THE QUEEN v CHERYL MARY BEECH [2001] NZCA 365 (6 December 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca314/01

THE QUEEN

V

CHERYL MARY BEECH

Hearing:	6 December 2001
Coram:	Keith J Doogue J Gendall J
Appearances:	A G Davie for the Appellant J M Jelaoe for the Respondent
Judgment:	6 December 2001

judgment of the court DELIVERED BY KEITH J

[1] A jury in the District Court at Wellington found the appellant guilty on one count of wilful omission of information with intent to mislead in order to continue to receive a Domestic Purposes Benefit and six counts of using an application to review the Domestic Purposes Benefit with intent to defraud.On 30 August 2001 she was sentenced to 15 months imprisonment.She now appeals against that sentence.

[2] In November 1991 the appellant told an Income Support officer that she had left her family home in the Ohariu Valley because her husband had another woman.She said to the officer that, together with her two daughters, she had moved in with her parents in Porirua and that she had no income.The appellant applied for and was granted the Domestic Purposes Benefit and later an accommodation supplement.The application form for the Domestic Purposes Benefit included a declaration by the appellant that she would inform Social Welfare immediately if she resumed living with her husband or if there were any changes in circumstances that would affect her entitlement to the benefit.

[3] A few months later the appellant moved back to the family farm, but she did not inform Social Welfare about this until September 1992 when she told the Department that she was moving into a cottage on the property.In January 1997 she notified a change of address to the main house on the farm, claiming that her husband was living in the cottage.In May 1997 she notified another change of address, this time to Tawa.

[4] Department investigations found that, throughout the relevant period, the appellant continued to use the farm address and telephone number for several loan applications, for a number of bank accounts, for her children's school, for her mother-in-law's rest home, and for the hospital.To all those agencies, and to a number of her acquaintances in Ohariu Valley, the appellant and her husband presented as a married couple.

[5] At trial the appellant gave evidence that she had never resumed living with her husband.She called a number of friends and relatives to back her up (although not her husband).In returning the guilty verdicts the jury must have rejected that evidence.

[6] On sentencing the Judge focused on the personal circumstances of the appellant, namely that she was a first offender and a parent with two young children in her care.In considering whether a sentence of imprisonment was appropriate the Judge referred to R v Prior and Prior (1993) 10 CRNZ 147 and R v Harlen (CA76/01, judgment 12 April 2001), both decisions in which this Court upheld sentences of imprisonment for welfare fraud in the face of arguments based on the impact of the separation of children from their mothers (although it did reduce the length of the sentence in the former case). She noted that this Court invoked the need to deter women in similar situations from thinking that a substantial sentence would not be visited upon them because they happen to have young children.In referring to Harlen the Judge noted that the type of offending involved was very similar to that of the appellant's.

[7] The Judge was clearly of the view that the level of dishonesty in the offending was serious.She noted that it was deliberate and planned and that the appellant had had an opportunity each year at the time of her benefit review to tell the truth but had persisted with her lie for seven years.This resulted in overpayments of more than $87,000.There was little hope that the appellant would ever completely repay the money to the public purse from the deductions being made from her present benefit.The Judge found that these features were special circumstances for the purposes of s6 of the Criminal Justice Act, which made it inappropriate to impose anything other than a full-time custodial sentence.

[8] Adopting a starting point of 18 months imprisonment the Judge reduced the sentence by three months to take into account the appellant's family situation, her good character in other areas of her life and her indifferent health.She also took into account the limitations imposed by s7 of the Criminal Justice Act.She therefore sentenced her to 15 months imprisonment while granting her leave to apply for home detention.

[9] In support of the appeal against sentence Mr Davie directed much of his argument towards the Judge's application of this Court's decision in R v Harlen.He took issue with the Judge's comment that the offending in that case was very similar to the appellant's and sought to distinguish Harlen on the basis of the sum concerned and the amount of counts involved.Counsel suggested that a more appropriate sentence would have been between 10 and 12 months imprisonment.

[10] The appellant in R v Harlen was also a woman with dependent children.A jury convicted her of twenty counts of using a document and six counts of wilful omission to advise Social Welfare that she was in a relationship in the nature of marriage for the purpose of misleading officials and receiving a benefit.The offending occurred over a period of five years and four months and resulted in her receiving $120,355 to which she was not entitled.In that case this Court upheld a sentence of 15 months imprisonment as recognising her family situation to a degree that was consistent with the statutory policy reflected in s7 of the Criminal Justice Act.

[11] We consider that Mr Davie overstates the point that the Judge was trying to make in referring to Harlen.It is clear from her sentencing remarks that she was addressing the similarity in the type of offending and the respective situations of the offenders.At no point did she state that she regarded the cases as being similar in all respects.Further, as counsel conceded, sentencing is not a mathematical exercise.While the number of counts and the sum involved must be taken into account in reaching an appropriate starting point, the Judge was also entitled to place weight on the longer period of offending she was faced with in the present case.Those factors are essentially in balance. They might even support a longer sentence. As well, the difference in the sums taken and the charges laid reflects differences in the appellants' respective benefit entitlements.We do not consider that in these circumstances a sentence of 15 months was outside a properly exercised sentencing discretion.

[12] Mr Davie also submitted that the Judge had inappropriately taken into account the failure of the appellant to call Mr Beech as a witness as an aggravating factor.Her comments regarding the appellant's behaviour towards the Department's investigating officer were impugned on the same basis.

[13] We see no merit in either of these submissions.In the course of noting Mr Beech's absence from the witness box the Judge was merely reciting the competing evidence at trial and the jury's subsequent rejections of the appellant's version of events.There is no suggestion in her sentencing remarks that she regarded the matter as an aggravating factor.The Judge's comments in respect of the investigating officer were made in the context of the appellant's apparent lack of remorse.Lack of remorse is properly characterised as the absence of a mitigating factor and we are satisfied that the Judge treated it as such: see R v Le (CA208 & 209/00, judgment 14 September 2000).

[14] The appeal is accordingly dismissed.

Solicitors

Crown Law Office, Wellington.