Wills v Ministry of Social Development
[2014] NZHC 2685
•31 October 2014
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2014-419-000043 [2014] NZHC 2685
BETWEEN PETER LYNDON WILLS
Appellant
AND
MINISTRY OF SOCIAL DEVELOPMENT Respondent
Hearing: 30 October 2014 Appearances:
Appellant in Person
T Needham for the RespondentJudgment:
31 October 2014
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 31 October 2014 at 2.30 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
WILLS v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 2685 [31 October 2014]
Introduction
[1] On 26 March 2014, Mr Wills was sentenced to six months’ community detention and ordered to pay $20,078.36 by way of reparation in respect of various charges laid under the Crimes Act 1961.
[2] Details of the charges are as follows:
CRN PROVISION
CRIMES ACT 1961
SECTION
PARTICULARS
0161 Intention to defraud using a
document
Section 229 14 May 2003
Accommodation
Supplement Form0162 Using document for
pecuniary advantage
Section 228 6 January 2005
Accommodation
Supplement Form
0163 Using forged document Section 257(1) Letter to Wayne
Newbry on 10 January
2005
0164 Obtaining by deception Section 240(1)(a) and
Section 241(b)
Overpayment of
$738.20
1 October 2003 –
29 February 2004
0165 Obtaining by deception Section 240(1)(a) and
241(a)
Overpayment of
$18,733.95
30 December 2004 –24 February 2013
0168 Obtaining by false pretence Section 246(i) Failing to advise that
owned 1409 Rotowaro
Road – 14 May 2003
– 30 September 2003
[3] Following a judge-alone trial in the Huntly District Court before Judge R H Riddell, Mr Wills was convicted in relation to charges 161, 162, 164, 165 and 168. He changed his plea and entered a guilty plea to the charge of using a forged document – 163.1
[4] Mr Wills appealed against the reparation order imposed. The appeal was heard by Courtney J.2 She recorded that the appeal was brought on the ground that for a good part of the relevant period, Mr Wills’ circumstances were such that he
may have been entitled to a benefit, and that that should have been taken into account in setting the level of any reparation order.
[5] Courtney J briefly reviewed Mr Wills’ offending. She then observed as
follows:
[7] It appears that, had Mr Wills been truthful with WINZ then he would very likely have been entitled to an accommodation supplement for the periods he was paying rent in Auckland.3 That fact could not affect his convictions. It is, however, relevant to the appeal against sentence.
She reviewed the reparation order made by Judge Riddell. She noted discrepancies between the Judge’s sentencing notes, and the final reparation order made. She recorded that it was not clear how Judge Riddell had reached the figure of
$20,078.36, and noted not only that it was higher than the figure she referred to in her sentencing notes, but also that it was almost $2,000 higher than the amount shown on an exhibit – exhibit 7 – which was a statement prepared by WINZ calculating the various overpayments it said had been made to Mr Wills. She also noted that there was a handwritten note on the exhibit suggesting that Mr Wills may have already made some repayments, but that there was no indication as to quantum. Her Honour did note that there was a malfunction of the recording equipment during the hearing, and that two hours of evidence was not recorded. She noted that this included the evidence given when the WINZ calculation of overpayments was produced. She noted that without the benefit of the evidence, she could not assess the correctness of Judge Riddell’s calculation. She remitted the matter back to the District Court for a disputed facts hearing under s 24 of the Sentencing Act 2002.
[6] That hearing took place on 26 August 2014. Judge Riddell’s ruling issued on the same day.4 She referred briefly to Courtney J’s decision. Evidence was given by a Mrs Robyn Davies, who works for the Ministry of Social Development in Rotorua. Ms Davies was shown exhibit 7. She was unable to reconcile the figure referred to by Courtney J in her decision with any of the figures shown in exhibit 7. She did, however, say that Mr Wills would not have been eligible for an accommodation
supplement, because he owns a property, and because his equity in that property
exceeds $8,000. Ms Davies said that if a person owns a house which is mortgage free and he or she is living in that house, they will only qualify for an accommodation supplement while they are paying rent elsewhere in New Zealand, if the equity in their house is not more than $8,000.
[7] While that issue was, to an extent, clarified, and notwithstanding Courtney J’s decision, unfortunately Judge Riddell did not explain how she reached the reparation figure of $20,078.36 fixed by her. She simply stated as follows:
[7] I find that my reference to $20,000 in my decision and sentencing notes was a rough and ready calculation of the precise amount of reparation, which I directed was $20,078.36. That being so, I am satisfied that on conviction that is the reparation which Mr Wills must pay and the reference to accommodation supplement has now been clarified…
[8] With respect to Judge Riddell, this was unhelpful and not surprisingly
Mr Wills has appealed again.
Submissions
[9] Unfortunately, Mr Wills’ submissions were largely directed to the convictions entered against him, and not to the quantum of the reparation ordered. He argued that the accommodation supplement application forms which he filled out were misleading, and that he did not appreciate at the time that if he left his home, it was then treated by the Ministry as being a cash asset. He accepted that on the Ministry’s interpretation, he was not entitled to an accommodation supplement, and he did not disagree with the quantum of the reparation payment ordered by Judge Riddell. He also said that he is willing to pay back that which he knowingly took from the Ministry, and he estimated that his home is worth approximately $70,000. He did state that he has made some repayments back to the Ministry since the convictions were entered against him. He was uncertain as to the total amount, but estimated that he would have repaid somewhere between $700 and $1,000.
[10] Ms Needham, for the Crown, submitted that the reparation order made by Judge Riddell was correct, and that it should be upheld. She referred to exhibit 7, and asserted that between April 2003 and February 2014, Mr Wills received overpayments from the Ministry totalling $24,324.46. She said that the amount the
Ministry is seeking to recover is $20,078.36, because various amounts have been repaid by Mr Wills since the overpayments were discovered. She asserted that the reparation sought has been adjusted to allow for the time when Mr Wills was entitled to a benefit. She submitted that the payments made by the Ministry, on the basis of information supplied by Mr Wills in the accommodation supplement applications, were payments he was not entitled to, because the forms had been completed dishonestly by him. She said that the property owned by Mr Wills is mortgage free, that it is worth in excess of $8,100 and that he was not therefore entitled to an accommodation supplement when he was living away from the property, because once he left the house, the Ministry treats it as being a cash asset. She noted that the Ministry treats any realisable asset as a cash asset, given the Ministry’s expectation that people will use their own resources to support themselves when they are able to do so. She referred to an accommodation supplement fact sheet which the Ministry publishes. That fact sheet urges applicants to consider whether a property they own, but do not use as a home for themselves or their family, is a realisable asset. It lists a number of factors which applicants should take into account when they are considering whether or not a property not used as a home is a realisable asset. It notes that, in general, applicants should treat any realisable asset as a cash asset, and that if an applicant’s combined cash assets and realisable assets exceed the asset threshold, an accommodation supplement cannot be granted. She also referred to the evidence of Ms Davies that Mr Wills was not entitled to an accommodation supplement when he was living in Auckland seeking a job, and not residing in his house near Hamilton. Further, she submitted that he was not entitled to an accommodation supplement when he was living at his house, first because he dishonestly completed the accommodation supplement forms, and secondly because an accommodation supplement is available to persons residing in their own homes, only where the person is paying outgoings that exceed a stipulated threshold. She noted that Mr Wills’ house is not mortgaged, and that his outgoings cannot therefore have exceeded the threshold – currently $63 a week.
Analysis
[11] First, I note that I cannot rule on the correctness or legality of the policy which Ms Needham tells me is applied by the Ministry. Not only do I have no
evidence of that policy or how it is applied, but it was not raised in the notice of appeal, and it was not fully argued before me.
[12] Nor can I deal with the complaints made by Mr Wills about the accuracy or otherwise of the Ministry’s application form. The matters which Mr Wills raised related to his convictions, which were not in issue before me. The only issue raised by the appeal was whether or not the reparation order made by Judge Riddell was correct.
[13] Unfortunately, and as I have noted, Judge Riddell’s decision when the matter
was remitted to her, is not helpful. It does not set out how she reached the figure of
$20,078.36.
[14] I am, however, reluctant to remit the matter yet again to the District Court. [15] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I
am satisfied that a different sentence should be imposed. I can set aside the sentence, and impose any other sentence that I consider appropriate, or vary the sentence. I am not, however, required to start afresh; nor is it appropriate for me to substitute my own opinion for that of Judge Riddell. Rather, it must be shown that there was an error, whether intrinsic in the decision, or as a result of additional materials submitted on the appeal. If there is an error, then I have to form my own
view of the appropriate sentence.5
[16] In my view, there is an intrinsic error in the reparation amount fixed by
Judge Riddell.
[17] Exhibit 7 produced at the original hearing was a schedule of overpayments which the Ministry said were made to Mr Wills. The overpayments are broken down as follows:
(a) Accommodation supplements – 26/5/94 – 22/7/96: $3,374.80;
5 Tutakangahau v R [2014] NZCA 279 (CA); R v Shipton [2007] 2 NZLR 218 (CA).
(b) Accommodation supplements – 16/4/03 – 26/4/03: $21.21;
(c) Accommodation supplements – 28/4/03 – 20/6/10: $16,047.48; (d) Accommodation supplements – 27/8/10 – 25/5/11: $1,543.57; (e) Accommodation supplements – 11/11/11 – 4/7/12: $577.86;
(f) Accommodation supplements – 5/7/12 – 5/8/12: $77.71;
(g) Accommodation supplements – 26/11/12 – 20/1/13: $240.00; (h) Accommodation supplements – 4/2/13 – 24/2/13: $77.50;
(i) Temporary additional support: $1,514.25; (j) Unemployment benefit: $896.83;
(k) Temporary GST assistance: $13.26
Total: $24,384.47
[18] In reaching the reparation figure of $20,078.36, it seems that Judge Riddell must have excluded:
(a) the accommodation supplements paid between 26 May 1994 and
22 July 1996 – $3,374.80;
(b) the accommodation supplements between 16 April 2003 and 26 April
2003 – $21.21;
(c) the unemployment benefit – $869.83; and
(d) the temporary GST assistance – $13.26.
Deducting these amounts from the total overpayment of $24,384.47 produces a net figure of $20,078.36. This sum includes all accommodation supplements overpaid from 28 April 2003, until 24 February 2013. It also includes the temporary additional support payment paid to Mr Wills between 27 August 2010 and
24 February 2011 in the sum of $1,514.24.
[19] In my view, Judge Riddell erred in fixing reparation in this sum.
[20] First, the Judge’s calculations are at odds with the charges. Only two charges referred to monetary amounts. Information number 164 referred to an overpayment of $738.20, between 1 October 2003 and 29 February 2004. Information number
165 referred to the sum of $18,733.85 overpaid between 30 December 2004 and
24 February 2013.
[21] Secondly, some of the overpayments included in the reparation order were not the subject of charges. There was no charge in respect of the period 28 April
2003 to 27 July 2003. The amount overpaid in this period was $585. There was no charge relating to the temporary additional support payment which the Ministry asserted was overpaid between 27 August 2010 and 24 February 2011 in the sum of
$1,514.24.
[22] Insofar as I am aware, there was no application to amend the informations. [23] The maximum amount that the Ministry can recover by way of reparation is
that allowed for by s 32 of the Sentencing Act 2002. It provides that the Court can impose a sentence of reparation if an offender has, through or by means of an offence of which the offender has been convicted, caused a person to suffer loss of property. The overpayments detailed in [21] above cannot be included in any reparation order.
[24] It follows that the correct reparation payment which should have been ordered is the sum of $17,979.12. From this figure, any payments that Mr Wills has made should be deducted. I have no accurate information in that regard. I presume that the Ministry will have the correct figures.
[25] Accordingly, I set aside the reparation order made by Judge Riddell. I fix reparation in the sum of $17,979.12, less such payments as have already been made by Mr Wills in reduction of the amount owing since the convictions were entered
against him.
Wylie J
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