IN THE COURT OF APPEAL OF NEW ZEALAND
CA505/2013
[2016] NZCA 536
BETWEEN
JACQUELINE ANN CAMERON
Appellant
AND
THE QUEEN
Respondent
Hearing:
21 April 2015 (further submissions 20 July 2016)
Court:
Wild, Clifford and Dobson JJ
Counsel:
Appellant in person
J E Mildenhall for Respondent
Judgment:
11 November 2016 at 10.30 am
FINAL JUDGMENT OF THE COURT
The appellant is:
(a) sentenced to four months’ community detention with a curfew as set out
at [17] of this judgment;
(b) ordered to complete 100 hours’ community work; and
(c) ordered to pay reparation of $42,937.84 to the Ministry of Social
Development on the terms set out at [16] of this judgment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1]
In late 2009 the appellant, Jacqueline Cameron, was charged with two counts
of wilfully omitting to advise the Ministry of Social Development (MSD) of correct
CAMERON v R [2016] NZCA 536 [11 November 2016]
information1 and four counts of dishonestly using a document for pecuniary
advantage — namely, benefits from MSD.2
Central to those charges was the
allegation that Ms Cameron had at various times failed to disclose she was living in a
relationship in the nature of marriage with a Mr Daryl Bloomfield. She was found
guilty following a trial before Judge Garland and a jury in the Christchurch District
Court on 19 April 2013, and sentenced by Judge Garland to seven months’ home
detention and 100 hours’ community work.3 The Judge also ordered Ms Cameron to
pay reparation to MSD of $42,957.84 at the rate of $50 per week, commencing seven
days after she returned to work.
[2]
On 11 August last year this Court dismissed Ms Cameron’s appeal against her
convictions but allowed the appeal against sentence.4 We deferred the imposition of
fresh sentences to allow the parties to make further submissions as to the appropriate
type and level of sentences, including the appropriate level of any sentence of
reparation. A series of delays on the part of Ms Cameron and, regrettably, this Court
has meant we are only now in a position to impose fresh sentences on Ms Cameron.
Preliminary issue — entitlement to the domestic purposes benefit
[3]
In a memorandum filed on 2 October 2015 the respondent raised a concern
about this paragraph of our interim judgment:
[76]
It is not clear to us that the fact that Ms Cameron was in a
relationship in the nature of marriage with Mr Bloomfield necessarily
disentitled her to that part of the [domestic purposes benefit], and other
social welfare payments, that provided support for her five children. In the
case of a couple, it is necessary to establish as a fact that there is a
commitment to mutual financial support in the case of need for there to be a
disentitling relationship in the nature of marriage. As regards benefits paid
to support children there needs to be a similar factual finding. That is, here
not only would there need to be a finding of interdependence between
Mr Bloomfield and Ms Cameron but that, in Mr Bloomfield’s case, that
extended to a commitment to support Ms Cameron’s children. …
[4]
The essence of the respondent’s concern is that the passage implies a person
might be entitled to receive a domestic purposes benefit even though, as a matter of
1
2
3
4
Social Security Act 1964, s 127.
Crimes Act 1961, s 228(b).
R v Cameron DC Christchurch CRI-2009-009-13562, 29 July 2013.
Cameron v R [2015] NZCA 363.
law, they are in a relationship in the nature of marriage and that MSD needs to
consider, separately from a partner’s financial commitment to a beneficiary, that
partner’s financial commitment to the beneficiary’s children.
[5]
We have now considered s 27B of the Social Security Act 1964, which
provided, at the relevant time, for domestic purposes benefits for solo parents. We
have also reviewed the relevant authorities, including this Court’s decision in Ruka v
Department of Social Welfare.5
Having done this, we agree that our interim
judgment was incorrect, to the extent it implied the domestic purposes benefit may
have been available to Ms Cameron while she was in a relationship in the nature of
marriage with Mr Bloomfield. The domestic purposes benefit is a benefit for single
people with children. The extent to which the partner of a beneficiary supports the
beneficiary’s child(ren) is relevant to assessing whether there is a relationship in the
nature of marriage,6 but once such a relationship has been established — as it has
been in Ms Cameron’s case — that is the end of that inquiry.
Further submissions — entitlement to other benefits
[6]
Both parties provided further submissions in response to memoranda from
this Court. The effect of those filed by Ms Cameron was that the amount in benefits
she had wrongly received had to be offset by entitlements owed by MSD to her
family (that is, Ms Cameron, Mr Bloomfield and their children). She calculated she
was due a credit of $12,354.
This was based on money allegedly owed to
Mr Bloomfield (for overpayment of child support, family tax credits and a payment
for parental leave) and Ms Cameron (for family tax credits relating to her daughter)
by the Inland Revenue Department (IRD), and carer support and an accommodation
supplement to which Ms Cameron was entitled but which MSD had not paid to her.
[7]
The respondent’s position is that the matters upon which Ms Cameron relies
in claiming she is due that credit “either involve [IRD] matters which cannot be
considered by MSD, are not accepted by MSD or were already factored into MSD’s
reparation calculations”.
5
6
Ruka v Department for Social Welfare [1997] 1 NZLR 154 (CA).
At 161.
[8]
The respondent advised us, in a memorandum filed on 2 October 2015, that:
(a)
the family tax credit, administered by MSD, increases with each
dependent child. Ms Cameron had received family tax credits during
the relevant periods. MSD had not sought and does not seek to
recover those payments; and
(b)
MSD considered the possibility of other benefits to which
Ms Cameron may have been entitled but:
(i)
the combined income of Ms Cameron and Mr Bloomfield
meant she was not eligible for a benefit as the carer of a sick
child. Further, the medical threshold for a care benefit would
not have been met based on the information available to MSD;
and
(ii)
Ms Cameron’s and Mr Bloomfield’s combined incomes meant
she was not eligible for accommodation support, except during
the time period 1 March 2007 to 31 October 2007, for which a
deduction had already been made from the amount of
reparation sought.
[9]
As to the other money Ms Cameron says she and her family are owed,
Ms Cameron informed us the IRD has not yet engaged with her. That does not
prevent us from imposing fresh sentences. Ms Cameron and Mr Bloomfield can deal
directly with the IRD in respect of any tax credits they claim they are owed.
Decision
[10]
In our interim judgment, we indicated we did not consider a sentence of
home detention is appropriate and intended imposing a sentence of community
detention. We intended to impose curfew hours that would permit Ms Cameron to
continue her employment and care for her children, while at the same time holding
her accountable for her offending.7 Accordingly, we directed Ms Cameron to file a
memorandum advising her full current residential address, by what time each
evening she has completed her employment and returned home, and by what time
each morning she needs to leave home to start her employment.
She has not
engaged with that direction except to state that her job requires her to travel
throughout the South Island and Auckland.
[11]
Also in our interim judgment, we suggested an increase in the number of
hours of community work Ms Cameron is required to undertake may be appropriate
given a sentence of community detention will allow her relatively more freedom
than the sentence of home detention imposed by Judge Garland.8
[12]
We also indicated we could not determine the appropriate amount of
reparation until the amount of the loss9 caused to MSD as a result of Ms Cameron’s
offending had been ascertained.10
[13]
On the basis of the information provided by the respondent and summarised
at [8] above, we are satisfied Ms Cameron’s possible entitlement to other benefits
has been appropriately considered by MSD. Accordingly the reparation amount of
$42,957.84 was correctly calculated and we make no adjustment to it, except to
reflect the fact Ms Cameron has made a $20 payment toward the total. Given the
amount of reparation remains unchanged, we do not increase the number of hours of
community work to be completed by Ms Cameron — that remains at 100 hours.
[14]
The question of community detention is more difficult. The respondent
submits four months of community detention ought to be imposed, taking account of
Ms Cameron’s mitigating personal circumstances as we set them out in our interim
judgment (namely, the fact she is gainfully employed and is able to provide
financially for her family as a result, and that the offending occurred in 2007 and
2008). As we noted in our interim judgment,11 the impact of any sentence on her
7
8
9
10
11
Cameron v R, above n 4, at [68]–[70].
At [73].
See Ioane v Department of Social Welfare (1994) 11 CRNZ 489 (HC) at 492; and Moody v Chief
Executive of the Department of Work and Income [2001] NZAR 608 (HC) at [10].
Cameron v R, above n 4, at [85].
At [67].
ability to continue working and support her children is Ms Cameron’s greatest
concern.
With that in mind, we intend imposing curfew hours, during which
Ms Cameron is to be present at 11 Larne Place, Belfast, Christchurch, or such other
residential address as is approved by her probation officer.12
Result
[15]
Fresh sentences are imposed on Ms Cameron as follows:
(a)
Four
months’ community
21 November 2016.
detention,
to
begin
on
Monday
For the purpose of making any necessary
arrangements, Ms Cameron is to report to Christchurch Community
Corrections, 16 Winston Avenue, Papanui, Christchurch 8053 (tel: 03
354 7580) no later than Wednesday 16 November 2016.
(b)
100 hours’ community work.
(c)
$42,937.84 in reparation to be paid to the Ministry of Social
Development.
[16]
The reparation amount fixed at [15](c) is to be paid as follows:
(a)
$8,400 in a lump sum by Friday 2 December 2016.
(b)
The balance of $34,537.84 at the rate of $50 per week, the first
payment on 9 December 2016, subject to (c) following.
(c)
The appellant may pay all or any part of the balance in a lump sum or
sums at any time, with any remaining balance to be paid at the rate
specified in (b) until reparation is complete.
[17]
While she is serving the sentence of community detention, Ms Cameron will
be subject to a curfew in the following terms:
12
Section 69B(3) of the Sentencing Act 2002 requires a court, when sentencing an offender to
community detention, to specify a curfew period and address when imposing the sentence.
(a)
The curfew begins on the evening of Monday 21 November 2016.
(b)
The curfew hours are 8 pm to 7 am seven days a week, during which
time she must be present at [address redacted], or such other
residential address as is approved by her probation officer, subject to
(c) following.
(c)
The appellant may make up to three overnight trips away from home
each calendar month for work purposes, providing she gives not less
than 48 hours’ notice of each trip to her probation officer.
Solicitors:
Crown Law Office, Wellington for Respondent