Wu v Accident Compensation Corporation - [2021] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000363

[2021] NZHC 3028

BETWEEN
CHENG-YIN WU

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 8 November 2021

Counsel:

CG Farquhar for Appellant TCT Riley for Respondent

Judgment:

12 November 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 12 November 2021 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Manukau. CG Farquhar, Auckland.

WU v ACCIDENT COMPENSATION CORPORATION [2021] NZHC 3028 [12 November 2021]

ACC fraud

[1]Cheng-Yin Wu defrauded the Accident Compensation Corporation (ACC) of

$234,738.21. Judge B A Gibson imposed a sentence of 12 months’ home detention.1 Mr Wu appeals. He contends the sentence is manifestly excessive. An appeal in this context must be allowed if the appeal Court is satisfied there is an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2] Mr Wu is an acupuncturist. Between September 2017 and March 2019, he submitted ACC electronic payment forms for treatment he had not provided. ACC paid Mr Wu $234,738.21 believing he had provided the treatment.

[3] In February 2019, ACC told Mr Wu it was investigating him. Over the next two or three weeks, Mr Wu created false clinical notes to support the claims he had made. Mr Wu met ACC staff 11 March 2019. He initially said a person assisting him must have made errors when submitting the claims. But, Mr Wu then acknowledged he had submitted false claims. He said he did so to cover business costs and poor income. Mr Wu also acknowledged he had manufactured false clinical notes to support the claims. Mr Wu provided ACC a spreadsheet of his false claims two days later. Mr Wu confirmed his admissions at meetings on 27 May and 6 August 2019.

[4] On or about 25 August 2020, ACC laid two representative charges: one of dishonesty using a document;4 and a second of forgery.5 Mr Wu pleaded guilty 12 January 2021. Mr Wu repaid ACC in full the day before sentencing.

Sentencing

[5] Judge Gibson adopted a starting point of four years’ imprisonment. He deducted 25 percent for the pleas of guilty, five percent for previous good character,

1      Accident Compensation Corporation v Wu [2021] NZDC 14618.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279.
4      Crimes Act 1961, s 226(1)(b); maximum penalty, seven years’ imprisonment.
5      Section 256(1); maximum penalty, 10 years’ imprisonment.

and 20 percent for reparation. The Judge declined a further discount based on personal circumstances. The Judge commuted the provisional sentence of 24 months’ imprisonment to 12 months’ home detention. The Judge said he did so “by a very thin margin”.6

Argument and analysis

The four-year starting point

[6] On behalf of Mr Wu, Ms Farquhar, contends the starting point is based on factual errors and in any event, too high.

[7] It is common ground the summary of…

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.

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Details

Case: [2021] NZHC 3028
Decision Date: 12 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Cheng-Yin Wu appealed the sentence imposed on him by Judge B A Gibson. Mr Wu was found guilty of defrauding the Accident Compensation Corporation (ACC) of $234,738.21 by submitting false claims for treatments he did not provide. The District Court Judge sentenced Mr Wu to 12 months’ home detention, which Mr Wu contends is manifestly excessive. The appeal hinges on whether the sentence is excessive and whether an alternative sentence should be imposed. The central legal issue is whether the sentence imposed by the District Court is manifestly excessive and whether a different sentence should be imposed by the High Court.

The High Court considered the starting point for sentencing, the discounts applied, and whether additional discounts should have been given. The Court found that the four-year starting point was appropriate, despite some factual inaccuracies in the summary of facts, as the error was not material. The Court also considered the various factors in the case, such as the nature of the offending, its magnitude and sophistication, and the impact on the victims. The Court found that the starting point was consistent with other cases involving similar offending. The Court further found that the discounts applied were appropriate, and additional discounts for cooperation with authorities and personal circumstances were not warranted. The Court concluded that the sentence of 12 months’ home detention was appropriate to reflect the gravity of the offending and the breach of trust involved.

The High Court dismissed the appeal and upheld the sentence imposed by the District Court. The Court found that the sentence was not manifestly excessive and adequately reflected the seriousness of the offending. The Court noted that the offending involved taking money from the New Zealand taxpayer and a breach of trust, which required a sentence that underscored the seriousness of the offending. The Court found that home detention was an appropriate sentence in this case, and any alternative sentence would not adequately reflect the gravity of the offending.

Orders