Lopati v Police

[2019] NZHC 198

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2018-404-0356

[2019] NZHC 198

BETWEEN

ULA LOPATI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	18 February 2019
Appearances:	P K Hamlin for the appellant H T Reid for the Respondent
Judgment:	18 February 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

P K Hamlin, Barrister, Auckland Meredith Connell, Auckland

LOPATI v NEW ZEALAND POLICE [2019] NZHC 198 [18 February 2019]

Introduction

[1]    On 18 May 2018, in the District Court at Auckland, Ula Lopati pleaded guilty to one charge of indecent assault.1 On 5 October 2018, he was convicted and ordered to make an emotional harm payment of $500 to the victim. His application for a discharge without conviction under s 106 of the Sentencing Act 2002 was refused by Judge A C Roberts.2 Mr Lopati now appeals that decision.

Approach on appeal

[2]    Courts may discharge an offender without conviction only if the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3 Only then may the Court consider whether to exercise its residual discretion.4

[3]    The proportionality test is a question of fact requiring judicial assessment. There must be a “real and appreciable” risk any given consequence will happen: this recognises the court is assessing future likelihood.5 The offender should put information before the court to provide a factual basis for a decision the test has been satisfied. But there is no legal onus on the offender to do so; all that is required is the judge be satisfied s 107 is met.6

[4]    If Mr Lopati can establish Judge Roberts’ decision was wrong, I will consider the matter afresh.7

1      Crimes Act 1961, s 135. Maximum sentence of imprisonment is seven years.

2      New Zealand Police v Lopati [2018] NZDC 25782.

3      Sentencing Act 2002, s 106; Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

4      An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; see

Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

5      DC (CA47/2013) v R [2013] NZCA 255 at [43].

6      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R,

above n 5, at [43].

7      Austin, Nicholls & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

Gravity of offending

—the offending

[5]    Early on Saturday morning, 21 April 2018, Mr Lopati approached the victim at the bar of Chapel Bar on Ponsonby Road. When she turned to buy drinks, he grabbed her right breast over her clothing, lifting it away from her body. In the following altercation, both people were removed from the bar. On his subsequent arrest, Mr Lopati said he could not remember much but, if he inappropriately touched the victim, he took “the onus on that”.

—District Court judgment

[6]    Judge Roberts remarked the charge of indecent assault is one that “knows many, many variations”.8 He considered the incident a low-level offence of its type, involving touching over clothing rather than skin-to-skin contact. The victim recognised the inappropriate nature of Mr Lopati’s actions and expressed her displeasure “in no uncertain terms”.9 But she was entitled to be “unmolested”.10 The Judge recorded Mr Lopati’s first ‘strike’ offending.

[7]    The gravity of an offence is assessed by considering all aggravating and mitigating factors relating to the offender and the offending.11 While the Judge considered Parliament intended this to be a serious offence, he ultimately considered Mr Lopati’s offending was of low gravity.

—analysis

[8]    That is accepted by both counsel. Mr Lopati’s counsel, Phil Hamlin, highlights the “fleeting” nature of the indecent assault, Mr Lopati’s lack of pre-meditation, and Judge Roberts’ comments as to the victim’s lack of vulnerability. Mr Hamlin makes extensive reference to Mr Lopati’s good character, remorse, and efforts at reparation.

8      New Zealand Police v Lopati, above n 1, at [13].

9      New Zealand Police v Lopati, above n 1, at [14].

10 At [14].

11     Z (CA447/12) v R [2012], above n 3, at [27]; Waine v R [2017] NZCA 287 at [21].

[9]    I agree no premeditation was involved here. Mr Lopati’s character references, volunteer work, and expressions of remorse are all mitigating factors. It is clear he is well-regarded by his colleagues, employer, and friends. On the other hand, a charge of indecent assault is treated seriously by the courts.12 The victim had every right to enjoy her evening without being accosted by Mr Lopati. Nonetheless, the gravity of the offending is rightly characterised as low. But it does not necessarily follow the consequences of convicting Mr Lopati would be out of all proportion to that gravity.

Consequences of conviction

—District Court judgment

[10]   The risk of a conviction jeopardising Mr Lopati’s employment prospects was the primary consequence advanced by counsel, the proposition being clients will not want to engage with a business represented by a convicted sex-offender. The Judge did not think these consequences were out of all proportion to the gravity of the offence. Mr Lopati’s employer had full knowledge of the offending, and Mr Lopati remained employed. Mr Lopati’s sought-after qualification and well-regarded record of employment would hold him in good stead. The Judge considered the claimed consequences were “speculative”,13 and “elevated beyond the positioning they truly deserve.”14 In consequence, the Judge was not prepared to exercise his discretion to discharge. He ordered the conviction be entered.

—analysis

[11]   Mr Hamlin reiterates the employment-specific consequences which could arise if Mr Lopati was convicted. He submits the approach in Tahitahi v Police be followed.15 There, the Court considered the likely consequences of a conviction in a more general sense, given the “limited scale of the offending”.16 Mr Hamlin points to the profound effect the offending has had on Mr Lopati, and submits if the conviction is upheld, the shame Mr Lopati feels will follow him for the rest of his life.

12     Waine v R, above n 11, at [16].

13     New Zealand Police v Lopati, above n 1, at [18].

14 At [18].

15     Tahitahi v Police [2012] NZHC 663.

16 At [31].

[12]   He acknowledges it is unclear if Mr Lopati’s current employer will terminate his employment. He relies on the proposition that the Court does not need to be satisfied the identified consequences will inevitably occur; it is sufficient if a “real and appreciable risk of such consequences” occurring is present.17

[13]   Appellate guidance has recently been given on the effects of a conviction on employment in R v Taulapapa, where the Court stated:18

When determining the effects of conviction on employment the court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness.

[14]   The social stigma of conviction can affect a person’s career, but that consequence must normally yield to the employer’s right to know.19 If employers are unwilling to look past the conviction, the consequences can be severe.20 But there is no single approach to evaluating the consequences of a conviction on employment.21

[15]   Here, it was unclear if Mr Lopati’s employment would be terminated or even detrimentally affected. Mr Lopati’s employer was fully aware of the proceeding – and contractually entitled to terminate his employment, if even investigation or prosecution had potential to bring its business into disrepute – but only observed it would evaluate his future if convicted. Even if determined it would terminate his employment on conviction, that may not have affected the Judge’s view.22

Proportionality analysis

[16]   Judge Roberts did not err in declining a discharge without conviction. Mr Lopati was found guilty of indecent assault, an offence rightly attracting social stigma as marked by conviction. Mr Lopati’s shame is commensurate with the actual offending’s low gravity, as is the less than ‘real and appreciable’ risk the identified

17     DC (CA47/2013) v R, above n 5, at [43].

18     R v Taulapapa [2018] NZCA 414 at [46].

19     At [42(a)].

20     At [42(b)].

21 At [43].

22     R v Aylwin [2007] NZCA 458 at [48].

employment consequences will eventuate or Mr Lopati’s other employment prospects would suffer. His conviction was not at all disproportionate.

Result

[17]The appeal is dismissed.

—Jagose J