Webb v R [2015] NZHC 2597 (21 October 2015)

Last Updated: 4 November 2015

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-463-51 [2015] NZHC 2597

BETWEEN	WILLIAM DAVID WEBB Appellant
AND	THE QUEEN Respondent

Hearing:	21 October 2015
Counsel:	D J McWilliam for Appellant H A Wrigley and N T C Batts for Respondent
Judgment:	21 October 2015

_{JUDGMENT OF BREWER J}

Solicitors/Counsel: Duncan McWilliam (Tauranga) for Appellant

Hollister-Jones Lellman (Tauranga) for Respondent

WEBB v THE QUEEN [2015] NZHC 2597 [21 October 2015]

Introduction

[1] On 8 April 2015, Mr Webb came before Judge TR Ingram in the District Court at Waihi for sentencing on what the Judge described as “eight charges of misleading the Ministry of Social Development”.¹ Mr Webb pleaded guilty to those charges. In fact, the charges were one of obtaining by deception and seven of using a document. Each of those charges carried a maximum penalty of seven years’ imprisonment. The sums involved totalled $11,608.

[2] The Judge convicted Mr Webb and sentenced him to 100 hours’ community

work.

[3] On 7 September 2015, Mr Webb was back before Judge Ingram. It had been discovered that Mr Webb, who is on an invalid’s benefit, was not fit to do community work. Accordingly, Judge Ingram substituted a sentence of six months’ community detention, with the curfew being 8:00 pm to 7:00 am daily.² Mr Webb now appeals against that sentence.

Background

[4] The summary of facts shows that Mr Webb was granted an invalid’s benefit from 30 March 2011. On 7 February 2012, he applied for and was granted temporary additional support. A stipulation contained in the application forms for the benefit and temporary additional support was that Mr Webb must immediately advise the Ministry if there were changes to his income or financial circumstances.

[5] On 28 March 2012, Mr Webb received $57,764.59 into his bank account. Judge Ingram referred to that as an inheritance. However, Mr Webb did not tell the Ministry about it.

[6] It seems that after that, Mr Webb began to live life more fully. On 23 July

2012 he left New Zealand and on 7 August 2012 withdrew US$15,000 in cash from an ATM in Louisiana. He returned to New Zealand and on 9 November 2012

¹ _{Ministry of Social Development v Webb [2015] NZDC 19789.}

² Department of Corrections v Webb [2015] NZDC 19015.

imported a 1953 Lincoln Capri motor car from the United States. On 26 May 2013, he listed that vehicle for sale with a reserve of $25,000.

[7] From and including 30 April 2012 through to 17 June 2014, Mr Webb made

12 further applications for continuation of his temporary additional support and for assistance with hardship. In all of these forms he stated falsely that he had no cash or non-cash assets.

[8] Mr Webb has a criminal history which commences in the Youth Court at

Whangarei in 1978 and prior to the current charges ran through until 23 September

2010. On that occasion, he was sentenced to one year’s imprisonment for driving with excess blood alcohol, third or subsequent occasion. His record is largely to do with drink/driving and the last conviction he had for dishonesty was back in 1993 when he was convicted and discharged.

[9] Nevertheless, with that background, I am surprised that on 8 April 2015

Judge Ingram gave credit to Mr Webb for his “otherwise good record”. The Judge also gave credit that arrangements had already been made for the $11,608 to be repaid. At first I read that as an indication that Mr Webb had used his inheritance to repay the money he had fraudulently acquired. I am told that that is wrong. In fact, the arrangements refer to Mr Webb having $15 a week deducted from his continuing benefit. Perhaps the only real reason for Judge Ingram’s leniency was his acceptance that Mr Webb had placed “over-reliance on erroneous advice” as to his need to tell the Ministry about the inheritance.

Discussion

[10] In my view, however, the appeal must be allowed. Judge Ingram gave no reasons why he fixed on six months’ community detention as the appropriate substitute sentence for the 100 hours’ community work. Community detention is a more condign punishment than community work, although, as Mr Batts for the respondent points out, for someone like Mr Webb it is probably a less onerous form of sentence. Nevertheless, on the scale of sentences, community detention is one up from community work. Further, six months is the maximum period for which community detention can be imposed.

[11] Section 68(3)(c) of the Sentencing Act 2002 provides that a sentence of community work can be cancelled and substituted for “any other sentence (including another sentence of community work) that could have been imposed on the offender at the time when the offender was convicted of the offence for which the sentence was imposed”.

[12] The Court of Appeal in R v Morgan has provided helpful guidance on the substitution of sentences:³

... while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. In the present case, the appellant's failure to make any real effort to comply with the community work sentence meant that a community based sentence was unsupportable and a sentence of imprisonment inevitable. But such a sentence had to be imposed against the background that a sentence of 150 hours of community work was initially seen as the appropriate sentence.

[13] In that case, the Court allowed the appeal, concluding that the substituted sentence of eight months’ imprisonment bore no relationship to the original sentence of 150 hours’ community work. Six months’ imprisonment was substituted.

[14] In my view, a sentence of six months’ community detention is appropriate for the criminality of Mr Webb’s offending. However, it is not proportionate to the sentence of 100 hours’ community work imposed originally. I have to make allowance for that.

Decision

[15] I allow the appeal. The sentence of six months’ community detention is quashed. A sentence of four months’ community detention is substituted. The curfew is 8:00 pm to 7:00 am daily and the first curfew under the new sentence will

_{be tonight.}

_{Brewer J}

³ R v Morgan [2008] NZCA 232 at [15].