IN THE Court of appeal OF new Zealand
	
CA158/2013
[2013] NZCA 375

BETWEEN	
MARK MILLIN
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
23 July 2013	

Court:	
White, Goddard and Simon France JJ	

Counsel:	
G W Calver for Appellant
M H Cooke for Respondent	

Judgment:	
16 August 2013 at 10.00 am	

JUDGMENT OF THE COURT
A	The appeal against sentence is dismissed.
B	The appeal against the order of reparation in the amount of $362,895 is allowed, and the order is quashed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction
[1]	Mr Millin was convicted following a jury trial on one count of using a document with intent to defraud and one count of attempting to pervert the course of justice.  The context was Mr Millin’s entitlement to weekly compensation following a back injury he suffered in 1998.  It was alleged that he had misrepresented his employment situation at the time of the accident, as a result of which he had received nearly 13 years of Accident Compensation Corporation (ACC) weekly compensation to which he was not entitled.  It was further alleged that when an inquiry into the legitimacy of his payments began, he tried to arrange for a witness to give false evidence.
[2]	Mr Millin was sentenced by Judge Adeane to two years’ imprisonment on the fraud charge, with a cumulative sentence of 12 months imposed in relation to the perverting the course of justice charge.  He was also ordered to pay more than $360,000 in reparation.
[3]	Mr Millin appeals his sentence on the basis that the Judge was not entitled to find that all the money he had received was fraudulently obtained.  Rather, he should have been sentenced on the basis that his offending was only to wrongly inflate the level of pay he was receiving immediately prior to the accident.  Mr Calver submitted that the consequence of this offending, and therefore the basis on which he should have been sentenced, was a total windfall over the 13 years of as little as $5,000–$10,000.
[4]	The reparation order is challenged on the basis that Mr Millin cannot pay it, and has no realistic prospects of doing so.
Facts
[5]	Mr Millin worked for a fruit packing company.  It was seasonal work which ended on 20 June 1998.  Nine days later, while at home, Mr Millin hurt his back.  He has been incapacitated since and is unable to work.
[6]	In between the end of the fruit packing job and the accident, Mr Millin did some carpet laying work for a friend’s carpet laying firm.  It was this work that was used to calculate his entitlements in the following 13 calendar years.  The Crown case was that the form filed by Mr Millin in relation to this work was deliberately incorrect.  It claimed that Mr Millin:
(a)	had started work on Monday 22 June 1998;
(b)	had worked 60–65 hours in the week 22–28 June and that these hours were to be his usual hours in an ongoing employment arrangement;
(c)	had been paid $975 for the week’s work.
[7]	The Crown case was that Mr Millin had only worked on a casual basis for the friend.  He had done some work only on two or three of the days, and he had been paid only $150.  There was no permanent employment intended.  The Crown called the owner of the carpet laying business who generally gave evidence consistent with the Crown case.  It was this witness who Mr Millin had sought to influence in relation to the evidence he was to give.
[8]	Mr Millin testified.  He claimed not to now recollect how much work he had done in the week, but said that whatever was in the form would be correct.
Sentencing
[9]	Judge Adeane sentenced Mr Millin on the basis that he had knowingly misrepresented the work he had done for the carpet laying firm and thereby obtained weekly compensation payments to which he would not otherwise have been entitled.
[10]	The structure of the sentence was to take a starting point of three years’ imprisonment for the fraud offending, and then to add 18 months for the charge of attempting to pervert the course of justice.  Mr Millin was not a first offender, and obviously no guilty plea credit was available.  However, a reduction of 18 months was made for totality reasons and to reflect Mr Millin’s health issues.  The final sentence of three years’ imprisonment was made up of cumulative sentences of two years for fraud, and 12 months for perverting the course of justice.
The appeal
[11]	Mr Calver accepts that the sentence imposed is within range if the sentencing basis adopted by Judge Adeane is correct.  He submits, however, that a more favourable view of the evidence should have been taken by the Judge, and now by this Court.  He relies on Heke v R for the proposition that an appellate court should make its own assessment, albeit recognising the advantages available to a trial Judge.
[12]	The more favourable view for which Mr Calver contends is that when filing the incorrect form Mr Millin believed he had an entitlement to compensation.  Further, he did in fact have an entitlement to compensation, and all that was done was to inflate the level of pay he had received.  Mr Calver submits that the end result of Mr Millin’s deception is a total of somewhere between $5,000 and $10,000.  It is noted on Mr Millin’s behalf that his genuine belief in an entitlement is shown by:
(a)	The fact that he properly identified that he had been working for the carpet layer, and that it had only been for a week; and
(b)	The fact that there is no reason to think Mr Millin sufficiently understood the ACC scheme to know what falsity was required in order to create entitlement.  The better view, therefore, is that he was overstating an entitlement he believed he had.
[13]	We are far from persuaded we should take a different view of the offending from that taken by Judge Adeane.  There are two discrete aspects to comment on.  First, in relation to Mr Millin’s intentions, the basis being advanced is not one Mr Millin identified when testifying.  He adhered to the truth of the form, a proposition plainly rejected by the jury.  We see no basis on which to now ascribe some different intention to a defendant who has been disbelieved by the jury, and who has sought to arrange false evidence.  Further, the indisputable reality is that Mr Millin knew enough about ACC entitlements to consider he had to overstate the nature of the employment (casual or permanent), the number of hours worked, and the amount of money he was paid.  We see no reason for this Court to substitute its view for that of an experienced trial Judge who heard the evidence and saw the witnesses.
[14]	Second, the claim that the correct sentencing basis is improper gains of $5,000–$10,000 is based on a legal argument that the fruit packing employment, which had ended nine days before the accident, entitled Mr Millin to compensation.  This proposition, which to date has been rejected by ACC, and on appeal by the District Court, does not assist with the sentence appeal.  Mr Millin was being paid weekly compensation as a result of a false form submitted in relation to the carpet laying work.  An argument now advanced about entitlement stemming from other employment does not affect his basic criminal culpability and plainly cannot assist with any reassessment of his intentions at the time.
[15]	We see no basis for this Court to differ on appeal from the conclusions reached by the trial Judge.  The basis on which Mr Millin was sentenced was the basis on which the Crown presented its case.  The Judge was entitled to accept that was what had been proved.
[16]	Concerning reparation, the order should not have been made.  At the time of sentencing Mr Millin owned a house but the Judge had no information available about what equity existed, and the order was not targeted at available assets.  We are now advised that subsequent to Mr Millin’s arrest, the house has been sold in a mortgagee sale.  Concerning other assets or income, the pre-sentence report indicated Mr Millin was in financial difficulty.  He has not been able to work since 1998 and will inevitably be on a benefit when released from jail.  The order is pointless, and should not have been made in such circumstances.  It is quashed.
Conclusion
[17]	The appeal against sentence is dismissed.
[18]	The appeal against the order of reparation in the amount of $362,895 is allowed, and the order is quashed.

Solicitors: 
Crown Law Office, Wellington for Respondent