Ministry of Social Development v Hepi DC Levin CRI-2010-031-1755 [2011] NZDC 1526 (21 September 2011)

Last Updated: 11 January 2018

IN THE DISTRICT COURT AT LEVIN

_{CRI-2010-031-001755}

MINISTRY OF SOCIAL DEVELOPMENT

Informant

v

PATRICIA RANGITOPENGA HEPI

Defendant

Hearing: 21 September 2011

Appearances: A Reihana for the Chief Executive

P J Knowsley for the Defendant

Judgment: 21 September 2011

_{NOTES OF JUDGE G M LYNCH ON SENTENCING}

[1] Patricia Hepi, you are for sentence now on one charge of wilful omission under the Social Security Act and six charges of using a document.

[2] In January 1998 you applied for and were granted a sickness benefit. In December 1998 you declared that you had commenced working for the Horowhenua District Council and your gross weekly wage was $66.45 and your benefit records were noted accordingly.

[3] As a result of information received, inquiries were carried out by the Ministry and it was established that you were in fact paid in excess of the earnings declared to the Ministry. To review your entitlements to benefit, you submitted to the Ministry

_{various forms special benefit review in January 2000, March 2000, July 2000,}

MINISTRY OF SOCIAL DEVELOPMENT V HEPI DC LEV CRI-2010-031-001755 21 September 2011

January 2001, July 2001, February 2003. As a result of completing these documents benefits continued to be paid to you.

[4] As a result of the offending, you have received an overpayment of benefit between 1 November 1999 and 25 April 2010 totally $40,526.46.

[5] You have a conviction in 1985. That is your only conviction. It is not a conviction that aggravates your position on sentencing today.

[6] The pre-sentence report was helpful. It, as Mr Knowsley has done today, tells me about your health difficulties and that is given considerable pause to reflect today. You have had the employment with the council for 12 years or so, there are references or reports attesting to the rapport that you have built up with your employer and how well regarded you are.

[7] You said that you were naive of the impact your wages was having on your benefit until you were called in for interview. You have expressed deep remorse for your offending and I accept your remorse and you regret that you did not seek professional assistance sooner.

[8] You were clearly, as Mr Knowsley said, living beyond your means but not because you were living the high life, it was a simple matter of you spending more than you were legitimately earning at the council.

[9] So this offending really has topped up your income for quite some considerable time.

[10] You are identified as a low risk of re-offending. I accept that.

[11] Home detention was not recommended because the Service’s opinion was that it would be too restrictive, particularly with your medical condition. You are also supporting your daughter who has got her own medical issues unfortunately. You also have some responsibility for the care of the grandchildren.

[12] Mr Knowsley, in his written submissions indicated, quite properly, that on offending like this after a discount for plea and remorse, the end point might be one

of between 12 to 16 months imprisonment. That was a proper concession for him to make, but the force of Mr Knowsley’s submissions have been around community detention rather than home detention as the least restrictive outcome because of the medical condition.

[13] Sentencing had been set down in July but I adjourned to enable information to be provided on two matters:

1. The first was, and importantly, the state of your health. Last time Mr Knowsley told me that you wished to continue your employment and frankly, enjoy what time you had left.

2. It was to explore what steps could be taken by you or the wider family to meet any of the reparation outstanding.

[14] Information relating to these two matters was needed before I could decide whether community detention was the least restrictive outcome in all the circumstances rather than really what seemed like an inevitable sentence of home detention.

[15] At the conclusion of the hearing I asked Mr Knowsley to file a memorandum five days before today to update the position. That memorandum unfortunately was not filed, but Mr Knowsley has spoken at length today to those two issues and during a break today has telephoned your specialist to provide me with some further information.

[16] I appreciate that it is not flash to have your medical condition bandied around and in Court and in public, but of course it has got a bearing on the proper approach to sentencing today. You are on the waitlist for a kidney transplant and as Mr Knowsley said, that might take years. In the meantime you are heading towards dialysis and your specialist thinks that might be in three to four weeks time. While that clearly is going to be invasive, it may of course result in initially a better quality of life.

[17] In relation to the second issue, and that was reparation, Mr Knowsley told me that he had frank discussions with you and the family about that. You have got a car

loan, you borrowed money in 2009 for about a $17,000 car. It is worth about

$10,000 now and you are committed to paying off that loan. You are getting some help from your daughter with it despite her own difficulties. So, your financial position is such that there is no prospect of any lump sum payment against the reparation. You do not own a house which could be sold or otherwise borrowed against.

[18] Last time Mr Knowsley told me, in relation to the offending itself, Ms Hepi, that some complacency had set in, “wilful blindness,” Mr Knowsley said best summarised what you had done here.

[19] The Ministry is sympathetic to your health situation but they have taken the view that your health issues can be catered for by way of a sentence of home detention.

[20] The Ministry identified the aggravating factors as being:

1. The degree of dishonesty being in the moderate to high range.

2. The significant sum obtained, just over $40,000.

3. The pre-mediation.

4. The abuse of a position of trust.

5. The length of offending.

6. That they had had contact with you on at least 53 occasions throughout the duration of the offending but at no time did you tell the Ministry what the correct position was.

[21] You are paying the debt currently at the rate of $5 per week, that is going to take 154 years if it remains at that rate.

[22] The purposes of sentencing are denunciation and deterrence. Your thefts between 1 November 1999 and April 2010 are a theft against every taxpayer. The

system of benefits is there to assist those in our community who need it. Almost all New Zealanders do not begrudge helping out those who genuinely need assistance. This is difficult offending to detect so when it is proven, denunciation and deterrence are important factors.

[23] I take into account all of the purposes of sentencing and the principles of sentencing, in particular, the need for consistency and the need to impose the least restrictive outcome.

[24] Aggravating your offending is:

1. The abuse of trust. The system of benefits relies on the honesty and integrity of its users. If the Ministry had to check every document before paying benefits or check every payment before they made it then the system would grind to a halt. I agree. You had every opportunity to put this right but you allowed what was not rightfully yours to keep coming into your account. You had numerous contacts with the Ministry but you still did not put it right.

2. The period of offending over 10 years and just over $40,000 overpaid to you.

3. That it was deliberate and calculated conduct.

[25] As the Ministry has said, there are no tariff cases because the cases differ so much in their circumstances. As it was observed in Hogan v Ministry of Social Development (HC Napier, CRI-2005-441-000024, 22 July 2005, Gendall & MacKenzie J) fraud on the Ministry of Social Development is no different for sentencing purposes to any other fraudulent use of documents to illegally obtain money from agency, individuals, or companies.

[26] In a case called Davey v Ministry of Social Development (unreported, CRI-2009-454-000047, HC, Palmerston North, 15 December 2009, MacKenzie J) MacKenzie J observed that:

It is clear that a sentence of imprisonment is a usual and appropriate outcome for cases of substantial benefit fraud.

[27] And also stated that:

The introduction of the new sentence of home detention introduces a new aspect which may need to be addressed in such cases.

[28] This was a substantial benefit fraud. I adopt a start point for sentencing purposes of 18 months imprisonment. I would deduct three months for your remorse and to reflect your medical condition. I would deduct three months for your guilty pleas. The plea was not at the first reasonable opportunity, that results in an indicated end sentence of 12 months imprisonment on these charges.

[29] In my assessment, a sentence of home detention is the least restrictive outcome. I reject the recommendation of community detention and supervision, that would not meet the purposes of sentencing.

[30] On my assessment, your medical condition, as sad as that is, can be managed by way of a sentence of home detention. I would imagine that you will be permitted to carry out your work at the council because it is a workspace which can be easily monitored and the Service will ensure that you are able to have your medical treatment carried out.

[31] I have said to you, and I will record it here so it is in black and white, if there is a significant change to your medical condition that there needs to be further relaxation, on humanitarian grounds, I would grant a review and amend or vary this sentence to one of community detention, but that stage, in my assessment, has not been reached yet.

[32] So, home detention is the least restrictive outcome from a sentence of imprisonment. Accordingly, Ms Hepi, on each charge you are convicted and sentenced to four months home detention. The home detention address is

12 Douglas Street, Levin. The special conditions of the sentence are:

1. To travel directly to the address of 12 Douglas Street, Levin immediately following sentencing and await the arrival of the

probation officer and the representative of the electronic monitoring company.

2. To remain at the address of 12 Douglas Street for the duration of the sentence unless otherwise authorised by your probation officer.

3. To undertake and complete any programme, course, counselling or assessment if and as recommended by the assessment to the satisfaction of your probation officer and the programme provider. Details of the appropriate programme are to be determined by the probation officer.

4. There will be standard post-detention conditions for six months after detention end date and special post-detention conditions for six months after detention end date, that is condition 3 in relation to programmes, courses or counselling.

[33] Can I say this in relation to the four months home detention that I have imposed, that six months would ordinarily be appropriate. However, again I need to consider your health as it stands today and I do so. Again, I reiterate that if your health deteriorates and the sentence needs to be reviewed, it can be brought in front of me on short notice and I will do so.

[34] I am asked by the Ministry to make a reparation order. This might be something that needs to come back before the Court in due course because it seems to me that it is not realistic that it is going to be paid, bar a Lotto win or some other funding. On 0292, you are convicted and ordered to pay reparation of $40,000. That can be paid at the rate of $15 per week and can be reviewed in six months by the registrar.

G M Lynch

District Court Judge