Ministry of Social Development v Collier DC New Plymouth CRI-2011-043-3884 [2012] NZDC 890 (13 June 2012)

Last Updated: 11 January 2018

IN THE DISTRICT COURT AT NEW PLYMOUTH

_{CRI-2011-043-003884}

MINISTRY OF SOCIAL DEVELOPMENT

Informant

v

PAHE CLAUDINE COLLIER (AKA) PAHE CLAUDINE DAVIS Defendant

Hearing: 13 June 2012

Appearances: P Transom for the Informant

A R Laurenson for the Defendant

Judgment: 13 June 2012

_{NOTES OF JUDGE M A COURTNEY ON SENTENCING}

[1] Ms Collier, you have pleaded guilty to 10 charges; three charges of using a document with intent to defraud under Crimes Act 1961, five charges of using a document with intent to obtain a pecuniary advantage also charged under the Crimes Act and two charges of wilfully omitting to advise under Social Security Act 1964. The charges relate to you applying for and continuing to receive an invalid’s benefit.

[2] In September of 1997 you were granted an invalid’s benefit. When you applied for that you agreed to immediately advise the Ministry if there were any changes in your circumstances that could affect your entitlement, including if you

_{obtained employment.}

MSD V COLLIER (AKA) DAVIS DC NWP CRI-2011-043-003884 [13 June 2012]

[3] The summary of facts notes that in terms of the charges of wilfully omitting to advise you gained employment first of all with the Te Ihi Rangi Trust in June 2008 and continued that employment through until August 2011 and secondly with Te Whare Puawai O Te Tangata Trust from 11 October 200 until 10 May 2008.

[4] The charges with regard to using a document relate to you completing forms every year after that in which you failed to advise that you were working and in July of every year from 2001 through to, and including, 2008 you completed forms for the Ministry which you failed to inform them that you had in fact obtained employment.

[5] Over that period for which you were not entitled, that was October 2000 until November 2011, you received an invalid’s benefit and accommodation supplements that you were not entitled to, amounting to $136,994.02.

[6] On any analysis this is serious offending committed on a repeated basis over a lengthy number of years. Not only now do you have convictions for these offences you also have previous convictions for dishonesty. There were eight convictions for dishonesty between 1979 and 1987 and whilst the last of those was in 1987, I do have to take those previous convictions into account in determining what is an appropriate penalty.

[7] You were probably present in Court when I dealt with the previous offender and said that benefit fraud is an offence that impacts on just about everyone in the community. It impacts those taxpayers who pay their taxes to fund the benefit system and it also has an impact on those honest beneficiaries who can end up getting tarred with the brush of people such as yourself.

[8] I note from the pre-sentence report that you expressed shame to the report writer for your actions although it goes on to say that your level of remorse is questionable. The report writer states that you presented with a sense of entitlement and justified your actions by stating that you needed the money to support yourself and your adult children. You were working throughout this period and clearly you did not need the money to support yourself and clearly did not need to support adult

children who were not living with you. I note the submission made on behalf of the Ministry that there were significant periods of time throughout when your bank balance had a credit balance of several thousands of dollars. You clearly did not need this money from a financial point of view and I accept these submission on behalf of the Ministry that greed was probably a motivation for you in this behaviour.

[9] I also suspect that any remorse is probably remorse at having been caught out rather than concern for what you have actually done.

[10] The counsel for the Ministry has filed submissions which I have had an opportunity of considering. Those submissions refer to the general principles that relate to sentencing for benefit fraud and refer first of all to the decision of the full bench of the High Court in Hogan v Ministry of Social Development HC Napier, CRI-2005-441-24, 22 July 2005, Gendall & MacKenzie J. In that regard the Court has said that the sentencing Court has to take into account the degree of dishonesty, the amounts obtained, the repetitiveness and premeditation of the behaviour, the need to denounce the conduct and to deter others when balanced against mitigating features relating to the offence and the offender.

[11] The Court also said the gravity of the offending and the overall culpability may justify imprisonment if any other sentence is inappropriate. That, as a starting point, has been recognised by Mr Laurenson on your behalf and, for reasons which I will come to later, justify such a sentence in this case. Part of the reason for that is also noted in that case in that the number of fraudulent acts is relevant and once the offending becomes repetitive, imprisonment becomes more likely. In this case, as I say, there are 10 charges you face and there were those several years over which you completed that documentation with the Ministry in which you failed to advise them of the fact that you had employment.

[12] The Court also made the comment that there will be mitigating features that come into account, such as a first offender and a guilty plea, employment and rehabilitation prospects and family circumstances. The Court in Hogan made reference to an earlier case which was the decision in

Faiers v Police (1989) CRNZ 186, and said that the principles itemised there are relevant. I read just one part of the decision in Faiers where the Court said:

The community assists its less fortunate members by support from public funds in the expectation that the recipients will be honest. The difficulty of locating persons who commit these frauds raises a greater necessity for honesty and a greater expectation that trust will be honoured.

Clearly in this case you have failed to honour that trust that the community expects.

[13] The submissions for the Ministry make reference to the Court of Appeal decision Ransom v R [2010] NZCA 390, and also a decision in the High Court in New Plymouth, Wilson v Ministry of Social Development, CRI-2011-443-037,

2 November 2011. It is submitted that the factors in this case distinguish it from Ransom and I will come to that shortly. I agree that is the case and it is more closely aligned with the decision in Wilson.

[14] The Ministry submit that the starting point is a sentence of imprisonment for some two to three years because of the various factors that are set out in this case - the amount obtained, deliberate and pre-meditated action sustained over a period of almost 11 years, the fact that you had received benefits over previous years and you knew what your obligations were, your claimed sense of entitlement.

[15] The submissions that Mr Laurenson has filed on your behalf make reference to your age, which is a factor that I will take into account. Also to the fact that your offending was motivated by a wish to provide for your family. I do not accept that was the case. I note your health background and that you have suffered in a personal sense with loss of your sons, and that has had an impact on your health as well, and that imprisonment will not be an easy sentence for you to undertake.

[16] It was suggested that by continuing with your employment you would be in a position to repay to the department part of the funds that were taken. I note at the moment that you are repaying at the rate of some $30 per week. The calculation on the part of the Ministry is that it would take some 87 years to repay. Even if there was a significant increase in repayment it will be just a drop in the bucket as far as this offending is concerned. I believe that the requirement for deterrence is more

important than the ability for you to be able to repay the sums owing to the department. Mr Laurenson accepts that a starting point for imprisonment is one of some two to two and a half years.

[17] In determining an appropriate sentence there are various purposes set out in the Sentencing Act 2002 which the Court has to take into account as relevant. In this case I believe that the purposes that relate to you first of all are accountability, holding you accountable for your actions, and promoting a sense of responsibility for what you have done. A significant factor that is relevant in this case is denouncing what you have done and deterring others from wishing to do the same, and in doing that protecting the community from others who maybe inclined to undertake the same action as you have undertaken.

[18] The principles under the Act that I believe are relevant in this case include the gravity of the offending. This is at the serious level. I take into account consistency with sentencing in other cases of similar offending, the effect of the offending on the victim, and I also have regard to the fact that I must impose the least restrictive outcome that is appropriate in the circumstances.

[19] As far as aggravating features are concerned, I have already mentioned the extent of the over-payment made to you and the fact that it continued for a period of almost 11 years. That puts the matter to me at the moderate to high end. Another significant aggravating feature is that abuse of trust or authority. As I have said, you have completed those forms over several years and each time you have failed to inform the Ministry. That shows a pre-meditation on your part to continue to receive that benefit. You do have previous convictions, and whilst they are some time ago, each of those is for dishonesty. There is a history of dishonest behaviour on your part over very, very many years.

[20] As far as mitigating factors are concerned, I take into account that you have pleaded guilty at an early stage and I will give a full credit for that in terms of the sentence that I determine is appropriate.

[21] Having regard to all of those matters I believe that a starting point of two and a half years’ imprisonment is appropriate. Giving you the 25 percent credit for your guilty plea brings a sentence back to one year and 10 months. I have referred to a Court of Appeal decision in Ransom which involved setting aside a significant sentence of imprisonment, but the circumstances of this case are significantly different to that. In that case there was the personal circumstances of the appellant, that she had a six year old who was dependent upon her, and in that case if she was able to care for that child her husband would be able to return to work. There is no such similarity here.

[22] The decision in Wilson that I have referred to, a decision in the High Court in New Plymouth last year, involved a similar level of offending. That involved approximately $140,000 worth of offending. The offender in that case, however, had no history of dishonest offending which distinguishes it from this case. In that case a sentence of imprisonment of one year eight months was upheld on appeal and I believe that the circumstances of your case are very similar to that. As I have said, that person had no previous offending and that was a factor that the Judge brought into account in reducing the sentence to one year eight months.

[23] In this case I take into account your age at age 63, and the health factors that have been referred to, and for those personal circumstances I believe that an appropriate end sentence is one of one year and eight months.

[24] That then brings me to the issue of home detention. As I have already indicated to Mr Laurenson, I am not prepared to consider that as an appropriate sentence in this case. The first reason for that is that the offending here is serious and involves a sum of around $137,000. Secondly, there are no rehabilitative needs that are identified in the pre-sentence report which would justify a sentence of home detention. Thirdly, the issue of remorse is qualified for the reasons that I have already covered. Also, there is no prospect in this case of reinstatement of the significant sum to the Ministry. However, probably the most important factor in this case with regard to home detention is that you reside alone. You have done so for the past 13 years, and having regard to your mental health situation home detention could cause isolation, could cause an increase in depressive symptoms and would be

inappropriate. In addition imposing that having regard to your other employment opportunity, which involve sleeping over with other people, means that any community-based detention would be an inappropriate sentence.

[25] For those reasons I believe home detention is not an appropriate option and on each of these charges you are therefore sentenced to a period of imprisonment for one year and eight months.

M A Courtney

District Court Judge