THE QUEEN v ALICE FAYE BATT [2001] NZCA 162 (31 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 27/01

THE QUEEN

V

ALICE FAYE BATT

Hearing:	31 May 2001 (at Christchurch)
Coram:	Thomas J McGechan J Hammond J
Appearances:	T W Fournier for Appellant T M Gresson for Crown
Judgment:	31 May 2001

judgment of the court DELIVERED BY THOMAS J

The appeal

[1] Mrs Batt, the appellant, was convicted of wilfully omitting to advise the Department of Work and Income of her true living circumstances under s 127 of the Social Security Act 1964, and of using a document to obtain a pecuniary advantage under s 229(A)(b) of the Crimes Act 1961. Mrs Batt now appeals against the reparation sentence made in relation to her conviction.

The facts

[2] Mrs Batt's convictions under the Social Security Act relate to her receipt of a domestic purposes benefit from 1985 to 1988 and an unemployment benefit between 1988 and 1998 while living in a relationship in the nature of marriage. The charges of using a document relate to five applications for continuation or renewal of the unemployment benefit submitted by Mrs Batt to the Department during 1995 and January 1996. In these applications, Mrs Batt stated that she was not living in a relationship in the nature of marriage.Her fraud continued for approximately 13 years and the total amount of the overpayment to her was almost $138,000.

The sentence

[3] Mrs Batt's first trial was held in the Greymouth District Court in January 2000. She was found guilty and sentenced to nine months imprisonment, with leave to apply for home detention. No order was sought or made for reparation. Mrs Batt appealed against her conviction and sentence.This Court allowed the appeal against conviction and ordered a retrial. Mrs Batt was then retried in the Greymouth District Court in December 2000 and was again convicted of the same offences.

[4] The sentencing Judge considered the aggravating features of Mrs Batt's offending as being the large amount owed, which the Crown stated was the largest benefit fraud ever prosecuted in the South Island, and the length of time of the offending, that is, 13 years. He noted that Mrs Batt owned an unencumbered property with a government valuation of $45,000, which she valued at around $35,000. She had taken no steps to realise that property.The Department was deducting $25 per week from her benefit.At $25 a week, the Judge calculated, Mrs Batt would have to live, roughly, another 120 years for the reparation to be paid.The Judge's view was that "the taxpaying public of New Zealand deserve better than that." He also noted that Mrs Batt had moved to Christchurch and appeared not to have any intention of living in her house. He therefore sentenced her to nine months imprisonment, with leave to apply for home detention and ordered her to make reparation of $30,000.

Submissions

[5] Mr Fournier, who appeared for Mrs Batt, argued that, as reparation had not been sought by the Crown on behalf of Work and Income New Zealand, the making of a reparation order in this case was not appropriate in terms of s 11 of the Criminal Justice Act 1985.He further submitted that the sentence, because it is inclusive of reparation, represents a significantly greater sentence than the first sentence and is therefore, in terms of R v Miers (1994) 11 CRNZ 307, wrong in principle.Finally, he contended that the reparation order lacks the detail required by s 24 of the Criminal Justice Act.

[6] Mr Gresson, who appeared for the Crown, submitted that the reparation order of $30,000 is realistic.Section 11 of the Criminal Justice Act 1985 requires the Court to consider a sentence of reparation and then impose such a sentence unless it is clearly inappropriate to do so.Consequently, the fact the Crown did not seek a reparation order does not affect the Court's responsibility under s 11.Mr Gresson further submitted that the sentence of reparation does not, in terms of R v Miers, amount to a "longer" punishment, but is an "additional" sentence. To adopt this approach would be correct, he argued, because the policy reasons for the imposition of a reparation sentence requiring the offender to repair some or all of the loss are different from the punitive and deterrent focus of a sentence of imprisonment. Mr Gresson did suggest, however, that the Court may wish to amend the reparation order and stipulate that payment is to be made by or on 1 October 2001.

Our decision

[7] We deal, first, with two preliminary points.

[8] First, it is significant in this case that the Department did not seek a reparation order.But we agree with Mr Gresson that this does not absolve the Court from the responsibility to consider imposing a sentence of reparation. That responsibility stems directly from the statute.Section 11 of the Criminal Justice Act 1985 reads:

11. Reparation to be considered in all cases - The court shall consider imposing a sentence of reparation in every case, and, subject to section 22 of this Act, shall impose such a sentence unless it is satisfied that it would be clearly inappropriate to do so.(Emphasis added).

[9] In all circumstances such as the present, of course, the Department should direct its mind to the question whether it wishes to seek a reparation order and the prosecutor should advise the Court accordingly.But irrespective of the fact no request for a reparation order is made, the sentencing Judge is nevertheless obliged to consider imposing such a sentence and, indeed, to impose that sentence unless he is satisfied that it is "clearly inappropriate to do so".

[10] Secondly, there is merit in Mr Fournier's submission that the terms of the reparation sentence in issue did not comply with the requirements of s 24 of the Criminal Justice Act.The relevant portion of that section provides as follows:

24. Conditions of sentence - Where a court sentences an offender to make reparation, the following provisions shall apply:

(a) The court shall determine the conditions of the sentence in respect of the following matters:

(i) the total amount to be paid by the offender:

(ii) Whether the amount is to be paid in one lump sum or in instalments:

(iii) Where the amount is to be paid in one lump sum, whether it is to be paid forthwith or at some specified future date:

(iv) Where the amount is to be paid in instalments, the frequency and amounts of the instalments.

[11] In this case the order for reparation specifies the amount to be paid but does not stipulate how or when it is to be paid.We agree that it cannot stand as presently framed.

[12] We turn, then, to consider whether the Judge was in error in imposing the sentence of reparation having regard to the terms of s 11.

[13] On the face of it, it would not be "clearly inappropriate" to make a reparation order relating to Mrs Batt's house.Having defrauded the Department of a substantial sum there is no reason why she should retain her equity in the house.It is not a family home and she does not occupy it other, possibly, than in the whitebait season.There are, however, factors which we consider the sentencing Judge has overlooked and which in total render it inappropriate that a reparation order be made.

[14] First, following the first trial and Mrs Batt's conviction, the sentencing Judge did not make a reparation order.We must assume that he complied with the statutory direction to consider such a sentence.Hence, but for the fact that Mrs Batt's convictions were set aside and she obtained a new trial, the original sentence would have stood without the imposition of a reparation order.We do not in the circumstances need to consider whether R v Miers is directly applicable or not.In our view the principles underlying that decision are clearly appropriate to the present case.Delivering the judgment of the Court, Hardie Boys J stated (at 313):

...an obvious caution must be sounded.Unless the facts that emerge at the second trial are significantly different, or unless on the first occasion the sentence was manifestly too light or was based on reasons which have since been shown to have been invalid, the imposition of a substantially longer sentence will have the appearance of a punishment of the offender for the necessity of the second trial.That would ordinarily be quite wrong.

[15] While the sentence cannot be said to be "longer" in this case, the imposition of the sentence of reparation undoubtedly makes it more severe and it would be detrimental to the administration of justice, and certainly the appearance of justice, if a heavier sentence were now imposed when the facts and circumstances have not changed in any respect.

[16] Secondly, the Department was cognisant of the existence of this asset and did not seek a reparation order.Although, as we have said, this fact does not preclude the Judge's statutory obligation to consider making a sentence of reparation, the fact the Department did not seek that sentence may nevertheless be a factor in considering whether it is appropriate to make an order.

[17] Thirdly, there is some difficulty in formulating the terms of a satisfactory reparation order in the circumstances of this case.The house is in the nature of a bach, run-down and in need of repair, and located in an area which may not attract a ready sale.Clearly, an order that Mrs Batt make reparation of a fixed sum by a certain date would be unsatisfactory.The house might not sell by that date or for a price which would cover the amount specified in the order.Mrs Batt would then be in the position of not being able to comply with the order.We consider that such an order would be unrealistic.Mr Gresson referred to an enforcement provision, s 19B, of the Crimes Act 1961.But that section relates to personal property, as distinct from real property, and is of no assistance.Consequently the difficulty which the Judge would have had in formulating the terms of a suitable order having regard to the inadequate information before him adds some weight to our conclusion that it was not appropriate to impose a sentence of reparation in this case.

[18] For these reasons we hold that it was not clearly appropriate to make a sentence of reparation in terms of s 11.The appeal is allowed.

Solicitors

Crown Law Office, Timaru