Heenan v Ministry of Social Development [2015] NZHC 56 (3 February 2015)

Last Updated: 16 March 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000451 [2015] NZHC 56

BETWEEN	MELANIE HEENAN Appellant
AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	3 February 2015
Appearances:	S Perese for Appellant S O'Connor and J Burns for Respondent
Judgment:	3 February 2015

_{JUDGMENT OF WOOLFORD J}

Counsel/Solicitors:

S I Perese, Barrister, PO Box 2407, Shortland Street, Auckland

S O’Connor, Solicitor, Meredith Connell, Auckland

J Burns, Solicitor, Ministry of Social Development, Auckland

MELANIE HEENAN v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 56 [3 February 2015]

Introduction

[1] On 12 December 2014, the appellant was sentenced to eight months home detention on social welfare fraud charges. The charges covered a four and a half year period from 1 April 2008 to 17 December 2012. They included five of dishonestly using a document, three of obtaining by deception and one of using a forged document. The total amount obtained by the appellant to which she was not entitled was $69,817.14. She repaid $12,500 prior to sentencing, which included a lump sum payment of $10,500. The debt at the time of sentencing was therefore

$57,317.14. No order for reparation was made when she was sentenced to home detention. She now appeals against sentence on the basis that a lesser sentence of community detention should have been imposed or, in the alternative, home detention for a lesser period was appropriate.

Approach on appeal

[2] The appellant appeals against sentence under s 244 of the Criminal Procedure Act 2011. In accordance with s 250(2), the High Court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. The Court of Appeal has confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary

Proceedings Act 1957.¹ The appellant must accordingly demonstrate some error on

the part of the District Court.² An appeal is also “not generally a second shot at

sentencing”.³

District Court sentencing

[3] After setting out the charges and the overpayment, Judge Thorburn noted that in memoranda filed for sentencing there was an assertion that during the period of the offending the appellant was in an abusive relationship with her husband of whom

_{she was “a puppet”. Judge Thorburn said that this assertion was not advanced at}

¹ _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26].}

² _{R v Shipton [2007] 2 NZLR 218 (CA) at [138].}

³ Polyanszky v R [2011] NZCA 4 at [17] – [18] per Chambers J.

sentencing, but was, in any event, not a matter he would put a great deal of weight on.

[4] The relevance for Judge Thorburn was that the appellant’s husband was also charged with social welfare fraud totalling in excess of $100,000 for which he received a sentence of eight months home detention after having made a repayment of $20,000.

[5] For the appellant, Judge Thorburn adopted a starting point of 18 months to two years imprisonment with reference to previous cases, in particular, Harris v Ministry of Social Development.⁴ He regarded the appellant’s offending as quite serious as it included the use of a forged document which spoke to him of a level of commitment to dishonesty as “a tool of life” and which involved rampant and overt dishonesty. Judge Thorburn then made reference to the appellant’s lump sum payment of $10,500, which he acknowledged that he should take into account on sentencing. He also made reference to the fact that the appellant had been overpaid

previously by the Ministry of Social Development.

[6] Judge Thorburn saw little mitigation in respect of the offending. The appellant’s personal circumstances were very straightforward and set out in a brief, but entirely adequate pre-sentence report. She had no needs around drugs and alcohol. According to Judge Thorburn, she simply lived her life dishonestly.

[7] Judge Thorburn concluded by saying that the appellant was only saved from a term of 14 or 16 months imprisonment, even taking into account her guilty pleas and repayment of $10,500, because her husband had only received a sentence of home detention and it would be unjust if she was sentenced more punitively.

Grounds of appeal

[8] The appeal is advanced on three broad grounds:

(a) The sentence was disproportionate to that of the appellant’s husband whose level of culpability far exceeded the appellant’s.

⁴ Harris v Ministry of Social Development HC Rotorua CRI-2010-463-022, 28 May 2010.

(b) The appellant had a reduced culpability because of her abusive relationship with, and manipulation by, her husband.

(c) The appellant’s personal circumstances were inadequately taken into

account by the sentencing Judge.

Proportionality

[9] On 22 May 2014, the appellant’s husband was sentenced to eight months home detention and ordered to pay reparation of $86,032.49 on 21 social welfare fraud charges. The charges covered a 10 and a half year period from 8 May 2002 to

7 December 2012. They included 11 of dishonestly using a document, five of obtaining by deception, four of using a forged document and one of altering a document. The total amount obtained by the appellant’s husband to which he was not entitled was $106,032.49. He was given a sentence indication of 18 months imprisonment, but prior to sentencing repaid $20,000. The debt at the time of sentencing was therefore $86,032.49. An order for reparation of $86,032.49 was also made payable at $20 per week.

[10] The difference in the number of charges is, in my view, not material. Both the appellant and her husband were charged with a variety of dishonesty offences, which carried a maximum sentence of up to 10 years imprisonment. It is also relatively common for a prosecutor to reduce the number of charges to one or more representative charges on the intimation of a guilty plea. What is of relevance is the length of time over which the offending took place and the amount of the overpayment. The appellant’s husband was charged with a number of offences over double the period of time of that of the appellant’s offending. The amount overpaid to him was also approximately 50 per cent more than the amount overpaid to the appellant.

[11] Both of these factors do not, however, necessarily mean that the appellant’s

sentence is disproportionate to that of her husband.

[12] Firstly, as Judge Thorburn noted, the appellant did not come to the sentencing with clean hands. The appellant had a conviction for theft as servant in 1997, which

resulted in a sentence of six months supervision and a reparation order in the sum of

$10,000. There was no summary of facts available, so the total amount stolen by the appellant on that occasion is unknown. She also had a conviction for theft of property between $500 and $5,000 in 2001, for which she was fined $300. Furthermore, the summary of facts disclosed that the appellant had previously been overpaid by the Ministry of Social Development a total of $32,258.02 between 1992 and 1994, and $92,168.71 between 1995 and 1999, in respect of which she had not been prosecuted, but merely warned.

[13] Counsel for the appellant criticises the Ministry of Social Development for including this information in the summary of facts because, he submits, the overpayments were mere allegations. Counsel’s criticism is, in my view, without foundation. It is entirely appropriate for a sentencing Judge to have this type of information as it relates directly to a defendant’s culpability. Such information points to knowing dishonesty on the part of the appellant.

[14] The warnings she received and her previous convictions meant that the appellant was not able to rely on her previous good character to reduce an otherwise appropriate sentence. Judge Thorburn did not have any information before him on the criminal history of the appellant’s husband. The appellant’s husband’s sentencing notes are, however, now available and indicate that the Judge sentencing him uplifted the starting point of 24 months imprisonment by two months because of his previous relevant history.

[15] Secondly there is, in any event, a real distinction between the sentences imposed on the appellant and her husband. The Ministry of Social Development did not seek a sentence of reparation in the case of the appellant and none was ordered. The appellant’s husband has however repaid $20,000 and was ordered to pay reparation of the remaining debt of $86,032.49. The repayment of $20,000 and an order for reparation of $86,032.49 obviously had the effect of reducing an otherwise appropriate sentence for the appellant’s husband who had earlier been given a sentence indication of 18 months imprisonment. If the appellant had been a position to offer to repay the entirety of her outstanding debt and an order for reparation in

the sum of $57,317.14 made by Judge Thorburn, then she too would have received a not insignificant reduction in her sentence.

Abusive relationship

[16] Counsel for the appellant submits that Judge Thorburn should have placed more weight on a statement in the pre-sentence report that, when interviewed, the appellant said that her husband had coerced her to commit fraud. In a signed statement in support of her application for bail pending appeal, the appellant stated that her husband was a very controlling person and if she did not do anything he wanted, he would beat her. She said they were together for about 10 years before she finally got out. Counsel also refers to reports of family violence occurrences obtained from the Police, which were also before Judge Thorburn.

[17] There is no suggestion however that the appellant meets the requirements of the defence of compulsion set out in s 24 of the Crimes Act 1961. When properly analysed, the reports of family violence occurrences also do not offer much support for the appellant’s position. Some concerned a man other than the appellant’s husband, and related to events before she was in a relationship with him. Another is described as “verbal 1D between husband and wife as Heenan found his wife in bed with another man, nil violence and [...] decided to move out to calm the situation”.

[18] What is of more significance is, however, that seven of the nine charges to which the appellant pleaded guilty relate to fraud committed by the appellant after she left her husband in mid-2010. The only two charges that were committed by the appellant during the relationship relate to failing to disclose her employment with two different firms, Group Freight Limited between 1 April and 18 October 2008 and Davis Trading Limited between 19 December 2008 and 10 February 2011. This latter offence continued for about eight months after separation from her husband in mid-2010.

[19] Judge Thorburn did note that the appellant’s counsel at sentencing had not advanced the submission that she was a puppet to her husband, but in any event it would not be a matter that he would put a great deal of weight on. Judge Thorburn was quite correct that little weight could be placed on such a submission in the

circumstances of the appellant’s case given her history of dishonesty both before and after the relationship with her husband and the equivocal nature of the evidence relating to the relationship which was before Judge Thorburn.

Personal circumstances

[20] Finally, counsel for the appellant submits that insufficient weight was given to the appellant’s personal circumstances. She lives in a rental property in Papatoetoe with her seven year old granddaughter for whom she is the sole caregiver. She has completed a national certificate in business administration and computing (Level 2) and is presently enrolled to do an employment skills course, which is to run for 20 weeks and expected to end on 5 June 2015. Counsel submits that it would be regrettable to minimise the appellant’s efforts in obtaining further qualifications. She states she receives slightly less through her Studylink grant than if she was on a range of benefits. Counsel submits that the appellant would dearly love the opportunity to be able to get part-time work to supplement her income, but is unable to do so while she is on home detention.

[21] Counsel also criticises a comment by the pre-sentence report writer that “Ms Hennan’s sense of entitlement and anti social associates are assessed as the principal offending related factors.” He claims that when an adverse finding is going to be made by a report writer about someone, it is a fundamental rule of natural justice that the person against whom the finding is to be made is given the chance to respond to that finding. Counsel also submits that the writer’s observation about entitlement, which he says was wholly gratuitous, was wrongly adopted by Judge Thorburn.

[22] In my view, however, the report writer had no obligation to give the appellant her draft report and ask for comment on any adverse findings and, moreover, Judge Thorburn was entitled to adopt the report writer’s opinion about entitlement. A pre- sentence report is just that. It is written by the Department of Corrections to assist the Court on sentencing by interviewing the offender and other persons about the reasons for the offending, to investigate the offender’s background and to make recommendations on an appropriate response. If a defendant takes issue with facts or opinions set out in a pre-sentence report it is incumbent on him or her to take it up

with the report writer prior to sentencing or be properly prepared at sentencing with cogent contrary material.

[23] In the present case, counsel submits the report was not provided to counsel until the day of sentencing and he therefore had very little opportunity to address it. It is dated 4 December 2014 and sentencing was on 12 December 2014. However, there was in fact an earlier report dated 9 May 2014 from a different report writer, which contains similar observations about the appellant’s sense of entitlement (which just means the idea that one has a right to be given something which others believe should be obtained through effort). Both the report writers and the Judge acted within their roles and not improperly in drawing conclusions about the appellant’s sense of entitlement.

[24] Counsel concedes that the appellant acted dishonestly, but submits that there is nothing in the charges which supports the view that the appellant was very dishonest. What counsel overlooks is that the appellant has been dishonest previously. Furthermore, although counsel submits that the current dishonesty charges were fuelled by perceived necessity as opposed to greed, he does not refer to any convincing evidence of that. On the contrary, it appears that the appellant and her husband had sufficient funds during their relationship to purchase a property in Manurewa, which is still registered in the joint names of the appellant and her husband. The appellant has apparently instructed counsel to bring a claim under the Property (Relationships) Act 1976 to recover what she can from the property. Many in our community are unable to purchase their own home so it seems that the appellant’s offending was, contrary to counsel’s submissions, not fuelled by perceived necessity.

[25] In my view, the appellant’s personal circumstances are not so compelling as to warrant a different response on sentencing from the Court. Judge Thorburn was, in my view, entitled to address the appellant’s offending through a deterrent based sentence rather than rehabilitative intervention. In any event, no rehabilitative needs were identified. The appellant is able to live independently and care for her seven- year old granddaughter. She is to be commended for trying to better herself through further education, but will have to wait until the conclusion of her home detention

sentence before being able to look for work. There has to be a deterrent element to the sentencing of the appellant, given her previous history of dishonesty and the scale and length of her offending. The purposes and principles of sentencing require some accountability on her part.

Result

[26] The appeal is accordingly dismissed. No error in the approach taken by Judge Thorburn has been demonstrated and I am of the view that a different sentence should not have been imposed.

.....................................

Woolford J