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Tollemache v The Queen

Tollemache v The Queen

Case [2021] NZHC 1770 14 July 2021

Appeal

Sentencing

Guilty Plea

Rehabilitative Efforts

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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…

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 Tollemache v The Queen

Details

AGLC: Tollemache v The Queen [2021] NZHC 1770
Case: [2021] NZHC 1770
Decision Date: 14 July 2021

CaseChat Overview and Summary

Ms Tollemache appealed her sentence of two years and three months' imprisonment imposed by the District Court for dishonestly using a document. The appeal court considered whether there had been an error in the imposition of the sentence and whether a different sentence should be imposed. The court considered the sophistication of the offending, the amount of money received dishonestly, and the discount for Ms Tollemache's guilty pleas and rehabilitative efforts. The court also considered whether the effects of imprisonment would be disproportionately severe given her recent motherhood. The appeal court found that the starting point for sentencing was within an appropriate range, but that a further 10 per cent discount was warranted for Ms Tollemache's personal circumstances and rehabilitative efforts. This resulted in a sentence of nine months' home detention and 60 hours' community work. The appeal was allowed, and the original sentence was replaced with the new sentence.

Orders