Brabender v Ministry of Social Development

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-46 [2015] NZHC 2435

BETWEEN
KAYLA-LEIGH BRABENDER

Appellant

AND

MINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing: 6 October 2015

Counsel:

P Ross for Appellant
S C Carter and R Georgiou for Respondent

Judgment:

6 October 2015

JUDGMENT OF SIMON FRANCE J (Appeal against sentence/reparation)

[1] Ms Brabender was sentenced having pleaded guilty to charges of obtaining by deception (x2) and using a document (x3). The context was falsely obtaining a benefit by reason of not declaring a relationship.

[2] Ms Brabender was sentenced to home detention for five months, 150 hours’ community work and $45,721.58 reparation by way of $20.50 per week instalments. The reparation amount was believed by the Court to have been agreed prior to sentencing and was imposed without further consideration.1 It is that part of the sentence that is now appealed.

[3] On appeal Mr Ross explained that the reparation total was not agreed, and he had submitted a lesser sum was appropriate, based on the amount able to be paid and
the length of time for which such an order should ensue.

1 Ministry of Social Development v Brabender [2015] NZDC 13481.

BRABENDER v MINISTRY OF SOCIAL DEVELOPMENT [2015] NZHC 2435 [6 October 2015]

[4] Mr Georgiou accepted that the current order, which would last for 43 years, was not supportable on the authorities. He acknowledged a length of around five years was generally imposed but noted that in R v Vallily, eight years had been accepted.2

[5] As noted, the reparation commitment as it presently stands will continue for

43 years. Previous authority has indicated such orders are not desirable. The length is unrealistic and bond the offender for an inordinate period of time.3 An order lasting for between three to five years is commonly substituted. R v Vallily was somewhat different as the offender was expected to have means, and had agreed to repay at the rate of $5,000 per year. Even then, the Court limited reparation from the initial order of $87,000 to one of $40,000.

[6] It is important when reaching agreement and/or making submissions, that an informant has proper regard to these previous authorities. The appeal is allowed. The reparation order is quashed and in its place there will be an order for reparation
of $4,570 to be repaid at a rate of $20.00 per week.

Simon France J

Solicitors:
Public Defence Service, Wellington
Luke Cunningham & Clere, Crown Solicitors, Wellington

2 R v Vallily CA251/04, 10 November 2004.
3 R v Bailey CA306/03, 10 May 2004; Leighton v Police [2012] NZHC 1925.

CaseChat Overview and Summary

Kayla-Leigh Brabender appealed against her sentence, which was imposed after she pleaded guilty to charges of obtaining by deception and using a document. The deception involved not declaring a relationship, resulting in falsely obtaining a benefit. Brabender was sentenced to five months of home detention, 150 hours of community work, and reparation of $45,721.58, to be paid in weekly instalments of $20.50. The reparation amount was imposed without further consideration and it is this aspect of the sentence that is now being appealed. The appeal focuses on the appropriateness of the reparation amount and duration.

The legal issues in this case revolve around the appropriateness of the reparation order imposed on Brabender. The Court needed to determine whether the reparation amount and duration were consistent with previous judicial authority. The Court also had to consider whether the reparation amount and duration were realistic and fair, given Brabender's financial situation and the nature of the offence.

In considering the appeal, the Court acknowledged that the reparation order, as currently constituted, would last for 43 years. The Court noted that such a long duration was not supported by previous judicial authority, which generally imposes reparation orders of between three to five years. The Court also highlighted that an order lasting 43 years was unrealistic and would unduly burden the offender. In reaching its decision, the Court referred to previous cases, such as R v Vallily, where a longer reparation order was accepted due to the offender's financial means and agreement to repay at a specified rate. However, the Court in that case still reduced the reparation amount from $87,000 to $40,000. The Court in this case concluded that the reparation order should be quashed and replaced with an order for $4,570 to be repaid at a rate of $20.00 per week.

The Court allowed the appeal and quashed the reparation order. In its place, the Court imposed an order for reparation of $4,570 to be repaid at a rate of $20.00 per week. This decision reflects the Court's consideration of previous judicial authority and the need for a reparation order that is realistic and fair, given Brabender's financial situation and the nature of the offence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	6 October 2015
Counsel:	P Ross for Appellant S C Carter and R Georgiou for Respondent
Judgment:	6 October 2015