Matiu (aka Maxwell) v Ministry of Social Development HC Rotorua CRI 2010-470-20

[2010] NZHC 769

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-470-20

BETWEEN  SARAH MATIU (AKA SARAH MARGARET MAXWELL) Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         27 May 2010

Counsel:         G Barnett for the appellant

S Simmers for the respondent

Judgment:      27 May 2010

JUDGMENT OF POTTER J

Solicitors:           Ronayne Hollister-Jones Lellman, P O Box 13063, Tauranga 3141

Copy to:            G Barnett, P O Box13110, Tauranga 3141

MATIU (AKA SARAH MARGARET MAXWELL) V MINISTRY OF SOCIAL DEVELOPMENT HC ROT CRI-2010-470-20  27 May 2010

Introduction

[1]      Sarah Matiu appeals against a sentence of eighteen months imprisonment imposed by Judge Bidois.[1]   The appellant had entered guilty pleas to seven charges, three charges of using a document under s 228 of the Crimes Act and four charges under the Social Security Act 1964.

[1] New Zealand Police v Matiu DC Tauranga CRI-2009-070-007239 8 April 2010

[2]      This was a case of serious benefit fraud.   Over nine years the appellant received an overpayment totalling $148,640, having been paid a number of benefits under two names, in 1,872 individual payments received by the appellant over that period.

Sentence

[3]      In sentencing Judge Bidois treated the using a document charges as the lead offences.  He noted that the effect of the false documents in each case was that the appellant was able to continue to receive benefits to which she was not entitled.  He said this was serious offending and that each time the appellant received the over

1800 payments, she would have known that she was not entitled to that money if she had told the truth.

[4]      The Judge took a starting point of two and a half years imprisonment which he reduced by twelve months to reflect the mitigating factors.  The end sentence was eighteen months imprisonment.

[5]      The  mitigating  factors  of  which  the  Judge  took  account,  were  that  the appellant was a first offender, she had immediately entered guilty pleas, she was remorseful  and  she  suffered  from  what  he  described  as  “multiple  medical conditions”.  He also referred to her mature years (she is aged sixty four) and that by arrangement with the Ministry of Social Welfare she is repaying the amount of the overpayment at the rate of $50 per week by deduction from her invalid’s benefit.

[6]      The  Judge  specifically considered  whether  a  sentence  of home  detention might be imposed.  He said[2] that given the level at which the appellant had offended, “being less than $2,000 shy of $150,000”, a clear and stern message needed to be sent to the community that offending at this level will not result in a sentence of home detention being imposed.   He determined that home detention was not appropriate for deterrent and denunciation purposes.   He accordingly imposed a

[2]  At [21]

sentence of eighteen months imprisonment on each of the using document charges and concurrent sentences of nine months imprisonment on the Social Security Act charges.

Submissions

[7]      The sole issue on appeal is whether a sentence of home detention should have been imposed.  Mr Barnett for the appellant responsibly acknowledges that the end sentence of eighteen months imprisonment imposed could not be regarded as manifestly excessive.

[8]      He submits, however, that at the time of sentencing there were facts relating to the health of the appellant which, although they existed at the time of sentencing, were not known or not sufficiently made known to the sentencing Judge.

[9]      Attached to the appellant’s submissions is a report dated 20 May 2010 from Dr Andra Cleland, the doctor responsible for treating the appellant at Auckland Regional Women’s Corrective facility.

[10]     Dr Cleland summarises the appellant’s medical conditions:

•A stroke in October 2009 which has resulted in some right sided weakness causing mobility problems and carrying a risk of further strokes;

•Diabetes which is difficult to control and will mean continuing deterioration of the affected organs;

•    High blood pressure which is difficult to control;

•    High cholesterol;

•Chronic  lung  damage  from  her  past  history  of  smoking  together  with  a chronic lung anomaly which makes her further predisposed to infection and pneumonia;

•Severe heart failure such that her heart function is currently one-third of that of a healthy person;

•Suspected   paroxysmal   atrial   fibrillation   (intermittent   rapid   irregular heartbeat) currently under diagnosis.

[11]     The report states that the appellant’s mood has deteriorated since being in prison and that because mental health affects physical health in a detrimental way, depression is of concern.

[12]     The report concludes:

Although we can manage Sarah’s health in prison, it is not always easy to guarantee the same level of care she would receive if she were in the community.   She will require many external appointments at the hospital which creates custodial issues.  Her mobility is poor and she has to rely on other inmates to bring her up to the clinic in a wheelchair for appointments and to get her medication. ... Sarah’s health is reasonably stable today but her prognosis is very poor and the inevitable deterioration in her health could occur at any time.

[13]     Mr Barnett submits that taking into account the nature and seriousness of the offending the circumstances and also background of the appellant as updated by the further medical assessment, a sentence of home detention should now be substituted for the sentence of imprisonment imposed.

[14]     Counsel refers to the judgments in Fitzgerald v Police[3]  and R v Joynes[4]  as authorities which provide support the imposition of a revised sentence in the light of

[3] Fitzgerald v Police HC Christchurch AP80/99, 27 May 1999.

[4] R v Joynes CA394/91 21 November 2009.

further facts that have arisen since sentence was imposed.  The Crown acknowledges those authorities.

[15]     The Crown submits that Judge Bidois was well aware of the appellant’s health problems at the time of sentencing but that his assessment, based on the severity of the offending, was that home detention was not appropriate for deterrent and denunciation purposes.

[16]     The Crown further submits that the additional material now before the Court confirms that the appellant’s health problems can be managed in prison and accordingly the appeal should be dismissed.  The Crown’s submission is that it was open to the sentencing Judge who is an  experienced Judge to determine that a sentence of home detention was not appropriate in this case and there is now nothing before the Court that should persuade this Court to intervene on appeal.

[17]     The Crown referred to examples of the types of cases where the Court of Appeal  have been  persuaded  to  replace  a  sentence  of imprisonment  with  home detention based on health factors, namely R v Lavea[5]and R v Riri.[6]In the Lavea case the prison management struggled to cope with a morbidly obese offender with psychological problems and could not provide the care required to meet his personal hygiene requirements.

[5] R v Lavea [2007] NZCA 421.

[6] R v Riri [2008] NZ CA 441.

[18]     The case of Riri involved a paraplegic offender who required 24 hour nursing care that could not be provided in prison.   In deciding to substitute the sentence imposed of imprisonment with six months home detention the Court of Appeal said:[7]

[7] At [14]

Were [Mr Riri] to be kept in prison without those needs being met he would suffer special hardship making his sentence quite disproportionate to that given to able-bodied prisoners for similar offending.

[19]     The Crown referred to a number of other authorities.   I particularly note authorities to which the Judge himself referred in his sentencing decision.  In Ebdell v Police[8] French J said:[9]

[8] Ebdell v Police HC Christchurch CRI-2009-409-004831, 30 July 2009.

[9] At [35].

Most importantly, the Judge was not saying the sentence of home detention does not have a deterrent aspect, but simply that in this case the particular circumstances required more.  That was a view that was clearly open to him. As recent Court of Appeal decisions such as R v Edmonds [2009] NZCA 152 and R v Taiepa [2009] NZCA 120 [they both being decisions referred to by Judge Bidois] make clear, there is no prevailing presumption as such in favour of home detention, and that in cases where denunciation, individual and general deterrence are of particular significance, the Court will seldom interfere in the sentencing Judge’s assessment of home detention as a realistic alternative or not.

Discussion

[20]     Rodney Hansen J observed in Savage v New Zealand Police[10]that once the criteria in s 15A and the conditions in s 80A(2)(a) of the Sentencing Act are satisfied no further criteria in relation to the sentence of home detention are specified in the statute.  He said:[11]

[10] Savage v New Zealand Police HC Whangarei CRI-2008-488-1 14 February 2008.

[11]  At [20]

However, it is clear that the legislature intended to confer a broad discretion and  the  weight  to  be given  to relevant factors will  be a  matter for the sentencing Judge.

[21]     He noted that in the exercise of that discretion the sentencing Judge must have regard to the purposes and principles of sentencing as set out principally in ss 7 and 8 of the Sentencing Act.

[22]     Judge Bidois correctly identified that in considering whether home detention was an appropriate sentence he needed to determine whether deterrence and denunciation could be achieved by that sentence.   He determined after careful consideration that they could not, even taking into account the appellant’s personal circumstances including her age, her health and her family commitments, “... hard as that may be”.  He noted[12] that the appellant’s health “... has been described as poor”

[12] At [5]

and[13]  he referred to Mr Barnett’s submission that she suffered “... multiple medical conditions”

[13]  At [11]

[23]     The Judge had before him evidence about the appellant’s medical problems set forth in a report from the Katikati Medical Centre Limited dated 7 December

2009, supplemented by a brief statement dated 5 January 2010.   The pre-sentence report addresses Ms Matiu’s health problems at page 2 where it is noted that admittance to hospital, especially during winter months, could be a regular occurrence.   A discharge summary from Tauranga Hospital dated 12 February is attached which refers to her “general unwellness and lethargy”.  The Judge did not, and could not have had, the benefit of the comprehensive report and precise analysis of the effects of imprisonment on the appellant’s health and wellbeing as presented in the report of the prison doctor, Dr Cleland which Mr Barnett attached to his submissions.   But it is clear the Judge had considerable material relating to the appellant’s health issues.

[24]     Benefit fraud such as that committed by the appellant is serious offending as Judge Bidois stated.   The principles of general and specific deterrence and denunciation must be reflected in the sentence imposed.  There can be no criticism of the sentence of eighteen months imprisonment reached by the sentencing Judge.  He gave an  appropriate  discount  for  mitigating  factors.    He  acknowledged  that  the appellant was a first offender.  However, in reality she was a repeat offender over nine years.  It was simply that she did not get caught.

[25]     The Judge carefully weighed the competing factors in the exercise of the discretion vested in him.  He said:[14]

[14]  Ar [20]

... What you did, Ms Matiu, was to use two names.   You were receiving effectively a double income.  This continues for a significant period of time. The question to be asked is, if home detention was to be imposed what would be the cut off point where a Judge said, “enough is enough”, for this level of offending a sentence of imprisonment must be imposed?

... when someone offends to the level that you have, ... it seems to me that a clear and stern message needs to be sent to the community that offending at this level will not result in a sentence of home detention being imposed.

Accordingly I determine that home detention is not appropriate for deterrent and denunciation purposes, as hard as that might be, given your age, your health, your family commitments.

[26]     As  the  Crown  pointed  out  in  submissions,  the  report  from  Dr  Cleland confirms that the appellant’s health needs can be managed in the prison environment. She is said to be reasonably stable and while she is finding the prison environment difficult, that was the likelihood known to and confronted by Judge Bidois at sentencing.  This is not an exceptional situation such as in Lavea and Riri.

[27]     I agree with the Crown that the sentence imposed by the sentencing Judge was well open to him and this Court should not intervene on appeal.

[28]     I note that no reparation order was sought by the Ministry as arrangements have been made for repayment by instalments.

[29]     The appeal is dismissed.