Wilson v Ministry of Social Development HC New Plymouth CRI-2011-443-037 [2011] NZHC 1455 (2 November 2011)

Last Updated: 12 November 2011

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

_{CRI-2011-443-037}

JOANNE MICHELLE WILSON

Appellant

v

THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing: 25 October 2011

(Heard at New Plymouth)

Counsel: P Mooney for Appellant

S Law for Respondent

Judgment: 2 November 2011 at 10:15 AM

_{JUDGMENT OF TOOGOOD J}

This judgment was delivered by me on 2 November 2011 at 10:15 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

P Mooney, Mooney & Webb, New Plymouth: [e-mail]

S Law, CE Clarke, Crown Solicitor, New Plymouth:

WILSON V THE MINISTRY OF SOCIAL DEVELOPMENT HC NWP CRI-2011-443-037 2 November 2011

[1] Joanne Michelle Wilson has appealed against a sentence of one year and eight months’ imprisonment imposed by Judge AC Roberts in the District Court at New Plymouth on 8 July 2011 for benefit fraud, specifically three charges of using a document with intent to defraud and 18 charges of dishonestly using a document.

The circumstances of the offending

[2] The background circumstances to the offences, to which the appellant pleaded guilty at an early stage, were conveniently summarised by the Judge, as follows:[1]

[2] You received benefits as a single person commencing in December 2001, initially the unemployment benefit. That was supplanted by the domestic purposes parent benefit and thereafter an invalid’s benefit. You received benefits as between December 2001 and October 2010. Additionally you applied for and received other assistance including an accommodation supplement, special needs grant, special benefit and temporary additional support.

[3] On 22 November 1997 you married Robert Wilson. Information filtered through to the department. The department made enquiries, essentially establishing in their eyes that you were living with your husband and had done so since prior to 17 November 2001. Over the period you received a benefit you submitted documents, 21 in total, that falsely, the department contends, claimed you were just single and did not live with your husband. The overpayment received totalled just short of $140,000.

The circumstances of the appellant

[3] The appellant is aged 40 years. She has significant health issues including angina, osteoarthritis, high cholesterol level, hypertension, diabetes, asthma and depression. At the time of the pre-sentence report, the appellant was living with her

19-year-old daughter and one-month-old grandson. The appellant had been in employment as an on-call relief carer at a local rest home but, when sentenced, was an unemployment beneficiary. The appellant had made automatic payments in reduction of the debt arising from her offending, at a rate of $20 per week, totalling

$140. The arrangement was no doubt significant to the appellant on a weekly basis but must be regarded as only a token reduction in terms of reparation.

The District Court Judge’s approach to sentencing

[4] After noting the circumstances of the offending and the appellant’s personal circumstances as described above, the Judge approached the sentencing discretion on the basis of assessing, first, what would be an appropriate term of imprisonment if such a sentence was imposed and then turned to consider whether home detention would represent a more appropriate penalty.

[5] The Judge took a starting point, bearing in mind the length of the period of offending and the total defalcation of two-and-a-half years’ imprisonment. In doing so, he characterised the offending as amounting to a serious breach of trust, saying that the offending involved deliberate deceit in 21 documents, on 18 distinct encounters were documents were completed and on at least 70 occasions during interaction by phone between Ministry representatives and the appellant.

[6] The Judge took into account the claim by the appellant that her husband was essentially no more than a border in her home and that he was making a minimal contribution to the financial resources of the household. However, the Judge stressed the need for deterrence to be given some prominence in sentencing for cases of this kind.

[7] Taking into account factors personal to the appellant, he allowed a full

25 percent concession for the early pleas of guilty,[2] and then reduced the resulting sentence of one year and ten months’ imprisonment by a further two months to recognise the appellant’s previous unblemished record.

[8] Having reached the conclusion that a sentence of one year and eight months’ imprisonment would be appropriate, the Judge turned his mind to the issue of home detention. As to that, he said:

[22] Mrs Wilson, I now want you to stand. I turn finally to address the issue of home detention. I do not intend to allow that in relation to these prosecutions for these reasons:

(a) The offending is serious. It involves a defalcation of $140,000 secured over a 10 year period. Sentencing principles of denunciation and deterrence, in my judgment, must be at an elevated level. Over

$1.2 million per week goes out the door and has done for the past year. Payments made to people otherwise unentitled.

(b) There are no rehabilitative needs identified within the pre-sentence report. Nominated as a condition for home detention is budgeting advice. Here, in my decision, a sentence of home detention is being sought as an alternative to prison but largely on the basis that the focus is punitive.

(c) Remorse is qualified. While I accept I have sentenced today on the basis of the summary, there was a position perhaps reflected in the per-sentence report that is not expressing remorse as, in my judgment, it should be.

(d) While the plea is made that your daughter is not coping with her child, the responsibility is not directly yours and the situation that was pertaining in the Ransom decision is removed from your offending.

(e) Further, there is no prospect of reinstatement.

The Court of Appeal’s judgment in Ransom v R

[9] Ransom v R,[3] to which the Judge referred at [22](d) of his notes, is a case in which the Court of Appeal allowed an appeal against a decision of the Judge himself to impose a period of 18 months’ imprisonment for benefit fraud where the dishonesty extended also over a ten year period and involved a total defalcation of

$128,000.

[10] In substituting the sentence of imprisonment with a sentence of nine months’ home detention (reduced from an otherwise appropriate 12 months’ home detention on account of time served), and 75 hours community work, the Court of Appeal noted that Judge Roberts had said in his sentencing remarks that “significant defalcations by way of benefit fraud are usually met by a term of imprisonment.” The Court interpreted those comments as reflecting the Judge’s understanding that a period of imprisonment was almost inevitable in a benefit fraud case with features of

_{the type before him.}[4]

[11] The Court then considered the purpose of a home detention sentence, referring to the Court’s judgment in R v Hill.[5] It quoted the observation by Arnold J, delivering the Court’s judgment, that creation of a sentence of home detention “reflects a perception that society’s interests are better served in some cases by the imposition of restrictions on liberty through home detention rather than through imprisonment”.[6] The Court also noted that, in another benefit fraud case, R v D (CA253/2008),[7] the Court of Appeal had considered the hierarchy of sentences set out in s 10A of the Sentencing Act 2002; the sentencing principle of imposing the least restrictive outcome appropriate in the circumstances, in accordance with the hierarchy of sentences;[8] and the terms of s 16 of the Sentencing Act, in relation to the circumstances in which imprisonment might be imposed.

[12] After reviewing Court of Appeal and High Court authorities, the Court in

Ransom said:

[39] In our view, the High Court cases demonstrate that, in some benefit fraud cases, home detention will be an appropriate sentence. Since Hill, it has been necessary for sentencing Judges to determine, on a case by case basis, whether a sentence of home detention will respond to the particular offending or whether, in terms of s 16(2) of the Sentencing Act, a sentence of imprisonment is required. There is no prescriptive or usual sentence in cases of this type.

[13] The Court said that the approach to considering whether home detention or imprisonment is the appropriate sentencing option, in benefit fraud cases of the kind presented in that case, requires “a more detailed and nuanced analysis” than simply ruling out a sentence of home detention solely on the grounds of the seriousness of

the fraud.[9]

[14] The Court of Appeal concluded that, in that case, a sentence of home detention in conjunction with one of community work would adequately respond to the sentencing goals of accountability, denunciation and deterrence. It noted that the

_{remorse expressed by Mrs Ransom was “not as fulsome as one may have liked and}

there is no real ability to repay the dishonestly obtained money”.[10] The Court was strongly influenced, however, by the need of that appellant to care for her dependent six-year-old child and the benefit of ensuring that her husband returned to paid employment. In a postscript to the judgment,[11] the Court said that, as the appellant’s husband had had to give up work in order to care for the child, who apparently had considerable behavioural difficulties exacerbated by his mother’s absence from the home, it expected that Mrs Ransom’s husband would do everything possible to return to work promptly.

The arguments for the appellant

[15] Mr Mooney was critical of the District Court Judge’s reasoning in the present case, arguing that he had not addressed home detention as a real alternative to imprisonment. I do not think it is correct to say that the Judge had repeated the error which the Court of Appeal identified in Ransom by ruling out home detention solely

on the grounds of the seriousness of the fraud. It is plain from the Judge’s analysis[12]

that he had considered a range of factors properly relative to a prospective sentence of home detention.

[16] While Mr Mooney emphasised decisions of the High Court in which sentences of home detention have been imposed as being appropriate for serious benefit fraud, it is plain from Ransom and the other authorities that each case must fall to be decided on its own facts, with consideration being given to the statutory sentencing framework. I am not persuaded that Judge Roberts did not turn his attention to considering home detention as a “real alternative” to imprisonment.

[17] Mr Mooney submitted that the absence of rehabilitative needs was a neutral factor, suggesting that by its very nature, home detention assists the rehabilitation of an offending following serious crime. That argument does not carry a great deal of weight in the present circumstances where the offending was in the nature of prolonged dishonesty of a kind not indicating that the appellant had become

_{immersed in a lifestyle of criminal behaviour from which rehabilitation was}

necessary. She deceived the Ministry of Social Welfare over a period of ten years, obtained a benefit at a level to which she was not otherwise entitled, and was eventually found out. There was no evidence of other criminality.

[18] Mr Mooney criticised the probation officer who had prepared the pre- sentence report for not noting the appellant’s remorse and said that the failure of the probation officer should not have been held against Mrs Hill. But I observed no particular expression of remorse in the written submissions presented to the District Court on sentencing. The Judge was entitled to characterise any remorse as “qualified” in view of the attempts by the appellant to explain her offending on the basis that her husband and she were not really living in a marriage situation and that he was merely a boarder. The simple fact is that he was paying board and, despite opportunities to declare the same, the appellant chose not to do so, to the detriment of the taxpayer.

[19] Mr Mooney also criticised the Judge for noting that there was no prospect of reinstatement of the amounts taken, observing that this might be expected to be the usual position in cases of this kind. The fact that benefit fraud cases, particularly of large amounts, usually result in a loss to the taxpayer which can never be recovered is not to be discounted. It is a feature of such cases which entitles the Court to consider whether the appropriate level of accountability, denunciation and deterrence can be achieved by a sentence of home detention. As the authorities indicate, all of the circumstances need to be taken into account in coming to a final view on that point.

Conclusions

[20] In the present case, Judge Roberts did not analyse the Ransom decision but he did make the point[13] that the situation that pertained in Ransom was removed from the present appellant’s offending.

[21] The Judge was entitled to come to the conclusion that such similarities as there are between Ransom and the present case did not require him to adopt the same

outcome as did the Court of Appeal in that case. The Judge was entitled to distinguish the present appellant’s claims to childcare responsibilities from those which were very much at the forefront of a Court of Appeal’s consideration in Ransom.

[22] This was serious offending of its type over a long period. It was open to the Judge to conclude that there were no rehabilitative needs which might be assisted by a period of home detention rather than imprisonment. I have also accepted that the Judge was able to take into account, as the Court of Appeal had done in Ransom, that the appellant’s expressions of remorse were qualified.

[23] Although he did not refer expressly to the statutory provisions, it is clear that Judge Roberts took into account the need for a sentence which addressed the purposes of accountability, denunciation and deterrence.[14] It is clear also that the Judge considered the mandatory factors in s 8, including the important consideration of imposing the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences set out in s 10A.[15]

[24] In relation to the sentence of home detention, having regard to the factors referred to by the Judge, particularly at [22] of the notes, it was open to the Judge to be satisfied that the purposes for which the sentence was imposed could not be achieved by other than a term of imprisonment.

[25] Looking at these matters overall, I am satisfied it has not been shown that the Judge erred in exercising his sentencing discretion. The appeal is dismissed accordingly.

......................................
_{Toogood J}

---

[1] Ministry of Social Development v Wilson DC New Plymouth CRI-2011-043-537, 8 July 2011.

[2] Hessell v R [2010] NZSC 40
[3] _{Ransom v R [2010] NZCA 390; (2010) 25 CRNZ 163.}
[4] At [14].
[5] _{R v Hill [2008] NZCA 41; [2008] 2 NZLR 381.}
[6] _{At [33].}
[7] _{R v D [2008] NZCA 267.}
[8] _{Sentencing Act 2002, s 8(g).}

[9] Ransom v R, at [41].
[10] _{At [42].}
[11] _{At [47].}
[12] At [22] of the Judge’s notes.

[13] At [22](d) of his notes.
[14] ® _{Sentencing Act 2002, s 7(1)(a)(e) and (f).}
[15] Sentencing Act 2002, s 8(g).