White v Ministry of Social Development HC Gisborne CRI 2011-416-0028

[2011] NZHC 1487

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2011-416-0028

BETWEEN  HARATA WHITE Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         28 October 2011

Counsel:         K L Goldsbury and W A Clarke for Appellant

R J Collins for Respondent

Judgment:      4 November 2011

JUDGMENT OF HEATH J

This judgment was delivered by me on 4 November 2011 at 3.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Gisborne

Burnard Bull, Gisborne

WHITE V MINISTRY OF SOCIAL DEVELOPMENT HC GIS CRI 2011-416-0028 4 November 2011

The appeal

[1]      Ms White appeals against a sentence of imprisonment imposed upon her in the District Court at Gisborne, following her guilty pleas to 12 charges of dishonestly using documents to obtain social security benefits and one of misleading a Social Welfare officer.   She was sentenced to an effective term of two years and four months imprisonment.

[2]      Three points are raised in support of the appeal.  The first is that the sentence is manifestly excessive.  The second is that the Judge failed to take adequate account of her early guilty pleas.1   The third is that the Judge failed to take proper account of mitigating factors advanced by Ms White‟s counsel at sentencing.

The facts

[3]      On  25  November  1997,  Ms  White  sought  and  was  granted  a  domestic purposes benefit, effective from 15 November 1997.  At that stage she was a solo parent, having separated from her husband.   In 1997, Ms White had four children, then aged about 2, 4, 6 and 8 years. Two other children were born later.

[4]      When Ms White signed the application for that benefit she agreed to advise the Ministry of Social Development immediately if there were any changes to her living circumstances that might affect her entitlement to the benefit.  She was aware that such circumstances would include changes such as living in a relationship in the nature of marriage or resuming co-habitation with her husband.

[5]      Between 15 September 2000 and 31 August 2009, Ms White presented seven review forms to the Ministry of Social Development in which she confirmed that she was not living with anyone in a relationship in the nature of marriage.   She also advised that, while she remained married, she was living apart from her spouse. As a

result of information conveyed in those documents, benefits were paid to Ms White.

1 It is submitted that the Judge did not apply an appropriate credit when fixing sentence: Hessell v R

[2010] NZSC 135, [2011] 1 NZLR 607.

[6]      The false statements made in the seven review forms were confirmed by special benefit review forms submitted between 18 September 2003 and 13 July

2007.

[7]      In 2010, information came to the attention of the Ministry to the effect that

Ms White had reconciled with her husband back in 1999.  When interviewed on 15

November 2010, Ms White acknowledged she was aware of her obligation to advise the Ministry of that change in circumstances.

[8]      In  the  period  between  22  September  1999  and  4  July  2010,  Ms  White received benefits to which she was not entitled, totalling $150,516.81.   This was made up of:

(a)       $141,141.75,  paid  between  22  September  1999  and  4  July  2010 (domestic purposes benefit);

(b)$5,768.85,  paid  between  18  September  2000  and  4  July  2010 (accommodation supplement);

(c)       $3,606.21, paid between 13 January 2003 and 10 July 2005 (special benefits).

Personal circumstances

[9]      The sentencing Judge had before him a pre-sentence report.  It revealed that Ms White was the fifth of eight children who had grown up in a family in which alcohol abuse and violence appears to have prevailed.   It appears that, during the course of her childhood, Ms White was sexually abused by her father.

[10]     At the date of the report, 14 July 2011, Ms White had six children, aged 22,

20, 18, 16, 11 and 4 years of age respectively.  The youngest two (girls) lived with

Ms White, while two boys (aged 16 and 18 years) lived with their father.

[11]     Ms White explained to the probation officer that she committed the offences because she was “in a violent and dysfunctional relationship” in which her husband had threatened to “take the kids away” if she tried to leave.  Her husband was away “on the boats” for parts of the period and “refused to provide for her or the children so she stayed on the benefit in order to „survive‟”. The probation officer reported that Ms White presented as “remorseful and embarrassed for her offending, and [was] prepared to face the consequences of her actions”.  Since her arrest, Ms White has obtained a protection order against her ex husband.

[12]     Ms White has previously been convicted on charges of possessing the Class C controlled drug, cannabis, for supply and for selling or supplying the same drug. Those offences were committed in June and November 2006.  She was sentenced on

20 March 2008.  The sentence imposed was one of home detention, for a period of nine months.  The benefit fraud continued while the sentence was being served.  For that reason, Ms White must be regarded as someone who has offended while subject to a sentence imposed by the Court.

[13]     Notwithstanding her criminal record, the probation officer assessed Ms White at low risk of reoffending, primarily due to support which had enabled her to leave her husband and to claim the domestic purposes benefit legally.  At the time of the report, Ms White had sought and obtained budgeting advice and was in the process of negotiating repayments of the amounts stolen with the Ministry.

[14]     The  probation  officer  considered  that  home  detention  would  respond sufficiently to  the offending.   An address  in  Kaiti  was  available,  at  which that sentence could be served. A special condition was proposed to ensure that Ms White abstained from consumption or possession of either alcohol or illicit drugs during the term of any such sentence.

Sentencing in the District Court

[15]     On 27 July 2011, Judge Moore sentenced Ms White.  The Judge accepted that sentencing should proceed in accordance with principles set out in the Court of Appeal‟s decision in Ransom v R.2

[16]     In  Ransom,  the  Court  of Appeal  allowed  an  appeal  against  sentence  for benefit fraud by setting aside a sentence of imprisonment and substituting one of home detention.   In doing so, the Court emphasised the policy underlying the elevation of home detention to a stand-alone sentence and the approach the Court should take to determining whether imprisonment should be imposed in preference to home detention.3    The Court expressed the view that there was no presumption

that imprisonment should be imposed in a case involving significant benefit fraud.4

[17]     Judge Moore regarded Ms White‟s offending as worse than that described in Ransom. He was influenced not only by its duration but also the amount of taxpayer money that Ms White procured through her dishonest deception.

[18]     In  dealing  with  aggravating  and  mitigating  factors  that  he  considered relevant, Judge Moore said:5

[7]       I am conscious of the fact that you have still two young children in your care.  But you have an extensive family and the mere fact that you have youngsters does not enable you to claim some sort of exemption from an otherwise appropriate sentence.   It is a factor which has to be taken into account and I do take it into account.

[8]       This is right at the top of social welfare fraud offending by someone who is not in the category of claiming multiple benefits under multiple names.  It is only when you are getting to that sort of case that you get into figures in excess of what you cheated the community out of.  The law has long been clear that social welfare fraud is no different to any other sort of fraud when it comes to sentencing.  It is no worse and it is no better.  But it has one characteristic that I am not entirely sure has always been emphasised to the higher Courts when they have made some of the decisions that have been cited to me.  In a way which does not apply to any other sort of fraud, in welfare fraud there is quite a sharp relationship between the amounts of

2 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163..

3 Ibid, at paras [20]–[22]. More generally, see Doolan v R [2011] NZCA 542 at paras [35]–[39].
4 Ibid, at para [39].

5 Ministry of Social Development v White DC Gisborne CRI 2011-016-428, 27 July 2011 at paras [7]–

[10].

money involved, the length of time that the offending went on for, and the number of lies that were told.  Here of course, part of the reason, as counsel has properly emphasised, for the very large amount of money, is the number of children you had and that affected the benefit level that was paid to you.

[9]       I am in a situation where any sentencing starting point of less than three years‟ imprisonment would be totally inappropriate for the seriousness of what has occurred here.  A plea of guilty was virtually inevitable because the paper trail in a case like this creates a trap from which there is really no escape.  On the other hand, it is important that proper allowance be made for a plea of guilty.  The Supreme Court put the very upper limit at 25 percent and clearly when one looks at the Hessell judgment it is hard to justify that where the person is well and truly caught, as you clearly were.

[10]      I think it is possible to make some modest, additional adjustment for your family circumstances.  But on the other hand it is a matter of concern, although it is a different sort of offending, that you have also had to do a substantial period of home detention for drug dealing.  Those factors seem to me to largely cancel each other out.   I am not greatly impressed by the proposition that you are remorseful.  That home detention sentence gave you an opportunity to address your life in a number of ways and quite clearly you did not at that stage feel able to come clean about the circumstances in which you were living.

Analysis

[19]     I propose to deal with the appeal points as follows: (a)           First, I consider the effect of Ransom.

(b)      Second, I look at the Hessell arguments.

(c)      Third, I determine whether the sentence was manifestly excessive.

This involves consideration of the starting point and the credit given for relevant mitigating circumstances.

(a)      Ransom

[20]     I  begin  my  analysis  by  reference  to  the  Court  of Appeal‟s judgment  in Ransom.   Ms Ransom‟s offending also arose out of her deliberate decision not to disclose that she was married and had lived with her husband during the whole period of offending.   The offending persisted between 13 June 1997 and 19 April

2008 and resulted in illegal receipt of $127,985.59 of taxpayers‟ money during that

period.

[21]     After analysing earlier decisions of its own and the High Court, the Court of Appeal accepted that sentencing for benefit fraud should be treated no differently from any other form of fraud.  Different circumstances may justify the imposition of different sentences.

[22]     Applying the principle set out in R v Hill,6  the Court of Appeal said that it was “necessary for sentencing Judges to determine, on a case by case basis, whether a sentence of home detention will respond to the particular offending or whether, in terms of s 16(2) of the Sentencing Act, a sentence of imprisonment is required”.  The Court emphasised there was  “no  prescriptive or usual  sentence  in  cases  of this type”.7

(b)      Hessell

[23]     The Hessell point is directed to the credit that should be given on sentence to someone who enters early guilty pleas and saves the State the cost and trouble of a trial.   In some cases (but this is not one) the credit also reflects the fact that a complainant is relieved of the need to revisit a traumatic experience at trial.

[24]     Ms White was charged on 10 February 2011.  She first appeared before the Court on 28 March 2011.   Pleas of guilty were entered on 15 June 2011.   The circumstances in which they were entered satisfies me that they should be regarded as having been proffered at an early time.

[25]     The nature and value of a credit for entering guilty pleas was considered by the Supreme Court in  Hessell.8     McGrath J, for the Court, made the following comments about the assessment of a credit for guilty pleas:

[73] There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated

6 R v Hill [2008] 2 NZLR 381 (CA) at para [33].

7 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163 at para [39].

8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at paras [73] and [74].

and a provisional sentence reflecting them has been decided on. Indeed, there are advantages in addressing the guilty plea at this stage of the process (along with any special assistance given by the defendant to the authorities). It will be clear that the defendant is getting credit for the plea and what that credit is. This transparency validates the honesty of the system and provides a degree of predictability which will assist counsel in advising persons charged who have in mind pleading guilty.

[74] But, as we have emphasised, the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea and the strength of the prosecution case. Consideration of all the relevant circumstances will identify the extent of the true mitigatory effect of the plea.

[75] The reduction for a guilty plea component should not exceed 25 per cent. That upper limit reflects the fact that remorse is dealt with separately. Whether the  accused  pleads  guilty at  the  first  reasonable  opportunity is always relevant. But when that opportunity arose is a matter for particular inquiry rather than formalistic quantification. A plea can reasonably be seen as early when an accused pleads as soon as he or she has had the opportunity to be informed of all implications of the plea.  (my emphasis)

[26]     In contrast to the Court of Appeal‟s  decision,9  the Supreme Court made it clear that any credit for remorse should be assessed independently of the guilty pleas.10    In doing so, the Supreme Court relied on s 9(2)(f) of the Sentencing Act

2002.  That provides for remorse to be treated as a mitigating factor, discrete from the entry of guilty pleas.

[27]     Ms Goldsbury, for Ms White, submitted that Hessell requires a credit in the order of 25% to be given where early pleas of guilty are entered.  She pointed to the actual credit given, about 22% in total for all mitigating factors, and contended that an  unidentified  credit  allowed  for  the  guilty  pleas‟ component  must  have  been inadequate.

[28]     In Hessell, the Supreme Court was at pains to differentiate its approach from that taken in the Court of Appeal.  The Court of Appeal had articulated a prescriptive set of guidelines.  The Supreme Court said that the Court of Appeal‟s reliance on the United Kingdom Sentencing Guidelines Council and the work of the Law Commission in preparation for the intended Sentencing Council “underestimated the

complexity of the issue [of credit for guilty pleas] including the potential of the

9 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at paras [24]–[28].

10 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at paras [63], [64] and [75].

changes  [to  a more  prescriptive approach]  to  impact  on  the  protected  rights  of persons charged with criminal offending”.   McGrath J added that it was “also inappropriate for a court to make changes in sentencing policy that would restrict the capacity of Judges to determine sentences that are considered to fit all the circumstances  of  the  case”.    The  Supreme  Court  disagreed  with  the  Court  of Appeal‟s  approach  because  it  considered  the  latter  was  “not  mandated  by  the

Sentencing Act”.11

[29]     That  is  the  context  in  which  the  Supreme  Court‟s observation  that  the “reduction for a guilty plea component should not exceed 25 per cent” should be read.12   That approach is consistent with the Court‟s earlier comment that “the credit that is given must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea on the strength of the prosecution case”.13

[30]     Having regard to Ms White‟s explanation to the prosecuting authorities, her conviction on the charges could properly be characterised  as  “inevitable”.   She accepted that she had been in a relationship with the husband over the entire period in issue.  It was a simple matter to prove that she had signed the various forms in which she deliberately gave false information about her marital and living circumstances.

[31]     Standing alone, I do not consider that an allowance of less than 25% for the early guilty pleas amounted to an error on the part of the sentencing Judge.

(c)      Was the sentence manifestly excessive?

[32]     The modern approach to sentencing is laid down in R v Taueki:14

[8]  ...   The modern  approach to sentencing uses  as  a reference point a starting point taking into account aggravating and mitigating features of the offending, but excluding mitigating and aggravating features relating to the offender.  Put  another  way,  a  starting  point  “is  the  sentence  considered

11 Ibid, at para [67].

12 Ibid, at para [75], set out at para [25] above.
13 Ibid, at para [74], set out at para [25] above.

14 R v Taueki [2005] 3 NZLR 372 (CA) at para [8].

appropriate for the particular offending (the combination of features) for an adult offender after a defended trial” (R v Mako [2000] 2 NZLR 170 at para [34]). When we use the term “starting point” in this judgment, that is what we mean.

[33]     The Taueki approach was affirmed in R v Clifford.15   That decision factors in, as a final step, the need to assess a credit for any guilty pleas.16

[34]     The Judge took, as his starting point, a period of three years imprisonment. The Judge made no adjustment for aggravating or mitigating personal circumstances. The uplift and credit otherwise necessary appear to have cancelled each other out.17

The Judge said that he was “not greatly impressed” with the “proposition that Ms White was remorseful”.  In reaching that view, Judge Moore took the view that Ms White failed to let the assistance that could be gained through the home detention sentence address other aspects in her life, including the need to disclose her true

living circumstances.18

[35]     It   is   necessary  to   consider  whether  a  starting  point   of  three   years imprisonment  reflected  the  gravity  of  the  offending  was  justified.    I  compare Ms White‟s offending with that of Ms Ransom.  In a period of about 10 years and nine months,  Ms White received undeserved  benefits  totalling $150,516.81.    In contrast, Ms Ransom received $127,985.59 over a period of just under 11 years. There is little difference in the duration of the offending.   Much of the additional amount received is accounted for by the greater number of children that Ms White

had to support. That was accepted by Judge Moore.19

[36]     A  starting  point  of  two  years  six  months  imprisonment  was  taken  in Ransom.20   It was not challenged on appeal. A higher starting point might have been justified.  The precise level was one within the discretion of the sentencing Judge. The starting point used in Ransom did not bind Judge Moore, though an uplift of six

months is material.

15 R v Clifford [2011] NZCA 360.

16 Ibid, at paras [57]–[60].

17 Ministry of Social Development v White DC Gisborne CRI 2011-016-428, 27 July 2011 at para [10], set out at para [18] above.

18 Ibid, at para [10], set out at para [18] above.

19 Ibid, at para [8], set out at para [18] above.

20 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163 at para [15].

[37]     Was  it  appropriate  for  the  Judge  to  set  off  personal  aggravating  and mitigating circumstances?  In my view, the Judge‟s approach worked  to Ms White‟s advantage.

[38]     The most serious aggravating circumstance was that Ms White continued to offend while subject to a sentence for drug offending.  The sentence was designed to be rehabilitative in nature.  I agree with the Judge that the rehabilitative nature of the home detention sentence provided an opportunity for Ms White to make a fresh start, but she did not take it. This was an occasion when she had support within the system on which she could have lent to counter any concerns about her husband‟s behaviour.

[39]     An uplift in excess of six months could have been justified for the personal aggravating circumstances.  On the other hand, it is unlikely that much more than a credit of four to six months could have been regarded as appropriate for the family background and circumstances in which the offending came to occur.

[40]     My analysis suggests that the end sentence was in the range available to the Judge.  Standing back, I cannot say that the effective sentence imposed (while stern) was manifestly excessive, having regard to the totality of the offending.21    In those circumstances, the appeal against sentence must fail.

Further observations

[41]     As in many like cases, the circumstances faced by Ms White reveal likely coercive behaviour on the part of a male partner who encourages the offender to make false declarations so that he may avoid the responsibility of providing for his family.  I refer to a male partner because that is the normal position.  The situation of “learned  helplessness” that  arises  from  domestic violence makes  the connection

between the partner‟s behaviour and that of the offender acute.22

21 Sentencing Act 2002, s 85(1).

22 See the discussion of “learned helplessness” in Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001) at paras 5–6, drawing on the theory originally developed by Martin Seligman, described in Christopher Peterson, Steven Maier and Martin Seligman Learned Helplessness: A Theory For The Age of Personal Control (Oxford University Press, Oxford, 1993).

[42]     In my view, prosecuting authorities ought to give more consideration, in cases such as this, to the possibility of prosecuting the partner as a party to the fraud. If that were not done, there is a real risk that a person who is actually instigating or encouraging the fraudulent conduct (usually by coercive means) escapes criminal liability.

Result

[43]     The appeal against sentence is dismissed.

P R Heath J

Delivered at 3.00pm on 4 November 2011.