IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000039 [2013] NZHC 1846

BETWEEN	JENNIFER NELSON MAA Appellant

AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	23 July 2013

Counsel:	M G Kilbride for Appellant
D D Watterson for Respondent

Judgment:	24 July 2013

JUDGMENT OF COLLINS J

Introduction

[1]       The question raised by this appeal is whether a sentence of seven months’ home detention and 100 hours’ community work imposed on Ms Maa should be overturned.

Context

[2]       This question arises in the context of an appeal against a sentence imposed by Judge Butler in the Lower Hutt District Court on 17 May 2013 after Ms Maa pleaded guilty to:

(1)	two charges of deception;1   and

(2)	seven charges of dishonestly using a document.2

1	Crimes Act 1961, s 240.
2	Section 228(b).

MAA v MINISTRY OF SOCIAL DEVELOPMENT [2013] NZHC 1846 [24 July 2013]

[3]       Ms Maa received a domestic purposes benefit (DPB) from 21 February 2000 to 23 January 2011.  It was a condition of her receiving the DPB that she notify the Ministry of Social Development (the Ministry) of any changes in her circumstances that might affect her entitlement to the DPB, including changes to her employment status.

[4]       The two deception charges arose from Ms Maa’s failure to tell the Ministry

about her income from work for two significant periods:

(1)	24 April 2006 to 28 June 2008 when she was employed by Global

Interactive Ltd;  and

(2)	3 August 2009 to 3 May 2010 when she was employed by Phones

Unlimited Ltd.

[5]       The  seven  charges  of  dishonestly  using  documents  arose  when  Ms Maa dishonestly completed Ministry forms in which she stated she was not working or receiving any other income, other than the DPB.

[6]       As a consequence of her offending Ms Maa received $34,946.23 in DPB

payments that she was not entitled to receive.

Judge Butler’s decision

[7]       Judge Butler explained that he was endeavouring to impose a sentence that was consistent with others he had imposed for this type of offending.  He adopted a starting point of 24 months’ imprisonment which he reduced to 18 months to take account of mitigating factors.  That provisional sentence was reduced by a further four months to reflect Ms Maa’s guilty plea.   Judge Butler then “converted” the sentence of 14 months’ imprisonment to one of seven months’ home detention and
100 hours’ community work.

Appeal jurisdiction

[8]       I can only allow Ms Maa’s appeal if I am satisfied that the end sentence was clearly excessive or if I am satisfied facts relating to the offence or  Ms Maa’s character or personal history were not before the Court which imposed sentence.3

Grounds of appeal

[9]       Ms  Maa  appeals  on  the  grounds  that  Judge  Butler  failed  to  sufficiently consider her personal circumstances, and in particular the impact of home detention on her ability to work and care for her children.

[10]     Ms Maa is currently in full-time employment.  She submits that a sentence of home detention will mean she will lose her job.  She also has the sole care of two children.   She submits she will not be able to support them if she loses her employment.  In addition, her children will not be able to participate in after school activities if the terms of a home detention sentence preclude her from driving her children to their after school events.

[11]     Ms Maa suggests that a sentence of community work or community detention combined with an order for reparation at a rate of $100 per month would be a more appropriate sentence.

The appropriate starting point

[12]     For sentencing purposes benefit fraud should be treated in the same way as fraud on individuals or a private company.   What is important is the degree of dishonesty, the amount obtained, the repetitiveness and premeditation of the criminal behaviour, the need to denounce the conduct and the need to deter others.4

[13]     The starting point of two years’ imprisonment adopted by Judge Butler was

certainly higher than comparable cases.5   The starting point adopted by Judge Butler

3	Summary Proceedings Act 1957, s 121(3)(e); Hughes v R [2012] NZCA 388.
4	Hogan v Ministry of Social Development (2005) 23 CRNZ 500 (HC).
5           Heta v R [2011] NZCA 267 where a starting point of 15 months’ imprisonment was adopted for welfare fraud totalling $51,000 and Frost v Ministry of Social Development [2013] NZHC 1239 where a  12  month starting point of  imprisonment was  adopted for  welfare fraud totalling

in this case was comparable to cases in which significantly more fraud was perpetrated.6

[14]     In my assessment, the starting point adopted by Judge Butler was high.   I believe a more appropriate starting point would have been 18 months’ imprisonment. Ms Maa should then have received a discount of six months to reflect the fact that she is a first offender and to reflect her personal circumstances.   She should then have received a 25 per cent discount which would have resulted in an eight month prison sentence.  That would have converted to four months’ home detention which is significantly less than the seven months’ home detention she in fact has been sentenced to.

Alternatives to home detention

[15]     I have reflected carefully on whether or not an alternative type of sentence could realistically be imposed in the circumstances of this case.

[16]     It is now clear Judge Butler did not have benefit of the evidence which I have received which clearly establishes Ms Maa will lose her employment if she is sentenced to home detention.   Absent this additional evidence I would have not hesitated to conclude Judge Butler’s decision to impose home detention was entirely appropriate, although, as previously indicated I would have been prepared to impose a shorter period of home detention.

[17]     In  light  of  the  additional  evidence  I  have  now  received  about  the consequences of the sentence of home detention on Ms Maa and her dependent children, I will allow the appeal and substitute the sentence imposed by Judge Butler
with the following sentences:

$27,084.
6           Whitelaw v R [2012] NZCA 438 where a starting point of two years’ imprisonment was applied in relation to welfare fraud totalling $76,164 and Winsterstein v Housing New Zealand [2012] NZHC 723 where a starting point of two years’ imprisonment was adopted for benefit frauds that totalled $85,437.

(1)	Six months’ community detention.

(2)	400 hours’ community work.

(3)	Reparation to be repaid at the rate of $100 per month. [18]	All other orders made by Judge Butler shall remain in force.
[19]	These  amended  sentences  will  adequately  fulfil  the  objectives  of  the

Sentencing Act 2002. These sentences:

(1)	will hold Ms Maa accountable for her actions;7

(2)	will promote a sense of responsibility for the harm done by Ms Maa;8

(3)	will provide for reparation;9

(4)	will denounce Ms Maa’s conduct;10

(5)	will deter others from similar offending;11   and

(6)	are  the  least   restrictive  sentences   that   are   appropriate   in   the circumstances.12

Conclusion

[20]	The appeal is allowed.

[21]	The sentences imposed by Judge Butler are replaced with the sentences set out in paragraph [17] above.

7	Sentencing Act 2002, s 7(1)(a).
8	Section 7(1)(b).
9	Section 7(1)(d).
10	Section 7(1)(e).
11	Section 7(1)(f).
12	Section 8(g).

D B Collins J

Solicitors:
Crown Solicitor, Wellington