Friedner v Ministry of Social Development [2014] NZHC 644 (2 April 2014)

Last Updated: 9 May 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2013-441-9 [2014] NZHC 644

BETWEEN	ROBERT ALAN FRIEDNER Appellant
AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	2 April 2014
Counsel:	P Ross for the Appellant R Guthrie for the Respondent
Judgment:	2 April 2014

_{ORAL JUDGMENT OF BROWN J}

Solicitors: Crown Solicitors, Napier

Cathedral Lane Law, Napier South

FRIEDNER v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 644 [2 April 2014]

Introduction

[1] The appellant appeals against the decision of District Court Judge AJ Adeane in the District Court at Napier on 25 March 2014 declining bail pending sentencing on 28 May 2014.

Background

[2] The appellant was convicted on 14 February 2014 following a defended hearing on four charges of using a document for a pecuniary advantage contrary to s 228(b) of the Crimes Act 1961 and three charges of wilful omission contrary to s 127 of the Social Security Act 1964. The offending involved an overpayment from the Ministry of Social Development of $21,596.65.

[3] It appears the appellant was remanded on bail to appear in the Napier District

Court for sentence on 25 March 2014. A full pre-sentence report was directed.

[4] A memorandum dated 17 March 2014 was filed by the Department of Corrections advising that the Department had been unable to make contact with Mr Friedner to interview him for his pre-sentence report and detailing the various inquiries which had been made in an endeavour to contact Mr Friedner. The memorandum noted that Mr Friedner had a history of not making himself available to the Department for pre-sentence report interviews and that his most recent pre- sentence report required three further remands in order to enable a report interview to be completed.

[5] In light of that information the Department requested that Mr Friedner be remanded in custody should he attend court on 25 March 2014. The probation officer proposed to make himself available on that day for a report interview to be completed. It was suggested Mr Friedner could then be released on bail once the interview (which would take approximately one hour) was completed. A bail condition relating to Mr Friedner’s residence was recommended. Mr Friedner did in fact attend at court on 25 March 2014.

The District Court minute

[1] This Court ordered a probation report concerning Mr Friedner’s benefit fraud out of which something in the order of $20,000 in excess of his entitlements has been obtained. Mr Friedner has apparently repeatedly failed to attend on the Probation Service so that the necessary inquiries which the Court directed be undertaken, have not been undertaken. The Court is entitled to know about Mr Friedner’s personal circumstances, in particular, is entitled to know about his ability to repay the money which he misappropriated. Unfortunately, the next sentencing date is not until 28 May but Mr Friedner’s behaviour in relation to this matter, taken in the context of his gross alcohol abuse as reflected in his criminal history, indicate that any advancing of this matter which requires his co-operation is likely to be disappointed. He is accordingly remanded in custody now till 28 May for the probation report which the Court earlier ordered.

Approach to appeal

[6] There is a general right of appeal to the High Court from District Court judgments refusing bail.¹ While the appeal is by way of rehearing² decisions made under the Act involve an exercise of discretion³ and consequently an appellant must establish that:⁴

(a) the decision was contrary to principle;

(b) the Judge failed to consider all the relevant matters; (c) the Judge took into account irrelevant matters; and (d) the decision is plainly wrong.

[7] Section 13 of the Act governs the grant of bail once a defendant is found guilty or has pleaded guilty. The Court must not grant bail unless it is satisfied on the balance of probabilities that it would be in the interests of justice to do so: s 13(1). Pursuant to s 13(2) the onus is on the defendant to show why bail should be

_granted.

¹ _{Section 44(1), Bail Act 2000.}

² _{Section 44(6).}

³ _{Wong v R [2000] NZSC 64 at [1].}

⁴ B v Police [2000] 1 NZLR 31 (CA) at [6]; cited with approval in Dodd v R [2011] NZCA 490 at

[26].

[8] Also material are ss 13(3) and (4):

(3) When considering the interests of justice under subsection (1), the court may, instead of the considerations in section 8, take into account the following considerations:

(a) whether the defendant is likely to receive a sentence of imprisonment:

(b) the likely length of time that will pass before the defendant is sentenced;

(c) the personal circumstances of the defendant and the

defendant’s immediate family;

(d) any other consideration that the court considers relevant.

(4) If the defendant is unlikely to receive a sentence of imprisonment, this must count against the defendant being remanded in custody.

[9] For the appellant Mr Ross argues that in considering the “interests of justice”

test the appellant would be unlikely to be sentenced to imprisonment because: (a) he has no prior dishonesty convictions;

(b) the scale of the benefit overpayments obtained was such that a sentence of community detention or at worst home detention, possibly coupled with community work, was the likely outcome; and

(c) the appellant is making repayments of the overpaid benefits.

[10] Attention was also drawn to the fact that he has no convictions for breach of community work (to which he has been sentenced for past alcohol-related offending) and no convictions for breach of bail.

[11] The respondent makes reference to the fact that the informant’s sentencing submissions suggested a starting point in the range of six to nine months imprisonment. However, as Mr Ross points out, in the schedule of outcomes appended to the prosecutor’s submissions, not one of the 22 cases listed resulted in a custodial sentence. Ms Guthrie acknowledges that in the normal course a custodial sentence might be unlikely but argues that the appellant’s situation involves a special

case. The outcomes in the schedule range from community work with no further sanction through to home detention.

[12] So far as the appellant’s culpability is concerned, the point is made by Mr Ross that the charge was amended to one of omitting to provide information as to his true income so as to recognise the fact that the appellant had informed the Department of the fact of his employment.

[13] Mr Ross also makes the point that the remand in custody until 28 May resulted in a period in custody of more than two months equating to a prison sentence of some four months. As noted above, s 13(4) provides that if the defendant is unlikely to receive a sentence of imprisonment, this must count against a remand in custody.

[14] In my assessment the Judge failed to take into account the nature of the penalty likely to be imposed and the requirement in s 13(4).

[15] Mr Ross makes the further point that the appellant is not known to have breached bail at any time although he was on bail in the period between 14 February and 25 March 2014 and he did appear at court on 25 March 2014. In those circumstances I consider that the Judge also failed to have regard to the fact that there were other reasonable means of ensuring compliance instead of his being held in custody for two months.

[16] Indeed the Probation Service had simply suggested that the appellant should be held in custody for a short period to enable the completion of the report. The imposition of a bail condition relating to the appellant’s residence, as recommended by the Probation Service, should have been sufficient to achieve the objective of compliance.

[17] For these reasons, the appeal is allowed.

[18] The appellant is remanded on bail to the sentence date of 28 May 2014. The following bail conditions will apply:

(a) The appellant is to reside in the period until his sentencing on

28 May 2014 at the premises at unit 5, 335 Kennedy Road, Marewa, Napier; and

(b) The appellant is to report within 48 hours of today to the Napier

_{Probation Service at 62 Station Street, Napier.}

Brown J