Williams v Ministry of Social Development
[2013] NZHC 2803
•24 October 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2013-412-21 [2013] NZHC 2803
BETWEEN COURTNEY HARATA WILLIAMS Appellant
ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 24 October 2013
Appearances: B Kilkelly for Appellant
R P Bates for Respondent
Judgment: 24 October 2013
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
COURTNEY HARATA WILLIAMS v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 2803 [24
October 2013]
[1] Ms Williams pleaded guilty in the District Court to five charges of forgery, six charges of dishonestly using a document and one charge of wilfully omitting to advise the Ministry of Social Development (“the Ministry”) of a change in her circumstances. On 19 July 2013, Judge Crosbie sentenced her to an effective term of
12 months imprisonment on those charges.1
[2] Ms Williams appeals to this Court against sentence on the basis that the Judge applied a starting point for the offending that was too high. This led to the imposition of a sentence, she says, that was manifestly excessive.
Facts
[3] The facts giving rise to the charges were contained in a summary of facts with which Ms Williams took no issue at sentencing. This records that Ms Williams applied for, and was granted, a sickness benefit and supplementary assistance on
18 January 2011. In doing so, she agreed to immediately advise the Ministry if there was any change to her circumstances that might affect her entitlement to receive the benefit that she sought. This included any changes to her financial circumstances and living situation, as well as becoming involved in a relationship in the nature of marriage.
[4] On 20 April 2011, Ms Williams submitted an application for temporary additional support. In support of that application, she supplied the Ministry with a forged tenancy agreement recording that she was paying rent of $230 per week in respect of a 12 month residential tenancy.
[5] On 14 February 2012, Ms Williams submitted an accommodation supplement form and change of address form to the Ministry. She submitted these documents with a further forged document. This was a letter in the name of another person stating that she was boarding with that person and paying board in the sum of $230
per week.
1 MSD v Williams DC Dunedin CRI-2013-012-001015, 19 July 2013.
[6] Then, on 21 February 2012, Ms Williams began living in a de facto relationship in the nature of marriage. She failed to advise the Ministry of this fact. Approximately three months later, on 11 May 2012, Ms Williams submitted a further application for a sickness benefit. She made no mention in this application of the fact that she was by that stage living in a relationship in the nature of marriage. She became engaged to marry the person with whom she was living on 6 August 2012.
[7] On 20 September 2012, Ms Williams submitted a change of address form and a temporary additional support form to the Ministry. She supported these documents with a forged lease in the name of her fiancé. She then forged a retailer supply payee form so as to enable the money she was to receive from the Ministry to be paid into her fiancé’s account.
[8] On 19 October 2012, Ms Williams supplied a further forged document to the Ministry. This was a letter in the name of fictitious persons. She took this step in order to obtain financial accommodation from the Ministry to assist in paying arrears of rental.
[9] The Ministry became aware that something was amiss, and carried out an investigation into the matters referred to above. When Ms Williams was interviewed in October 2012 and March 2013, she said she was aware of her obligations. She said she had not advised the Ministry of her relationship with her fiancé because she needed the money, and was pregnant in circumstances where she did not have a job. She explained that she also needed money for alcohol and to purchase items for her baby. That formed her explanation for forging the documents that she presented to the Ministry in support of her applications for financial assistance.
[10] As a result of her offending Ms Williams received overpayments from the
Ministry totalling $6,161.90.
The structure of the sentence
[11] The Judge viewed the forgery charges as being the most serious. He noted that forgery involves a significant degree of premeditation, and that Ms Williams had provided the Ministry with forged documents on several different occasions. Each of
those occasions must, the Judge considered, have been a premeditated act. In addition, the offending occurred over a considerable period. It also resulted in Ms Williams receiving a reasonably significant overpayment from the Ministry, although the Judge accepted that this was towards the lower end of the scale of that often seen by the courts in this context.
[12] The Judge took a starting point of 15 months imprisonment to reflect the culpability of the offending on all charges. He then increased that by three months to reflect the fact that Ms Williams has numerous previous convictions for similar offending. The most relevant of these, for present purposes, was a conviction in
2010 for offending in 2009 in which Ms Williams obtained money by deception. She received a sentence of six months home detention on that occasion. The Judge then gave Ms Williams credit of six months to reflect her guilty pleas and other personal circumstances her counsel had identified during the hearing. This led to the end sentence of 12 months imprisonment.
The argument
[13] Counsel for Ms Williams did not take issue with the level of uplift the Judge applied to reflect previous offending. Nor did he cavil with the fact that Ms Williams received a discount for mitigating factors of six months, or 33 per cent. His sole submission on appeal was that the Judge had adopted a starting point that was too high having regard to Ms Williams’ overall culpability.
Decision
[14] This submission needs to be viewed in light of the factors the Judge identified. First, Ms Williams’ offending went well beyond her failure to advise the Ministry of a change in her living or financial circumstances. That commonly forms the sole basis of charges of this type. Ms Williams’ offending went further, because on several occasions she created forged documents that she sought to have the Ministry accept and act upon as if they were genuine. By those means she obtained a reasonably significant overpayment of the benefit to which she was entitled.
[15] In this context counsel have referred me to a sentencing decision in the District Court in Police v Karepa.2 In that case the offender had pleaded guilty to several charges of forging $50 bank notes. The Judge in that case had taken a starting point of 18 months imprisonment on the forgery charges, even though the offending resulted in the offender obtaining just $1000.
[16] Counsel for Ms Williams submits that the gravity of his client’s offending fell well below that of the offending in Karepa. He points out that, although Ms Williams received more in monetary terms from her offending, it did not involve offending of the culpability inherent in forging bank notes.
[17] I agree with that submission, but I do not consider that Karepa provides a great deal of assistance. Of greater assistance is the judgment in Linsell v Ministry of Social Development.3 In that case, the offender had pleaded guilty to one charge of forgery and four charges of dishonestly receiving a social welfare benefit. The sentencing Judge had adopted a starting point of nine months imprisonment. On appeal, Priestley J held that a starting point of between eight to ten months imprisonment would have been “unremarkable”.4
[18] The circumstances of the present case are considerably more serious than those in Linsell by virtue of the fact that Ms Williams was prepared to present the Ministry with forged documents on numerous occasions. The offender in Linsell only committed that act on one occasion.
[19] I consider the nature and duration of Ms Williams’ offending was such that a starting point of 15 months imprisonment was within the available range, albeit at the higher end of that range. I am therefore not prepared to say that the end sentence was manifestly excessive, particularly when the Judge provided Ms Williams with a
full one-third discount for mitigating factors.
2 Police Karepa DC Palmerston North CRI-2009-054-004305, 24 November 2009.
3 Linsell v Ministry of Social Development HC New Plymouth CRI-2009-443-000029, 18
December 2009.
4 Ibid, at [22].
Result
[20] For those reasons, the appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Dunedin
Counsel
B Kilkelly, Dunedin
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