Wills v Ministry of Social Development [2014] NZHC 1816 (4 August 2014)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

Wills v Ministry of Social Development [2014] NZHC 1816 (4 August 2014)

Last Updated: 20 August 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-000020 [2014] NZHC 1816

BETWEEN	PETER LYNDON WILLS Appellant
AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	29 July 2014
Appearances:	Appellant in person T A Needham for Respondent
Judgment:	4 August 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 4 August 2014 at 2.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

WILLS v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 1816 [4 August 2014]

[1] Mr Wills obtained accommodation supplements for nearly nine years by making dishonest statements in WINZ application forms and, on one occasion, using a forged letter. In addition, he failed to advise WINZ of changes in his circumstances. Following a Judge alone trial in the Huntly District Court before

Judge Riddell, Mr Wills was convicted¹ on three charges of obtaining by deception,²

one of using a document with intention to defraud³ and one of using a document for pecuniary advantage.⁴ In addition, he pleaded guilty to one charge of using a forged document.⁵

[2] Judge Riddell imposed a sentence of six months’ community detention and made a reparation order of $20,078.36.⁶ Mr Wills appeals the reparation order on the ground that for a good part of the relevant period his circumstances would, in fact, have entitled him to a benefit and that should have been taken into account in setting the level of the reparation order.

The offending

[3] For many years Mr Wills has owned a property at 1049 Rotowaro Road, Huntly. There is no dwellinghouse as such on the property but Mr Wills purchased a small shed which he moved onto the property to live in. Nevertheless, there were many periods when Mr Wills lived in Auckland in rented accommodation, either to find work or (in the winter) because it was too cold to live in the shed.

[4] On 14 May 2003 Mr Wills completed application forms for an unemployment benefit and an accommodation supplement. In the accommodation supplement application form he stated that he was living at 1049 Rotowaro Road. As I noted, this was true at times but it is impossible to know whether it was true on the day he

_{completed the form. The real problem is that Mr Wills dishonestly stated that he did}

¹ _{NZ Police v Wills DC Huntly CRI-2013-024-000227, 19 February 2014.}

² _{Section 240(1)(a).}

³ _{Section 229.}

⁴ _{Section 228.}

⁵ _{Section 257(1).}

⁶ Ministry of Social Development v Wills DC Hamilton CRI-2013-024-000227, 26 March 2014.

not own the home he was living in and that he was paying rent. He gave a fictitious name as the landlord. Mr Wills also signed the last page of the form acknowledging that he had read the obligations set out there. These included the obligation to tell WINZ immediately of any changes to his circumstances, including in his accommodation costs.

[5] On the basis of this application form Mr Wills received an accommodation supplement for the period from 28 April 2003 to 27 July 2003. After those payments ceased Mr Wills did not receive an accommodation supplement for over a year, from

28 July 2003 to 29 December 2004.

[6] On 6 January 2005 he applied again for an accommodation supplement. In the application form he stated that he was living at 1049 Rotowaro Road. He did not answer the question about whether he owned the home that he lived in but he did, dishonestly, answer “yes” to the question “Do you pay rent?” and gave a fictitious name as the landlord. In addition, he provided a forged letter purporting to be from the landlord confirming the rental arrangements. He also signed the page containing the statement of his obligations which contained the same obligation to advise WINZ of any change to his accommodation costs. On the basis of this form Mr Wills received an accommodation supplement between 30 December 2004 and

28 February 2013.

[7] It appears that, had Mr Wills been truthful with WINZ then he would very likely have been entitled to an accommodation supplement for the periods he was paying rent in Auckland. That fact could not affect his convictions.⁷ It is, however, relevant to the appeal against sentence.

The reparation order

[8] In sentencing, the Judge referred to the pre-sentence report recommendation of supervision and community detention as being:

... extremely lenient ... given that the benefit fraud amounted to $20,000 and that is an amount which regularly attracts a term of imprisonment.

⁷ Hayes v R [2008] NZSC 3 at [12].

The aggravated features of the offending were the loss of $20,000 effectively stolen by Mr Wills.

[10] Having then determined, for various good reasons, that imprisonment, home detention and community work were inappropriate, the Judge imposed a reparation order of $20,078.36 and a term of community detention.

The appeal

[11] It is not clear how the Judge reached the figure of $20,078.36 for the reparation order. It is slightly higher than $20,000 referred to twice in the sentencing notes. It is nearly $2,000 higher than the total of $18,563.64 shown on the WINZ calculation of the accommodation supplement payments (exhibit 7). As well as payments for the accommodation supplement, that calculation also showed payments relating to an unemployment benefit, temporary GST assistance and temporary additional support. But together the payments total $24,384.46. There is a handwritten note on the calculations suggesting that Mr Will may already have made some payments, but no indication as to how much.

[12] Unfortunately there was a malfunction of the recording equipment during the hearing and two hours of evidence was not recorded. This included the evidence during which the WINZ calculation of over-payments was produced and, presumably, explained. Without the benefit of the evidence I cannot assess the correctness of the calculation or identify the exact basis on which the Judge reached the amount of the reparation order.

[13] The more important point, however, is that on Mr Wills’ account, he would (but for his dishonesty) have been entitled to a benefit for some of the relevant period. That is a factor that the Judge could have considered on sentencing.⁸ An underlying genuine entitlement may well have led the Judge to conclude that the amount claimed by WINZ as an overpayment ought not to be reflected in full in the

_{reparation order.}

⁸ Hayes v R [2008] NZSC 3 at [12].

[14] There is no indication that this point was raised with the Judge at sentencing. Nor can I tell whether, or to what extent, Mr Wills addressed this issue in his evidence. As a result of the technical malfunction to which I have referred most of his evidence was not recorded and his memory of the trial was rather vague. Mr Wills explained to me (without objection from Ms Needham, for the Crown) that towards the end of his evidence the prosecutor indicated a willingness to discuss this aspect with him but that, before a conversation could take place, the Judge retired briefly and then returned with a decision. After that there was no discussion.

[15] This is an issue that Ms Needham helpfully and correctly observed should have been the subject of a disputed facts hearing under s 24 of the Sentencing Act

2002. That is the forum at which Mr Wills’ entitlement (absent his dishonesty) could have been explored and an assessment made as to the extent to which that figure should be taken into account in fixing the reparation order.

[16] I consider that the proper course is to remit the matter to the District Court for a disputed facts hearing. The appeal is allowed to the extent that the reparation order is quashed. The matter is remitted to the District Court for a disputed facts hearing

_{before Judge Riddell and resentencing in relation to reparation.}

P Courtney J