Willis v The Queen
[2017] NZCA 383
•30 August 2017
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA366/2017 [2017] NZCA 383 |
| BETWEEN | LISA MARIA WILLIS |
| AND | THE QUEEN |
| Hearing: | 30 August 2017 |
Court: | Harrison, Duffy and Williams JJ |
Counsel: | S J Zindel and A R Goodison for Appellant |
Judgment: | 30 August 2017 |
ORAL JUDGMENT OF THE COURT
AThe application for an extension of time is granted.
BThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
The appellant, Lisa Maria Willis, was found guilty at trial in the District Court at Nelson before Judge Zohrab and a jury on five separate charges of making false statements in various documents submitted for the purposes of the Companies Act 1993.[1] Each of those charges carried a maximum sentence of five years’ imprisonment or a fine not exceeding $200,000.[2]
[1]Companies Act 1993, s 377(1).
[2]Section 373(4).
Judge Zohrab convicted Ms Willis and fined her $750 on each charge plus court costs.[3] She now appeals her conviction on the ground that the Judge erred in not discharging her without conviction because the consequences were disproportionate to the gravity of her offending.
[3]R v Willis [2017] NZDC 11594 at [37].
The appeal was filed out of time. However, the Crown does not oppose an application for an extension, which we grant.
Factual background
The facts can be stated briefly. Ms Willis, her former husband and a third party formed a company for the purpose of producing and selling hunting DVDs. Ms Willis and her former husband each held 25 per cent of the shares. The remaining 50 per cent were held by the third party. All three were directors.
The relationship broke down following allegations made by the third party that Ms Willis and her former husband were misapplying company funds to meet their own personal expenses. On five separate occasions between June 2014 and February 2015 Ms Willis submitted online amendments and annual returns for the company’s records to the Companies Office. In each she deliberately altered share allocations and records of directors. The effect was to reduce and then reinstate the third party’s shareholding; and to remove and then reinstate the third party as a director. As Mr Zindel correctly points out, the last two offences were remedial in nature, designed to rectify the three previous offences.
All the statements made by Ms Willis were false and were without the third party’s knowledge. She chose to defend the charges and represented herself at trial. Among other things she cross-examined the third party extensively and, as Judge Zohrab recorded in the sentencing notes, with arrogance and in an unnecessary fashion. Of more concern was her challenge to his character and integrity, which were not in issue in the trial.
Decision
Mr Zindel represented Ms Willis on sentencing. He submitted that she should be discharged without conviction under s 106 of the Sentencing Act 2002. Mr Zindel accepts that in dismissing this submission Judge Zohrab correctly formulated the three-step approach which he was required to adopt: first, to assess the gravity of the offending; second, to assess the direct and indirect consequences of a conviction; and third, to determine whether those consequences were out of all proportion to the gravity of the offending.[4]
[4]At [17].
On the first inquiry the Judge was satisfied that the offending was of a moderately serious nature given the public entitlement to rely on the accuracy of the formal Companies Office records.[5] He emphasised that it was not spontaneous.[6] It reflected adversely on Ms Willis’ character and integrity. She chose to act dishonestly on five separate occasions over an eight‑month period. While, as Mr Zindel points out, she did not obtain any financial benefit, the net result was an attempt to disadvantage financially the third party, her former partner in the corporate venture.
[5]At [21].
[6]At [19].
Mr Zindel submits that the Judge unduly elevated the gravity of the offending. We disagree. The Judge was in the best position to assess it. His sentencing notes reflect a careful analysis of all the relevant factors. Apart from Ms Willis’ culpability, we endorse the Judge’s emphasis on Ms Willis’ failure to show any remorse for her offending. As noted, she sought to shift the blame to the third party by, in the Judge’s words “suggesting bad motives on his part, but without advancing any substantive defence”.[7] We regard the absence of remorse in this context as particularly serious. It follows that we reject Mr Zindel’s submission on the Judge’s finding on assessment of gravity.
[7]At [24].
On the second inquiry, the Judge was not satisfied that there was any evidence that the consequences would be unduly or exceptionally adverse to Ms Willis.[8] All convictions carry adverse consequences, frequently of an employment nature. Ms Willis, who chose to shift to Australia following her offending but before trial, has twice lost employment in Australia as a result of disclosing her convictions. However, that is not an unusual or unforeseen consequence of conviction. Similarly, Mr Zindel advanced a speculative argument to the effect that Ms Willis may lose her ability to remain in Australia because of its recent strict enforcement of its immigration laws. Like the Judge,[9] we cannot give any particular weight to that factor.
[8]At [36].
[9]At [35].
The third inquiry was the disproportionality one. It follows from what we have said there was no disproportionality between the consequences of conviction and the gravity of the offending. We are satisfied that the Judge was correct in his conclusion that Ms Willis had not established the grounds for a discharge without conviction.
Result
Accordingly, the appeal is dismissed.
Solicitors:
Zindels, Nelson for Appellant
Crown Law Office, Wellington for Respondent
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