Lopes v Police
[2017] NZHC 2991
•4 December 2017
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 RespondentJudgment:
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 cheque for $500, he says to see if the account had actually been frozen.
[6] Mr Lopes says he offended because he was concerned about the working group acting irresponsibly and spending money without authority. He was not pleased that de facto couples were involved, as he considered this created conflicts of interest. He was unhappy with his lack of control. He considered he was entitled to unilaterally stop the other members from proceeding with their proposed course or courses of action. However, Judge Singh rejected Mr Lopes’ explanations. In his 9 May decision finding Mr Lopes guilty he held:3
I find that the defendant’s account of why he prepared false Minutes of the meeting that never took place is not credible. If he had really meant to freeze the account, he could have done so by writing to the bank. Alternatively, he could have held a proper meeting at which a resolution could have been passed to freeze the account.
I find these emails… are self-serving and after he was caught-out trying to use the false Minutes to obtain money from the NZWBA’s account. His explanations do not have a ring of truth…
…
His explanation that he was concerned about the money being misused is also not credible. The members of NZWBA, albeit de-registered, had ample time and opportunity to misuse the money had they chosen to do so. But that was not the case. The money stayed in the NZWBA account since it was de- registered in 1997.
[7] And in conclusion:4
The defendant’s account lacks credibility. I totally reject his evidence, particularly his explanations as to why he created the false Minutes.
He had knowingly created the false Minutes intending to use it to obtain
NZWBA’s money.
District Court decision
[8] Judge Singh sentenced Mr Lopes on 3 July 2017. At the outset, he dismissed Mr Lopes’ application for a discharge without conviction. He assessed his offending as “on the upper end of the moderate scale of seriousness”, noting he forged the document without the consent of the people named in it and its witnesses were unaware of its contents.5
[9] The Judge then turned to the consequences of a conviction. He acknowledged that Mr Lopes would suffer the “direct and indirect consequences of a conviction for any person who appears in Court and is found guilty”.6 Further, that the conviction may affect Mr Lopes’ registration as a valuer and his career. However, he considered that this was a matter to be decided by the Valuers Registration Board. He concluded that given the offending was at the upper end of the moderate level of seriousness, the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offending. He then imposed a sentence of 180 hours community work, which has been completed. 7
Appeal
[10] A court may grant a discharge without conviction where the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.8 This is an objective test.9 If the s 107 proportionality test is met, the court may then exercise its discretion to grant a discharge. Judge Singh applied the three- step s 107 test, but concluded that the threshold was not met. The s 107 assessment undertaken by Judge Singh is therefore subject to appeal on normal appellate
principles.10
5 Police v Lopes, above n 2, at [4].
6 At [5].
7 Police v Lopes [2017] NZDC 14344.
8 Sentencing Act 2002, ss 106 and 107.
9 R v Hughes [2008] NZCA 546, [2009] NZLR 222 at [8].
10 R v Hughes at [11]; Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2
NZLR 141 at [16].
[11] As counsel for Mr Lopes has recognised, an appeal against refusal to discharge a defendant without conviction is properly characterised as an appeal against conviction and sentence. The Court of Appeal explained in Jackson v R:11
While it may be seen as straining the statutory definition of a miscarriage of justice, we are satisfied that the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction[…] Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[12] Accordingly, a person appealing conviction under s 232 can demonstrate that a miscarriage of justice occurred on grounds that the Court ought to have allowed a discharge. They are not required to impeach the finding of guilty itself. As the Court of Appeal pointed out, this must be the case given a person who pleads guilty to an offence can appeal a refusal to discharge while maintaining their guilty plea.
[13] Mr McDonald seems to be challenging the validity of some of the Judge’s findings in his May judgment in addition to his discharge decision. I do not think this is necessary. Mr Lopes is appealing only the refusal of a discharge, not the finding of guilty itself. Accordingly, I consider that Judge Singh’s conclusions as to the nature of the offending in his May decision finding Mr Lopes guilty are not subject to appeal. Regardless, in my view it is clear that there is no miscarriage of justice in the Judge’s assessment of that evidence. The transcript of evidence demonstrates that Mr Lopes himself admitted to the elements of the offence. As to the Judge’s findings on credibility, the Judge at first instance is far better placed to make such findings.12
Judge Singh’s conclusion that Mr Lopes’ explanation was not credible was open to
him on the evidence, and supported by the dates of the emails Mr Lopes relied on and the fact that Mr Lopes had many other options open to him. Regardless, as will become clear, I do not consider that these findings would impact upon the grant of a
discharge without conviction.
11 Jackson v R [2016] NZCA 627 at [12].
12 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at
199.
Analysis
Gravity of the offending
[14] The crime of forgery is a serious one, indicated by the maximum statutory penalty of 10 years imprisonment. As to the gravity of this particular forgery,
Mr McDonald for Mr Lopes submits that Mr Lopes acted foolishly, but was not trying to defraud the Association, only to stop others from spending its money. As regards the seriousness of the offending, Mr McDonald says:
(a) His motive for offending was not driven by self-gain, but to protect the
Association’s funds;
(b) The sum involved was relatively small;
(c) No money was ever successfully withdrawn from the Association’s bank account as the two cheques tendered by Mr Lopes were not cleared;
(d)Case law characterises such offending as low on the scale of seriousness, citing R v Andrews, Cochrane v Foster, Cong v Police.
[15] However, Judge Singh clearly did not accept that Mr Lopes’ offending was necessarily driven by a desire to protect the Association’s funds. He considered
Mr Lopes’s explanations were not credible. Regardless, even if Mr Lopes’ explanations are true, I do not consider they lessen the seriousness of the offending. The very best that can be said in Mr Lopes’ defence is that he thought he deserved to control the Association’s money even though he knew he did not have any right over it. It is no excuse to say that the working group had no authority to use the money either. In my view, it seems to me that Mr Lopes was acting out of self-interest in the sense that he wanted control over the Association’s money and policies, and that he acted to prevent other members of the working group from implementing policies that he disagreed with. There is nothing to suggest this was a necessary act for the good of the Association. And it was entirely appropriate, in my view, for the Judge to point
out Mr Lopes had other options. Even if Mr Lopes did not want to spend the funds for his own benefit, his forgery was an attempt to place the funds in his own name.
[16] Looking beyond motive, Mr Lopes was the sole offender. His offending was clearly deliberate and could not be considered spur of the moment; by his own account he forged the minutes on 12 April 2015, had them signed by a witness on 22 April
2015, and signed cheques on behalf of the Association on 6 May 2015 and 20 May
2015. This distinguishes the case from Cong v Police, relied on by Mr McDonald; in that case the offenders found a credit card and used it over four days. Ms Cong was not the instigator, but under pressure from her partner to offend. Her remorse, secondary role and lack of premeditation were significant factors in the grant of a discharge in that case.13
[17] I also consider Mr Lopes initial attitude to his conduct to be relevant. His counsel now suggests that his behaviour was foolish and the worst decision of his life.
14 But Mr Lopes pleaded not guilty and has not expressed much in the way of remorse.
His counsel’s submissions indicate, to me at least, that he thinks his behaviour was in some way justified. I accept in his letter to the Court he states he regrets his actions. But this appears to reflect regret for the consequences of his offending rather than an acknowledgement that his offending was wrong. This distinguishes the case quite clearly from Cochrane v Foster, relied upon by counsel for Mr Lopes, in which Tipping J considered that there was little more the respondent could have done to atone for her errors. Tipping J further considered that the explanation for the forgery was “that she fell victim to her over commitment to the many other commendable causes which she has served during her lifetime”.15
[18] As Mr Lopes was unable to withdraw the money, his offending was of little consequence. This was only coincidental, however, and it was certainly his intention to deprive the Association of its funds. His counsel submits that the amount of money was small. But quite clearly Mr Lopes considered it to be significant to the
Association. Although not a particularly serious example of fraud compared to other
13 Cong v Police HC Auckland CRI-2009-404-321, 8 December 2009.
14 Sentencing Act 2002, s 9(2)(f).
15 Cochrane v Foster (1989) 5 CRNZ 38 (HC) at 41.
cases of its kind, in my view, the deliberate premediated nature of Mr Lopes’ offending means that it cannot be considered minor.
Consequences
[19] I now turn to the consequences of the offending. The Court is concerned with direct and indirect consequences where there is a real and appreciable risk of those consequences occurring. Also relevant is the nature and seriousness of the consequences, and the degree of likelihood of their occurring.16
[20] The consequences listed are largely related to employment: first the consequences for his registration as a valuer, and secondly the consequences for his employment, including reinstatement to his previous job.
[21] Mr Lopes works as a registered valuer. He has been registered since 1988. Mr
Lopes states in his affidavit:
If I am convicted I believe that I would lose the ability to practise as a valuer. I also believe that a conviction will put off any prospective any company or organisation employing me as a Valuer [sic].
[22] Deregistration of valuers is regulated by s 31 of the Valuers Act 1948, which reads:
(1) The Board may cause the name of any registered valuer to be removed from the register if it is satisfied, after inquiry as hereinafter provided, but not otherwise,—
(a) that he has been guilty of such improper conduct as renders him in the opinion of the Board unfit to be registered under this Act, or has been convicted (either before or after his registration) of an offence punishable by imprisonment for a term of 2 years or upwards:
(b) that he has been convicted (either before or after his registration) of an offence which tends to dishonour him in the public estimation:
…
16 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]–[35].
[23] No evidence has been provided by Mr Lopes apart from his affidavit to detail the process undertaken by the Valuers Registration Board or the likelihood of deregistration. But the legislation makes it clear that the option to deregister a valuer is discretionary; the Board may cause a name to be removed from the register. Further, ss 32 and 33 provide that the Board will inquire into complaints and give the valuer the opportunity to be heard with representation. A range of disciplinary powers are available, not just deregistration; the Board may reprimand, impose a monetary penalty or make a temporary order of suspension. Further, as Mr McDonald acknowledges, the Board would be entitled to inquire as to whether Mr Lopes’ conduct was improper regardless of whether a conviction is entered.
[24] There is a considerable body of case law that highlights that where Parliament has seen fit to establish a statutory body with the task of evaluating candidates for admission to a trade or profession, the Court will not be quick to override that body’s discretion.17 I consider that it is entirely appropriate for the decision to rest with the Board. Further, the Board is able to inquire into Mr Lopes’ offending regardless of conviction. This lessens the consequences of conviction in my view. Asher J highlighted in Zhang v Ministry of Economic Development that a discharge without conviction will be less necessary where a body will have cause to examine the details of the offending irrespective of whether a conviction is entered or not. He held:18
The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions…
[25] As for Mr Lopes’ employment, Mr Lopes resigned from his current job when he was charged. I have no evidence from his employer as to whether reinstatement is a likely option. Mr Lopes’ employer will presumably be aware that he was found guilty either way. A conviction is not an absolute bar to employment, and Mr Lopes may be able to explain his conduct with or without a conviction. Looking at the overall circumstances, I do not see anything to indicate that a conviction itself will manifestly
change the likelihood of him being reinstated, except that it will provide a signal from
17 Police v Roberts [1991] 1 NZLR 205 (CA); Maraj v Police [2016] NZCA 279; Stewart v Police
[2015] NZHC 165.
18 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at
[14]; R v Blythe [2011] NZCA 190, [2011] 2 NZLR 620.
the Court as to the seriousness of the offending. But even with a conviction his employer will be able to read the judgments and see the offending was unrelated to his job responsibilities, and appears to be one-off offending. In those circumstances, I do not consider that a conviction will make a huge difference.
[26] On the other hand, I am satisfied that there is a real and appreciable risk that Mr Lopes will face prejudice in applying for new jobs as a result of his conviction. A conviction is not an absolute bar; it is often possible to explain, especially for a minor offence. I accept, however, that employers may well be less likely to consider applicants with convictions.
Proportionality
[27] Finally, for myself, I consider that the consequences for Mr Lopes are not out of all proportion to the seriousness of the offending. There is insufficient evidence to conclude that Mr Lopes will be far more likely to lose his registration as a valuer with a conviction than without. Either way, this will appropriately be a matter for the Board. The same is true for his most recent employer’s response. While I accept that a conviction may well have an impact on Mr Lopes’ job prospects, I do not consider this is a wholly disproportionate outcome. Although the offending is not directly related to Mr Lopes’ employment as a valuer, it is not irrelevant either given Mr Lopes has held senior positions with some responsibility.
[28] I note here that I have had regard to the additional evidence that Mr Lopes seeks to adduce, being medical evidence to show he was diagnosed with and taking medication for depression at the time of the offending. I accept this proved a challenge for Mr Lopes. Further, I note that Mr Lopes’ father, with whom Mr Lopes was very close, died in 2013. I accept that this appears to have had a profound impact on Mr Lopes. But there is nothing in the medical evidence to suggest that his offending was related to his diagnosis of depression. It may well be that unique circumstances led to a temporary lapse in judgment which is unlikely to occur again. Certainly Mr Lopes’ personal references suggest he is generally held in high esteem. But that does not reduce his culpability or result in greater consequences of a conviction.
[29] I do not consider that the s 107 threshold has been met. A discharge without conviction is not, in my view, appropriate in this case. I do hope, however, that
Mr Lopes will be able to regain employment as this conviction seems to me to be quite unrelated to the practice of his profession and it now seems that Mr Lopes has recognised the seriousness of actions and will not reoffend in any capacity. It may be thought he deserves a second chance.
[30] Nonetheless, the appeal is dismissed.
Woolford J
0
6
0