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Accident Compensation Cases

Samuels v Accident Rehabilitation and Compensation Insurance Corporation (HC, 18/04/00)

Sentencing Tracker

Principal Offences:
Two representative charges of dealing with documents with intent to defraud (s 229A(b) Crimes Act 1961, repealed 1/10/2003)
Plea:
Guilty
Non-Custodial Sentences:
Ordered to make reparation of $7485, to be paid at the rate of $250 every three months
Appeal:
Non-Custodial Sentence Reduced
Notes:
Held, sentencing Judge gave insufficient weight to the length of time that the full amount would require for payment, and to counsel's submission that in all the circumstances the reparation order should therefore be for a lesser amount - the amount of the reparation was reduced to $7485 - no adjustment to the periodic payment offer by S which was incorporated into the reparation order, namely $250 per quarter

Judgment Text

ORAL JUDGMENT OF PENLINGTON J 
Penlington J
[1]
This is an appeal against sentence. It is confined to an attack on a reparation order. 
[2]
In the District Court at Hamilton the appellant faced two representative charges preferred under s 229A(b) of the Crimes Act 1961. It was alleged that between 13 November 1995 and 17 December 1996 the appellant with intent to defraud the Accident Rehabilitation and Compensation Insurance Corporation used documents capable of being used to obtain a pecuniary advantage; namely 59 home help account forms in the name of Shona Wishnowsky for the purposes of obtaining for the appellant a pecuniary advantage. 
[3]
It is further alleged that between 26 December 1996 aand 18 September 1997 the appellant with intent to defraud the Corporation used documents capable of being used to obtain a pecuniary advantage; namely 40 home help account forms in the name Sophie Hine for the purpose of obtaining for the appellant a pecuniary advantage. 
[4]
Altogether the appellant obtained $14970 from the Corporation to which she was not entitled. 
[5]
There was a status hearing on 5 November 1999. The appellant then pleaded guilty to the above two charges. The Corporation thereupon withdrew two other charges preferred under the Accident Rehabilitation and Compensation Insurance Act 1992. 
[6]
The appellant was sentenced on 6 January 2000 by which time the Judge had before him a pre sentence report and a reparation report. 
[7]
The sentence was 150 hours community service. As well, the appellant was ordered to make reparation in the sum of $14970, the full amount. The Judge ordered that sum is to be paid at the rate of $250 every three months; the first payment to be made on 1 April 2000. She was also ordered to pay a solicitor's fee of $200. The Judge noted that if the appellant's circumstances changed, the three monthly periodic payments could be reviewed by the Court. 
[8]
The factual background was as follows. The appellant was involved in a motor accident on 13 November 1992. She suffered severe injuries to her legs, hips and chest. She subsequently made a claim for compensation under the ACC legislation. She applied for and was granted home help and attendant care. In order to claim for the home help allowance, the appellant was required to submit to the Corporation on a regular basis accounts detailing the dates and hours of the help being provided, the name of the person providing the help and the actual amount paid to that person. The helper was required to sign each account verifying the details. The reimbursement was up to a maximum laid down by the Corporation. 
[9]
Between 27 November 1995 and 13 December 1996, the appellant submitted 59 home help accounts claiming home help by one Shona Wishnowsky. Then between 26 December 1996 and 17 September 1997, the appellant submitted 40 home help weekly reimbursement accounts claiming home help by one Sophie Hine. 
[10]
Each of these accounts showed the appellant's signature and certified that the home helpers had received the amounts shown on the individual accounts. These accounts were presented by the appellant to the Corporation and were in due course reimbursed. 
[11]
In August 1997 concern was expressed about the home help accounts submitted by the appellant. Enquiries were commenced. It was found that Ms Wishnowsky had completed home help for the appellant for about a month and had signed three home help accounts but had not been paid the amount claimed. She said that she had not seen the remaining 56 home help accounts. 
[12]
The appellant's house was watched over a period of three days. It was noted that no-one entered or left the appellant's home when it was said that she had home help. The address given for the other home help, Sophie Hine, was a false address. 
[13]
The appellant was interviewed on 24 September 1997. It abrupty came to an end within a matter of minutes. Other attempts to interview her proved to be unsuccessful. The appellant did not comply with the request from the Corporation to furnish a statutory declaration. 
[14]
An handwriting expert considered the home help documentation which was submitted to the Corporation. The expert's opinion was that the documents had been completed and signed by the appellant. 
[15]
The appellant is now aged 49 years. She has a partner who is aged 29 years. They have been together for the last two years. It is claimed that the relationship is a stable one. 
[16]
The accident left the appellant seriously disabled. She needs a wheelchair. Both knees have metal joints. They are painful, especially in the winter time. Her right leg does not bend. She also has asthma, thyroid and migraine problems. 
[17]
The appellant had a troublesome childhood. She was one of a family of six. She went into Social Welfare care and had an indifferent school record. When she was aged 13 years her father died and she became a street kid. At the age of 16 years she had a mental breakdown which led to a sojourn in a psychiatric hospital. 
[18]
While still a teenager the appellant became pregnant. The child was then taken away by Social Welfare. At the age of 18 years she married and had three children. These children had to be placed in care. The marriage was short-lived. She then embraced a life involving drugs and alcohol which led to a period of time in the Queen Mary Hospital at Hamner. The motor accident in 1992 resulted in 12 months hospitalisation followed by another 12 months of rehabilitation. 
[19]
To the probation officer the appellant proffered the explanation that she paid for home help from her own funds and that when she approached the ACC for reimbursement it was “hard to get a case worker to sign the form so I signed them myself”
[20]
The probation officer put forward a reasonably sympathetic report. She stated inter alia: 
“Before the Court is a woman who has clearly suffered emotionally and physically most of her life. Because she has been physically incapacitated since 1992 [the appellant] has obviously required some help. It seems that she may have become impatient and frustrated with the criteria and rules of ARCIC and chose to obtain funds she thought she was entitled to by fraudulent means over a sustained period of time. The total amount is a significant amount which she will take many years to pay back. ”
[21]
The report recorded that the appellant offered $250 on a quarterly basis by way of reparation. 
[22]
A statement of financial means and obligations was attached to the pre-sentence report. It showed that the appellant had no assets, liabilities of $348, an income from a combined invalid's benefit and an independent benefit of $347.25 per week, and outgoings of $340 leaving a balance of $7.25 per week or $94.25 per quarter. 
[23]
The Court was informed that the Corporation did not consider that $250 per quarter was sufficient in relation to the large amount of money which the appellant had unlawfully taken from the Department as the result of the fraudulent documentation. The probation officer recorded that the Corporation was considering civil action if the full amount taken was not the subject of a reparation order. The probation officer also reported: 
“ … the Department will be guided by whatever reparation the Court wishes to impose upon [the appellant]. ”
[24]
Ultimately, the probation officer recommended reparation and community service. 
[25]
In sentencing the appellant, the Judge carefully recited the essential facts of the case. He recorded the submission of counsel that the appellant may well have been entitled to the amounts fraudulently obtained “had she approached the matter differently”. The Judge took the view that he had to deal with the case on the basis of the pleas of guilty to representative charges. He noted that the appellant was a first offender; that the pre sentence report revealed a life in which the appellant had “constantly battled against adversity”; and that while that that was not an excuse for dishonesty it was at least some explanation. 
[26]
The Judge regarded the case as a very serious one. He noted that counsel was not prepared to take issue with the amount claimed by way of reparation. Ultimately, the sentence was in accordance with the probation officer's recommendation and the appellant's offer. It was for the full amount. It will take the appellant just under 15 years to pay. 
[27]
The appellant now complains on appeal that the order to pay the full amount by way of reparation at the rate of $250 per quarter is inappropriate in all the circumstances. 
[28]
In the Court below Mr Galt submitted that the appellant initially disputed the amount taken from the Corporation. Ultimately, as I have said earlier, this contention was abandoned and the appellant by her counsel accepted that $14970 had been taken. Mr Galt indicated that he had submitted to the Judge that if reparation was ordered for the full amount it would require the appellant to pay over too great a period of time and that, accordingly, the order should be made for a lesser amount. 
[29]
This submission was repeated before me. It did not find favour with the Judge. The Judge recognised that it would take a long time to pay the full amount but he then went on to state: 
“I consider that on an acceptance that somebody has got away with this amount of money and on an offer to repay it which is accepted as a given amount per quarter, the Court is entitled to draw the conclusion that the person is prepared and accepts that the full amount must be paid. ”
[30]
Mr Galt in this Court submitted that given his earlier submission the Judge was not entitled to draw the conclusion just set out. 
[31]
The issue for my consideration is whether the Judge has acted on a wrong principle or has given insufficient weight to the results of ordering a full amount to be paid by way of reparation. 
[32]
In every case the Court is required to consider a sentence of reparation and subject to s 22 of the Criminal Justice Act is required to impose such sentence “unless it is satisfied that it would be clearly inappropriate to do so”. Whether reparation is appropriate in any given case will be depend on all the facts and circumstances of the case and, in particular, the circumstances of the offending, other sentences imposed by the Court, and the personal circumstances of the person being sentenced. Each case must be decided on its own facts. 
[33]
Section 22 (6) of the Criminal Justice Act provides: 
“[(6)
Notwithstanding anything to the contrary in this section, where the offender has insufficient means to pay the total value of the loss or damage, or the amount the court would otherwise have ordered to be paid in respect of the harm, on sentencing the offender to make reparation, the court may direct the offender to make— 
(a)
Reparation for any amount which is less than the value or amount of the loss, damage, or harm; or 
(b)
Periodic payments in respect of the loss, damage, or harm; or 
(c)
Both. ”
[34]
The Act makes it clear that the creditor of the person being sentenced is left with his or her civil remedies. See s 25(4) of the Criminal Justice Act. 
[35]
I had occasion to consider the question of reparation in Hughes v Accident Rehabilitation and Compensation Insurance Corporation, (AP 17/97, 25 March 1997). At p.7 I said: 
“The Court of Appeal has, on a number of occasions, stated that any order for reparation must be realistic in terms of the offender's ability to comply with it. That Court has gone on to state that where there is no realistic prospect that the order will be paid, an order for the full amount should not be made as a defendant should not be exposed to the possibility of enforcement proceedings for non-payment in such a situation. See Ruka v Department of Social Welfare, CA 43/96, 1 October 1996; R v Howse, CA 85/93, 8 August 1993; R v Hooker, CA 88/90, 6 August 1990; R v Belmont, CA 345/96, 20 February 1997, and R v Jarvis, CA 306/86, 2 March 1987
In Jarvis, Casey J, delivering the Judgment of the Court, said at p.5: 
‘ … But in spite of the manifest intention of the legislation to make offenders pay for the damage they cause, and the Court's desire to implement it, realities must be recognised. One simply cannot get blood out of a stone. The Court cannot justifiably make an Order for payment, enforceable by further penal sanctions, against an offender who faces a long prison sentence and who must be accepted as having neither assets or tangible financial prospect. ’”
And a little later at p.8, I said: 
“As well a recurring theme in the Judgments of the Court of Appeal and in the Judgments given by Judges of this Court has been that an order to pay a large sum over a long period is generally regarded as being ineffective and may in some cases simply provoke further crime. Belmont v Police, Wellington M.258/86, 13 October 1986, Eichelbaum J as he then was. See also Hasler v Department of Social Welfare, Dunedin AP.93/89, 3 October 1989, Holland J; Helson v Police, Nelson Registry, M.42/89, 4 September 1989, Ellis J; Ah Siu v Department of Social Welfare, Auckland AP.91/93, 11 May 1993, Robertson J; Phelan v Police, Hamilton AP.128/95, 7 February 1996, Penlington J; Rabbetts aka Butler v Department of Social Welfare, Auckland, AP 42/94, 14 April 1994, Tompkins J., Bradley v Police, Timaru, AP 56/91, 8 October 1991, Gregg J. And to complete this citation of relevant authority, I refer to the reported Judgment of Anderson J in Rihari v Department of Social Welfare [1991] 7 CRNZ 586 in which His Honour said at p.590: 
‘I take the view, with respect to the learned District Court Judge, that the authority of the law is not necessarily maintained by the making of orders which cannot realistically be capable of compliance. Nor is it appropriate in modern terms that people should effectively be bonded debtors throughout their lives. This is a case where a reparation order was appropriate, as a vehicle of compensation to the community which has suffered the dishonest depredations of the appellant, particularly since instalments payable under the reparation order are presently automatically deducted from a welfare benefit received by the appellant, but the amounts to be repaid and the quantum of instalments should be realistic; it should be a reminder to the appellant, for an appropriate time, of the dishonesty she evinced. ’”
[36]
Certainly in the present case the appellant did not ultimately challenge the amount by which the Corporation had been defrauded. Likewise, she showed a willingness to make reparation. It is questionable, however, whether she sufficiently assessed her ability to do so. Plainly, the offer of $250 per quarter will require a trimming of her lifestyle. 
[37]
I agree with the Judge that this was a very serious offence. It justifies an order for substantial reparation. Having made that comment, however, with the greatest respect to the Judge, I have reached the conclusion that he gave insufficient weight to the amount of time that the full amount would require for payment and Mr Galt's submission that in all the circumstances the reparation order should therefore be for a lesser amount. 
[38]
It was not an easy sentencing decision but, with respect, in my view the principles which I have set out earlier were contravened. 
[39]
Accordingly, for the reasons given, I propose to allow the appeal. I reduce the amount of the reparation to $7485. I make no adjustment to the periodic payment offer by the appellant which was incorporated into the Judge's reparation order; namely $250 per quarter. 
[40]
I record that no attack was made on the sentence of 150 hours community service. The appeal is accordingly allowed in respect of the reduction of the reparation order. Otherwise the sentence is confirmed. 

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