IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2021-419-36
[2021] NZHC 1770
BETWEEN KELLY SAMANTHA TOLLEMACHE
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 July 2021 Appearances:
C Hardy and J Buckle for the Appellant B Harris for the Respondent
Judgment:
14 July 2021
ORAL JUDGMENT OF GAULT J
(Appeal against sentence)
Solicitors:
Ms C Hardy and Mr J Buckle, Public Defence Service, Hamilton
Mr B Harris, Hamilton Legal, Office of the Crown Solicitor, Hamilton
TOLLEMACHE v R [2021] NZHC 1770 [14 July 2021]
[1] Ms Tollemache appeals her sentence of two years and three months’ imprisonment imposed by Judge P R Connell in the Hamilton District Court on 19 May 2021,1 following guilty pleas on 15 charges of dishonestly using a document.2
The offending
[2] Between 2008 and 2018, Ms Tollemache and her partner, Mr Williams, submitted applications for various benefits and grants from the Ministry of Social Development (MSD). In doing so, she claimed she was single when in fact she and Mr Williams were living together in a de facto relationship. As a result, she received overpayments totalling $187,761.90 from MSD.
District Court decision
[3] In assessing the starting point, the Judge noted there is no guideline judgment for fraud offending.3 The Judge considered the circumstances of the offending, the magnitude and the sophistication.4
[4] The Judge characterised the offending as “relatively sophisticated”, saying that applying for the various benefits required a considerable amount of form filling and knowledge. The Judge said that an aggravating feature was that the offending occurred over a very long period – close to 10 years. Also, the overpayments amounted to more than $187,761, a significant sum.
[5] The Judge referred to material provided, including an affidavit that sought to explain Ms Tollemache’s belief about the benefits, but said that she was dishonest.
[6] The Judge referred to the victim being the public of New Zealand who pay tax. In terms of the motivation for the offending, the Judge mentioned Ms Tollemache’s self-reported gambling and need for drugs but said the motivation appeared simply to
1 R v Tollemache [2021] NZDC 9603.
2 Crimes Act 1961, s 228(1)(b). Maximum penalty: seven years’ imprisonment. Ms Tollemache does not appeal against her sentence for the charge of dishonest use of a cheque.
3 Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC), [2005] BCL 888 at [7].
4 R v Varjan CA 97/03, 26 June 2003.
be to obtain money. Ms Tollemache was not in a position to repay the money. The Judge also referred to breach of trust, planning and premeditation and social harm.
[7] Having regard to similar cases,5 the Judge adopted a starting point of two years and 10 months’ imprisonment.
[8] The Judge was conscious that Ms Tollemache’s partner and co-offender, Mr Williams, received a much lesser sum and therefore received a lesser penalty, indeed a non-custodial sentence.
[9] The Judge acknowledged Ms Tollemache’s lack of previous convictions for offending…
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