Whitehead v R
[2014] NZCA 573
•28 November 2014 at 11.15 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA300/2014 [2014] NZCA 573 |
| BETWEEN | WENDY MAREE WHITEHEAD |
| AND | THE QUEEN |
| Hearing: | 15 October 2014 |
Court: | Harrison, Asher and Lang JJ |
Counsel: | E J Forster and W A Forster for Appellant |
Judgment: | 28 November 2014 at 11.15 am |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
B The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Following the death of her husband in 1987 the appellant, Wendy Maree Whitehead, received weekly compensation from the Accident Compensation Corporation (ACC). Under s 446(5) of the Accident Insurance Act 1998, her entitlement to that compensation depended on her not remarrying or entering into a relationship in the nature of marriage.[1] In the relevant period, each year from June 2003 to June 2010, she affirmed to ACC that neither event had occurred. ACC alleged that she did so dishonestly.
[1]Under s 384 of the Accident Compensation Act 2001, s 446(5) of the Accident Insurance Act 1998, relating to compensation payable to surviving spouses where the death occurred prior to 1992, continues to apply.
It was not in dispute that following the death of her husband, on whom she had been totally dependent, Ms Whitehead had been entitled to compensation. Each year in the relevant period Ms Whitehead had to provide a form to ACC in which she responded to a question as to whether she had “entered into a relationship with a person of the opposite sex, which is in the nature of marriage (for example, de facto marriage, living together)?”. Each year Ms Whitehead responded that she had not remarried or entered into a relationship in the nature of marriage.
In 1998 a man (M) had come to live in a house bus on Ms Whitehead’s property. In due course a sexual relationship developed between them which continued over the next 12 years. In 2010, ACC investigated Ms Whitehead’s living arrangements and formed the view that Ms Whitehead and M were in a de facto relationship and had been by 2003, contrary to the declarations Ms Whitehead gave in the documents to ACC. ACC considered that Ms Whitehead was not entitled to weekly compensation and that she had received an overpayment of weekly compensation totaling $213,000.
Ms Whitehead was charged with one count of using a document with intent to defraud under s 229A(b) of the Crimes Act 1961 (repealed on 1 October 2003), and seven counts of using dishonestly and without claim of right a document with intent to obtain a pecuniary advantage under s 228(b) of the Crimes Act. Following a jury trial in the Nelson District Court, she was found guilty on each count. She was convicted and sentenced by Judge Zohrab to 10 months home detention, 160 hours community work and ordered to pay reparation of $213,397.87, which she paid.[2]
[2]R v Whitehead DC Nelson CRI-2011-042-4120, 12 May 2014 [Sentencing notes].
Ms Whitehead appeals against both the conviction and sentence. Five grounds of appeal against conviction were advanced on behalf of Ms Whitehead:
(a)the jury were misdirected as to what a de facto relationship is under the Accident Compensation Act 2001;
(b)ACC created a false impression in the evidence about the finality of the ACC’s determination as to her lack of entitlement;
(c)it was an abuse of process to bring criminal proceedings without first finally determining Ms Whitehead’s entitlement under the dispute process in pt 5 of the Accident Compensation Act;
(d)the Crown led improperly obtained evidence; and
(e)the jury were misdirected about what the Crown was required to prove regarding mens rea.
We consider each ground in turn.
Ground 1: No relationship in the nature of a marriage – error in summing-up
The central issue at the trial was whether, when Ms Whitehead filled out the form, she acted with intent to defraud, in relation to count one, or dishonestly and without claim of right in relation to the other counts. The specific question in the forms (although there were minor changes over the years) was:
Have you entered into a relationship with a person which is in the nature of marriage (for example, de facto marriage, living together)?
There was provision for a “yes” or “no” answer. If “yes” the form asked for the date when the relationship began. At the end of the form Ms Whitehead completed the “Spouse’s Declaration” which contained the following statement:
I declare that to the best of my knowledge the information given is complete, true and correct. I also undertake to notify ACC immediately of any change to any of these circumstances.
In the question trail the Judge asked the jury these questions:
1.1Are you sure that, looking at it objectively, Ms Whitehead was incorrect in completing that form without mentioning that she had a de facto partner?
If NO, find Ms Whitehead NOT GUILTY
If YES, go to Question 1.2
1.2Are you sure that, in so completing and using the form, Ms Whitehead did not (subjectively) believe that she was entitled to complete the form in the way that she did?
If NO, find Ms Whitehead NOT GUILTY
If YES, find Ms Whitehead GUILTY on Count 1
The Judge in his summing-up,[3] to assist the jury in determining whether or not there was a de facto relationship or a relationship in the nature of a marriage (which he said were one and the same thing), set out the well known factors defined by Tipping J in Thompson v Department of Social Welfare being:[4]
[3]R v Whitehead DC Nelson CRI-2011-042-4120, 28 February 2014 [Summing-up] at [36].
[4]Thompson v Department of Social Welfare [1994] 2 NZLR 369 (HC) at 373.
(1) Whether and how frequently the parties live in the same house.
(2) Whether the parties have a sexual relationship.
(3)Whether the parties give each other emotional support and companionship.
(4)Whether the parties socialise together or attend activities together as a couple.
(5)Whether and to what extent the parties share the responsibility for bringing up and supporting any relevant children.
(6)Whether the parties share household and other domestic tasks.
(7)Whether the parties share costs and other financial responsibilities by pooling of resources or otherwise.
(8)Whether the parties run a common household, even if one or other partner is absent for periods of time.
(9)Whether the parties go on holiday together.
(10)Whether the parties conduct themselves towards, and are treated by friends, relations and others as if they were a married couple.
Mr Forster for Ms Whitehead submitted that the Judge should have directed the jury to consider the ACC statutory context and the financial implications of the relationship. He should have given particular weight to whether the parties shared costs and other financial responsibilities, such as by pooling resources. He argued that the Judge erred in his summing-up in listing a variety of factors and not placing particular emphasis on the issue of shared costs and financial responsibilities.
Mr Forster referred to s 29A of the Interpretation Act 1999 which defines de facto relationship:
29A Meaning of de facto relationship
…
(3)In determining whether 2 people live together as a couple in a relationship in the nature of marriage or civil union, the court or person required to determine the question must have regard to—
(a)the context, or the purpose of the law, in which the question is to be determined; and
(b) all the circumstances of the relationship.
He submitted that particular weight should have been given to whether the parties shared costs and other financial responsibilities, such as by pooling resources. He relied on this Court’s decision in Ruka v Department of Social Welfare in which the majority held that the statutory context was of importance in determining what is a relationship in the nature of marriage.[5]
[5]Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA) at 161–162 per Richardson P and Blanchard J and at 179 per Thomas J.
In that case, which concerned a prosecution under s 127 of the Social Security Act 1964 (there were also charges laid under the Crimes Act), it was held to be appropriate to begin an examination of whether a relationship in the nature of marriage existed in relation to a beneficiary, by considering the purpose of the social welfare legislation.[6] An essential element was acceptance by one party that he or she would support the other party and any child or children of the relationship.[7] The commitment had to go beyond mere sharing of living expenses as flatmates might do, and had to amount to a willingness to support each other if the need existed. Richardson P and Blanchard J held that there had to be a degree of financial engagement or understanding between the couple.[8] However, they stated that the relationship would not be negated by a refusal to support, or an arrangement that support would not be given, which was motivated by knowledge that the dependant party would then be able to claim a benefit.[9]
[6]At 161.
[7]At 161.
[8]At 161.
[9]At 161–162.
The minority of Gault and Henry JJ did not agree that it was appropriate to elevate only one of the factors.[10] They considered that financial interdependence was not an essential feature of a marriage type relationship and that the failure to meet any obligation of financial support did not necessarily bring the relationship to an end.[11] Thomas J in his separate decision, in which he concurred in the result of Richardson P and Blanchard J, took a similar view to the majority on the relevance of the parties having financial interdependence,[12] but considered the proper test to be whether the parties had merged their lives to the extent that they were living together in a relationship in the nature of marriage.[13]
[10]At 167.
[11]At 167.
[12]At 185.
[13]At 180–181.
The case against Ms Whitehead is a prosecution under the Crimes Act.[14] The purposes of the ACC legislation do not directly govern or inform a consideration of a prosecution brought under the Crimes Act, which is concerned with dishonest use of a document. That is the specific context, but the broader context of the charges arising from a declaration provided in support of the continuation of an ACC benefit is relevant, in particular to the mens rea element of the charge.[15]
[14]There is no provision in the Accident Compensation Act prescribing offences for fraud or dishonesty.
[15]R v Hayes [2008] NZSC 3, [2008] 2 NZLR 321 at [12] and [32]–[33].
Section 29A of the Interpretation Act was drafted in light of the decision in Ruka.[16] As s 29A of the Interpretation Act makes clear, in determining whether Ms Whitehead was in a de facto relationship with M for the purposes of the Accident Compensation Act, the context and the purpose of the Act must be examined.
[16]Relationships (Statutory References) Bill 2004 (151-2) (select committee report) at 4–5; Cabinet Policy Committee “Legal Recognition of Adult Relationships” (12 May 2003) POL (03) 116 at [25]; Cabinet Policy Committee “Legal Recognition of Adult Relationships: Definition of De Facto Parental Relationships and Unmarried Minors” (26 June 2003) POL (03) 180 at [6].
The Accident Compensation Act does not define de facto relationship. However, there is a provision relating to partners in the different context of a partner in relation to a deceased claimant. It provides:
18A Partner (and partner in relation to deceased claimant)
(1)Partner means a person (person A) with whom the claimant is in a civil union or a de facto relationship.
(2) However, person A is not the partner of a claimant if—
(a) person A and the claimant are living apart; and
(b)the claimant is not contributing financially to person A's welfare.
(3)Subsection (2) does not apply if the circumstances set out in the subsection occurred principally because of the health, imprisonment, or employment obligations of either person A or the claimant.
(4)Partner, in relation to a deceased claimant, means a person (person B)—
(a)with whom the deceased claimant was in a civil union immediately before his or her death; or
(b)with whom the deceased claimant was in a de facto relationship immediately before his or her death.
(5)However, person B is not the partner of a deceased claimant if, at the time of the deceased claimant's death,—
(a) person B and the deceased claimant were living apart; and
(b)the deceased claimant was not contributing financially to person B's welfare.
(6)Subsection (5) does not apply if the circumstances set out in the subsection occurred principally because of the health, imprisonment, or employment obligations of either person B or the deceased claimant.
It is clear from s 18A that in certain circumstances, when referring to a de facto relationship, the Accident Compensation Act places emphasis on financial interdependence and some degree of emotional support created by living together. If persons are not living together and there is no financial interdependence, then for the purposes of the Accident Compensation Act there is no de facto relationship. However, it is equally clear that the absence of financial interdependence alone does not negate there being a de facto relationship if the parties are living together, just as the presence of financial interdependence does not prove it.
Financial interdependence is an important factor, but remains only one of the relevant factors to determining if there is a de facto relationship. The broader list of factors set out in Thompson continues to be useful, although the factors should not be used as a checklist.[17] Thus, while the summing-up did not need to make any statement about the particular significance of financial interdependence, in the context of alleged fraud by parties claiming for an ACC benefit the Judge needed to refer to financial interdependence as a factor, and to ensure that the issue was fairly weighted by the jury.
[17]Relationships (Statutory References) Bill 2004 (151-2) (select committee report) at 4.
It is necessary to turn to the summing-up in question in this case to see what was said about the financial aspects of a de facto relationship for the purposes of the Accident Compensation Act.
The Judge having listed the matters set out in Thompson proceeded then to go through the various features. He stressed that the list was only a guide and was not exhaustive.[18] There were other factors that could be relevant and no one factor was determinative.[19] It was a particular feature in this case, and was part of the Crown’s case, that Ms Whitehead at an early stage in the relationship with M was alive to the issue of a de facto relationship and how it might affect her entitlement to ACC dependency.[20] This was a factor relied on by the Crown as helping to show her dishonesty in not disclosing being in a de facto relationship.
[18]Summing-up, above n 3, at [39].
[19]At [39].
[20]At [41].
The Judge in summing up the Crown case went through various features of the relationship. He referred briefly to the sexual relationship and emotional support and companionship.[21] He went through a number of shared projects, including restoring a bus, creating an organic olive grove for profit, and developing other land.[22] There was reference to holidaying and socialising together and sharing household and domestic tasks.[23] He said this about the Crown case on financial interdependence:
[49] In terms of shared costs and other financial responsibilities by pooling of resources, there was this common intention in terms of the olive grove for example. Yes, Ms Whitehead had the majority of the money and ownership of the majority of the properties but there was some intermingling. They did have the 46 bus for the restoration process. [M] did have a tractor and a trailer albeit registered in his name but seemingly in some way attached to the olive grove business, so there was an intermingling as it were of assets to a certain degree. Sure, Ms Whitehead paid the majority of costs but he did receive a wage from her.
[21]At [43]–[44].
[22]At [45].
[23]At [46]–[48].
The Judge then in covering the submissions of defence counsel set out the case for a lack of pooling of resources. He said:
[62] Now, as to whether the parties shared costs and other financial responsibilities by the pooling of resources or otherwise, the defence submit to you that this is quite a telling point because the accused, Ms Whitehead, was not sharing her property. She had carefully protected her assets in terms of the company and also the trust. She was not wanting to share her money. She had no intention of that, and that is significant because it underscores the defence submission that there was this lack of commitment, there was lack of emotional union and emotional connection.
[63] So, in terms of the pooling of resources and matters of that sort, she owned the assets principally. Yes, there was the bus, there was the trailer and there was the tractor but those are modest matters in the total scheme of things. Yes, there was an intention to share a profit but it was a nebulous concept and there was no profit as far as the olive grove was concerned.
[64] So really, when you stand back and look at it, Mr Zindel suggested to you that that is a critical factor because there really was not that sharing of financial responsibilities and pooling of the resources of which you would expect in a de facto relationship.
In our view, the summing-up when viewed as a whole gives considerable emphasis to the parties’ financial interdependence. The jury would have thought this was a significant factor to take into account, and they were directed with some particularity to assess the degree of financial engagement between M and Ms Whitehead.
This was a satisfactory way of dealing with the issue of context and purpose, as required by s 29A of the Interpretation Act. Thus, we do not consider that the Judge placed unnecessary focus on whether Ms Whitehead and M physically lived together, and the jury was properly alerted to the importance of financial interdependence.
Ground 2: ACC created a false impression of a final determination
It was the Crown case at trial that ACC had determined that Ms Whitehead had entered into a de facto relationship with M and she was no longer entitled to receive weekly compensation. However, the Crown did not mention that prior to charges being laid Ms Whitehead had sought to review this determination as she was entitled to do under pt 5 of the Accident Compensation Act.
Mr Forster submitted that this failure to provide evidence about Ms Whitehead’s review of the decision created an unbalanced picture. The pending review which is still to be heard may lead to a finding that she was indeed entitled to weekly compensation and, Mr Forster submitted, it was therefore wrong for the Crown to give evidence about ACC’s determination without also mentioning the review.
It seems to us that the answer to this submission is that Ms Whitehead’s counsel at the trial could have elicited evidence about Ms Whitehead’s review rights, and submitted to the jury that indeed she was entitled to legal compensation. This was a matter for the defence to raise if it wished to do so. In fact the decision was made not to do so. No question of counsel incompetence is raised. It is understandable that the review was not emphasised given that there was a serious risk that any ACC witness would have stated that in ACC’s opinion there were no entitlements due. This ground therefore also fails.
Ground 3: It was an abuse of process to not require resolution of the ACC dispute prior to trial
Related to the second ground, Mr Forster submitted that it was an abuse of process for Ms Whitehead’s criminal charges to be heard prior to her application for review. In making this submission, Mr Forster relied on s 133(5) of the Accident Compensation Act. Section 133(5) provides:
133 Effect of review or appeal on decisions
…
(5)If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides.
Mr Forster submitted that the effect of s 133(5) is that the jury could not determine Ms Whitehead’s entitlement or lack of entitlement when Ms Whitehead had invoked the review process. This submission is misconceived. Section 133(5) is in the part of the Act dealing with compensation claims, and provides that they must be dealt with according to the processes of the Act. The section has nothing to do with any criminal proceedings that may be brought. Criminal prosecutions are not brought under the Accident Compensation Act at all but rather under the Crimes Act.
Mr Forster submitted that s 133(5) is relevant as Ms Whitehead’s entitlement was at issue. However, a lack of entitlement is not central to determining a person’s guilt under ss 229A or 228 of the Crimes Act. As was stated by the Supreme Court in R vHayes:[24]
… In its terms the legislation does not require proof of lack of entitlement. The concept of entitlement can arise, if at all, only by implication from the word “advantage”. But if a person seeking to obtain a pecuniary advantage uses a document with intent to defraud (s 229A), or dishonestly and without claim of right (s 228), we do not consider it is any defence to say that the user of the document was entitled to the advantage. The statutory purpose is to criminalise the use of dishonest means directed to gaining the advantage even if the accused is otherwise entitled to it. Questions of actual entitlement may well be relevant to sentence, but they are not relevant to guilt, save that a belief in entitlement will, of course, be relevant to mens rea.
[24]R v Hayes, above n 15, at [12].
As the Supreme Court in Hayes made clear, the criminal process is concerned with dishonesty, not statutory entitlement. Even if Ms Whitehead had been acquitted of the charges, that would not necessarily have resulted in a restoration of her payments. Determination of her criminal liability for dishonesty is not therefore a “matter” for which the court “consider[s] or grant[s] remedies”. It is not caught by the terms of s 133(5). The clear scope of this section also answers Mr Forster’s related submissions urging an alternative interpretation of s 133(5) based on the New Zealand Bill of Rights Act 1990 and the United Nations Convention on the Rights of Persons with Disabilities. There is no room for Mr Forster’s submissions in light of the clear text and purpose of s 133(5) and what the Supreme Court said about entitlement in Hayes.
There are good reasons for the criminal proceeding to take priority over any civil claim. We agree with the comment of Batt J in Australian Securities Commission v Kavanagh:[25]
Ordinarily it is, I think, the deep-rooted ethos of the common law system that a criminal proceeding, involving, as it does, the risk to personal liberty and allegations of a more serious nature, should be dealt with first. That is not simply in the interests of an accused person but is in the interests of the community, in that its criminal laws may be vindicated as soon as possible if in truth there has been an offence committed.
[25]Australian Securities Commission v Kavanagh (1994) 13 ACSR 573 (VSC) at 581.
There is force in the Crown submission that what Mr Forster is effectively seeking here is analogous to a defendant seeking a declaration in a civil court in respect of a matter arising in a pending criminal proceeding, which the courts have held is generally not available.[26] There are also two other points that must be made. First, if the review proceedings must be determined first this could lead to significant delays in the criminal proceedings. These are to be avoided as a matter of public policy. It is a basic precept of criminal justice that the longer the delay before trial, the greater the possibility that there will not be a fair trial.[27] Secondly, there is a real issue as to whether the outcome of any review application would be admissible in a criminal trial. Under s 50(1) of the Evidence Act 2006 such evidence is not admissible to prove the existence of a fact that was at issue in the proceeding in which the judgment was given.
[26]Burrell Demolition Ltd v Wellington Regional Council CA161/01, 18 March 2002 at [14].
[27]R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [9].
Thus a District Court decision as to Ms Whitehead’s entitlement would be inadmissible. The position of a reviewer is not so clear and we do not need to determine this, although as the Law Commission observed in its 2013 review of the Evidence Act it would be “odd” if such a tribunal’s decision were admissible when a Court’s decision was not.[28] Further, the question of the defendant’s privilege against self-incrimination being compromised could arise if the ACC entitlement review ran first.[29]
[28]Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [9.17].
[29]Evidence Act 2006, s 60.
Consequently, we do not consider that it was an abuse of process for Ms Whitehead’s criminal charges to be heard prior to her application for review.[30]
Ground 4: Admissibility of evidence
[30]See also the consideration of this issue in Cruickshank v R [2014] NZCA 574 at [32]–[37].
Mr Forster submitted that the Crown had relied on improperly obtained evidence. There appears to be an objection to obtaining evidence from M, on the basis of information that was obtained because Ms Whitehead had signed an information consent form allowing ACC access to data. It was suggested that obtaining M’s private information was unlawful.
There was no evidential basis for this submission and it was not pursued in oral submissions. We do not accept it. Once M’s address had been obtained it was obvious that he shared an address with the claimant and ACC was entitled to carry out its investigation.
We should briefly refer to a related argument. Mr Forster submitted that the forms which Ms Whitehead signed, enabling the addresses to be matched, have since been declared ultra vires the Accident Compensation Act. He said that as a consequence the data-matching was unlawful because it was improperly obtained. This declaration, given in the District Court in a civil context, was not the subject of a challenge or a ruling at trial and, in its absence, there can be no basis for a finding on appeal that the evidence was improperly obtained in terms of s 30 of the Evidence Act.
Ground 5: Directions on mens rea
Mr Forster submitted on behalf of Ms Whitehead that the Judge did not sufficiently direct the jury on the requirement that Ms Whitehead acted “without claim of right”. However, the Judge instructed the jury that the Crown had to prove that Ms Whitehead acted throughout “believing that she was acting lawfully”.[31] In the question trail there was a question whether in completing her ACC forms the appellant “did not (subjectively) believe that she was acting lawfully”. “Claim of right” means a belief that the act is lawful, even though that belief may be based on ignorance or a mistake of law.[32] There was an orthodox and correct direction.
[31]Summing-up, above n 3, at [20].
[32]Crimes Act 1961, s 2.
Moreover, Ms Whitehead acknowledged in evidence that she had “always known” that she had an obligation to disclose any relationship in the nature of marriage. The key question was whether or not she subjectively believed she was entitled to complete the form without mentioning she had a de facto partner. It was whether she believed she was in such a relationship. If she held that belief it followed that she acted without claim of right.
Conclusion on appeal against conviction
None of the five grounds of appeal have been made out. First, there was no error summing up whether the relationship was a de facto relationship as appropriate weight was given to financial interdependence. Second, the Crown was not required to give evidence about the review process and its omission to do so did not lead to an unfair impression given to the jury. Third, because determining entitlement is not a necessary element under ss 229A or 228 of the Crimes Act, there was no abuse of process in hearing the criminal charges prior to any final determination of entitlement. Fourth, the evidence given by M was clearly admissible. Finally, the direction on mens rea was appropriate.
For the reasons above, we dismiss the appeal against conviction.
The appeal against sentence
The appeal against sentence only relates to the sentence of reparation.
In sentencing, the Crown sought reparation of $213,397.87 on behalf of ACC. In an affidavit filed before sentencing Ms Whitehead indicated that she had raised sufficient funds to pay that in full. She effected payment of that amount and as a consequence the Judge discounted the starting sentence of 30 months’ imprisonment by one-third.[33] She was ultimately sentenced to 10 months home detention and 160 hours of community work and reparation.[34]
[33]R v Whitehead DC Nelson CRI-2011-042-4120, 1 April 2014 [Sentencing indication] at [17].
[34]Sentencing notes, above n 2, at [4].
Mr Forster submits that the Court had no jurisdiction to impose a sentence of reparation. He relies on s 133(5) of the Accident Compensation Act and Davies v Police.[35] At [32]–[37] we rejected his s 133(5) analysis. We do not consider that Davies v Police is a decision that assists the submission for Ms Whitehead. That case concerned the jurisdiction to order reparation for lost earnings consequential on physical harm. At issue was whether a sentence of reparation could be used to top up weekly compensation for lost earnings.
[35]Davies v Police [2009] NZSC 47, [2009] 3 NZLR 189.
That issue is different from this issue which concerns ACC’s claim for money lost as a result of Ms Whitehead’s fraud. Through her offending Ms Whitehead caused ACC to make payments it did not need to make. ACC lost the money that was paid. This was a direct loss and ACC in the light of the fraud was entitled to have the money paid back.
As a consequence, under s 32 of the Sentencing Act 2002 the court must ordinarily make an order of reparation.[36] Such an order is compensatory in nature, and designed to recompense a person for financial loss or emotional harm suffered as a result of another’s offending. ACC had suffered a loss of property, namely the payments it had wrongly paid out.
[36]Sentencing Act 2002, s 12(1) requires the court to order reparation unless it is satisfied that the sentence would result in undue hardship.
There were reservations expressed in Davies v Police about a sentencing court assessing the amount paid or payable under the Accident Compensation Act.[37] Parliament responded to these reservations by amending s 32(5) of the Sentencing Act to make it clear that the court cannot order reparation where the consequential loss is covered by ACC. Section 32(5) provides:
32 Sentence of reparation
…
(5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Accident Compensation Act 2001.
[37]Davies v Police, above n 35, at [12]–[13].
We do not consider that s 32(5) is relevant to ordering reparation in this case. The loss caused by Ms Whitehead’s fraud is not loss or damage to her giving rise to the entitlements by her under the Accident Compensation Act enabling her to receive payments from ACC. The aim of s 32(5) is to ensure that the court does not order reparation where a victim is covered by ACC. Ms Whitehead is not such a victim. Here the loss is ACC’s financial loss, and not the type of loss excluded by s 32(5).
In any event, we observe that Ms Whitehead has paid the reparation and she received a discount on her sentence on the basis that it would be paid. If, following any review process, it is determined that Ms Whitehead is entitled to have received the weekly compensation then ACC will have to repay the amount ordered as reparation as there would be no or less consequential loss. Other issues may arise. However, until that is determined, as s 133(1) of the Accident Compensation Act makes clear, ACC’s determination that Ms Whitehead was not entitled to receive compensation continues to have full effect.[38]
[38]See also the consideration of this issue in Cruickshank v R, above n 30, at [42]–[46].
For these reasons, Ms Whitehead’s appeal against sentence is dismissed.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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