Ministry of Social Development v Cheung DC Wellington CRI-2010-085-6152 [2011] NZDC 85 (25 January 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT WELLINGTON

_{CRI-2010-085-006152}

MINISTRY OF SOCIAL DEVELOPMENT

Informant

v

FRANK SHIU POK CHEUNG

Defendant

Hearing: 25 January 2011

Appearances: A Mahana for the Informant

J Miller Senior for the Accused

Judgment: 25 January 2011

_{NOTES OF JUDGE I G MILL ON SENTENCING}

[1] Frank Cheung, you appear for sentence on four charges: a charge of forgery, which carries a maximum sentence of 10 years’ imprisonment, and three charges of using a document in various ways, carrying a maximum seven years’ imprisonment.

[2] These charges relate to fraud perpetrated by you, following the death of your mother in 1996. You were her executor, and you did not notify the Ministry of her death, and as a result payments continued, and in fact those payments continued of her superannuation until the end of 2009.

[3] During this period you redirected the superannuation to be paid into your own account by forging her signature, and during this period of time you withdrew

_{or spent the money that was received.}

MINISTRY OF SOCIAL DEVELOPMENT V CHEUNG DC WN CRI-2010-085-006152 25 January 2011

[4] For some of the time, in fact for quite a period of the time, you yourself were on a benefit, and in more recent years you have received superannuation yourself. You are now 70 years of age.

[5] You have a traffic conviction but no conviction that is relevant to the sentencing today.

[6] $157,408 was received by you, and you have today arranged for that amount, or at least $157,000 to be paid in reparation.

[7] The offending itself was of course habitual and repetitive, resulting in a significant loss to the community, noting, of course, that as at today you have repaid that. However, given the seriousness of the offending, a deterrent sentence is required, while taking account of your personal circumstances and any other mitigating circumstances that I can find.

[8] Imprisonment for such extensive and serious offending is appropriate, and in my view offending of this sort, that is, sustained offending involving a large sum of money, must normally call for a custodial sentence. It goes far beyond a community-based sentence, notwithstanding your age, and not withstanding your lack of previous offending.

[9] The informant in this case has given me notes of a number of cases and I have taken those notes into account and the cases involved, and also your lawyer’s submissions on the level of penalty. In my view, offending of this sort involving the sum involved that we have in this case means that a starting point, that is, before I reduce the sentence for any mitigating circumstances, would be one of two and a half years’ imprisonment. In my view that takes account of all the features in this case that are said to be aggravating, because they are simply features that are common to this type of offending, and I have factored those features into the starting point.

[10] Now there are some mitigating circumstances in this case. It is said that you are remorseful for your actions. It is hard for me to judge that, but you have

committed a long-standing fraud on countless occasions, and used the money that you knew was not yours. However, you have demonstrated some of that remorse by in fact repaying the amount owed in full, which I must say is not a common factor in these cases. The fact that you have repaid that amount is a significant mitigating factor, together with the remorse that you show in doing that.

[11] I take into account your age, and also your physical condition. Also, of course, and importantly lastly, I take into account that you pleaded guilty to these charges at the first reasonable opportunity, and once the other mitigating factors are taken into account, I intend to reduce the sentence by 25 percent. That is in line with a decision of the Supreme Court in the case of Hessell v R [2010] NZSC 135; (2010) 24 CRNZ 966.

[12] So, the starting point is 30 months or two and a half years’ imprisonment. I deduct six months from that sentence for the repayment of the sum owing, together with the remorse that that shows, and in respect of other circumstances including your age and your significant physical illnesses, I deduct around three or four months for that. I then deduct 25 percent of the remaining sentence, and so a sentence of 15 months’ imprisonment, or thereabouts would be appropriate in this case.

[13] I am asked to impose home detention rather than a period of imprisonment. Home detention is a deterrent sentence. In cases such as this, it can be. It is a severe restriction on your liberty, and in my view home detention serves the primary purpose of sentencing: that of deterrence and denunciation, particularly given that you have repaid the amount, which is a sizeable amount, and in doing so you have sold your house and your only real asset, and are effectively homeless although of course you have a place to live. So, doing the best I can with those calculations that I have mentioned, in my view a term of seven months’ home detention is appropriate.

[14] So in this case you are convicted, in each of the informations, and sentenced to home detention for a period of seven months. That sentence is deferred until tomorrow, and the home detention address is 20 Norfolk Street in Avalon,

and the conditions of the sentence are as set out in the probation officer’s report. Essentially you are to reside at that address for the duration of the sentence, and cannot leave it without the approval of the probation officer. In the meantime, your bail continues on the condition that you go to 20 Norfolk Street, Avalon, and remain there until tomorrow, and that is when the probation officer and security officer will visit you for the purposes of induction to the sentence of home detention.

[15] You are also ordered to pay reparation of $157,000 to the Ministry of Social Development immediately. I make that order so that the money can be released that you paid in today to the Ministry of Social Development.

I G Mill

District Court Judge