Zafar v Ministry of Social Development [2014] NZHC 722 (8 April 2014)

Last Updated: 16 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-341 [2014] NZHC 722

BETWEEN	BEHESHTA ZAFAR Appellant
AND	MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:	8 April 2014
Counsel:	J Harder for Appellant H Musgrave for Respondent
Judgment:	8 April 2014

_{ORAL JUDGMENT OF FOGARTY J}

Solicitors:

Public Defence Service, Auckland

Meredith Connell, Auckland

ZAFAR v MINISTRY OF SOCIAL DEVELOPMENT [2014] NZHC 722 [8 April 2014]

[1] This is an appeal against sentence. The principal issue is whether or not the District Court Judge when sentencing was in error when rejecting an argument that a sentence of 85 hours of community work was disproportionately severe, being the test in s 8(h) of the Sentencing Act.

[2] The appellant had pleaded guilty to three charges of making a false statement, contrary to s 127 of the Social Security Act and one charge of making a wilful admission contrary to s 102 of the same section, the Social Security Act. The total overpayments amounted to the sum of $17,639.60. The particular context was that she was in employment when she applied for, and was granted, a sickness benefit in July 2011. She had recommenced work for a home and hospital approximately a week and a half before she applied for a sickness benefit. She was interviewed regarding the matter, immediately owned up and pleaded guilty.

[3] The sentencing was first considered by Judge Kiernan in the District Court on

6 November. The Judge had information about the appellant’s medical condition. She had essentially three medical conditions. She had episodes of abdominal pain for which she had had her gall bladder removed in 2010 but the pain has continued, together with a liver dysfunction which has not been resolved. The overall diagnosis is uncertain. The second problem was she has been suffering from migraines and, thirdly, she has been on antidepressants for depression. Although the Court does not know the details, it would appear that she has suffered stresses of one sort or another before coming to New Zealand, which have probably contributed to her ill health.

[4] At the first sentencing hearing, Judge Kiernan was very sympathetic to her medical condition, and impressed by her immediate acknowledgement of wrongdoing. Judge Kiernan crafted a term of community work of 85 hours which she thought was just over the number of hours for which she could make a basic work and living skills direction so that 80 hours of it could be converted to basic work and living skills. This essentially is taking a course in budgeting and basic skills. She thought in this case it would be the appropriate penalty.

[5] Shortly after she completed that sentence, the probation officer drew to the attention of Mr Harder and counsel for the informant that s 66(b) of the Sentencing

Act 2002 sets a ceiling of 20 per cent of the total number of hours under the sentence spent in basic work and living skills. The matter was taken back before the Judge and she then considered that point but did not alter her sentence. Rather, she said this:

[3] Mr Harder repeats his submission he made earlier, that a sentence of this type would be disproportionately severe and he asks me to re-sentence Ms Zafar to either a fine or an order to come up if called upon for sentence. He points out that convictions in themselves are a penalty.

[4] I have considered what has been said by Mr Harder and also by the probation officer in Court. I am not going to alter the sentence that I imposed earlier this morning, even though I am now told that only a proportion of the 85 hours can be converted to basic work and living skills. There are many people who can perform community work with medical and other conditions and allowance is always made, as I understand it, for individual situations.

[5] If, for any reason, it should be impossible for Ms Zafar to complete this sentence that I have imposed, then of course it can come back to Court and another sentence can be considered. But I would hope that corrections, in directing her in completing the sentence that I have imposed, would take account of her personal situation. It is not unusual for those who appear before the Court for benefit fraud to have, of course, financial difficulties, but often also medical difficulties as well.

[6] In my view, the sentence that I have imposed is appropriate and I have, in reconsidering the matter again, considered Mr Harder’s submissions in relation to s 8(h) of the Sentencing Act. At this stage I am not persuaded that the sentence that I have imposed, of a fairly short period of community work, is disproportionately severe.

[6] In this hearing on appeal, which is governed by s 244 of the Criminal Procedure Act, I have to find that the District Court was in error. Mr Harder has invited me to follow the Court of Appeal decision in Heke v R¹ to the effect that when this Court is considering an appeal which challenges a finding as to whether or not a sentence is disproportionately severe, under s 8(h) of the Sentencing Act, the

_{principles enunciated by the Supreme Court in Austin, Nichols & Co v Stichting}

_Lodestar²

_{apply. I had some reservations as to whether they do apply but I am}

resolving those reservations by applying the principles and forming my own judgment, in any event, as to whether or not I find that this sentence is

_{disproportionately severe.}

¹ _{Heke v R [2010] NZCA 476.}

² Austin, Nichols & Co v Stichting Lodestar [2008] 2 NZLR 141.

[7] Ms Musgrave, for the Crown, argues that the sentence – putting aside medical conditions for a moment – is a lenient one. She cites two decisions – Ataata v Ministry of Health³ and Linsell v Ministry of Social Development.⁴

[8] In Ataata the defendant faced two charges of forging a document and four charges of using a document for pecuniary advantage. Nearly $19,000 was involved and the sentencing Judge adopted a starting point of 6 9 months imprisonment. And, after noting aggravating and mitigating features, the Judge imposed 100 hours community work, six months community detention, supervision and made a reparation order. This judgment was upheld in the High Court, Wylie J noting the starting point was clearly within the range of sentences appropriate to this kind of offending.

[9] In the second case, of Linsell v Ministry of Social Development, the defendant faced four charges of benefit fraud laid under the Crimes Act, which this one was not, the pecuniary advantage was $19,000. I would distinguish that case because it was laid under the Crimes Act, but I note that Priestley J adopted a starting point of nine months imprisonment. He arrived at a final sentence of six months and two weeks imprisonment.

[10] I prefer to be guided more by the Ataata v Ministry of Health decision. In my view, putting aside the question of the appellant’s health, the sentence of 85 hours community work is a quite reasonable sentence. The question then directly focuses on whether or not her medical condition made that sentence disproportionately severe.

[11] The medical evidence before the Court did justify serious consideration as to whether or not further allowance should be made for her medical condition and, as this judgment records, Judge Kiernan made two attempts in that regard. Firstly, by trying to convert community hours basically to be satisfied by a basic work and living skills training. But when she learned of the effect of s 66(b) of the Sentencing

_{Act, she then deliberately invited the Department of Corrections – for practical}

³ _{Ataata v Ministry of Health HC Auckland CRI-2010-404-000479, 21 June 2001.}

⁴ Linsell v Ministry of Social Development HC New Plymouth CRI-2009-443-000029, 18

December 2009.

purposes, the probation officer – to keep a close watch on the impact of this sentence on Ms Zafar, the appellant. (See [5] of her second decision set out above.) Mr Harder had to acknowledge that that was one way of addressing her medical condition.

[12] I am satisfied that it is an appropriate way indeed, on the facts before me, I agree with Judge Kiernan – that that was the appropriate way to deal with this matter. For this reason, I am (independently of Judge Kiernan) not satisfied that her sentence is disproportionately severe and, for this reason, the appeal is dismissed.