Tollemache v The Queen
[2021] NZHC 1770
•14 July 2021
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 of this nature. Given the period of offending, the Judge allowed one month’s credit for previous good character.
[10] The Judge referred to defence counsel’s submission seeking discounts of 20 per cent for Ms Tollemache’s circumstances (age, lack of previous history, addiction issues and rehabilitative steps) and guilty pleas. The Judge acknowledged Ms Tollemache’s certificate for a course undertaken but agreed with the Crown that a
15 per cent credit at most was available for Ms Tollemache’s guilty plea and circumstances.
[11] The Judge acknowledged that home detention was sought and was recommended in the probation officer’s report. But the Judge said it was difficult to reach a point where he could say home detention was appropriate. The Judge considered that given the significant sum of money lost home detention did not sufficiently mark the offending. He acknowledged it would be a very good thing for Ms Tollemache’s children, but did not believe the law allowed him to reach a point where he could say home detention can be an appropriate sentence.
5 Wilson v Ministry of Social Development HC New Plymouth CRI-2011-433-37, 2 November 2011; Brown v Ministry of Social Development [2018] NZHC 3131; Packer v Ministry of Social Development [2019] NZHC 2892; White v Ministry of Social Development HC Gisborne CRI- 2011-416-28, 4 November 2011; Whitelaw v R [2012] NZCA 438; and Cooper-Siggleko v R [2012] NZCA 580 at [26].
[12] The Judge ultimately deducted six months for the guilty pleas and one month for previous good character, thus bringing the end sentence to two years and three months’ imprisonment.6
[13] The Judge imposed a concurrent sentence of six months’ imprisonment for a separate police charge of using a document.
Approach on appeal
[14] To succeed on an appeal against sentence, Ms Tollemache must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.7 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.8 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.9
Discussion
Starting point
[15] Ms Hardy, for Ms Tollemache, submits the Judge erred by describing the offending as “sophisticated” and this error resulted in a starting point that was too high. Ms Hardy submits the Judge’s view that the offending was sophisticated may have been influenced by the list of benefit payments included in the summary of facts. She submits that MSD provides information to people who contact them regarding their eligibility for benefits, and there is no evidence Ms Tollemache researched different types of benefits or initiated specific applications for certain benefits.
[16] Ms Hardy submits that in fact Ms Tollemache did not make separate applications for each benefit. Rather, MSD initiated the payments due to the
6 R v Tollemache [2021] NZDC 9603 at [34] and [37].
7 Criminal Procedure Act 2011, s 250(2).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
information they received about Ms Tollemache. For example, MSD transferred her to an Emergency Maintenance Allowance based on the information she had submitted for the Domestic Purposes Benefit. While Ms Hardy accepts that Ms Tollemache received all these payments due to her dishonesty, she submits the list of payment types does not demonstrate the sophistication of the offending or Ms Tollemache’s knowledge of the benefits.
[17] Ms Hardy also submits the dishonesty offending was limited to checking boxes indicating ‘no partner’ and ‘single’. Further, she submits the way the fraud was discovered indicates a low level of sophistication: Ms Tollemache and Mr Williams gave the same bank account number to MSD and had public social media pages that showed they had lived together since 2007.
[18] Ms Hardy submits the appropriate starting point is around two years and six months’ imprisonment, citing several cases.10
[19] Mr Harris, for the Crown, submits the Judge was not in error when characterising the offending as relatively sophisticated. He submits the offending spanned a 10 year period, during which Ms Tollemache knowingly withheld information in order to obtain fraudulently a total of over $187,000. Mr Harris accepts that not all the listed benefits required fresh applications each time, but submits Ms Tollemache had to fill out at least five applications, in which she made false declarations and misrepresented her circumstances.
[20] Mr Harris submits that the available sentencing range is between two years, six months’ imprisonment and three years, three months’ imprisonment, also relying on several cases.11 He therefore submits the starting point of two years and ten months’ imprisonment adopted by the Judge was within range.
10 Brown v Ministry of Social Development [2018] NZHC 3131; Wilson v Ministry of Social Development HC New Plymouth CRI-2011-443-337, 2 November 2011; Aupouri v Ministry of Social Development [2013] NZHC 581; Aupouri v Ministry of Social Development) [2013] NZHC 1224; and Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
11 White v Ministry of Social Development HC Gisborne CRl-2011-416-28, 4 November 2011; Copper-Siggleko v R [2012] NZCA 580; Whitelaw v R [2012] NZCA 438; and Wilson v Ministry of Social Development.
[21] I accept that not every benefit was the subject of a specific application and that Ms Tollemache made five separate applications whereas she received ten separate benefits. Some of the benefits were changed by MSD based on information previously received. But Ms Tollemache never corrected her relationship status with MSD over the period of almost 10 years. Moreover, Ms Tollemache pleaded guilty to the 15 charges each of which comprised dishonest use of a document.
[22] In relation to the specific applications, as Ms Hardy submits, the dishonesty was ticking a box stating she was single or did not have a partner. While this required form filling, I accept this dishonesty was not particularly sophisticated. There were no complicated transactions or benefits claimed under multiple identities.12 In describing Ms Tollemache’s offending as relatively sophisticated, the Judge may have inferred from the number of different benefits that Ms Tollemache had been more proactive in seeking out different benefits.
[23] In any event, the question is whether the starting point was within range having regard to the repeated offending over nearly 10 years, resulting in dishonest receipts of over $187,000.
[24] In relation to the sum involved, as mentioned, Ms Tollemache’s de facto partner and co-offender, Mr Williams, received a much lesser sum and therefore a lesser penalty. The prosecution did not proceed on the basis there was a joint enterprise, and it was accepted that Ms Tollemache’s sentence must reflect the amount she received even though they may have shared the receipts.
[25] In White v Ministry of Social Development,13 over a period of 10 years and nine months, the appellant misrepresented her relationship status to receive benefits totalling just over $150,000. This was described by the District Court Judge as “right at the top of social welfare fraud” not involving the use of multiple identities.14 On appeal, the three year starting point was upheld.
12 Ministry of Social Development v White DC Gisborne CRl-2011-061-428, 27 July 2011 at [8].
13 White v Ministry of Social Development HC Gisborne CRl-2011-416-28, 4 November 2011.
14 Ministry of Social Development v White DC Gisborne CRl-2011-061-428, 27 July 2011 at [8].
[26]In Wilson v Ministry of Social Development, the appellant obtained just under
$140,000 over a 10 year period, stating that she was single.15 The offending included numerous instances of deception over the phone. A starting point of two years and six months was upheld on appeal.
[27] In Ransom v R, the appellant misrepresented her relationship status over a nine year period, obtaining overpayments of over $127,000.16 The deception also involved two phone interviews. The Court of Appeal accepted that sentencing for benefit fraud should be treated no differently from any other form of fraud. A starting point of two years and six months was not challenged on appeal.
[28] in Aupouri v Ministry of Social Development,17 the appellant altered rental agreements, applied for additional benefits and changed the types of benefits she received over a nearly 17 year period, obtaining overpayments of just over $200,000. The starting point of four years’ imprisonment was reduced on appeal to three years out of “caution”, referring to Ransom and Wilson.18
[29] Brown v Ministry of Social Development involved similar benefit fraud over 15 years with overpayments of over $255,000.19 The District Court’s starting point of three-and-a-half years’ imprisonment was reduced on appeal to three years’ imprisonment.
[30] Having regard to these cases, I consider a starting point of between two years and six months and three years’ imprisonment was appropriate. Therefore, the Judge’s starting point of two years and 10 months’ imprisonment was within range, albeit towards the higher end.
15 Wilson v Ministry of Social Development HC New Plymouth CRI-2011-443-337, 2 November 2011.
16 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
17 Aupouri v Ministry of Social Development [2013] NZHC 581.
18 The Court also referred to Isakko v Police HC Christchurch CRI-2004-409-156, 16 September 2004 (starting point five years’ imprisonment).
19 Brown v Ministry of Social Development [2018] NZHC 3131.
Guilty plea discount
[31] Ms Hardy submits that insufficient credit was given for the guilty pleas, with particular regard to the discount given to the co-defendant. She submits the Judge did not sufficiently address defence submissions in support of a 20 per cent guilty plea discount, which were two-fold:
(a)First, the 20 per cent discount was appropriate because the delay in pleading was due to a s 30 improperly obtained evidence issue, which was abandoned following the Court of Appeal’s decision in Wheki v Ministry of Social Development.20 Ms Hardy submits the circumstances of that should not count against Ms Tollemache when considering the appropriate discount.
(b)Secondly, there should be parity with Mr Williams’ guilty plea discount of 20 per cent. Following abandonment of the admissibility challenge, Mr Williams entered guilty pleas, whereas Ms Tollemache sought a sentencing indication. While that sentence indication was declined, she entered guilty pleas at the same time that she declined it. Ms Hardy submits Ms Tollemache’s request for a sentence indication should not make a difference to the guilty plea discount. The request was understandable given she was facing a higher possible sentence due to the higher number of charges and amount of money involved. Ms Hardy submits Ms Tollemache’s pleas represented a more significant saving in terms of time and cost because she faced a greater number of charges. No trial date had been set and there was no dedication of court resources beyond the appearances that actually occurred. There were also early delays due to adjournment sought by the Crown, COVID-19 and late disclosure.
[32] Ms Hardy submits a 20 per cent discount is warranted for Ms Tollemache’s guilty plea.
20 Wheki v Ministry of Social Development [2020] NZCA 493.
[33] Mr Harris submits the discount was appropriate in the circumstances. Mr Williams pleaded guilty at an earlier stage of the proceedings, as he did not seek a sentencing indication. Mr Harris submits Mr Williams deserves a greater discount than Ms Tollemache, who used a further court process and added resources.
[34] I note that the Judge ultimately deducted six months for Ms Tollemache’s guilty pleas. That is over 17.5 per cent. I accept Ms Hardy’s explanation for the delay, and I also accept that parity with a co-defendant who pleaded guilty at a similar stage, albeit slightly different, is a relevant consideration, but the difference is not material and interfering on this ground alone would be tinkering. I am concerned with the end sentence.
Rehabilitative efforts
[35] Ms Hardy submits the Judge erred by failing to give a discount for Ms Tollemache’s rehabilitative efforts. Relying on the pre-sentence report, she submits that Ms Tollemache’s methamphetamine and gambling addictions were linked to her risk of reoffending because they required money to sustain them. Ms Hardy submits that, given the significant progress Ms Tollemache has made in addressing these issues, including completing treatment for methamphetamine addiction, a discount of 10 per cent was warranted.
[36] Mr Harris agrees that Ms Tollemache’s efforts are commendable, but submits the Judge was correct not to apply a discount. While Mr Harris accepts that drugs require money, he submits there is no direct nexus between the offending and Ms Tollemache’s drug addiction, as drug use was not a direct factor in the offending. He refers to R v Brooking, in which the Court of Appeal accepted that self-induced addiction was not a mitigating factor in relation to offending involving burglary, unlawfully taking a motor vehicle, aggravated assault and male assaults female.21
[37] As indicated, the Judge mentioned Ms Tollemache’s self-reported gambling and need for drugs but said the motivation appeared simply to be to obtain money. Although the Judge also said that a 15 per cent credit at most was available for
21 R v Brooking CA419/04, 7 March 2005, at [11].
Ms Tollemache’s guilty plea and circumstances, he ultimately deducted six months for the guilty plea and one month for previous good character but did not make a discrete deduction for other personal circumstances.
[38] In terms of the more recent Court of Appeal decision of Zhang v R,22 I am not persuaded here that there is a clear nexus between methamphetamine or gambling addiction and the offending so as to reduce Ms Tollemache’s culpability in a material way. The offending began in 2008. According to the pre-sentence report, Ms Tollemache only began to use methamphetamine regularly in early 2016, having tried it a couple of times in her early 20s. She then developed a gambling habit as a result of her methamphetamine use. She reports that she did not gamble prior to using methamphetamine. This suggests the majority of the offending occurred before any methamphetamine or gambling addiction. I accept that methamphetamine use and gambling may have contributed to Ms Tollemache’s need for money from early 2016 but there is limited evidence of a nexus sufficient to warrant a discrete discount for addiction. However, I accept there is some nexus in terms of the risk of reoffending.
[39] Even so, and as Mr Harris accepts, I consider Ms Tollemache’s personal circumstances justify a discount for her rehabilitative prospects. While her attempt to explain the offending understandably did not impress the Judge and may indicate some lack of insight into her offending, she has no previous convictions and so no record of failing to respond to a rehabilitative sentence, having been only 17 and pregnant when this offending started. She has made significant progress in addressing her issues and the probation officer’s assessment was that her risk of reoffending is low. The material put before the Court demonstrated that she had a support system in place in the community to lower the risk of reoffending further. She undertook drug counselling in 2020, she has been on medication for post-traumatic stress disorder since December 2020, she completed a therapeutic social work programme called Strong Woman through Anglican Care, she has support from her social worker, Ms Evans, and has participated in developing a care plan to address her rehabilitative needs which included a plan to attend personal counselling and a drug and alcohol hui with her partner.
22 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [200].
[40] Given this, I consider that Ms Tollemache’s rehabilitation is a significant consideration in her sentence. Taking into account her personal circumstances and the rehabilitative steps she has taken, I consider a discount of up to 10 per cent is appropriate.
Disproportionately severe effect of imprisonment
[41] Ms Hardy submits that the Judge failed to take into account Ms Tollemache’s particular circumstances that would make imprisonment disproportionately severe, as required by s 8(h) of the Sentencing Act 2002. Ms Tollemache had a baby three weeks before sentencing. Ms Hardy acknowledges that, subsequent to sentencing, Ms Tollemache has been allowed to have her baby brought into prison with her, but submits there are still circumstances which make prison more severe. Ms Tollemache has to undertake her parenting responsibility in a very different environment without the support of her partner and other family and friends. Ms Hardy notes that Ms Tollemache also has a 12 year old daughter. Mr Williams has filed an affidavit indicating that this daughter is finding it hard without her mum.
[42] Mr Harris submits that no discount is warranted to account for the recent birth of Ms Tollemache’s baby, as pregnancy and motherhood alone do not make an offender immune from imprisonment. He submits that Parliament has specifically addressed this issue, as s 81A of the Corrections Act 2004 allows Ms Tollemache to take care of her child while in custody (and she has been approved to do so). Mr Harris also relies on Newton v Police, where this Court observed that pregnancy may be taken into account in mitigation, but information must be available for the Court to conclude that imprisonment would be disproportionately severe.23 Mr Harris submits there is no such evidence beyond Ms Tollemache giving birth to a child.
[43] Pregnancy and motherhood are factors which, in special circumstances, will mean that imprisonment would be disproportionately severe.24 But no particular difficulties are raised here. Absent such difficulties, as the Court of Appeal has said, it is inevitable that serious criminal offending by a child’s parent will result in hardship
23 Newton v Police [2014] NZHC 2805 at [32]-[33].
24 R v Curd (1993) 10 CRNZ 78 (CA); Knedler v Commissioner of Inland Revenue [2017] NZHC 2888 at [36]-[38]; and Ponce-Calderon v Police [2017] NZHC 1919.
for the child. It is regrettable in such cases that as a result of a mother's criminal offending children must be separated from her and she from them. But these unfortunate outcomes are frequently experienced in relation to the children of criminal offenders.
[44] As indicated, in the context of considering the possibility of home detention, the Judge acknowledged its benefit to the children. That reflects the fact that personal circumstances involving difficult pregnancies or new babies may act as a factor tipping the balance in favour of home detention or a community-based sentence where one is available rather than warranting a discrete discount.25 I do not consider the Judge erred by not applying a discrete discount on the basis that a sentence of imprisonment would be disproportionately severe.26
Net discounts
[45] In all the circumstances, I consider that Ms Tollemache’s personal and family situation, and her rehabilitative steps taken, and her prospects leading to the assessed low risk of reoffending, warrant a further 10 per cent discount. That would bring the end sentence down below two years’ imprisonment. That is, a starting point of two years and ten months’ imprisonment less the Judge’s discounts of seven months (just over 20 per cent) and the additional 10 per cent, converted to a net percentage in accordance with the Moses v R methodology,27 resulting in a reduction of 10-and-a-half months’ imprisonment down to a sentence of 23-and-a-half months’ imprisonment.
[46] That means the Court may consider imposing a sentence other than imprisonment.
25 Knedler v Commissioner of Inland Revenue [2017] NZHC 2888 at [29].
26 Skelton v R [2011] NZCA 35 at [40].
27 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
Home detention
[47] The Judge understandably dealt with home detention only briefly since he did not believe the law allowed him to reach a point where he could say home detention can be an appropriate sentence.
[48] Mr Harris acknowledged that if the end sentence were under 24 months the Crown would not argue against home detention.
[49] Ms Hardy submits that some of the circumstances in Ransom v R are also present here.28 In Ransom, which involved somewhat similar offending (as I have indicated), the District Court ruled out a sentence of home detention on the basis that the fraud was too serious. However, the Court of Appeal considered the question required a more detailed and nuanced analysis. The appellant had a dependent six year old child and a husband who could undertake employment if she was able to return to caring for her child, thereby leading to the prospect of repayment. The Court of Appeal concluded that a sentence of home detention coupled with community work would adequately respond to the goals of accountability, denunciation and deterrence. The Court also noted that it was a significant factor in its decision that since the sentence of imprisonment had been imposed, the appellant’s husband had been forced to give up his work in order to care for their child, and the child’s behavioural difficulties had been exacerbated by his mother’s absence.
[50] Here, Ms Tollemache has a new baby, and a dependent 12 year old daughter. Her partner, Mr Williams, has had to resign from his job and go back on a benefit to be at home to look after her. She is finding it hard without her mum and seeing the school counsellor. Mr Williams’ reparation, which Ms Hardy advised is not limited to the amount of his criminal offending, is being deducted from his benefit, which means he is struggling to provide for himself and his daughter. It is important that he be able to return to work. Although Mr Williams currently has a medical certificate, Ms Hardy indicated confidence that Mr Williams could return to work if Ms Tollemache could come home and serve a sentence of home detention.
28 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.
[51] I consider that in this case a sentence of home detention coupled with community work would adequately respond to the goals of accountability, denunciation and deterrence. The rehabilitative steps and low risk of reoffending I have referred to weigh in favour of such a sentence. Home detention will not be an easy sentence. Given the gravity of the offending, I consider home detention is the least restrictive sentence that is appropriate.
[52] It is appropriate to take account of the eight weeks spent in custody. I consider nine months’ home detention is the appropriate period. I also consider that a sentence of 60 hours’ community work is appropriate, balancing the gravity and nature of the offending with Mr Tollemache’s parental responsibilities.
[53] I expect Mr Williams to do everything possible to return to work promptly and, as in Ransom,29 I direct the Registrar to send a copy of this judgment to the chief solicitor of MSD for that purpose.
Result
[54] The appeal is allowed. The sentence of two years and three months’ imprisonment is quashed and replaced with a sentence of nine months’ home detention and 60 hours’ community work.
Addendum
[55] Counsel have reminded me there is a concurrent sentence of six months’ imprisonment in respect of the separate police charge, which I did not specifically replace. That sentence is also quashed and replaced with a concurrent sentence of two months’ home detention.
Gault J
29 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163 at [47]-[48].
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