Paki v Ministry of Social Development [2012] NZHC 2803 (24 October 2012)

Last Updated: 9 November 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-36 [2012] NZHC 2803

BETWEEN HEMI TE AREA TE KAPO PAKI Appellant

AND MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing: 24 October 2012

Counsel: J M Smylie for Appellant

H G Sheridan for Respondent

Judgment: 24 October 2012

_{JUDGMENT OF KEANE J}

Solicitors

Crown Solicitor, Tauranga

Counsel

J L Smylie, Tauranga: [e-mail]

HEMI TE AREA TE KAPO PAKI V MINISTRY OF SOCIAL DEVELOPMENT HC TAU CRI 2012-470-36 [24

October 2012]

[1] On 11 September 2012 Hemi Paki was sentenced to imprisonment for one year, eight months, for 18 offences involving welfare benefit fraud between 2 August

1999 - 14 January 2011, some 12 years: five offences of using a forged document, four of dishonest use of a document, and the balance obtaining by deception.

[2] According to the uncontested statement of facts on sentence, Mr Paki, a beneficiary since 1997, had received throughout an accommodation and related supplements, to which he was not entitled, totalling $51,000.

[3] In 18 instances, on applications and on reviews, he had held out that he needed these supplements to meet his rent, when that was not true. In five, the first in

1999, the last in 2010, he relied on forged tenancy agreements. In that last instance on a forged letter as well. In this, as the Judge said on sentence, he was systematic and deliberate.

[4] On this appeal against sentence the Judge's decision to imprison Mr Paki is not in issue. The Judge would have imposed home detention if Mr Paki had been able to identify a suitable address. The Judge did grant Mr Paki leave to apply for home detention if during the course of his sentence he obtained one.

[5] The question on this appeal is whether, as Mr Paki contends, the term of imprisonment the Judge imposed on him was manifestly excessive. The Judge, he contends, took too high a starting point, as the Judge said, between 24 - 30 months. It ought, he contends, not to have been any higher than 15 - 18 months. With a full 25 per cent discount for plea, he contends, his sentence ought not to have been more than 13 - 14 months imprisonment.

[6] The Ministry contends, by contrast, that the sentence the Judge imposed was open in principle and proportion. The Judge's actual starting point, given the end sentence and a full discount for plea, must have been 26 - 27 months. Even if she had taken a starting point of 18 - 24 months, the Ministry contends Mr Paki's previous convictions might have justified a modest uplift. The Judge did give a full 25 per cent discount for plea.

[7] As this Court said in Hogan v Ministry of Social Development,[1] there is no tariff for benefit fraud, just as there is none for other forms of fraud. The amount obtained is one factor. The period over which it is obtained another. What impelled the offender, whether it was need or greed or both, yet another. All the usual factors going to the offence and the offender come into play.

[8] The sentence imposed must then be both specific to the case and sensibly within the range imposed in other generally like cases. But no case is exactly like another. Two comparisons will suffice.

[9] In Heta v R,[2] the case the Judge found nearest to this, where a 15 month starting point was upheld on appeal, the amount defrauded was also $51,000. But that was obtained over 19 months, within a five year span, and the wider range of benefits there obtained could be intelligibly related to the needs of the appellant's family.

[10] In Whitelaw v R,[3] the case on which Mr Paki relies principally, a two year starting point was upheld and described as, if anything, conservative, for a fraud extending over seven years resulting in an over payment of $76,164. In contrast to Heta, the Court held, the appellant's fraud was not borne of any need. It was part of a wider pattern of cynical long term fraud for which the appellant had many convictions.

[11] In this case, by contrast to those cases, Mr Paki fraudulently obtained one form of benefit, when he may have been entitled to others. But he did so over 12 years and throughout those years he relied on forged documents. The fact of that reliance is reflected in five of the offences charged and admitted, which attract not the usual seven year maximum, but ten years. Those five offences had then to be primary.

[12] The starting point the Judge took had to take account of those five offences, as she apparently recognised; and when her starting point is set against those adopted

in the two cases to which I have referred, I agree with the Ministry's submission that a starting point in the range 18 months, even two years, could not be considered excessive.

[13] The Judge also had to consider Mr Paki's previous convictions. They are very numerous but that in itself did not require any uplift. Mr Paki does, however, have 12 cheque fraud convictions in 1994. At first blush, they may appear stale, but they preceded this continuing fraud by only four years. They cannot be ignored. They might not justify an uplift. They do go to whether the sentence can and must be rated manifestly excessive.

[14] The sentence the Judge imposed, I consider, was right at the highest end of the range available to her, consistent with proportion and principle. It is a stern sentence but, it seems to me, not so much so as to be rated manifestly excessive. The

_{appeal will be dismissed.}

P.J. Keane J

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[1] _{Hogan v Ministry of Social Development [2005] 23 CRNZ 500.}
[2] _{Heta v R [2012] NZCA 267.}
[3] Whitelaw v R [2012] NZCA 438.