Breen v Housing New Zealand [2012] NZHC 2065 (13 August 2012)

Last Updated: 4 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-302 [2012] NZHC 2065

BETWEEN PAUL BREEN Applicant

AND HOUSING NEW ZEALAND Respondent

Hearing: 13 August 2012

Appearances: Applicant in person with Mr N Crew (McKenzie Friend) E N FitzHerbert for Respondent

Judgment: 13 August 2012

_{ORAL JUDGMENT OF PRIESTLEY J}

Counsel:

E N FitzHerbert, Crown Solicitor, Auckland. Email [e-mail]

Copy to:

Mr Breen, 3-6 Glen Atkinson Street, St Heliers 1071, Auckland. Email: [e-mail]

BREEN V HOUSING NEW ZEALAND HC AK CRI-2011-404-302 [13 August 2012]

[1] This is an application for leave to appeal to the Court of Appeal, pursuant to the provisions of s 144 of the Summary Proceedings Act 1957. Leave is sought in respect of a reserved appellate judgment of Duffy J released on 24 May 2012.

[2] Ideally this application should have been heard by Duffy J herself. Through some misunderstanding, however, it was listed before me.

[3] Given the provisions of s 144(2) and in particular the well known criteria set out in R v Slater,[1] the application for leave is essentially hopeless.

[4] What is perturbing the applicant, however, with whom I have had a useful dialogue, is his current predicament and indeed the predicament he found himself in before his conviction.

[5] The applicant was tried in the Auckland District Court before Judge Perkins, an experienced Judge, in February 2011. He faced nine counts (acquitted on four and convicted on five), all of which related to defrauding Housing New Zealand Corporation in respect of the appropriate rental payable for a Housing Corporation property the applicant occupied in Orakei.

[6] Essential to the prosecution case was the fact that at material times the applicant was allegedly living in the property with a woman who, so it happens, is the mother of his two sons. It was alleged the applicant had signed declarations to the effect that this woman was a boarder when in fact the couple were living in a de facto relationship.

[7] In respect of some of the counts he faced the applicant was acquitted. In respect of charges relating to alleged offending between April 2002 and May 2006,

_{the Judge was satisfied that they had been proved beyond reasonable doubt.}

[8] Almost six months later the applicant was sentenced. As a first offender he was dealt with leniently. The presentence report was essentially favourable. The Judge imposed sentences of 150 hours community work (which the applicant has completed even though the appeal would technically suspend that sentence) and the five months community detention at his parental home in Glen Atkinson Street, St Heliers. Finally a large reparation sum (slightly over $54,000) plus annual interest was ordered.

[9] Duffy J, for reasons I do not need to itemise, dismissed the appeal. Clearly on the basis of the information before her she was correct so to do.

[10] As best as I can sort out the applicant’s predicament, his real grievance is that for many years, and particularly between 2002 and 2006, he suffered from a degree of mental impairment. His McKenzie friend has described this (Mr Crew having known him for many years) as not being able to think in a linear fashion. Certainly some symptoms of this have been evident before me this afternoon.

[11] The issue which the applicant considers should have been placed before the District Court and Duffy J on appeal was this mitigating feature of his mental impairment. Indeed it is possible that his mental impairment may have made it difficult for the prosecution to sheet home the necessary mens rea of the offences for which the applicant was convicted. Reference has been made to a Housing Corporation minute in 2002 which makes some reference to this disability of the applicant and recommends he should not be prosecuted.

[12] Mr Breen candidly told me that he ventilated these concerns in part before Duffy J who advised him that this was an important appeal point. However, for reasons which I do not totally understand, the applicant (who represented himself on the appeal) chose not to advance that ground.

[13] There is clearly, as I have said, no principled basis on which I can give the applicant leave to appeal to the Court of Appeal. The concerns he has relate to the process in the District Court and more importantly to a lack of relevant evidence which could have been advanced at both levels but was not.

[14] Again, for reasons I do not totally understand the applicant is required to appear to be resentenced in the Auckland District Court on 29 August 2012 (a Wednesday). This is apparently because the applicant is yet to perform the five month community detention aspect of his sentence. The Registry of this Court is of the view that problems have arisen with the proposed detention address. This may well be the case because the applicant’s father, and owner of the property, was reluctant to sign the necessary documentation whilst he was on his annual sojourn to Europe. Nonetheless the applicant tells me that he has been residing at the Glen Atkinson Road address throughout and indeed lives there with his two children of whom he is the principle caregiver.

[15] In this situation, there is with respect, no sound basis (assuming I have been correctly informed) to interfere with the sentence imposed by Judge Perkins in July last year.

[16] My assessment for what it is worth (which I accept is not required in the context of my s 144 judgment) is that the interests of justice are best served by the applicant’s sentence being reconfirmed; by him serving out the community detention aspect at the Glen Atkinson Road address; and by him negotiating with the Housing Corporation a suitable programme for meeting the reparation commitment which the Judge awarded.

[17] Although Mrs FitzHerbert was not totally sure on this aspect, it could well have been that the Judge did not have the benefit of a full reparation report. Had that been obtained it would have been apparent that the applicant’s ability to pay reparation was somewhat limited given that, for health reasons, his employment was sporadic.

[18] The only proper result is for me to dismiss the application for leave to appeal to the Court of Appeal. It is so dismissed. However, I grant leave to Mr Breen and to whomever may represent him on 29 August to provide a copy of this judgment to

the relevant District Court Judge for what I am sure will be appropriate consideration.

..........................................
Priestley J

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[1] R v Slater [1997] 1 NZLR 211 at 215.