Waters v The Queen - [2011] NZCA 267

IN THE COURT OF APPEAL OF NEW ZEALAND

CA810/2010
CA13/2011
[2011] NZCA 267

BETWEEN LORRAINE WATERS
Appellant

AND THE QUEEN
Respondent

Hearing: 24 May 2011

Court: Randerson, Gendall and Allan JJ

Counsel: P F Gorringe for Appellant
S B Edwards for Respondent

Judgment: 10 June 2011 at 3 p.m.

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

BThe appeal against sentence is allowed. The sentence of nine months home detention is quashed and replaced by a sentence of six months home detention. The sentence of 150 hours community work remains undisturbed.

CThe appellant is to report to the community probation service at Tauranga by 2.00 pm on Friday 17 June 2011 to commence the sentence of six months home detention imposed by this Court and the sentence of 150 hours community work imposed by Judge Rollo.

____________________________________________________________________

REASONS OF THE COURT

(Given by Allan J)

Introduction

At the conclusion of a trial on indictment before Judge Rollo, sitting alone in the Tauranga District Court, the appellant was convicted on a count of wilfully attempting to pervert the course of justice.[1]
[1] R v Waters DC Tauranga CRI-2008-070-9197, 21 October 2010.
On 8 December 2010, she was sentenced to nine months home detention and ordered to undertake 150 hours of community work.[2] She now appeals against both conviction and sentence.
[2] R v Waters DC Tauranga, CRI-2008-070-9197, 8 December 2010.
The appeal against conviction is based upon an argument that the appellant’s actions were not capable of perverting the course of justice. On the sentence appeal, Mr Gorringe argues that the overall penalty was manifestly excessive and that a shorter period of home detention ought to have been imposed.

Background

In 2006, the appellant established a retail shop in Tauranga. It was called Forrester Furniture. As its name suggests, it sold furniture, principally to home owners. The appellant’s main supplier was a New Plymouth based company called “French Touch” which imported and on-sold French style furniture. French Touch was managed by Mr K M Griffin. Between May 2006 and March 2007, French Touch supplied more than 50 consignments of furniture valued at about $100,000 in all to the appellant’s business.
In March 2007, a dispute developed between the two businesses over payment of invoices from French Touch. Mr Griffin claimed that about $12,000 was owing. The appellant instructed her accountant to undertake an analysis of the French Touch invoices. The accountant agreed with the supplier’s calculation. But the appellant queried four invoices for consignments that she said she did not receive, along with another about which she was uncertain. Upon being shown the signed proof of delivery receipts for the consignments covered by those invoices, the appellant asserted to her accountant that the signatures on four of them were not hers and must have been forged. The accountant advised her to tell her lawyer of the forgery so that she could swear an affidavit as the basis of a dispute as to receipt of the goods.
The dispute…

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 Waters v The Queen

Details

AGLC: Waters v The Queen [2011] NZCA 267
Case: [2011] NZCA 267
Decision Date: 10 June 2011

CaseChat Overview and Summary

Lorraine Waters appealed against both her conviction and sentence following her trial and sentencing in the Tauranga District Court. The appellant was convicted of wilfully attempting to pervert the course of justice by filing a false affidavit in a proceeding before the Disputes Tribunal. She was sentenced to nine months home detention and 150 hours of community work. The appeal against conviction challenged whether the appellant’s actions were capable of perverting the course of justice. The appeal against sentence argued that the sentence imposed was manifestly excessive.

The Court of Appeal considered whether the appellant’s actions were capable of perverting the course of justice. The Court noted that the appellant swore an affidavit that contained false statements about the delivery of certain goods. This affidavit was filed in the Disputes Tribunal. The Court found that the appellant knew that the affidavit contained false statements and that it was intended to be used in the Tribunal hearing. The Court held that the appellant’s false statements had a tendency to impair the Tribunal’s ability to make a decision, and therefore constituted an attempt to pervert the course of justice. The Court dismissed the appeal against conviction.

The Court also considered whether the sentence imposed was appropriate. The Court noted that the appellant had no previous convictions and was a useful member of the community. However, the Court held that the appellant’s actions were premeditated and serious. The Court held that the sentence of nine months home detention was excessive, given the appellant’s mitigating circumstances. The Court allowed the appeal against sentence and reduced the term of home detention to six months.

The appellant was ordered to commence serving her sentence of six months home detention and 150 hours of community work. The appellant was to report to the community probation service at Tauranga on 17 June 2011.

Orders