The Queen v Harlen
[2001] NZCA 130
•12 April 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA76/01 |
THE QUEEN
V
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 referred to him as her husband. There was evidence that they purchased a car together in June 1994, and that the contract specified their status as being married. There was a loan from a financial services company in December 1997 for which application was made in both their names with the appellant using Mr Egen’s surname. There was also a credit insurance plan completed in the name of Mr and Mrs Egen. Finally there was a bank account and various other documents in both their names indicating their financial affairs were entwined.
The defence attacked the credibility of prosecution witnesses who included Mr Egen. An argument was also advanced on behalf of the appellant that Mr Egen had demonstrated by his behaviour that he was not committed to what was a dysfunctional relationship, so that in law there could be no relationship in the nature of marriage. This was rejected by the Judge, on the basis that an association could still be a relationship in the nature of marriage even if one partner was abusing members of the family unit.
The trial Judge, in an oral judgment delivered at the conclusion of the trial, held that the appellant had deliberately misled the Department by submitting false benefit applications and renewal forms. The Judge also found that the appellant had been living in a relationship in the nature of marriage and that she failed to disclose her relationship with Mr Egen. He convicted the appellant on all charges.
The Sentence
The appellant has four children aged 20, 17, 16 and 4 who were living with her at the time she was sentenced. She had another child who died in 1989 as a result of a fatal beating from a former partner of the appellant. He was imprisoned following conviction for manslaughter. The appellant at that time was a frequent victim of physical, emotional and sexual abuse. She said that following the death of her son in 1989, she had great difficulty coping with the police investigations and the trial of her former partner which followed. As a result of her circumstances at the time the Department of Social Welfare placed her three remaining children in foster care. She fought for years to regain custody. She was informed at some stage by the authorities her chances would be improved if she formed a new stable relationship and says this is the reason she became involved with Mr Egen.
At her sentencing the Judge acknowledged the sad features in the appellant’s life including that the appellant had been a victim of serious violence and had for years held genuine fears for the safety of herself and her children. However, these did not provide an excuse for being dishonest in her dealings with the Department. The Judge was of the view that the level of dishonesty in the offending was serious. There was deliberate deception involved. The offending occurred over a long period of time, and resulted in a substantial overpayments of money to the appellant to which she was not entitled. The Judge found that those features were special circumstances for the purposes of s6 of the Criminal Justice Act 1985, which made it inappropriate to impose anything other than a full-time custodial sentence by way of punishment. He sentenced her to 15 months imprisonment. He also granted her leave to apply for home detention.
Appeal against conviction
The appellant has appealed against both conviction and sentence. At the outset of the hearing of the appeal her counsel, Ms Kennedy, who was also counsel at the trial, advised us that the appellant did not accept she was guilty of welfare fraud and continued to blame the Department for her involvement with Mr Egen. Ms Kennedy responsibly told us that she could see no basis for supporting the appeal against conviction. In those circumstances we have ourselves considered the evidence and the judgment convicting the appellant. We are satisfied there was more than adequate evidence for the Judge to find the appellant guilty of the charges and that there is no basis for reversing his decision. The appeal against conviction is accordingly dismissed.
Appeal against sentence: submissions
In her submissions in support of the appeal against sentence Ms Kennedy placed emphasis on the importance of the policy reflected in s7 of the Criminal Justice Act which requires the Court to have regard to the desirability of keeping offenders in the community. She argued that the applicability of the statutory policy in the present context was reinforced by the fact that separation of young children from their mothers generally leads to psychological distress and trauma which in some children can have devastating and sometimes permanent effects. She referred us to a recent report for the Department of Corrections which surveys research into the effects on children who are separated from their imprisoned parents. Women Inmates with Dependent Children: Overseas Practice, Elaine Whelen, May 1999.
Ms Kennedy also argued, citing in particular this Court’s decision in R v Howard (CA315/99, 2 December 1999), that over the past twenty years the Court of Appeal did not appear to have taken the welfare of affected children adequately into account in the sentencing process.
The second submission, linked to the first, was that the sentencing approach ascribed to R v Howard was inconsistent with New Zealand’s obligations under the United Nations Convention on the Rights of Children 1989 (the Convention) which was ratified by New Zealand in 1993. Ms Kennedy relied on Article 3(1) which requires that the best interests of the child should be a primary consideration in all actions concerning children of public social welfare institutions, courts of law or administrative authorities. She also relied on Article 9(3) which states it is the right of a child, separated from one or both parents, to maintain personal relations and direct contact with both parents on a regular basis except if that is contrary to the child’s best interests. Ms Kennedy argued the right arises in the present context although the Court is not directly making orders concerning the appellant’s young child because the Court, in reality, is responsible for separating the child from his (or her) mother. She submitted that Convention provisions supported her argument that the sentence of imprisonment imposed in the District Court in this case should be suspended pursuant to s21A of the Criminal Justice Act.
The appellant had been convicted of offences against property, so that the direction in s6 of the Criminal Justice Act required the Court not to impose a full-time custodial sentence in the absence of special circumstances of the offence or offender. Mr France for the Crown submitted that the offending had features which amounted to special circumstances. As a result, he said, a full time custodial sentence should be imposed under s6 of the Criminal Justice Act. Any other sentence would be clearly inadequate and inappropriate. He pointed to the large sum received as a result of the offending and the lengthy period throughout which it took place. He accepted that s7(2) applied so that the sentence of imprisonment that the Court did impose was one which in its opinion was as short as was consonant with promoting the safety of the community.
It was also the Crown’s submission that the case fell within the principles of R v Prior (1993) 10 CRNZ 147. In that case the appellants, who at the time of the offending were living in a de facto relationship, had each separately obtained by a full domestic purposes benefit to which they were not entitled. Over a period of three years ten months the appellant mother had received $37,000. The Court recognised that, in fixing the term of imprisonment, in a case where both parents were to be imprisoned, there were compelling reasons for leniency in the family situation. That was in particular because there was a child of the family aged ten years at the time of the Court of Appeal’s decision who was profoundly deaf. A five months term of imprisonment was substituted for the term of ten months imposed in the District Court. The circumstances involved a lesser amount being received over a lesser period than in this case.
In response to the contention that in this appeal the effect on the youngest child should be the principal consideration, Mr France contended that the family situation of an offender was but one of a number of factors to be taken into account in fixing the appropriate sentence and that the weight attributable to it should vary according to the circumstances.
In addressing the argument advanced by Ms Kennedy on the basis of the Convention, Mr France cited from “A Commentary on the United Nations Convention on the Rights of the Child” by Sharon Detrick, Kluwer, 1999. The Commentary observes that the travaux preparatoires of the Convention reveal that Article 9 was intended to apply to separations between children and their parents in domestic situations. Article 9(3), relied by the appellant, provides for the right of the child to maintain personal relations and direct contact with both parents when the child was separated from one or both parents by reason of action taken in domestic situations.
Mr France suggested that Article 9(4), which dealt with separations resulting from such actions as detention, imprisonment, exile or deportation, more closely reflected the appellant’s situation. The obligation of the State under Article 9(4) is to provide the child with essential information concerning the whereabouts of the absent member of the family. There was no suggestion by the appellant that this provision has been breached. Overall the Crown’s argument put in issue the application of the Convention in the circumstances of the appeal.
Finally Mr France emphasised the significance of this Court treating as the pre‑eminent factor the immediate child responsibilities of persons being sentenced. Fifty-six percent of female inmates were living with at least one child under 18 years prior to entering prison. Of these seventy-five percent were sole caregivers. Forty‑seven percent of male inmates were in the same situation when entering prison of which thirty-one percent were sole caregivers. Mr France suggested that the significant adjustment sought by Ms Kennedy to settled sentencing practices was of an order that made legislative change the appropriate vehicle rather than this Court’s decision.
Appeal against sentence: decision
In Prior this Court considered the application of the statutory policies reflected in ss6 and 7 of the Criminal Justice Act to sentencing for social welfare fraud where family circumstances indicated leniency. As indicated above, the appellants in Prior were first offenders who were caring for five children, one of whom was profoundly deaf. Survival on their proper benefit entitlements would have required careful budgeting which was beyond their capacity. The Court said the combined effect of ss6 and 7 was that no particular category of offending against property covered by the sections should necessarily attract a prison sentence. Indeed, because of s6, the presumption should rather be against imprisonment. Where, however, there were aggravating features which amounted to special circumstances, s6 recognised that imprisonment might be the only appropriate penalty. Where the fraud was in relation to public funds that was not in itself a special circumstance under s6.
The Court in Prior emphasised that even if under s6 imprisonment was justified, s7 had to be given recognition. In that case, despite the aggravating features of the offending of Mrs Prior, a term of imprisonment for her that was much in excess of ten months would, in the Court’s view, have been incompatible with s7. The Court took ten months as its starting point and then considered what it described as the “compelling reasons for leniency” in Mrs Prior’s family situation. Linking this consideration with its own continuing recognition of the principles of s7, the Court decided that the appropriate sentence for Mrs Prior was five months imprisonment. Plainly Prior allows scope for sentencing Judges to take into account family circumstances of offenders convicted of fraud involving special aggravating circumstances.
Ms Kennedy highlighted in her written argument the recent decision of this Court in Howard, an appeal against a sentence of two and a half years imprisonment on a charge of conspiracy with her partner to supply cannabis. The appellant’s partner was also imprisoned as a consequence of the offence. This Court reduced the sentence to eighteen months imprisonment having regard to the circumstances of the offending and the acceptance by the appellant of responsibility and the need for her to desist from future involvement in drug offending. In relation to an argument based on the impact of the separation of the two young children from their mother, as well as their father, the Court said:
…we must necessarily bear in mind the need to deter other women in Ms Howard’s position and to remove from their minds any thought that a substantial sentence will not be visited upon them because they happen to have young children. Nor would we wish to encourage the thought in the minds of those who might perceive an advantage in the transacting of drug activities through women who might, because of their family circumstances escape otherwise well merited sentences. (pp5-6).
It is in error to read this passage as suggesting that New Zealand Courts do not take the welfare of affected children into account in the sentencing process. The family situation of a convicted person, including where applicable the well-being of an offender’s children, will always be among the personal circumstances to which regard is had by a sentencing Judge. Indeed Howard itself is a case where leniency was extended on appeal on account, in part, of an appellant’s personal circumstances. What however must be recognised is that the family situation of an offender, including the well-being of the offender’s children, is only one of a number of relevant factors. How much weight it can be accorded in any particular case depends on its circumstances. In Howard the importance of both general deterrence and deterrence of the appellant from future involvement in drug offending required a sentence which the Court, implicitly reflecting the principles of s7, adjusted on appeal to ensure that it was the minimum consonant with promoting the safety of the community.
Ms Kennedy also suggested during her oral submissions that a factor which favoured a suspended sentence was the inability of the appellant to apply for home detention even though she was given leave to apply by the Judge under s21D of the Criminal Justice Act. That is because Wellsford, where the appellant was living at the time of sentencing, is not an area administratively available for home detention. Ms Kennedy informed us this was not known to the Judge nor for that matter to counsel at the time the appellant was sentenced.
Under s21D(2) a sentencing Court is required to consider whether to give an offender leave to apply to a District Prisons Board for release to home detention when the offender is sentenced, in this case, to imprisonment for not more than two years. The role of the Court in relation to home detention is accordingly no more than to permit an offender to apply. The decision on whether to grant an application by a person who has obtained leave is that of the District Prisons Board. And s103 of the Criminal Justice Act recognises that home detention is available only in areas where a home detention scheme is operated by the Department of Corrections. Under the Criminal Justice Act the grant of an application for home detention is accordingly seen as a question of administration of a sentence of imprisonment. Mr France told us that for various reasons less than half of those given permission by the Court to apply are able to obtain their release to home detention. The appellant falls into the category of those who for administrative reasons are likely to serve their entire sentence in prison. She no longer has a home at Wellsford and has since her sentencing been unable to establish one in an area in which home detention is administered.
In those circumstances it is nevertheless inappropriate for a sentencing court to take into account the possibility that an offender may obtain home detention in fixing the level of the appropriate sentence. We do not regard the Judge as having done so in this case.
The other matter of principle which the Court must address is the argument for the appellant based on the United Nations Convention. In this case the Court’s responsibility for determining the appellant’s appeal against her sentence is guided by ss6 and 7 of the Criminal Justice Act. That is not to say New Zealand’s international obligations are necessarily irrelevant, as there is a presumption of statutory interpretation that, so far as its wording allows, an Act should be read in a way which is consistent with international obligations. The presumption applies whether or not the Statute was enacted for the purpose of implementing those obligations. The presumption will be displaced if the words of a particular Act do not allow it to be read consistently with those obligations (NZ Airlines Pilots Association Inc v Attorney‑General [1997] 3 NZLR 269, 289).
Similarly in Wellington District Legal Aid Committee v Tangiora [1998] 1 NZLR 129 (CA), this Court said:
We do not see the interpretative role of the Courts as extending to determining “the appropriate response” of New Zealand towards its international obligations - at least if that process runs beyond the approaches mentioned at this part of the judgment. (p139).
We are satisfied that Articles 3 and 9 of the Convention do not require reappraisal of the interpretation of the statutory directions to the Court in ss6 and 7 of the Criminal Justice Act. Article 3 is a general provision having no bearing on the task of a court in sentencing a parent. The principal thrust of Article 9 of the Convention, headed “Separation from Parents”, is concerned with rights of children separated as a result of their domestic situations. The Detrick commentary on Article 9 supports that view, citing from the travaux preparatoires of the convention. Article 9(3) refers to the right to maintain personal relations and contact with a separated parent. Even if it applies to cases of imprisonment of the parent, it is more concerned with administration of the sentence than the decision to impose it.
Article 9(4) imposes an obligation to provide information concerning the whereabouts of an absent member of a family where separation is the result of an act of the State. It does apply to imprisonment of a parent. (Detrick commentary pp178-179). But there is no suggestion it has been breached. Nor is it relevant to ss6 and 7 of the Criminal Justice Act. There is a thoughtful discussion of the problems raised by imprisonment of parents of young children in the UNICEF Implementation Handbook. This material is not however part of the Convention and does not assist in interpretation or application of ss6 and 7 of the Criminal Justice Act.
Accordingly this appeal is to be determined by applying the principles in Prior. The Judge categorised the convictions of the appellant as a serious case of property offending. In terms of s6 of the Criminal Justice Act he saw the deliberate deception involved, the period over which offending took place and the substantial amount received as amounting to “special circumstances”. It was clearly open to him to so find and to treat those circumstances as making imposition of any sentence other than a full-time custodial sentence inappropriate. He considered the circumstances of the appellant including the sad features of her life and the criticisms she made of Mr Egen. In the end he decided the seriousness of the offending precluded suspension of the sentence of imprisonment and decided on a term of 15 months.
While the Judge did not expressly refer to s7, we consider his approach reflected the policy of general limitation on imprisonment, including the term of the sentence imposed, which s7 sets out. The appellant’s position as sole caregiver for her 4 year old daughter is a factor indicating leniency but that family circumstance must be weighed against the fact that the offending was rightly regarded by the Judge as a very serious course of dishonesty. No credit was available for a guilty plea. We do not accept Ms Kennedy’s suggestion that the lengthy period of offending, and in consequence the high amount involved, were other than serious aggravating factors indicating the need for a deterrent sentence. In the end, in our view, the sentence of 15 months imprisonment is one which accords to the appellant’s family situation leniency to a degree that is consistent with the statutory policy.
The appeal against sentence is accordingly also dismissed.
Solicitors
Crown Law Office, Wellington
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