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Cameron v R [2015] NZCA 363 (11 August 2015)

Last Updated: 2 September 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
21 April 2015
Court:
Wild, Clifford and Dobson JJ
Counsel:
Appellant in person K Laurenson and S J Humphrey for Respondent
Judgment:


INTERIM JUDGMENT OF THE COURT

  1. The appeal against conviction is dismissed.

  1. The appeal against sentence is allowed.

  1. The parties are directed in the terms set out at [88]–[91] of this judgment.


____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Table of Contents
Para No
Introduction
The charges
Procedural history
Ms Cameron’s trial
Appeal against conviction
Ruka v Department of Social Welfare
The Joychild Report
The Law Commission Report
Application to this case
(i) Judge Farish’s ruling on the Beekhuis evidence
(ii) Ruka v Department of Social Welfare
(iii) Calculation of benefit overpayments
Appeal against sentence
Home detention or community detention
Community work
Reparation
Interim result

Introduction

[1] In late 2009 the appellant, Jacqueline Cameron, was charged with two counts of wilfully omitting to advise the Ministry of Social Development (the Department) of correct information[1] and four counts of dishonestly using a document for pecuniary advantage.[2] Central to those charges was the allegation that Ms Cameron had at various times failed to disclose she was living in a relationship in the nature of marriage with a Mr Daryl Bloomfield.
[2] On 19 April 2013 Ms Cameron was found guilty by a jury in the District Court at Christchurch on each of those charges. Judge Garland, the trial Judge, later sentenced Ms Cameron to seven months home detention and 100 hours of community work.[3] The Judge also ordered Ms Cameron to pay reparation to the Department of $42,957.84 at the rate of $50 per week, commencing seven days after she returned to work.
[3] Ms Cameron now appeals both her conviction and sentence. She appears for herself. Ms Cameron was, at the relevant time, suffering from the effects of “battered women’s syndrome” caused by the behaviour of her former husband, Mr Paul Dumelow. Ms Cameron says that the Department, when prosecuting her, and the District Court, when conducting her trial and sentencing her, failed to take proper account of those effects on her. They meant she had not committed to a relationship in the nature of marriage with Mr Bloomfield. Her conviction was, therefore a miscarriage of justice.
[4] Ms Cameron also based her appeal on criticisms of the way in which her trial counsel, Mr Hall, conducted her defence. Ms Cameron had not complied with r 12A of the Court of Appeal (Criminal) Rules 2001. In particular, she had not indicated whether she waived privilege in respect of her communications with Mr Hall. As a result the Crown was unable to ask Mr Hall to respond to Ms Cameron’s criticisms. Consequently, as we explained to Ms Cameron, we were not in a position to deal with these criticisms. We do not refer to them further.
[5] We record the factual background to this appeal in the following way:

The charges

[6] Ms Cameron separated from Mr Dumelow in September 2003. In August 2006 Ms Cameron applied for and was granted the domestic purposes benefit (DPB) and an accommodation supplement. She was by then responsible for the five children of her marriage to Mr Dumelow. The Department does not question Ms Cameron’s entitlement at that time to those benefits. In December 2008 the Department commenced an investigation into whether Ms Cameron was living in a relationship in the nature of marriage with Mr Bloomfield. The Department concluded that Ms Cameron and Mr Bloomfield had been living in such a relationship since 1 March 2007.
[7] When Ms Cameron applied for the benefit in August 2006, she agreed to advise the Department immediately if:

... there were any changes to her circumstances that may affect her entitlement to benefit including if she had a change in work situation, if she had changes to her income or financial circumstances and if she had changes to her living situation such as starting or ending a relationship similar to marriage.

[8] The two charges Ms Cameron faced under s 127(a) of the Social Security Act 1964 alleged that, between 1 March 2007 and 21 February 2009, she had wilfully omitted to tell the Department:

in each case for the purpose of misleading the Department and which resulted in her continuing to receive benefits.

[9] Ms Cameron submitted temporary additional support re-application forms to the Department on 20 August 2007, 1 November 2007 and 19 February 2008. On each of those occasions, she stated she was not living with anyone in a relationship in the nature of marriage. Those acts were the basis of three charges of dishonestly using a document with intent to obtain a pecuniary advantage.
[10] On 3 August 2008 Ms Cameron, in a form she completed in connection with a review of her entitlement to benefit, stated that she was not living with anyone in a relationship in the nature of marriage. The fourth charge of dishonestly using a document with intent to obtain a pecuniary benefit reflected that circumstance.

Procedural history

[11] The Department first laid summary charges against Ms Cameron on 31 August 2009. In November 2009 Ms Cameron pleaded not guilty and elected summary jurisdiction. In February 2010 Ms Cameron vacated those pleas and entered guilty pleas.
[12] In June 2010 Ms Cameron’s then counsel was given leave to withdraw and Mr Hall, who appeared for Ms Cameron at her trial, indicated there would be an application to vacate the guilty pleas. Mr Hall said it was his belief that Ms Cameron may well have a defence based on this Court’s decision in Ruka v Department of Social Welfare.[4] Ms Cameron’s guilty pleas were vacated on 21 October 2010 and Ms Cameron at that point elected trial by jury.
[13] Ms Cameron was committed for trial on 21 December 2010, with an indictment to be filed by 22 February 2011. The 22 February 2011 Christchurch earthquake intervened. An indictment was not filed until 5 October 2011. In July 2012 the District Court considered an application by the Crown to allow that late filing. Ms Cameron opposed that application. Whilst acknowledging that Ms Cameron had suffered hardship by reason of delay, the District Court allowed an extension of time for the filing of the indictment.[5] It did so having particular regard to the impact the February earthquake had had on the day-to-day working of the courts in the Canterbury area.
[14] Ms Cameron’s trial was set down to commence in September 2012. Ms Cameron applied for, and was granted, an adjournment of that trial to enable her to obtain advice from Ms Beekhuis, a psychologist. In November 2012, Judge Farish set Ms Cameron’s trial down to commence on 15 April 2013. On 3 April 2013 a further application was made to adjourn the trial, this time on the basis that Ms Beekhuis was not available to give evidence at the scheduled 15 April trial. Given the history of the matter, it is not surprising that the Judge was reluctant to grant a further adjournment. However, she approached Ms Cameron’s application on the following basis:[6]

Therefore, with respect to the application for adjournment, the issue was whether the evidence of Ms Beekhuis was admissible. If it was inadmissible, then there was no basis upon which an adjournment could be granted. If, however, the evidence was admissible, then an adjournment would need to be granted to the accused.

[15] The Judge ruled the evidence inadmissible and declined the application for an adjournment.

Ms Cameron’s trial

[16] Ms Cameron’s trial began, as scheduled, on 15 April 2013.
[17] The Crown’s case was to be that Ms Cameron had deliberately misled the Department, not as she said out of concern for herself and her children’s independence, but rather to preserve the standard of living she had enjoyed before the breakup of her relationship with Mr Dumelow and the failure of her business.
[18] Ms Cameron’s defence was to be that she did not intentionally omit to provide true and accurate information and nor was it her intention to mislead in order to obtain benefits. She honestly did not think her relationship with Mr Bloomfield was in the nature of marriage. That was because it lacked the necessary ingredient of a mutual commitment to financial interdependence. Mr Hall, in opening, explained:

The accused could not commit to financial interdependence because she had come from a very abusive relationship she had had with her husband both before and after she left him. [Such] was the level of abuse that it is accepted by the Crown that she suffered from a condition known as post traumatic stress disorder about which you will hear more. Her experiences and coupled with the disorder meant that she would not allow any man to provide finance for her and her five daughters. She saw herself as having to provide economic foundation for herself and her kids, in other words to provide the financial cone to their particular relationship, or at least that’s how she saw it.

[19] The Department’s principal witness was a Ms Hinkley, a Departmental investigator. Ms Hinkley’s evidence covered her investigation, and her interview of Ms Cameron, which took place on 2 April 2009.
[20] In that interview Ms Cameron confirmed:
[21] When that 2 April interview was typed up, Ms Cameron asked for a further statement to be included in it. In that statement Ms Cameron:
[22] As she put it:

I am not disputing what I have done is wrong. I hope you that will consider the reasons for not advising WINZ that I was living with partner were out of pure desperation of being able to provide for my five daughters. I have had some terrifying parts of the last 5–6 years and this has certainly been part of it. I would dearly love to keep my job so I can stay as a tax payer and provide what my children need.

[23] A transcript of that interview, and of Ms Cameron’s subsequent statement, was provided to the jury.
[24] The following statement of agreed facts was placed before the jury:
  1. That the accused Jacqueline Ann Cameron was diagnosed by a clinical psychologist, Margaret Beekhuis in 2010 as having suffered posttraumatic stress disorder starting at about the time of her separation 2003/2004 and continued to suffer this condition for several years subsequently, and during the material times relevant to this case in 2007–2009.
  2. Post-traumatic stress disorder (PTSD) is a debilitating psychological condition that is triggered by a terrifying event or events. Symptoms may include flashbacks, nightmares and severe anxiety. PTSD can be a severe illness affecting the normal function of a person’s everyday life. Those suffering from PTSD may feel constantly stressed or frightened long after the traumatic events have occurred, and after they are no longer in any form of danger. It is well recognised that domestic abuse can cause PTSD.
  3. In the case of Jacqueline Cameron her symptoms included hypervigilance, panic attacks in public places, constant anxiety, nightmares and flashbacks which involved reliving frightening events involving her husband’s threats and attacks on her. She also suffered from memory and concentration problems.
  4. At the time of interview in 2010 she was assessed as having residual symptoms of post-traumatic stress disorder, however her cognitive and emotional function was much improved and she demonstrated good capacity to problem solve and reason on most matters.

[25] Ms Cameron gave evidence in her defence. That, largely undisputed, evidence confirmed the account of matters Ms Cameron had earlier provided to the Department. Ms Cameron provided greater detail of the abuse she had suffered at Mr Dumelow’s hands, including that he had twice been convicted of violent behaviour against her and had, on one occasion, been sentenced to nine months imprisonment for a violent breach of a protection order.
[26] In cross-examination, the prosecutor took Ms Cameron through each of the documents on which the charges were based. Ms Cameron accepted that her attitude to her relationship with Mr Bloomfield, particularly given that she had had a child with him, might appear strange to the world at large. But, very much as Mr Hall had put it to the jury when opening her case, because of her experiences at the hands of Mr Dumelow she simply would not allow herself to depend financially on another person. Rather, she was determined to maintain her financial independence and to look after her children herself.
[27] Given the basis of Ms Cameron’s appeal, the Judge’s directions as to the meaning of a relationship in the nature of marriage are of particular importance.
[28] Judge Garland directed the jury this way:[8]

Now there are some terms I need to explain to you.

A relationship in the nature of marriage means one that has the essential character of a marriage. Whether or not that exists will require an objective commonsense assessment of the factors which go to make up the particular relationship. While it is up to you to decide if they were living in a relationship similar to marriage, by law there are three essential matters that you must be satisfied about before you could say they were living in such a relationship. They are, first, there must be a mutual commitment for the foreseeable future to emotionally support one another. In other words, a mental commitment. Second, there must be financial interdependence. Third, there must be cohabitation while living together. ... As to financial independence [sic], there must be, at the very least, an expectation by both that they will support one another financially if they have to. As you will appreciate, every such relationship whether it be a marriage or a de facto relationship will vary. So if there is some financial support by one for the other or vice versa that will be a factor for you to take into account insofar as it evidences recognition of an obligation to support. However, merely gifting someone money or being charitable would not be enough ...

[29] The Judge emphasised that, in considering whether Ms Cameron had wilfully misled the Department, the question was whether she was acting honestly in that she believed her statements to be true. It was not necessary for her belief to be a reasonable one.
[30] The Judge summarised Ms Cameron’s overall defence in the following way:[9]

Mr Hall said the defence case is not that her past experience of domestic violence of her post traumatic stress disorder condition excuses the alleged offending but rather the defence case is that it explains why her acts or omissions were not dishonest. ... The defence submits that these experiences which had those psychological consequences caused the accused to view her relationship with males, and in particular with Mr Bloomfield, in a very different light. Mr Hall submitted the accused was simply not able to commit to a long-term relationship involving love, trust and financial interdependence.

Appeal against conviction

[31] Ms Cameron filed a reasonably detailed notice of appeal. She made oral submissions at the appeal hearing. She subsequently provided the extensive written notes to which she had spoken at her appeal. Central to her defence at trial was her argument that she was not living in a relationship in the nature of marriage with Mr Bloomfield at any relevant time. Ms Cameron placed particular reliance on the October 1996 decision of this Court in Ruka, the May 2001 Law Commission Report Some Criminal Defences with Particular Reference to Battered Defendants and the June 2001 report by barrister Frances Joychild to the Minister for Social Services following the Ruka decision (the Joychild Report).[10]
[32] By reference to that material Ms Cameron argued:
[33] Ms Cameron also argued on appeal:
[34] We will consider each aspect of Ms Cameron’s appeal against conviction in turn. Before doing so, however, we comment on the relevance for this appeal of Ruka, the Joychild Report and the Law Commission Report.

Ruka v Department of Social Welfare

[35] In Ruka, this Court was asked to consider the significance of the existence of a battering relationship between a cohabiting couple for the question whether that legal relationship was one truly in the nature of marriage.[11] The specific question was whether the fact that a woman suffering from battered women’s syndrome at the hands of her partner could provide the basis for a finding that she lacked the mental commitment necessary for the relationship to be one in the nature of marriage.
[36] This Court did not find it necessary to decide that question to resolve the appeal. Rather, the Court approached the appeal on the basis of a more general analysis as to whether the relationship in question was one in the nature of marriage. Blanchard J, writing for Richardson P and himself, observed, however:[12]

If it had been necessary to consider the effect of the battered women’s syndrome suffered by Mrs Ruka, that would also have been of some consequence. As she explained and the psychologist confirmed, she felt like Mr T’s slave and was too terrified of him to leave. ... Unlike someone not suffering battered women’s syndrome, the appellant had an inability to choose to live elsewhere. ... The existence of the syndrome does not in itself provide a defence, but it is a factor available to be taken into account in the determination of whether a relationship in the nature of marriage existed.

[37] For Richardson P and Blanchard J, the starting point was a consideration of the purpose of the social welfare legislation. The concern of that legislation was with the provision of financial help for people who, for one reason or another, could not adequately support themselves. In that context, the law obliges legally married people to support each other financially when the need arises. Section 63 of the Social Security Act reflects that aspect of lawfully recognised marriage, and extends it to relationships that are in the nature of marriage. Any entitlement to benefit, therefore, considers the financial position of the couple, rather than the individual. Against that background, their Honours concluded:[13]

In our view a relationship in the nature of marriage for the purpose of the Social Security Act is one in which an essential element is that there is an acceptance by one partner that (to take the stereotypical role) he will support the other partner and any child or children of the relationship if she has no income of her own or to the extent that it is or becomes inadequate. The commitment must go beyond mere sharing of living expenses, as platonic flatmates or siblings living together may do; it must amount to a willingness to support, if the need exists. There must be at least that degree of financial engagement or understanding between the couples.

[38] In the case of Mrs Ruka she received no financial support whatsoever from her de facto partner. For that, and other reasons, her relationship was not one in the nature of marriage.
[39] Thomas J reached the same conclusion, albeit on the basis of an analysis that paid considerably more attention to the significance of Mrs Ruka’s status as a battered woman living in a relationship from which she was unable to escape. Of s 63 Thomas J said:[14]

In a real sense the reference to a relationship in the nature of marriage refers to an abstraction of the marriage relationship which, in essence, is a commitment to a sharing of the parties[’] lives in the manner which gives rise to an assumption of responsibility to and for each other. In entering into a legal marriage the parties are in effect deemed to have assumed that responsibility, including an assumption of financial responsibility and interdependence. In a de facto relationship that assumption of responsibility must exist in fact before it can be said that the relationship is one in the nature of marriage.

[40] Referring to the separate judgment of Blanchard J and Richardson P, he observed further:[15]

I do not apprehend that the differences between the latter judgment and my own are critical. In my judgment I endorse the requirement that, for a relationship to be in the nature of marriage, there must be a mutual commitment on the part of the parties to so merge their lives that it can be said that they have assumed responsibility for each other and I emphasised that, in the context of the Social Security Act, a heavy emphasis must be placed on the need for an assumption of financial responsibility or interdependence as part of that commitment.

[41] In the courts below, reliance had been placed on the “checklist” analysis of the type found in the earlier High Court decisions of Excel v Department of Social Welfare and Thompson v Department of Social Welfare.[16] The majority all expressed the view that that type of “checklist approach” should be used cautiously.

The Joychild Report

[42] Following Ruka, concerns arose that the Department had not aligned its approach to determining whether a relationship was one in the nature of marriage with that decision. A particular concern was with the continued use of “checklists”. In September 2000 the Government initiated a review of the Department’s implementation of Ruka. Ms Frances Joychild, a barrister, was appointed to undertake that review. The Report records her investigations and its outcomes.[17]
[43] Like the majority in Ruka, Ms Joychild started with s 63 of the Social Security Act, and its reflection of the fact that legal marriage creates a legal obligation on each spouse to support the other when, for various reasons, they cannot support themselves.[18] Ms Joychild concluded that there had not been a sufficient change in understanding by the Department that the two essential criteria of a relationship in the nature of marriage were financial interdependence and emotional commitment. Ms Joychild made a number of recommendations including the training of investigators to better take account of violence to women in benefit fraud investigation and benefit entitlement decisions, particularly in assessing whether there had been a marriage-type relationship.

The Law Commission Report

[44] At the same time as the Joychild Report was being prepared, the Law Commission investigated the more general question of whether existing legal defences were failing to protect those who commit criminal offences as a reaction to domestic violence.[19] The Law Commission did not discuss the link Ms Cameron asserts between the effects on her of her relationship with Mr Dumelow and the type of offending (benefit fraud) with which she was later charged. Although the Commission noted the case of R v Atofia, in which a defendant charged with benefit fraud, was permitted to lead expert evidence on battered women’s syndrome in support of the defence of necessity, that case can be distinguished from the present.[20] In Atofia the defendant’s ex-partner had been demanding money from the defendant and threatened to beat her if she did not pay him — there is no similar basis for the defence of necessity in Ms Cameron’s case. We also note that in Atofia the defendant was not able to rely on the defence of compulsion as her ex-partner had not compelled her to commit the relevant fraud.

Application to this case

[45] The charges Ms Cameron faced were based on her actions during her relationship with Mr Bloomfield. The violence (psychological and physical) Ms Cameron endured during her relationship with Mr Dumelow was, therefore, not relevant in the way it had been in Ruka.[21] That is, it was not Ms Cameron’s relationship with Mr Dumelow that was the focus of the Department’s investigation, but her relationship with Mr Bloomfield. There was never any suggestion that Mr Bloomfield had physically abused Ms Cameron. When the Department was investigating Ms Cameron’s relationship with Mr Bloomfield that was not its focus. It became a focus of Ms Cameron’s defence to the charges following Mr Hall becoming involved.[22] It is also to be remembered that the Joychild Report addressed the situation that existed within the Department in the years that immediately followed this Court’s decision in Ruka, not the position in 2008–2009 when the Department was investigating Ms Cameron.[23]
[46] Having said that, we think that Ms Cameron, by reference to the Ruka decision, does raise a fair question. In our view that question is, essentially, whether the approach taken by the Department, but more importantly by the District Court, to the question whether Ms Cameron’s relationship with Mr Bloomfield was one in the nature of marriage dealt properly with the question of financial interdependence.
[47] As noted at [14] above, Ms Cameron had applied to adjourn her trial on the basis a proposed expert witness, Ms Beekhuis, was unavailable. In ruling the evidence of Ms Beekhuis inadmissible, and on that basis declining Ms Cameron’s very late application for an adjournment of her trial, Judge [24]rish said:24

[10] The issue for the jury is to decide whether or not the accused was acting dishonestly and whether or not the accused was living in the nature of marriage.

[11] It became abundantly clear during the course of argument and recourse to the subsequent materials (sent by Ms Beekhuis), that although Ms Cameron was suffering from post-traumatic stress disorder that does not bear on this issue. In particular, Ms Beekhuis stated at page 3:

To summarise: psychologically the crucial bit in this case is that this woman has a long history which taught her to be ridiculously self reliant, and to consider it entirely unsafe to leave herself, and more importantly her children, vulnerable to her being daft enough to pool financial resources with any new man; regardless of whether he was acting the polar opposite of Paul Dee ....

...

In other words, what is up to the jury, is not to decide if the PTSD was a material course of her alleged offending, but whether I have found sufficient reason for her not to trust herself or anyone else and hand herself over to some new bloke by way of giving her income and relying solely on his.

[Not our emphasis]

[12] Therefore it is clear that the diagnosis of post traumatic stress disorder and her treatment is in no way relevant to whether or not the accused acted dishonestly or was as a matter of fact living in a relationship in the nature of marriage.

[13] When Ms Cameron was first spoken to by the Informant, she made her history and her circumstances very clear. The two interviews which are to be put into evidence traverse her very difficult circumstances and the significant trauma that she had undergone in the years immediately preceding the offending. All of this evidence can only be given by Ms Cameron. In my opinion, Mr Hall was trying to have the psychologist comment on the credibility of the accused. The Court of Appeal have made it clear that this is not appropriate unless of course there is some psychiatric reason for the behaviour of the accused, for example an alleged false confession or significant cognitive disability. That is not the case here and I refer to the commentary in R v B 19/302 CA351/10.

[14] I find, if the jury were to accept Ms Cameron’s account then they may find that the charges are not proved. They do not need the assistance of Ms Beekhuis who is simply commenting on the narrative provided by the accused with a finding of post traumatic stress disorder which Ms Beekhuis accepts is not relevant to whether or not Ms Cameron was acting dishonestly or indeed living in a relationship in the nature of marriage.

[15] Therefore, I find Ms Beekhuis’ evidence is inadmissible.

[48] We are not persuaded by the Judge’s reasoning. Certainly the Judge was right to conclude that the evidence of Ms Beekhuis was not relevant for the purpose of proving Ms Cameron’s PTSD was causative of, or explained, her failure to disclose that she was living in a relationship in the nature of marriage with Mr Bloomfield. What Ms Beekhuis made clear, however, was that in her expert psychological assessment Ms Cameron had learned to be “ridiculously self reliant” and “to consider it entirely unsafe to leave herself, and more importantly her children, vulnerable to her being daft enough to pool financial resources with any new man”. The core of Ms Cameron’s defence at trial was that it was precisely because of those matters she had not committed to financial interdependence with Mr Bloomfield, and especially as regards her children’s needs. That was why she had honestly considered she was not in a relationship in the nature of marriage with Mr Bloomfield. In that context, we consider that Ms Beekhuis’s evidence was relevant and admissible, and was not a comment by a psychologist on Ms Cameron’s credibility.
[49] We are not, however, persuaded that error led to a miscarriage of justice.
[50] First, whilst we think Judge Farish was wrong to conclude that Ms Beekhuis’s evidence was inadmissible, we do not think she would have necessarily been wrong to decline Ms Cameron’s application for an adjournment. Ms Cameron had already been granted an adjournment to obtain evidence from Ms Beekhuis. Her trial had been scheduled to commence on 15 April 2013 from as far back as November 2012. In the absence of some compelling reason why Ms Beekhuis’s attendance had not been arranged, we think the Judge would have been entitled to decline the application for adjournment on those grounds.
[51] Furthermore, and as the trial proceeded, the combination of Mr Hall’s defence, the agreed admissions and the way the Judge summed up focused the jury on Ms Cameron’s experiences at the hands of Mr Dumelow, and why that meant she said she would not expose her children to depend financially on any man with whom she might be in a relationship.

(ii) Ruka v Department of Social Welfare

[52] We therefore turn to whether this Court’s decision in Ruka has, in Ms Cameron’s case, been applied correctly.
[53] In our view this is not a question of how the Department conducted its investigation. Except in very unusual circumstances, which are not present here, the probity and wisdom of a criminal investigation is assessed either in terms of pre-trial arguments relating to the admissibility of evidence, or at trial in terms of the defence challenges to the Crown’s case.
[54] At Ms Cameron’s trial, the question whether or not she was living in a relationship in the nature of marriage with Mr Bloomfield was a question of fact for the jury, properly directed, to determine. On that question Judge Garland directed the jury, as relevant, in the following terms:[25]

Second, there must be financial interdependence. ... As to financial independence [sic], there must be, at the very least, an expectation by both that they will support one another financially if they have to. ... So if there is some financial support by one for the other or vice versa, that will be a factor for you to take into account insofar as it evidences recognition of an obligation to support.

[55] We think, therefore, that the Judge correctly captured the essence of Ruka. That is, the need for a mutual commitment to financial support, and importantly a recognition of a (moral) obligation to support so that the fact of that support, and in turn the relationship within which that commitment has been made, can properly be taken account of when determining a person’s need for state assistance.
[56] Ms Cameron and Mr Bloomfield had had a child, their son Harry, together. Mr Bloomfield had reversed a vasectomy to achieve Harry’s conception. Ms Cameron and Mr Bloomfield had become engaged to be married at the time of Harry’s birth, and were still living together in an intimate relationship which had a degree of financial interdependence.
[57] Moreover, an obvious difficulty for Ms Cameron was her own frank admissions at her interview, and in her considered additional statement:

(a) that she knew what she had done was wrong; and

(b) that she should have disclosed her relationship with Mr Bloomfield; but

(c) that she had not done so so as to avoid the inevitable impact on the level of benefits she was receiving.

[58] In those circumstances the jury’s verdict was, in our view, almost inevitable.

(iii) Calculation of benefit overpayments

[59] In challenging her conviction, Ms Cameron also argues that the Department’s assessment of the extent of her benefit overpayments was affected by two errors:
[60] Ms Cameron did not argue, however, that she had not received any benefit over-payments at all. On that basis, and in the light of the conclusion we have just reached as regards the jury’s guilty verdicts, we think those matters are better considered in the context of Ms Cameron’s appeal against sentence.
[61] We therefore dismiss Ms Cameron’s appeal against her convictions.

Appeal against sentence

[62] In sentencing Ms Cameron, Judge Garland characterised Ms Cameron’s offending as representing a gross breach of trust, involving a high degree of premeditation and being “fairly sophisticated offending”.[26] The Judge said:[27]

Having heard the evidence in this case I am in no doubt that the jury concluded that you deliberately misled the Department in all respects because you were of the opinion that you could not afford to live on less money. I do accept that you acted dishonestly because you thought that was in the best interests of your children. However, that does not excuse your behaviour. In the interview you asked Mrs Hinkley the question: "Why should my children suffer because I live with a man?" The answer is simple. If you chose to live with another man in a relationship in the nature of marriage that affected your eligibility for benefits which were provided by the community. The choice was yours to make. Regrettably in this case you chose both. You are clearly an intelligent person. You knew that what you were doing was wrong but you tried to justify your actions on the basis that you were acting in the best interests of your children. The same cannot be said regarding the consequences for the community.

[63] The Judge fixed a starting point sentence of 16 months imprisonment, within both the 15 to 18 months range submitted by the Crown as appropriate as well as the 12 to 18 months range submitted by Mr Hall as being appropriate.
[64] Having fixed that starting point, the Judge then considered aggravating and mitigating factors. He considered there were no aggravating factors. The only mitigating factor he identified was Ms Cameron’s previous good record. He allowed a two month reduction on account of that, arriving at 14 months imprisonment. Aware of Ms Cameron’s responsibilities for the care of her children, the Judge sentenced Ms Cameron to seven months home detention as noted. Even there, the Judge acted with some reluctance. As best as we can tell Ms Cameron had not, before sentencing, consented to home detention at her residential address. Therefore there was no “suitable residence” available. The Judge faced the prospect of sentencing Ms Cameron to imprisonment, but granting her leave to apply for home detention. The Judge adjourned the sentencing briefly to give Ms Cameron a last chance to agree to home detention — which she did.
[65] We recognise at once that the Judge had the benefit of conducting the trial, of hearing the evidence and of assessing the witnesses, including Ms Cameron. But, for the following reasons we quash Ms Cameron’s sentence and substitute sentences of community detention and community work, in addition to making a reparation order.

Home detention or community detention

[66] On appeal against sentence Ms Cameron argued that, in her case and as matters now stand, a sentence of community — not home — detention is the appropriate outcome.
[67] Ms Cameron’s offending occurred in 2007 and 2008. It is now 2015. Ms Cameron is gainfully employed and, as best as we can tell, has reestablished her career successfully so that she is able to provide for her financial needs and those of her daughters. Her job requires her to travel regularly. It is unlikely she could continue that employment were she sentenced to home detention. At her appeal, Ms Cameron accepted that it was the impact of any sentence on her ability to continue working and to support her children that was of greatest concern to her. She accepted the need for her to make a contribution to society to address her offending.
[68] The time that has passed, and the impact on Ms Cameron now of a sentence of home detention that was suspended by reason of this appeal, is of concern to us. That delay was not all of Ms Cameron’s making. We are also of the view that Ms Cameron’s experiences at the hands of her husband Mr Dumelow, and her ongoing responsibility for, and commitment to, the wellbeing of her children were mitigating personal factors not recognised at all by the Judge.
[69] In our view, having regard to all these matters and the principles in the Sentencing Act 2002, a sentence of home detention is not appropriate, or at least is not now appropriate.
[70] We acknowledge a key purpose of a sentence of community detention is to limit opportunities for further offending by imposing a curfew — a purpose that has little obvious relevance to Ms Cameron’s offending. But, given the mitigating factors identified at [68] above and the difficulty Ms Cameron would have in continuing in her current employment if her sentence of home detention was to resume (see [67] above) we are satisfied a sentence of community detention with appropriate curfew hours will hold Ms Cameron accountable for her offending whilst still permitting her to work and look after her children.
[71] Section 69B(3) of the Sentencing Act requires the Court, when imposing a sentence of community detention, to “specify the curfew period and the curfew address”. Section 69B(4) then provides:

(4) Every curfew period specified under subsection (3) must not be for a period of less than 2 hours, and the total of every curfew period for any week must not be more than 84 hours.

[72] For the reasons explained, we are concerned that any sentence of community detention not interfere with Ms Cameron’s ability to retain her current employment. It is for that reason that we give the direction set out in [88] below.

Community work

[73] In the light of the fact that a sentence of community detention will give Ms Cameron relatively more freedom than the sentence of home detention handed down by Judge Garland, we consider it may be appropriate to increase (beyond 100) the number of hours of community work Ms Cameron is required to undertake, subject to the points we have made in [81] to [85] below.

Reparation

[74] We turn finally to the reparation order the Judge made, and in particular the quantum of that order. In our view, two matters require comment, the first of which was not directly raised by Ms Cameron but occurred to us as we prepared this judgment.
[75] The Judge fixed the reparation Ms Cameron was required to pay at the sum of $42,957.84. That was the Department’s calculation of benefit overpayment. Ms Cameron argued, at trial and on appeal, that that amount did not properly reflect benefit payments she may have been entitled to in place of, or in addition to, those which her relationship with Mr Bloomfield disentitled her to.
[76] It is not clear to us that the fact that Ms Cameron was in a relationship in the nature of marriage with Mr Bloomfield necessarily disentitled her to that part of the DPB, and other social welfare payments, that provided support for her five children. In the case of a couple, it is necessary to establish as a fact that there is a commitment to mutual financial support in the case of need for there to be a disentitling relationship in the nature of marriage. As regards benefits paid to support children there needs to be a similar factual finding. That is, here not only would there need to be a finding of interdependence between Mr Bloomfield and Ms Cameron but that, in Mr Bloomfield’s case, that extended to a commitment to support Ms Cameron’s children. The Judge’s directions to the jury did not address that issue, the question of financial interdependence being addressed by reference to Mr Bloomfield and Ms Cameron’s relationship between themselves. We acknowledge that there are references in the transcript to the question of support Mr Bloomfield may have provided for the children. But we are concerned that that aspect of the evidence, in the context of its relevance to any reparation payable, was not especially clear.
[77] We emphasise that that concern does not affect our conclusion relating to the jury’s finding, reflected by the guilty verdicts, that the relationship between Mr Bloomfield and Ms Cameron was one in the nature of marriage.
[78] Ms Cameron raises a related point. She argues that the Department, in determining the amount of her benefit overpayments, did not take account of benefits to which she may have notionally been entitled during the period when her relationship with Mr Bloomfield had a disentitling effect (in respect of the DPB). At one point in her evidence Ms Hinkley, the Department’s investigator, appears to acknowledge that there had been no “debt calculation” in Ms Cameron’s case. Ms Hinkley goes on to state that “other benefits” did not need to be taken into account as Ms Cameron had never applied for, and was not receiving them. Ms Hinkley acknowledged therefore that the overpayment amount could have been overstated.
[79] In her report, Ms Joychild expressed concern at the Department’s policies in this area at that time. She observed:[28]

By not allowing for a notional entitlement the Department is clawing back considerably more money than it would have been entitled to had there been no benefit fraud. In this case it exaggerates the quantum of the fraud. This is in addition to any penalty that may be added to the debt.

[80] Ms Joychild referred to a decision (13/96) of the Social Security Appeal Authority that had told the Department it did have the power under s 81 of the Social Security Act to make a notional entitlement deduction.[29] She also referred to the High Court cases of Ioane v Department of Social Welfare and Moody v Chief Executive of the Department of Work and Income, and the difficult issues of law that are involved.[30] In doing so, Ms Joychild noted the following remarks of William Young J in Moody:[31]

My instinctive reaction is that the liability of the beneficiary to the Department cannot exceed the extent of the overpayment, that is the difference between what the beneficiary received less the amount that the beneficiary is entitled to.

[81] We share William Young J’s instinctive reaction. Moody was, however, a civil case involving recovery of benefit payments made by the Department in error. On appeal, William Young J dealt with matters by holding that although the appellant was not entitled to a retrospective crediting of benefits under s 81, under s 86(9A) of the Social Security Act he was entitled to have any amount of overpayment written off under s 86(9A) of the Act. Those issues do not arise here.
[82] Of direct relevance in this criminal context is the decision of Robertson J in Ioane, a sentence appeal.[32] The argument on appeal was that Mr Ioane’s criminality had been wrongly determined because the sentencing judge used the gross amount (including taxation) of the benefit payments involved, some $49,956.66. On inquiry, Robertson J was first advised that the actual amount received by Mr Ioane, excluding any taxation component, was $41,963.23. Mr Ioane would, Robertson J was then informed, have been entitled during the relevant period to unemployment benefit at the married rate. Having recorded those matters, the Judge observed:[33]

In my judgment the importance of all this is that on any sensible reading of the total circumstances, the value of what had been received by Mr Ioane through his criminal behaviour was not the sum of $49,956.66, but rather, the difference between the $41,963.23 and $19,295.14; namely $22,668.09.

[83] The Department argued, as it had done in the earlier case of Department of Social Welfare v Allan that its loss was the total amount that had been paid to or on behalf of Mr Ioane.[34] Moreover, Mr Ioane had never applied for, and was therefore not entitled to, an unemployment benefit. The Judge responded, in terms that reflect William Young J’s instinctive reaction in Moody:[35]

Whatever semantic purity might attach to that argument, it is not of assistance in determining the degree of criminal culpability for the purposes of sentencing, nor in determining the amount of a reparation order under s 22 Criminal Justice Act 1985. I am of the view that in determining what is loss, one must consider the additional amount which was paid as a result of the wrongdoing. The gross figure which the department mentions may be categorised as the cost to the department. But the “cost” and the “loss” are not the same. The relevant figure is the loss, namely the amount which was paid, which but for the criminal activity would not have been made.

I am not unmindful of the fact that there may be cases where there could be administrative problems in determining what an entitlement might have been. I am not persuaded that such should be a barrier to doing justice in a fair manner. Many exercises required to be undertaken in administration have difficulties. That is no basis for not grappling with the problem so a fair and equitable solution is found.

[84] We agree with Robertson J’s reasoning.
[85] As that amount has not been calculated, it is not possible to determine either Ms Cameron’s criminality or the amount of reparation she should pay.
[86] In these circumstances, we confirm that an order that Ms Cameron pay reparation to the Department will be made, but direct in the terms set out in
[88]–[91] below.

Interim result

[87] We therefore:
[88] We direct Ms Cameron, by Friday 4 September 2015, to file and serve a brief memorandum advising the Court:
[89] We direct Ms Cameron and an appropriate officer of the Ministry of Social Development to negotiate promptly and supply to the Court an agreed total reparation figure, agreed weekly amount of reparations and agreed first payment date. This is to be done by way of a joint memorandum to be filed also by Friday 4 September 2015.
[90] Failing agreement, by Friday 4 September 2015, each of the Crown (on behalf of the Director) and Ms Cameron is to file a brief (no more than two pages) memorandum setting out:
[91] Also by Friday 4 September 2015, each of Ms Cameron and the Crown is to file a further brief (again, no more than two pages) memorandum making any submission they wish to make as to the terms of the sentence of community work and that of community detention we have indicated we intend substituting for the sentence of home detention we have quashed. The submission should reflect the points we have made in [81] to [85] above — that is the level of criminality involved in the loss the submitting party says was incurred by the Ministry. That memorandum may be combined with the memoranda directed in [90], if there is not agreement on the total reparation figure and amount and first date of reparation payments.
[92] Following compliance with the directions given in [88]–[91] above, we will deliver a final judgment imposing fresh sentences on Ms Cameron. That will include community work, community detention and reparation, each on terms which we will fix.



Solicitors:
Crown Law Office, Wellington for Respondent

[1] Social Security Act 1964, s 127.

[2] Crimes Act 1961, s 228(b).

[3] R v Cameron DC Christchurch CRI-2009-009-13562, 29 July 2013 [Sentencing notes].

[4] Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).

[5] R v Cameron DC Christchurch CRI-2009-009-13562, 3 July 2012.

[6] R v Cameron DC Christchurch CRI-2009-009-13562, 10 April 2013 [Adjournment decision] at [6].

[7] It would therefore appear that in fact Ms Cameron had conceived Harry when living at Meadow Street. Mr Bloomfield had had a vasectomy reversal so that Ms Cameron could conceive Harry.

[8] R v Cameron DC Christchurch CRI-2009-009-13562, 18 April 2013 [Summing-up] at [18].

[9] At [51].

[10] Ruka v Department of Social Welfare, above n 4; Law Commission Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73, 2001) [Law Commission report]; Frances Joychild Review of Department of Work and Income: Implementation of the Court of Appeal Decision Ruka v Department of Social Welfare [1997] 1 NZLR 154, (Ministry of Social Development, Report to the Minister of Social Services, June 2001) [Joychild Report]. Ms Joychild was appointed a Queen’s Counsel in 2013.

[11] Ruka v Department of Social Welfare, above n 4.

[12] At 162–163. The appeal was allowed by a majority of three (and the judgment of Richardson P and Blanchard J was delivered by Blanchard J, with Thomas J agreeing on slightly different grounds; Gault and Henry JJ delivered a single dissenting judgment).

[13] At 161.

[14] Ruka v Department of Social Welfare, above n 4, at 182.

[15] At 185.

[16] Excell v Department of Social Welfare [1991] NZFLR 241 (HC); Thompson v Department of Social Welfare [1994] 2 NZLR 369 (HC).

[17] Joychild Report, above n 10.

[18] Section 63(1) of the Family Proceedings Act, 1980 now provides:

During a marriage or civil union, each party is liable to maintain the other party to the extent that such maintenance is necessary to meet the reasonable needs of the other party, where the other party cannot practicably meet the whole or any part of those needs because of any one or more of the circumstances specified in subsection (2).

[19] Law Commission report, above n 10.

[20] At 60–61, citing R v Atofia CA453/97 and CA455/97, 15 December 1997.

[21] Ruka v Department of Social Welfare, above n 4.

[22] In saying that, we acknowledge that Ms Cameron had explained to the Department, at the time of her interview, how she thought the violence she suffered from Mr Dumelow resulted in her not seeing her relationship with Mr Bloomfield as one in the nature of marriage.

[23] Joychild Report, above n 10, at 1.

[24] Adjournment decision, above n 6.

[25] Summing-up, above n 8, at [18].

[26] Sentencing notes, above n 3, at [19].

[27] At [17].

[28] Joychild Report, above n 10, at 60.

[29] At 60.

[30] Ioane v Department of Social Welfare (1994) 11 CRNZ 489 (HC); Moody v Chief Executive of the Department of Work and Income [2001] NZAR 608 (HC).

[31] Joychild Report, above n 10, at 61, citing Moody v Chief Executive of the Department of Work and Income, above n 30, at [10].

[32] Ioane v Department of Social Welfare, above n 30.

[33] At 491.

[34] Department of Social Welfare v Allan (1993) 10 CRNZ 307 (HC).

[35] Ioane v Department of Social Welfare, above n 30, at 492.

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