Walters v New Zealand Police
[2013] NZHC 3425
•16 December 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2013-488-000045 [2014] NZHC 3425
BETWEEN AROHA IRITANA WALTERS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 December 2013 Appearances:
S K Ellis for Appellant
M B Smith for RespondentJudgment:
16 December 2013
(ORAL) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]
Solicitors/Counsel:
S K Ellis, Barrister, Whangarei
Crown Solicitor, Whangarei
WALTERS v NEW ZEALAND POLICE [2013] NZHC 3425 [16 December 2013]
Introduction
[1] The appellant appeals against the sentence of two years three months imprisonment imposed by Judge de Ridder in the District Court at Whangarei on
27 September 2013, after she pleaded guilty to seven charges of using a document, nine charges of dishonestly using a document, and one charge of obtaining by deception.1
[2] The appellant contends that the sentence is manifestly excessive, and that the Judge erred by failing to take restorative justice process into account, and failing to have regard to the purposes of sentencing in s 7 of the Sentencing Act 2002. It is also contended that there was gross disparity as against the appellant’s partner who, I am advised, was sentenced to 200 hours community work in respect of what is described as a minor role in the appellant’s offending and having received no direct benefit from it. In essence, the submission for the appellant comes down to saying that the Judge has not given the sentencing exercise enough consideration, has not given sufficient weight to the appellant’s personal factors, including rehabilitative prospects, and has not given sufficient reasons for the sentence imposed.
Background facts
[3] Over a period of some 14 years, the appellant was in receipt of several benefits. During this period she was living with her partner, Mr Tony Williams, who was employed. Yet, the appellant consistently claimed to be living alone and to not be receiving an income. The Ministry of Economic Development alleged that the total benefits wrongfully claimed amounted to $165,398.30.
[4] The 17 charges to which the appellant pleaded guilty involved her making applications for accommodation benefits, incentive allowances, and other benefits,
and making false statements in the course of Work an Income reviews.
1 Ministry of Social Development v Walters DC Whangarei CRI-2013-088-550, 27 September
2013.
District Court decision
[5] The Judge noted that the pre-sentence report had shown that the appellant had displayed some remorse but also showed that she still maintained a sense of entitlement to continue to receive the benefits. The Judge considered that the primary purposes in sentencing the appellant were to denounce her conduct and to deter others from similar offending. The Judge also recognised that he should be guided by the principles of imposing the least restrictive outcome and ensuring consistency with other similar offending in sentencing the appellant.
[6] After considering the purposes and principles, the Judge considered what the appropriate starting point should be. He referred to three cases involving similar amounts of money over a similar periods of time where starting points of four, three and a half and two and a half years imprisonment were adopted. The Judge considered that a starting point of three and a half years imprisonment was appropriate in this case because of the number of occasions the appellant had provided false information, the amount involved and the time period during which the offending took place.
[7] After setting the starting point, the Judge gave a discount of 15 per cent (7 months) for her guilty pleas which had occurred extremely late and so were not at the earliest opportunity. The Judge then gave a further discount of eight months due to the appellant not having any previous convictions, her age, and her fragile health. Mr Smith advises that that is a total discount of some 34 per cent. Following those discounts the Judge sentenced the appellant to a term of two years and three months imprisonment.
Issues
[8] There are three issues, in essence, raised in this appeal. Those issues are:
(a) Did the Judge make an error of law when determining the sentence by failing to take into account relevant sentencing purposes or principles?
(b) Did the Judge fail to take account of the sentence imposed on the appellant’s partner?
(c) Was the sentence manifestly unjust?
Approach on appeal
[9] Under s 121(3)(b) of the Summary Proceedings Act 1957 this Court may quash or vary a sentence where it is “clearly excessive or inadequate or inappropriate” or if the Court is “satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the Court imposing
sentence”.2 It was noted in Yorston v Police that:3
(a) There must be an error which vitiates the lower Court’s original sentencing discretion: that is, the appeal must proceed on an “error of principle”; and that
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of information contained in additional material submitted to the appeal Court; and
[10] It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion, and the appeal Court will not intervene when the sentence is within a justifiable range on adjusted sentencing principles:
Did the Judge make an error of law?
[11] In relation to argument that the Judge made an error of law, it was submitted that the Judge made several errors:
(a) The Judge failed to take into account restorative justice processes;
2 This is under the Summary Proceedings Act 1957 because the charges were laid on 23 January
2013, prior to the commencement of the Criminal Procedure Act 2011.
3 Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [13]–[15].
(b) The Court should have taken account of the appellant’s personal, family, whanau, community and cultural background. Failing to take into account the factors listed in the letter of support provided to the District Court, it is submitted, was an error;
(c) Failing to mention the effect of the sentence in deterring the offender is submitted to be an error; and
(d) It is submitted that the Judge’s reference to a “bottomless pit” discloses the Judge’s failure to consider matters that should have been considered in favour of considering matters which are, in essence, so obvious as to go without saying, or are of no moment.
[12] For the respondent, it was submitted that there was no error of law. In particular, it was submitted that there were no restorative justice processes; there was no advice to the Court as to how the appellant intended to pay the money taken; there was no co-offender parity to be considered; the starting point and discounts given to the appellant were comparable to like offending, and the correspondence on the file in relation to the appellant’s partner could not affect the appellant’s culpability and liability.
[13] Turning to restorative justice matters, it was submitted for the appellant that the Ministry of Social Development did not seek a reparation order, and that it is therefore the case that restorative justice processes had not been considered. I do not accept this submission. First, the amount owed by the appellant is a statutory debt. It is noted in the submissions for the informant on sentencing, that the appellant had made no payments in reduction of the debt since March 2012. It is because the debt was a statutory debt that the Ministry did not seek a reparation order. That is clear from the informant’s submissions in the District Court. There is no indication in any evidence that a submission was made to the sentencing Judge that any offer to repay had been made, or that the appellant could pay anything in reduction of the debt. It is clear that there is therefore no outcome of restorative justice processes that the Judge could have taken into account pursuant to ss 8((j) and 10 of the Sentencing Act
2002. I do not accept that it is the Judge’s role to take up the issue when it is not taken up by the appellant at sentencing.
[14] The purpose of ss 8(j) and 10 of the Sentencing Act is to ensure that where the offender has attempted to restore the right relationship with the victim through restorative justice processes, this attempt must be taken into account at sentencing. Here, the appellant has not made that attempt and my conclusion is that she cannot rely on the acquiescence by the Ministry that a reparation order is not required as amounting to a restorative justice process that should have been taken into account in her favour.
[15] Secondly, it was submitted for the appellant that the District Court Judge erred by not taking into account her personal, family, whanau, community and cultural background. It was submitted that those factors included that the appellant had suffered mental and physical abuse, her partner had been subject to a term of imprisonment for a period of time, and that she came from a strict patriarchal background. It was submitted that those factors warranted further inquiry by the Judge and should have been considered. The appellant submitted in this Court that those factors should have led to a reduction in sentence. Again, it was submitted that it was for the Judge to give detailed consideration and indeed to initiate inquiries in relation to matters which were clearly not dwelt on by her counsel at sentencing. I accept Mr Smith’s submission for the respondent that that submission is inappropriate and on a more basic level, impractical.
[16] Thirdly, it is submitted for the appellant that the Judge failed to look at the issue of deterrence of the appellant herself. It is accepted that the Judge referred to deterrence of others, but not to deterrence of the appellant. I accept Mr Smith’s submission that the appellant’s submission shows a misunderstanding of the focus of s 7 of the Sentencing Act. That section sets out a list of purposes which the Judge may sentence or otherwise sentence an offender. One of those purposes is to deter the offender or other persons from committing the same or a similar offence. I am satisfied that the Judge was entitled to consider the deterrent effect of a sentence on others, but not to consider deterrence in respect of the appellant herself. I am not satisfied that there was any error.
[17] Finally, it was submitted that the Judge erred by referring to a “bottomless pit” in sentencing, when he said:4
... Firstly, there is the amount involved, some $165,000, and it is repeatedly said in cases like this that there is not some bottomless pit from whence this money comes. It is part of a specific allocated fund made available to support people who are entitled to it and who need assistance, and people who take what they are not entitled to simply diminish the fund.
[18] I accept that it is true that no institution which has money can be described as a “bottomless pit”, but I do not accept that this means either that the Judge considered the appellant’s offending to be worse than other offending (or less so), or that it discloses an error by the Judge by highlighting this issue and not referring to other matters. I do not accept that the Judge’s comment indicates that he has failed to give consideration to other factors. The statement made by the Judge was to remind the appellant that her offending had an impact on others, which indeed it does. It has an impact on all New Zealanders. I am not satisfied that there was any error.
Was the sentence manifestly unjust?
[19] The appellant next submits that the sentence is manifestly unjust because it did not have parity with the sentence imposed on her partner of 200 hours of community work who, the appellant submits, encouraged and benefitted from the appellant’s offending. Again, it is not apparent that this was a matter on which submissions were made at sentencing. The submission for the appellant is based on a reference to her partner’s sentence in the pre-sentence report. Ms Ellis submitted for the appellant that if the sentencing exercise had been appropriately undertaken and the question of parity considered, the end sentence would have been considerably less than it was.
[20] I accept Mr Smith’s submission that there is no question of parity because, in simple terms, there is no co-offender. The appellant is liable for her offending in that it was she who signed the various documents which enabled her to receive the benefits which she received. Further, there is simply no similarity in the offending
which could lead to a consideration of issues of parity.
4 Above n 1, at [10].
[21] It was also submitted that the appellant’s sentence was manifestly excessive on the basis of the decision of the Court of Appeal’s decision in Ransom v R.5 In that case, on appeal, the Court of Appeal varied the sentence imposed in the District Court from 18 months imprisonment to nine months home detention, to which was added a sentence of community work.
[22] However, I am satisfied that the decision in Ransom cannot be relied on to support a submission that the appellant’s sentence was manifestly excessive. The appeal in that case primarily revolved around whether a sentence of imprisonment was necessary for benefit fraud or whether home detention could be granted.6 The appeal did not consider whether the term of 18 months imprisonment in itself was manifestly excessive.
[23] I do not accept that in Ransom, the Court of Appeal has set a “guideline” sentence for the reason that in that case the Court of Appeal noted that “[t]here is no prescriptive or usual sentence in cases of this type.”7 Similarly, the High Court in Hogan v Ministry of Social Development held, there are no tariffs for sentencing for benefit fraud.8 Rather, the Court must determine the seriousness and culpability of
the particular offending by looking at the relevant circumstances.9
[24] In the present case the Judge referred to three cases in sentencing: Osborne v Ministry of Social Development,10 Richardson v Ministry of Social Development,11 and Matiu v Ministry of Social Development.12 From those he derived a starting point of three years and six months imprisonment and it was after applying discounts
that the Judge reached the final sentence
5 Ransom v R [2010] NZCA 390.
6 Ransom, above n 5 at [1].
7 At [39].
8 Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC) at [11].This echoes the
Court of Appeal’s statement in R v Rose [1990] 2 NZLR 552 (CA) at 555 that it is inappropriate for dishonesty cases to have tariffs due to the wide variety of circumstances in which such offending occurs.
9 Hogan, above n 8 at [11].
10 Osborne v Ministry of Social Development HC Auckland CRI-2004-404-441, 9 November 2004.
11 Richardson v Ministry of Social Development HC Napier CRI-2009-441-47, 4 February 2010.
12 Matiu v Ministry of Social Development HC Rotorua CRI-2010-470-20, 27 March 2010.
[25] The question for determination is whether the final sentence is within the available sentencing range or whether it was manifestly excessive. As the Court of Appeal in R v MacCulloch, while it is important to look at how a sentence is constructed, it is the end result that counts.13
[26] In this case the appellant was sentenced to two years and three months imprisonment. In White v Ministry of Social Development, the appellant had been sentenced to a term of imprisonment of two years and four months. On appeal, Heath J held that that was not manifestly excessive.14 In Aupouri v Ministry of Social Development, Brewer J held, on appeal, that an end sentence of two years and eight months imprisonment was manifestly excessive and replaced it with a sentence of two years and three months imprisonment.15 I consider those cases to be comparable, and they lead to the conclusion that the appellant’s sentence of two years and three months imprisonment was is not manifestly excessive.
[27] Accordingly, I cannot conclude that the sentence imposed in the District Court was either wrongly constructed, or on an error of law, or that it was manifestly excessive.
Result
[28] Accordingly, notwithstanding the very strong submissions made on the appellant’s behalf, the appeal is dismissed
Andrews J
13 R v MacCulloch [2005] 2 NZLR 665 (CA).
14 White v Ministry of Social Development HC Gisborne CRI 2011-416-28, 4 November 2011 at
[35]-[36].
15 Aupouri v Ministry of Social Development [2013] NZHC 1224 at [11]