The Queen v Harlen - [2001] NZCA 130

IN THE COURT OF APPEAL OF NEW ZEALAND

CA76/01

THE QUEEN

KATHRYN ANNE HARLEN

Hearing:	9 April 2001
Coram:	Richardson P Keith J Blanchard J Tipping J McGrath J
Appearances:	M A Kennedy for the Appellant S P France for the Crown
Judgment:	12 April 2001

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

Introduction

On 14 February 2001 the appellant was found guilty following a trial before a Judge alone in the District Court on 20 counts of using a document to gain a pecuniary advantage and 6 counts of wilful omission to advise the authorities she was in a relationship in the nature of marriage, for the purpose of misleading officials and receiving a benefit. The latter charges related to her failure to disclose to Work and Income New Zealand that she was living in such a relationship between January 1994 and June 1999. During the whole of this period the appellant received the domestic purposes benefit to which she was not entitled. At times she also received accommodation supplements, disability allowances and training incentive allowances. The total sum received was $120,355.26. On 9 March 2001 the appellant was sentenced to 15 months imprisonment. She appeals against both conviction and sentence.

The Trial

In 1994 the appellant and her former partner, Mr Egen, purchased a property near Wellsford. The house was registered in Mr Egen’s name, but he and the appellant completed what was described as a Deed of Co-ownership. The appellant also registered a caveat against the title to protect her interest in the property. At her trial the appellant contended Mr Egen had never lived in the house and had never had a financial interest in the property. She claimed he did not contribute to the cost of the property and that she took responsibility for the payment of all outgoings. There was however evidence that the appellant and Mr Egen over the relevant time had shared the same residence at weekends and during holidays although he was away from Wellsford while working in Auckland from Monday to Friday for most of the period in issue.
There was also evidence that at some stage, although the dates were unclear, that an engagement ring was purchased. Further, in 1996, the appellant and Mr Egen had a child. Mr Egen testified that in the weekends he and the appellant always slept together. The appellant accepted that they had sexual relations from time to time but contended they did not live in a relationship in the nature of marriage. The appellant says he was a regular visitor to the house until 1998 when various incidents involving her eldest son and her daughter occurred.
Other evidence, supporting the existence of a de facto relationship, was called by the Crown. There was documentary evidence, including a motor vehicle account with a local garage for repairs, which was in the name of Mr and Mrs Harlen. The appellant had also sent cards to Mr Egen with affectionate messages in which she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Harlen

Details

AGLC: The Queen v Harlen [2001] NZCA 130
Case: [2001] NZCA 130
Decision Date: 12 April 2001

CaseChat Overview and Summary

Kathryn Anne Harlen has appealed against her conviction and sentence imposed on her by the District Court. Harlen was convicted of welfare fraud and sentenced to 15 months imprisonment. The appeal against conviction was dismissed. The appellant's appeal against sentence was also dismissed. The appellant had argued that the sentence imposed was too severe because of the effect it would have on her young child. The appellant also submitted that the sentence imposed was inconsistent with New Zealand's obligations under the United Nations Convention on the Rights of the Child. The Court found that the appeal against sentence was to be determined by applying the principles in Prior. The Judge had categorised the convictions of the appellant as a serious case of property offending. The sentence of 15 months imprisonment was one which accorded to the appellant's family situation leniency to a degree that was consistent with the statutory policy. The appeal against sentence was accordingly also dismissed.

Orders