NAPIER v NEW ZEALAND POLICE [2017] NZHC 2176

NAPIER v NEW ZEALAND POLICE [2017] NZHC 2176 [8 September 2017]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2017-419-000055[2017] NZHC 2176BETWEEN CATHERINE ANNE NAPIERAppellantAND NEW ZEALAND POLICERespondentHearing: 8 September 2017Appearances: G A Walsh for AppellantM L Dillon for RespondentJudgment: 8 September 2017JUDGMENT OF PALMER JCounsel/Solicitors:G Walsh, Barrister, HamiltonCrown Solicitor, HamiltonFacts[1] Ms Catherine Napier, aged 24, was convicted of eight charges related to benefitfraud. The offending occurred over a period of about a year and a half, between22 December 2014 and 7 July 2016. The Ministry of Social Development established,on the basis of information received, that Ms Napier was living in a relationship in thenature of marriage with her partner, Mr Mark Houltham. She had not advised theMinistry of this.[2] One of the charges was obtaining a benefit by deception, which carries amaximum penalty of seven years' imprisonment.1 Six charges were for dishonestlyusing a document,2 which were application forms for different benefits, in whichMs Napier falsely stated she was single. Those offences each carry a maximum ofseven years' imprisonment. The last, and most serious charge, was of using an altereddocument to obtain a benefit which carries a maximum penalty of ten years'imprisonment.3 The document was a tenancy agreement in Ms Napier's sole namewhereas the original tenancy agreement was in joint names.[3] As a result of the offending Ms Napier received an overpayment totalling$19,755.13. Ms Napier pleaded guilty at her first appearance in the District Court.She has made arrangements to repay the overpayment. At the time she appeared forsentence she had already repaid somewhere between $700 and $1000. She has noprevious convictions.Pre-sentence Report[4] The Department of Corrections recommended home detention with post-detention conditions, as well as attendance at an appropriate budgeting programmeand a short rehabilitative programme. It considered that was more appropriate thanimprisonment to address Ms Napier's offending and rehabilitative needs.1 Crimes Act 1961, ss 240(1) and 240(2).2 Crimes Act 1961, s 228(1)(b).3 Crimes Act 1961, s 258(1)(a).[5] The Department identified the key offending factor as her attitude of anincreased sense of entitlement. She was able to justify to herself her sustainedmisleading of MSD. However, the Department noted she now took full responsibilityfor her actions and has expressed remorse for her offending. She has been repayingher debt weekly with $50 and $100 amounts.[6] Ms Napier expressed a willingness and strong motivation to comply with anysentence and to complete any programmes required to address her offending. But theDepartment noted she was at that time, pregnant, with the possibility of complicationsin the late stages of her last pregnancy. A letter from Ms Napier's midwife was alsomade available to the District Court Judge. That outlined Ms Napier's issues inrelation to her pregnancy and some additional stressors in her life.District Court Decision[7] On 28 July 2017, Judge Connell in the Huntly District Court sentencedMs Napier to four months' home detention with the conditions as recommended byCorrections. The Judge took a starting point of eight months' imprisonment. Hesubstituted that with a sentence of four months' home detention, after taking intoaccount a guilty plea discount. He did not impose any sentence of community workbecause of Ms Napier's pregnancy.4 He considered this was not a case whereimprisonment was necessary, but he rejected a submission that community detentionwould suffice. He considered the amount involved required at least a sentence of homedetention.5Arguments[8] Mr Walsh, for Ms Napier, submits community detention should have beenconsidered. He notes Mr Houltham, her partner, pleaded guilty to offending resulting,in dollar terms, to "a little under half" of that of Ms Napier, and he was sentenced tocommunity work. He pointed to Ms Napier's previous good character and remorseand pleaded guilty at the first opportunity.4 Ministry of Social Development v Napier [2017] NZDC 17782 at [8].5 At [6].[9] In his written submissions, without Judge Connell's sentencing notes,Mr Walsh objected to the proposition that the Court was constrained by authority fromimposing a sentence of community detention. He still contends that factoring in theguilty plea and any discount for a first offence the effective starting point was reallybetween 12 and 15 months which, he says, is out of kilter.[10] Mr Walsh refers to the Court of Appeal decision in Ransom v R for an approachto sentencing charges for fraud.6 He also submits Maa v MSD is instructive.7 There,a first time offender pleaded guilty to fraud of almost $35,000. The High Court, onappeal, substituted a sentence of seven months' home detention with communitydetention, taking into account personal mitigating factors relating to the defendant anda guilty plea. On that basis Mr Walsh submits the point where community detentioncan be a consideration has clearly been reached here and so the sentence imposed wasmanifestly excessive.[11] Mr Dillon, for the Crown, accepts that Maa shows something less than homedetention can be appropriate in some cases but he submits, in comparison to othercases,8 that Maa is an anomaly. The ordinary sentence for this kind of offending, hesays, is imprisonment or home detention. The key issue between them is whether MsNapier's personal circumstances, like Ms Maa's, call for a lesser sentence. The Crownsubmits they do not. Mr Dillon says this was low to moderate offending which cannotbe dealt with by community work and/or supervision. Rather, having regard to theauthorities, it is at the lower end of the range where home detention is appropriate.Unlike Ms Maa, he says, Ms Napier does not have such exceptional personalcircumstances. She is not the sole parent to two children – she has shared care of herchild and she lives with her partner. There is no evidence her employment will besuspended because of home detention. Mr Dillon acknowledges he cannot speculateabout that. Additionally, her pregnancy, he says, can be managed within the terms ofhome detention. The Crown submits the appeal should be dismissed.6 Ransom v R [2010] NZCA 390, (2010) 25 CRNZ 163.7 Maa v MSD [2013] NZHC 1846.8 Hogan v Ministry of Social Development (2005) 23 CRNZ 500; Larkin v Ministry of SocialDevelopment [2015] NZHC 680.LawSentence Appeal[12] Under s 250 of the Criminal Procedure Act 2011 I am required to allow theappeal if I am satisfied that, for any reason, there is an error in the sentence imposedand a different sentence should be imposed. Otherwise, I must dismiss the appeal.The High Court does not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles. I take into account thepurposes and principles of sentencing identified by ss 7 and 8 of the Sentencing Act2002.[13] I note that s 15A states home detention is only to be imposed where the courtis satisfied that the purposes for which the sentence is being imposed cannot beachieved by any less restrictive sentence and the court would otherwise sentence theoffender to a short-term sentence of imprisonment of 24 months or less. Because homedetention is served in full, whereas an offender sentenced to imprisonment is eligiblefor parole, a term of imprisonment is seen as equivalent to half a term of homedetention.9Decision[14] I have considered all of Ms Napier's, and the Crown's, submissions. I considerthe starting point is less important when considering the totality of the sentence whichis the real crux of this appeal. The issue is whether the total sentence reflects theoverall criminality of the offending and the offender and the question there, in thiscase, is whether a less restrictive sentence could have achieved the purposes ofsentencing. I consider the legal authorities are against that, here.[15] The Court of Appeal in Ransom rejected the submission that fraudulentoffending on a higher scale than that here must ordinarily attract a significant term ofimprisonment, in favour of the view that "in some benefit fraud cases, home detentionwill be an appropriate sentence".109 R v Hill [2008] 2 NZLR 381; (2008) 23 CRNZ 744 (CA).10 Ransom v R, above n 6, at [39].[16] In Maa the amount of fraud was some $35,000, over about two and a half years.Collins J upheld an appeal from a sentence of seven months' home detention and 100hours community work. But he stated that, absent additional evidence that Ms Maawould lose her employment if sentenced to home detention, he would not havehesitated to conclude the original sentence was entirely appropriate.11[17] In this case, because of Ms Napier's state and stage of her pregnancy, theadditional community work was not on the table. I accept there is no evidence thatMs Napier has the same personal circumstances that was present in Maa. Equivalencewith Maa, suggests the sentence here of four months' home detention is relativelygenerous and not out of whack in her disfavour. That is particularly so, given theunavailability of community work and the more serious charge here of using an altereddocument to obtain a benefit.[18] I consider community detention alone, or even in combination withsupervision, would have been insufficient to meet the purposes of deterrence anddenunciation, in light of the duration and extent of the fraud, as well as the seriousnessof some of the deception. I do not consider a less restrictive sentence than homedetention would have been able to achieve the purpose or purposes for which thesentence was being imposed.[19] I am not satisfied Judge Connell erred. I decline the appeal...................................................................Palmer J11 Maa v MSD, above n 7, at [16].