Lopes v Police - [2017] NZHC 2991

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000293 [2017] NZHC 2991

UNDER the Criminal Procedure Act 2011

BETWEEN

GARY LOPES Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 December 2017

Appearances:

K McDonald for the Appellant
S McDaid for the Respondent

Judgment:

4 December 2017

JUDGMENT OF WOOLFORD J

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland
Kevin McDonald & Associates, Auckland

LOPES v NZ POLICE [2017] NZHC 2991 [4 December 2017]

[1] Gary Lopes was convicted in the District Court of one charge of forgery under s 256 of the Crimes Act 1961.1 Judge Singh refused his application for a discharge without conviction under s 106 of the Sentencing Act 2002.2 Mr Lopes now appeals that decision.

Factual background

[2] Mr Lopes offended in the midst of a dispute over the management of the New Zealand Wagyu Breeders Association (the Association). The Association was established in 1992. It was deregistered in 1997, but retained just over $20,000 in its bank account. Mr Lopes was involved in an attempt to revive the Association from
2014. It seems he considered he had a particular interest in the Association because his father had been a founding member. Mr Lopes had firm ideas about the future of the Association, including that it should be amalgamated with the alternative New Zealand wagyu group, the New Zealand Wagyu Association.

[3] Mr Lopes and others called a meeting of interested parties in July 2014, but it did not reach a quorum. Instead, they appointed seven people including Mr Lopes to “interim” positions on a “working group”. A meeting was then held in October 2014, and the working group rejected Mr Lopes’ proposal for amalgamation. They discussed using some of the Association’s funds to develop a website.

[4] Mr Lopes went to the bank to find out more about the accounts of the Association. He was told the bank required proof he was an officer of the Association. He then prepared false minutes of a meeting that had not happened. The forged minutes included a motion appointing him President following nomination by members of the working group. None of those members had any knowledge of the minutes or the non-existent meeting, which said it had been held on 12 April 2015. The forged minutes were signed by Mr Lopes’ mother, who was almost blind, and a friend who had not read them. They were listed as Secretary and Treasurer respectively. Neither in fact had anything to do with the Association.

[5] Mr Lopes provided the bank with the forged minute and was recorded as a signatory to the account. He then attempted to withdraw $10,000 from the account on
6 May 2015, but was unable to access the money as it was held on a term deposit. Mr Lopes later asked the bank to freeze the Association’s accounts and attempted to have the Association deregistered. On 20 May Mr Lopes signed a second Association…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lopes v Police

Details

AGLC: Lopes v Police [2017] NZHC 2991
Case: [2017] NZHC 2991
Decision Date: 4 December 2017

CaseChat Overview and Summary

Gary Lopes was convicted in the District Court of one charge of forgery under the Crimes Act 1961 and now appeals the decision of Judge Singh to refuse his application for a discharge without conviction under the Sentencing Act 2002. The appeal raises questions about the gravity of the offending and the consequences of a conviction for Mr Lopes. The Court considers whether the consequences of a conviction are out of all proportion to the seriousness of the offending. The appeal against the refusal of a discharge without conviction is dismissed.

The key legal issues were whether the consequences of a conviction for Mr Lopes are out of all proportion to the seriousness of the offending. The Court considered whether the nature of the offending was serious and deliberate, and whether the consequences of a conviction were disproportionate to the offending. The Court also considered the evidence of Mr Lopes’ remorse and his medical evidence of depression.

The Court found that the forgery was serious, deliberate and premeditated. It was not minor or impulsive, and Mr Lopes’ remorse was not genuine. The Court also found that the consequences of a conviction were not out of proportion to the seriousness of the offending. The consequences related mainly to Mr Lopes’ employment and registration as a valuer. The Court considered that the Valuers Registration Board would examine Mr Lopes’ offending regardless of conviction, and that a conviction was not an absolute bar to employment. The Court also found that Mr Lopes’ medical evidence of depression did not excuse his offending. The appeal was dismissed.

Orders