Ministry of Social Development v Hape DC Whangarei CRI-2011-029-413 [2011] NZDC 1496 (14 September 2011)

Last Updated: 11 January 2018

IN THE DISTRICT COURT AT WHANGAREI

_{CRI-2011-029-000413}

MINISTRY OF SOCIAL DEVELOPMENT NEW ZEALAND POLICE Informants

v

MARAEA ROSITA HAPE

Defendant

Hearing: 14 September 2011

Appearances: S Manning for the Informant Ministry of Social Development

Sergeant S Wilkes for the Informant New Zealand Police

D Watkins for the Defendant

Judgment: 14 September 2011

_{NOTES OF JUDGE K B de RIDDER ON SENTENCING}

[1] Ms Hape, you appear today for sentence on three charges of obtaining by deception, one charge of using a forged document, nine charges of using a document dishonestly and without claim of right. You also face other charges of driving whilst forbidden, theft of petrol from a service station, providing a false name, and also an historic charge from August 2007 of receiving.

[2] As far as the main charges you face which are the obtaining by deception and using documents, in July 2006 you were transferred onto a sickness benefit. Later enquiries revealed that between the end of 2007 and sometime in August 2009 you applied for student loans, student allowances, student loan course related costs,

_{special needs grant advance, and you also attempted to apply for a sickness benefit}

MINISTRY OF SOCIAL DEVELOPMENT & ANOTHER V HAPE DC WHA CRI-2011-029-000413 14

September 2011

using a false identity. All of this was carried out whilst you continued to receive your sickness benefit in your own name. In respect of the charges you provided documents to support these applications, including a false birth certificate, and accordingly these grants were given to you in that name.

[3] As a result of your offending you received student allowances, student loans and special needs grants to which you were not entitled, totalling some $20,971.

[4] There is a probation report that has been prepared which is somewhat brief. It notes your current living circumstances and also your family history. It significantly notes your explanation for this offending, which was that you were helping out a relative who was on the run from the police and did not want to apply for a benefit himself or herself because it may have enabled the police to track him or her down. You acknowledged that you knew what you were doing was wrong and that you understood the consequences if you were caught. The recommendation in the report, given the background of your offending and the nature of it, is for a term of imprisonment.

[5] Mr Watkins has expanded considerably on the material in that report by outlining further detail for me relating to your upbringing, your whānau links, your educational history, and he notes that you were someone who achieved a significant academic record and indeed have considerable skills. He also points out to me that of recent times you have taken some steps of your own volition to address the issues underlying your offending, and of course points to your responsibilities in relation to the care of your two young children. He described you initially in your earlier years as a naive trusting teenager, but of course now at the age of 35 you could not claim that description in terms of this offending. Also, he submitted that when you embarked on this offending you were not thinking of the consequences. That of course is in stark contrast to what you told the report writer and of course, in my view, you must have been well aware of the potential consequences if you were caught, given your previous history.

[6] The first task for me Ms Hape is to simply assess your offending and the aspects of it which are relevant to the sentencing exercise. First is the fact that this

was quite deliberate and premeditated offending. It required considerable planning and in that sense it involved your committing specific acts to enable your offending to carry on, as opposed to some cases of what is loosely described as benefit fraud where people simply omit to tell the authorities of a change in their circumstances. By way of contrast, you deliberately embarked on this and took several steps in order to achieve your objective. The amount of money is not great compared to some others, but of course it was persistent offending over a considerable period of time and involved repeated acts on your part, resulting in these 13 charges you face.

[7] Consistent with other cases that have dealt with offending of this sort, in my view imprisonment is the only logical start point for offending of this type. In my view a start point would be something in the vicinity of 18 months to two years. Having regard to the principle that I must impose the least restrictive sentence, and recognising your child care responsibilities, I propose to fix a start point of

18 months’ imprisonment.

[8] Mr Watkins on your behalf has referred me to the case of R v Beedle (HC Auckland, T002432, 17 November 2000, Nicholson J) which he says has some similarities, and in that regard I note that in that case the Judge also fixed a start point of 17 months, so at least there is some consistency there.

[9] Having fixed that start point the obligation on me is to then assess whether or not that start point should be increased or reduced for factors that go against you, or for factors that go in your favour. That requires me to consider your background and there is a considerable history of dishonesty offending. You have 115 previous convictions for dishonesty offending and in perusing your record carefully today I note that you have dishonestly offended in one way or another every year from 1994 to 2005. Of course in your record which now stretches to some 12 pages I note that the first convictions entered against you were for shoplifting but the second and third were for taking, obtaining or using a document for a pecuniary advantage, which of course is exactly the nature of nine of the charges you face today.

[10] Not only have you dishonestly offended every year from 1994, when you were 18, to 2005, there are two notable sentences in your conviction list. On

7 April 2004 you were sentenced on 80 charges of dishonestly offending. On that occasion you were sentenced to a combination of supervision and community work. On 21 June 2005 you were sentenced on a further nine charges of dishonestly offending and on that occasion you were sent to prison for one year six months. You must have been released from prison on those convictions sometime in 2006, and it is only less than a year later you are back with this deliberate and planned deception to further obtain money dishonestly.

[11] That is a serious record of dishonesty convictions and in my view calls for a significant uplift from the start point I have fixed of 18 months. In my view, an appropriate uplift is a period of one year.

[12] I then have to consider what factors go in your favour. There is only one; that is that you have entered guilty pleas at a relatively early stage. Whilst it is not at the very earliest stage and would probably call for a reduction something in the order of

15 to 20 percent, I do take account of your personal circumstances and in particular your child care responsibilities. Therefore, I intend to give you a full reduction of one quarter, which would be somewhere in the vicinity of seven to eight months. So from that 30 month period I have reached, it would come down to a period of

22 months’ imprisonment.

[13] That then brings you within the scope where I must consider home detention. At the outset I refer to the Court of Appeal case of Ransom v R [2010] NZCA 390, where it was made clear that even in cases requiring significant aspects of denunciation and deterrence, nevertheless home detention can be appropriate in some cases of this type of offending.

[14] I also have regard to s 16 Sentencing Act 2002 which requires that I must not impose a sentence of imprisonment unless I am satisfied of three particular matters. That the sentence is being imposed for certain purposes as set out in s 7 of the Act; that these purposes cannot be achieved by a sentence other than imprisonment; and no other sentence would be consistent with the application of the principles in s 8 of the Act to this particular case.

[15] Turning then to the purposes in s 7 of the Act, in my view the primary purpose of sentencing in this case is to denounce this type of offending, not only to you but to others in the community. Also, to deter you from offending further in this way, and also likewise sending a similar message to others in the community. Finally, of course, I must hold you accountable for the harm done to the community in dishonestly obtaining this money.

[16] In terms of the principles, I have to take account of the gravity of the offending, its seriousness in comparison to other types of offences and also of course I have to be as consistent as possible with other cases and also impose the least restrictive outcome.

[17] The general factors that apply to offending of this type have been stated by the Courts now on many occasions. They are of course that this offending is easy to commit but difficult to detect. Account has to be taken of the degree of planning and premeditation, which in your case is high, as opposed to some cases where, as I have said, it might be simply a case of omitting to tell somebody of a change in circumstances. Your case is quite different to those.

[18] I accept that the amount of money in this case is not large and that was a factor in fixing my initial start point, but what is of significance of course is that you continued for a period of nearly two years using false documents and deliberately on

13 occasions acting in this way.

[19] Finally of course there is the factor that it is well recognised that there is not a bottomless fund for benefits of this sort. They are very restrictive and offending of this type impacts on the viability of those funds.

[20] I accept inevitably that if home detention is not imposed that there will be an impact on your family, but in my view your history speaks for itself. As I have said,

115 previous convictions spanning a period of 1994 to 2005, when you have dishonestly offended in every year. I note also in that regard that as recently as October 2009 you were convicted on a charge of misleading information to obtain a benefit and you were sentenced to community work and given a final warning. That,

given your previous history, has to be seen as a highly lenient sentence in my respectful view.

[21] All of the factors relating to your history and to the offending on this occasion are such that in my view no other sentence can be imposed to achieve the purposes I have referred to other than imprisonment, and no other sentence would be consistent with the application of the principles I have referred to in s 8.

[22] In respect of the 13 counts of using a document or obtaining by deception, you are convicted and sentenced to imprisonment for a period of one year

10 months. You are denied leave to apply for substitution of that sentence.

[23] You will be subject to both standard and special release conditions for six months after your sentence expiry date on the conditions set out in the Probation report.

[24] In respect of the other charges, firstly the charges in relation to giving false information, you are convicted and discharged.

[25] On the charge of theft of petrol, you are convicted and sentenced to imprisonment for one month and disqualified from holding or obtaining a driver’s licence for one year.

[26] In respect of the charge of receiving, you are convicted and sentenced to imprisonment for three months.

[27] All of those sentences are to be served at the same time, which results in an end sentence, as I have said, of one year 10 months.

K B de Ridder

District Court Judge