you were living with your partner and also working at the Roscommon School.

[15]     On  16  June,  your  benefit  was  suspended  because  you  had  not completed your annual review form.  On 19 June you then completed that form, said you did not have a partner and that you were single, maintained you  were  not  working  and  had  not  received  any  income  in  the  last

12 months. That was all not true.

[16]     On 6 May 2009, you completed another application to review your benefit form, maintained you did not have a partner and were single and, of course, as a result of that, the domestic purposes benefit was paid to you.

[17]      You were interviewed on 10 June last year and said you were living with Mr Ria.  You were interviewed on 12 June and admitted that you had been, in fact, living with him and stated that, apart from two periods of separation, you had both been living together in a relationship in the nature of marriage since your daughter was born in 1998.  An explanation given by you was that you had claimed the domestic purposes benefit and helped your partner to do the same so you could have financial security.

[18]     Mr Ria, you were interviewed on 17 June 2009 and said you had claimed benefits wrongly because you needed money to live.

[19]     As  a  result  of  the  offending,  you  were  both  overpaid  benefits between 7 December 1998 and 16 August 2009.   Ms Te Weri, your total overpayment was $121,617.04.  Mr Ria, the total overpayment to you was

$15,148.46.  The Department will attempt to recover the amounts from both of you.   I can suspect, as far as you are concerned, Ms Te Weri, this is

probably unlikely.

[5]      Judge Mackintosh took into account the following matters:

(a)That Ms Te Weri had three children with Mr Ria aged 13, 11 and nine.  Since their births Ms Te Weri had largely been at home.  There had been financial problems, Mr Ria's work had been sporadic, and the relationship between her and Mr Ria "had its ups and downs".[4]

(b)Ms Te Weri was employed by Maraenui Bi-Lingual School.  She was doing well there.  She was regarded as an excellent employee with a positive outlook and the outlook for her in life seemed positive.

[4] Ibid, at [21].

[6]      There were no relevant previous convictions and so Ms Te Weri was before the court as a first offender.

[7]      Aggravating features were identified as the period of time that the offending endured  (since  1998),  the  amount  involved  (approximately  $121,000),  and  the breach of trust.

[8]      The Judge took into account that Ms Te Weri had pleaded guilty at an early opportunity and deserved full credit for that.  She had co-operated with the police.

[9]      The Judge then went on to say:

[32]     As far as you are concerned, Ms Te Weri, in my view a term of imprisonment is inevitable.   This is a vast sum of money that was misappropriated.  As I say, there was a breach of trust involved.  Deterrent sentences are required to ensure that other people who have the benefit of being on a benefit do not abuse it in this way.

[33]      I have been referred to a number of cases by the prosecution and by your counsel, which would indicate to me that a starting point somewhere between three and three and half years imprisonment would be warranted.  I take the view that in your particular case, a starting point of three years imprisonment is appropriate.  I will reduce that down by one-third because of your guilty plea, which reduces it back to two years imprisonment.  I will also give you some other credit for your remorse, the fact that you have no previous  convictions,  you  have  co-operated,  and  you  are  motivated  (it

seems) not to offend in this way again.  In the result, the end sentence of this

Court will be 20 months imprisonment.

Competing contentions

[10]     Mr Malik for the appellant relies on Ransom and on Fitzgerald v Ministry of Social Development[5]  in support of a submission that the sentencing Judge failed to consider whether the principles of denunciation and deterrence could be met by a period of home detention.   Mr Malik submitted that the factors referred to by the Judge[6] did make this a suitable case for home detention.

[5] Fitzgerald v Ministry of Social Development HC Christchurch CRI-2010-409-180, 14 October 2010, Fogarty J. 

[6] Summarised in [5] above.

[11]     For the respondent, Mr Lucas submitted that as this is an appeal against a discretion the onus is on the appellant to show that the sentencing Judge erred in principle, overlooked a relevant consideration, took into account wrong considerations or was just plainly wrong in law.[7]   He also cites the dicta in R v D[8] to the effect that an appellate court considering the issue of whether imprisonment is necessary or whether home detention can respond adequately to the seriousness of the offending should, in cases which are close to the dividing line between the two, give weight to the view of the sentencing Judge.

[7] Blackstone v Blackstone (2008) 19 PRNZ 40.

[8] R v D [2008] NZCA 254 at [66].

[12]     Mr Lucas submits that Judge Mackintosh specifically considered the matter of home detention and considered that the gravity of the offending required a general deterrent sentence that meant that the least restrictive sentence could only be imprisonment.

[13]     Mr Lucas also submitted that Ransom was decided after the sentencing of the appellant and therefore Judge Mackintosh sentenced in accordance with the law as it was stated at the time.  I should say at this stage that I do not accept that submission. It is true that Ransom was decided after the sentencing but the Court of Appeal was not enunciating new law, simply drawing together the threads of existing cases in the light of the 2007 amendment to the Sentencing Act 2002.

[14]     In Ransom the Court of Appeal examined the purpose of the sentence of home detention, noting that it was introduced as a discrete sentencing option by the Sentencing Amendment Act 2007 at the same time as other new community-based sentences.[9]   The Court went on to observe:[10]

Delivering the judgment of this Court in R v Hill, Arnold J emphasised that creation of a sentence of home detention 'reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment'.[11]     His Honour referred to the 'acknowledged advantages' of home detention that had been set out in the Explanatory Note to the Bill, including, 'low rates of re-conviction and re-imprisonment, high compliance rates, and positive support for offenders’ reintegration and rehabilitation.[12]    In the context of offending involving a Class A controlled drug, the Court held that home detention should be treated as a real alternative to imprisonment.[13]

[9] Ransom v R, above n 2, at [19].

[10] Ibid, at [21].

[11] R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [33].

[12] At [33].

[13] At [33].

[15]     Having  considered  the  Court  of  Appeal  cases  and  the  High  Court  cases relevant to this issue, the Court of Appeal concluded:[14]

In our view, the High Court cases demonstrate that, in some benefit fraud cases, home detention will be an appropriate sentence.   Since Hill, it has been necessary for sentencing Judges to determine, on a case by case basis, whether  a  sentence  of  home  detention  will  respond  to  the  particular offending or whether, in terms of s 16(2) of the Sentencing Act, a sentence of imprisonment is required.  There is no prescriptive or usual sentence in cases of this type.

[14] Ransom v R, above n 2, at [39].

[16]     In my view, Judge Mackintosh appears to have ruled out a sentence of home detention solely on the ground that the amount of money defrauded was too high.  In fact, the Judge only mentions home detention as an option when considering the sentence to be imposed on the appellant's partner, Mr Ria.[15]

[15] Ministry of Social Development v Ria & Anor, above n 3, at [35].

[17]     With  respect  to  Judge  Mackintosh  (and  acknowledging  that  the  detailed analysis of the law set out in Ransom was not available to her), the question of

whether home detention or imprisonment is the appropriate sentencing option in cases of this kind requires, as the Court of Appeal in Ransom said, "a more detailed and nuanced analysis than that".[16]

[16] Ransom v R, above n 2, at [41].

[18]     I conclude, therefore, that the Judge erred in principle in the approach she took to the sentencing.  I must now consider what is the appropriate sentence for the appellant's offending.

Should home detention have been imposed?

[19]     The offending by the appellant between 7 December 1998 and 19 November

2003 can be characterised as "passive".  That is to say, she was in receipt of a benefit to which she was not entitled and dishonestly concealed that fact.

[20]     On 30 June 2004 the appellant took a step of "active" dishonesty.   She applied for a domestic purposes benefit knowing she was not entitled to it and falsely represented her circumstances.   Some months later she dishonestly applied for a special benefit.

[21]     Over the next five years the appellant "passively" continued her dishonesty by completing forms falsely to enable her to continue receiving special benefits.

[22]     On 17 July 2006 the appellant commenced part-time work.   However, she continued to complete forms falsely to enable her to continue receiving a benefit.

[23]     I assess the level of the appellant's culpability as medium to high for this type of fraud.   It has gone beyond making dishonest statements in order to continue receiving a benefit originally obtained legitimately.  In collaboration with her partner she has acted to maintain a stream of benefit income from the State regardless of whether she or her partner were working.

[24]     The period of time that the fraud lasted, the breach of trust between citizen and fellow-citizens (who fund the State), the amount of the fraud, and the fact that

the chances of the defrauded sum being repaid are negligible, are all aggravating factors of the offending.

[25]     Factors favourable to the appellant were those taken into account by Judge

Mackintosh and are set out above.

[26]     Section  8(g)  of  the  Sentencing  Act  2002  (the  Act)  requires  the  court  to impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders set out in s 10A of the Act.

[27]     Home  detention  is  the  second  most  restrictive  sentence  in  the  s 10A hierarchy, with imprisonment being the most restrictive.  It can only be imposed if the purposes for which it is being imposed cannot be achieved by a less restrictive sentence  and  the  court  would  otherwise  sentence  the  offender  to  a  short-term

sentence of imprisonment.[17]

[17] Section 15A(1) Sentencing Act 2002.

[28]     Similarly, when considering imprisonment the court must have regard to the desirability of keeping offenders in the community and must not impose a sentence of imprisonment unless it is satisfied that sentencing purposes such as deterrence and denunciation cannot otherwise be achieved.  Further, the court has to be satisfied that no  other  sentence  would  be  consistent  with  the  application  of  the  sentencing principles  set  out  in  s 8  of  the  Act  (which  requires  a  balancing  of  competing mandatory considerations including the imposition of the least restrictive outcome).

[29]     In this case I am guided by the comments of the Court of Appeal in Ransom and in Hill as to the approach to be taken to home detention since its insertion into the hierarchy of sentences on 1 October 2007.   I am also mindful of the need for consistency in sentencing (one of the Act's sentencing principles).  I can see no real distinction  between  the  offending  addressed  in  Ransom  nor  that  addressed  by Fogarty J in Fitzgerald and the offending of the appellant.

[30]     Accordingly,  I  conclude  that  although  a  term  of  imprisonment  would otherwise be appropriate, home detention is the most suitable sentence in this case.  I

would combine it with a sentence of community work to respond adequately to the sentencing goals of accountability, denunciation and deterrence.

[31]     It is necessary for me to take into account the time that Ms Te Weri has spent in custody in fixing a sentence of home detention.   Without that consideration I would have imposed the maximum period of 12 months.  However, bearing in mind the period of time she has spent in prison, I allow the appeal, quash the sentence of imprisonment  and  substitute  a  sentence  of  seven  months'  home  detention.    In addition, I impose a sentence of community work of 150 hours.  The practical effect of this ruling is that the period of home detention has expired and the appellant is entitled to immediate release from prison.

[32]     I am required to assign a sentence to each of the charges in accordance with s 85(4) of the Sentencing Act.  I assign the label of "the most serious offence" which is to receive the penalty "appropriate for the totality of the offending" to CRN09041500947, being the latest in time of the offences charged against s 228 of the Crimes Act 1961.  I do that because it was the pinnacle of her offending.  Three months' home detention is imposed in respect of each of the other charges.

[33]     The community work sentence is attached solely to the lead charge cited above.

Brewer J