Webb v The Queen - [2015] NZHC 2597

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-51 [2015] NZHC 2597

BETWEEN
WILLIAM DAVID WEBB

Appellant

AND

THE QUEEN Respondent

Hearing: 21 October 2015

Counsel:

D J McWilliam for Appellant
H A Wrigley and N T C Batts for Respondent

Judgment:

21 October 2015

JUDGMENT OF BREWER J

Solicitors/Counsel: Duncan McWilliam (Tauranga) for Appellant
Hollister-Jones Lellman (Tauranga) for Respondent

WEBB v THE QUEEN [2015] NZHC 2597 [21 October 2015]

Introduction

[1] On 8 April 2015, Mr Webb came before Judge TR Ingram in the District Court at Waihi for sentencing on what the Judge described as “eight charges of misleading the Ministry of Social Development”.1 Mr Webb pleaded guilty to those charges. In fact, the charges were one of obtaining by deception and seven of using a document. Each of those charges carried a maximum penalty of seven years’ imprisonment. The sums involved totalled $11,608.

[2] The Judge convicted Mr Webb and sentenced him to 100 hours’ community

work.

[3] On 7 September 2015, Mr Webb was back before Judge Ingram. It had been discovered that Mr Webb, who is on an invalid’s benefit, was not fit to do community work. Accordingly, Judge Ingram substituted a sentence of six months’ community detention, with the curfew being 8:00 pm to 7:00 am daily.2 Mr Webb now appeals against that sentence.

Background

[4] The summary of facts shows that Mr Webb was granted an invalid’s benefit from 30 March 2011. On 7 February 2012, he applied for and was granted temporary additional support. A stipulation contained in the application forms for the benefit and temporary additional support was that Mr Webb must immediately advise the Ministry if there were changes to his income or financial circumstances.

[5] On 28 March 2012, Mr Webb received $57,764.59 into his bank account. Judge Ingram referred to that as an inheritance. However, Mr Webb did not tell the Ministry about it.

[6] It seems that after that, Mr Webb began to live life more fully. On 23 July
2012 he left New Zealand and on 7 August 2012 withdrew US$15,000 in cash from an ATM in Louisiana. He returned to New Zealand and on 9 November 2012

1 Ministry of Social Development v Webb [2015] NZDC 19789.
2 Department of Corrections v Webb [2015] NZDC 19015.

imported a 1953 Lincoln Capri motor car from the United States. On 26 May 2013, he listed that vehicle for sale with a reserve of $25,000.

[7] From and including 30 April 2012 through to 17 June 2014, Mr Webb made

12 further applications for continuation of his temporary additional support and for assistance with hardship. In all of these forms he stated falsely that he had no cash or non-cash assets.

[8] Mr Webb has a criminal history which commences in the Youth Court at

Whangarei in 1978 and prior to the current charges ran through until 23 September

2010. On that occasion, he was sentenced to one year’s imprisonment for driving with excess blood alcohol, third…

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 Webb v The Queen

Details

AGLC: Webb v The Queen [2015] NZHC 2597
Case: [2015] NZHC 2597
Decision Date: 21 October 2015

CaseChat Overview and Summary

William David Webb appealed against his sentence, imposed by Judge TR Ingram in the District Court at Waihi, following a guilty plea to charges of obtaining by deception and using a document. The offending related to Webb’s failure to inform the Ministry of Social Development of an inheritance he had received, leading to the fraudulent receipt of $11,608 in benefits. Initially sentenced to 100 hours of community work, the sentence was later varied to six months of community detention after it was discovered that Webb was unfit to perform community work. The court had to determine whether the substituted sentence was appropriate and proportionate to the original sentence.

The court examined whether the substituted sentence of community detention was proportionate to the original sentence of community work. It noted that while community detention is a more severe punishment than community work, it is also less onerous for someone in Webb’s situation. The court referred to section 68(3)(c) of the Sentencing Act 2002, which allows for the substitution of community work with any other sentence that could have been imposed initially, and the Court of Appeal’s guidance in R v Morgan. The court concluded that while a community-based sentence was unsupportable due to Webb’s failure to comply with the original sentence, the substituted sentence of six months’ community detention was disproportionate to the original 100 hours of community work.

The court allowed the appeal and quashed the sentence of six months’ community detention. It substituted a sentence of four months’ community detention, with a curfew from 8:00 pm to 7:00 am daily, effective immediately. This decision aimed to ensure the substituted sentence was proportionate to the original sentence and appropriate given the circumstances of the case.

Orders