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Safeguard OSH Solutions - Thomson Reuters

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Accident Compensation Cases

STIRLING v ACCIDENT COMPENSATION CORPORATION (HC, 28/04/97)

Sentencing Tracker

Offender:
Female
Principal Offences:
Failing to advise ACC of increase in earnings (benefit fraud)
fraudulent use of a document to obtain pecuniary advantage (x2)
Plea:
Not guilty
Custodial Sentence:
6 weeks
Appeal:
Custodial Sentence Reduced by 7 months 2 weeks
To Be Served:
6 weeks for each offence (concurrent)
Mitigating Factors:
lack of previous convictions

Judgment Text

ORAL JUDGMENT OF ANDERSON J 
NC Anderson J
This is an appeal against sentence imposed in the District Court at Auckland on 24 March 1997. The appellant had been found guilty after summary trial in respect of three informations relating to the receipt by her of payments under the Accident Rehabilitation & Compensation Insurance Act 1992. One information was laid pursuant to that Act. It alleged that she, being a person in receipt of compensation for loss of earnings, failed to advise the Corporation as soon as practicable of an increase in the amount of earnings derived after the commencement of compensation that would reduce the compensation payable to her. The period in respect of which that charge applied was from 10 April 1992 to 5 March 1995, and the total compensation received by the appellant over that period was $47,233.26. 
The other two informations were laid pursuant to s 229A of the Crimes Act 1961. Each alleged a specific fraudulent use of a document to obtain a pecuniary advantage. The first information, CRN 6004033295, alleged that on or about 21 April 1992 the appellant used a further medical certificate G556037 with the fraudulent intent and pecuniary advantage elements previously referred to. The date on the specified medical certificate was 15 April 1992. CRN 6004033296 alleged a similar offence of fraud on 6 August 1993 in respect of further medical certificate G556327 which was dated 5 August 1993. The total amount of compensation obtained pursuant to the specific medical certificates amounted to $3311.27. Thus it may be seen that two acts of fraud produced a benefit of $3311.27 in the course of a continuing default which resulted in the respondent paying $47,233.26. 
The offences under the Crimes Act each carry a maximum period of imprisonment of seven years. The offence under the Accident Rehabilitation & Compensation Insurance Act 1992 does not carry liability for imprisonment at all but may result in a fine of up to $5000. 
The general background to the offending, canvassed in the course of the defended hearing, was that from time to time in 1992 and 1993 the appellant worked in various capacities for the film industry, notwithstanding that she was in receipt of compensation payments initiated by a non-work related accident in June 1990 when the appellant fell off a chair and injured herself. She continued to receive earnings related compensation on the basis that she was medically unable to work and the two specific medical certificates referred to in the Crimes Act informations were used by her for the continuance of compensation in respect of each of the six week periods to which they related. 
The District Court Judge observed that the appellant came before the Court as a first offender and that she submitted that the back pain she suffered from in consequence of the original accident affected her clarity of thought. He was unimpressed with that latter submission, no doubt because she was in fact able to perform responsible and not undemanding work in the film industry at the time that she was wrongly obtaining a benefit. He observed her counsel's submission that she was trying to improve herself by tertiary education but regarded her as someone who should therefore know better than others what was right and what was wrong. He considered that rather than damaging the appellant's future, the effect of imprisonment would have a future effect only in terms of removing her from the employment pool for a period of time. He observed the operation of s 6 of the Criminal Justice Act 1985 in a case such as the present and determined that the following amounted to special circumstances of the offence in the particular case:— 
1.
The period of time over which the offending occurred. 
2.
The blatant nature of the offending. 
3.
The very large sum of money received by her wrongfully. 
He determined that there was a clear need in the case of “very substantial benefit fraud of this type” for a deterrent sentence to discourage others. 
He observed that cases in this area tended to demonstrate that where the amount involved was high, say in excess of $20,000, such amount might constitute a special circumstance for the purposes of s 6. He noted that she had no dependents and no family factors, observations undoubtedly made in view of some of the authorities in this area where such considerations can tend to ameliorate the length of the period of imprisonment or the type of sentence otherwise to be imposed. He then imposed a sentence of nine months imprisonment concurrent in respect of each of the Crimes Act charges. Having regard to the fact that the third information laid pursuant to the Accident Rehabilitation & Compensation Insurance Act 1992 could be met only by a fine, he convicted and discharged her. 
The submissions of counsel for the appellant are very much to the effect that the sentencing Judge has imputed to the appellant the fraud proven on two particular occasions to the whole period in respect of which the third information related. It is submitted, and I accept, that there is a significant qualitative difference indicated by the different penalties available between conduct proscribed by the Crimes Act of fraudulent use of a document, on the one hand, and defaults of omission amounting to an offence of which fraud is not an element and which is punishable only by way of a fine under the Accident Rehabilitation & Compensation Insurance Act 1992. I think, with respect to the learned and experienced District Court Judge, that it is wrong in principle to treat discrete offences, some of which are Crimes Act offences relating to specific fraudulent incidents, and a general continuing but lesser offence of which fraud is not an element, as though the whole period of conduct amounts to the same type of fraud as that relating only to the two particular incidents. There is the risk of an appearance of injustice in such circumstances. The correct sentencing approach in the particular case, as far as imprisonment responses are concerned, is to focus an the fraudulent conduct which carried the risk of imprisonment upon conviction, not upon the conduct of which fraud is not an element and which cannot be met by imprisonment in the event of conviction. 
In the particular case there are two specific instances of fraud resulting in over-payment in the sum of $3311.27. When so viewed the perception of a lengthy period of time and a substantial amount of money and continuing blatant offending is not an appropriate perception. One rather has two instances on two specified occasions producing the prospect (and in the result the reality) of over-payment for a period of six weeks in each case and for a total of $3311.27. A sentence of nine months imprisonment for a first offender in relation to such matters is manifestly excessive. If the matter had been approached in the correct way it is doubtful whether a sentence of imprisonment would have been imposed at all. 
Alternative sentencing responses of community service or periodic detention are not realistically available at this stage because the appellant has served five weeks imprisonment already. Questions of deterrence generally and the culpability of the actual offending which carries imprisonment may be appropriately met in the circumstances of this case by allowing the appeals and imposing in each case a sentence of six weeks imprisonment concurrent, which in the usual course of events should result in the immediate release of the appellant. 
The appeal is allowed. The sentence of nine months imprisonment on each of the informations is quashed and a sentence of six weeks imprisonment concurrent is imposed. 

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