Willis v The Queen - [2017] NZCA 383

IN THE COURT OF APPEAL OF NEW ZEALAND

CA366/2017
[2017] NZCA 383

BETWEEN	LISA MARIA WILLIS Appellant
AND	THE QUEEN Respondent

Hearing:	30 August 2017
Court:	Harrison, Duffy and Williams JJ
Counsel:	S J Zindel and A R Goodison for Appellant E J Hoskin for Respondent
Judgment:	30 August 2017

ORAL JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe appeal is dismissed.

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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…

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 Willis v The Queen

Details

AGLC: Willis v The Queen [2017] NZCA 383
Case: [2017] NZCA 383
Decision Date: 30 August 2017

CaseChat Overview and Summary

Lisa Maria Willis appealed against her conviction and sentence for making false statements in various documents submitted for the purposes of the Companies Act 1993. The appeal was filed out of time but was heard on the basis of an application for an extension of time which was granted. Willis argued that the consequences of her conviction were disproportionate to the gravity of her offending and that she should have been discharged without conviction. The Court of Appeal upheld the decision of the trial Judge that the consequences of the conviction were not disproportionate to the gravity of the offending and dismissed the appeal. The Court found that the offending was of a moderately serious nature and that the absence of remorse on the part of Willis was particularly serious. The Court rejected Willis' argument that the consequences of the conviction would be unduly or exceptionally adverse to her, noting that all convictions carry adverse consequences and that Willis had twice lost employment in Australia as a result of disclosing her convictions.

The Court of Appeal considered the three-step approach required by the Sentencing Act 2002 for determining whether a discharge without conviction should be granted. The Court found that the trial Judge had correctly assessed the gravity of the offending and that the consequences of conviction were not out of all proportion to the gravity of the offending. The Court rejected Willis' argument that the Judge unduly elevated the gravity of the offending and found that the Judge was in the best position to assess it. The Court also rejected Willis' speculative argument that she may lose her ability to remain in Australia because of its recent strict enforcement of its immigration laws.

The Court of Appeal dismissed the appeal and the appellant's conviction and sentence stand as determined by the trial Judge. The appellant's application for an extension of time was granted, and the appeal was heard on the basis of that application. The Court noted that the appeal was filed out of time but that the Crown did not oppose the application for an extension of time. The Court also noted that the appellant had chosen to represent herself at trial and had cross-examined the third party extensively and with arrogance and in an unnecessary fashion. The Court found that the absence of remorse on the part of the appellant was particularly serious and that the consequences of the conviction were not disproportionate to the gravity of the offending.

Orders