Whitelaw v R - [2012] NZCA 438

IN THE COURT OF APPEAL OF NEW ZEALAND

CA359/2012
[2012] NZCA 438

BETWEEN BARRY RAYMOND WHITELAW
Appellant

AND THE QUEEN
Respondent

Hearing: 20 September 2012

Court: White, Simon France and Asher JJ

Counsel: S K Green for Appellant
B C L Charmley for Respondent

Judgment: 26 September 2012 at 12.00 pm

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

On 18 May 2012 the appellant Barry Raymond Whitelaw appeared before Judge Tompkins in the District Court at Hamilton for sentence on 11 counts of using a document with intent to defraud and dishonestly and without claim of right using a document to obtain a pecuniary advantage. The maximum penalty on each count was seven years’ imprisonment.
Mr Whitelaw had offended for a period of approximately seven years. He had fraudulently, by making false applications and statements, obtained a sickness benefit, an invalid benefit and a supplementary benefit. The total overpayments came to $76,164.21.
Mr Whitelaw was sentenced to two years, five months’ imprisonment. The Judge considered that a starting point of two years was appropriate, uplifted by nine months to take into account Mr Whitelaw’s “prolific and recidivist fraud history”.[1] From that he discounted the sentence by four months (approximately 12 per cent) to take into account late guilty pleas on the morning of trial. The end sentence was therefore two years and five months’ imprisonment. Mr Whitelaw appeals against that sentence asserting it was manifestly excessive.
[1] R v Whitelaw DC Hamilton CRI-2009-019-5302, 18 May 2012 at [9].
Ms Green for Mr Whitelaw argued that the Judge made two errors which led to a manifestly excessive sentence. First, that he pitched the starting point too high, and secondly that the nine month increase for his past record was excessive.

The starting point

The Judge noted that the offending commenced within days or weeks of Mr Whitelaw having been released from an earlier term of imprisonment imposed for fraud offending.[2] He went on to observe:[3]
Mr Kaye accepts that there is no tariff decision for what can loosely be called benefit fraud, although I observe that although Mr Whitelaw is for sentence for what can be categorised as benefit fraud this is but the most recent manifestation of, as already noted, a very long and versatile history of fraudulent behaviour. It just so happens that on this occasion the state is the victim. ... Given that analysis Mr Kaye submitted that a range of around 15 months to two years is appropriate. ... Mr Kaye goes on to accept that a 10 percent discount or thereabouts for the guilty plea on the morning of trial would be available.
[2] At [2].
[3] At [8].
In this Court Ms Green, who is now briefed, departed from the submission of Mr Kaye, who had appeared at the sentencing as to the starting point. She argued that the…

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 Whitelaw v R

Details

AGLC: Whitelaw v R [2012] NZCA 438
Case: [2012] NZCA 438
Decision Date: 26 September 2012

CaseChat Overview and Summary

In the case of Whitelaw v R, Barry Raymond Whitelaw appealed against his sentence imposed by the District Court. Whitelaw was found guilty of using a document with intent to defraud and dishonestly using a document to obtain a pecuniary advantage. He had engaged in fraudulent activities for approximately seven years, resulting in overpayments of $76,164.21. The District Court sentenced Whitelaw to two years and five months' imprisonment. Whitelaw argued that the sentence was manifestly excessive, claiming the starting point was too high and the increase due to his criminal history was excessive. The Court of Appeal disagreed with Whitelaw's arguments. They found that the starting point of two years was appropriate and consistent with other cases, and the nine-month increase due to Whitelaw's criminal history was justified. The Court concluded that the sentence imposed was not manifestly excessive, and dismissed the appeal against sentence.

The appeal against sentence was dismissed, and the application for an extension of time to appeal was granted. The Court of Appeal upheld the original sentence imposed by the District Court.

Orders