Ministry of Social Development v Ah Chong [2018] NZDC 12583 (21 June 2018)

Last Updated: 15 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT WAITAKERE

CRI-2017-092-003330

[2018] NZDC 12583

MINISTRY OF SOCIAL DEVELOPMENT

Prosecutor v

KERRY AH CHONG Defendant

Hearing:	21 June 2018
Appearances:	S Barrett for the Prosecutor D Dufty for the Defendant
Judgment:	21 June 2018

NOTES OF JUDGE N J SAINSBURY ON SENTENCING

[1] Mr Ah Chong, you are for sentence on two charges of dishonestly using a document. What it relates to is a situation where you have been in receipt of a benefit. You were, however, in a de facto relationship but continued to receive levels of support inconsistent with the fact that you were in that relationship.

[2] The serious aspects of the offending are that it happened from June 2013 to October 2015, so there is a period of time where it persisted. That means that having had an opportunity to reflect on what was going on and stop, you continued.

[3] The amount at stake was also an issue of real concern. It was a little bit over

$62,000. So when your lawyer and the Department filed sentencing submissions initially some time ago, they were in general agreement that what cases say is that for that level of fraud over that period of time, is that the Court is supposed to consider a

MINISTRY OF SOCIAL DEVELOPMENT v KERRY AH CHONG [2018] NZDC 12583 [21 June 2018]

starting point of imprisonment. As to the length of the starting point there was a difference in views. Your lawyer suggested that what the cases showed was that a starting point of around 18 months was appropriate. Prosecution was not much different, they saw it as around 20 months. Both were probably well within the range of starting points that were available.

[4] What is important here though is that there are other factors at play. The most important is that your attitude to reparation has been exemplary. You started paying back early. You have made an effort to pay back lump sums and indeed, you and your partner sold your home and have used proceeds of that to repay what is owed. The upshot of that is, from an amount of over $62,000, there is now all but $7000 to be repaid and you are continuing to do that.

[5] You have lost the benefit of home ownership and it goes without saying that that is a considerable disadvantage in terms of the market in this city. That not only indicates an excellent attitude to reparation which I am obliged to take into account and should take into account, it is indicative of genuine remorse by you. That is also reflected in the early guilty plea. It is also consistent with the other material I have which, rather sadly, indicates that you are someone who I would not expect to be before the Court for doing this. You are well spoken of, you are well regarded. You have had a commitment to bringing up your daughter on your own and which you have done incredibly responsibly. I have read the reports that speak so well of you about that.

[6] I am entitled to take all that into account. Those factors all reduce the gravity of the offending and provide a degree of mitigation to the offending. What collectively they do is change this from a case where I would be looking at imprisonment to something quite different. It is agreed by both parties that the alternative sentence of community detention is the appropriate one and I agree.

[7] There had been some suggestion that I could add community work. That is not uncommon in these circumstances but I am not going to do that. I am going to leave it at community detention and indeed at a level that is probably lower that might otherwise have been the case. That key factor that has impressed me is that you have

paid back reparation. You have actually done it, not just left it with a promise, you have got on and done it. That is very much to your credit.

[8] This has been a protracted sentencing process. I take that into account because that is a form of punishment as well to find yourself back before the Court with this hanging over you.

[9] In the end, you are sentenced to three months’ community detention starting on 26 June, to be served at [address deleted]. The hours are between 21:00 and 07:00 Monday to Sunday. That of course means that you can continue your employment.

N J Sainsbury District Court Judge