Wilson v Police
[2013] NZHC 2647
•10 October 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2013-419-26 [2013] NZHC 2647
BETWEEN DONNA BEVERLEY WILSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
| Hearing: | 8 October 2013 |
Appearances: | MB Meyrick for Appellant PV Cornege for Respondent |
Judgment: | 10 October 2013 |
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 10 October 2013 at 4:00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
WILSON v NZ POLICE [2013] NZHC 2647 [10 October 2013]
[1] Donna Beverley Wilson appeals against her conviction by Judge Arthur Tompkins in the District Court at Hamilton on a charge under s 257(1)(b) of the Crimes Act 1961 (“the Act”) in which it was alleged that she had used a forged document as if it was genuine. After hearing evidence on 11 and 12 February 2013, Judge Tompkins issued a reserved decision on 11 April 2013 and entered a conviction. On 17 June 2013, the appellant was sentenced to 100 hours’ community work and ordered to pay reparation.
The background facts
[2] The background facts leading to the charge were summarised by Judge Tompkins1 in the following terms:
[4] The defendant is an importer and breeder of Belgium Shepherd Groenendael dogs. In late April 2011 she had advertised another such dog, Luke, on Trade me as being ‘free to a good home’. Louise Thompson, who subsequently acquired the dog Carter from the defendant, responded to the advertisement, but it transpired that Luke was no longer available.
[5] However the defendant, with whom Ms Thompson corresponded by email, told her that another dog, Carter, might become available. Subsequently there was email and telephone contact between the two, and Ms Thompson was told that Carter needed to go to a new home.
[6] Because Ms Thompson was aware that sometimes breeding dogs are placed with restrictions on the new owner’s ability to breed from them, and or to have them neutered, she specifically enquired about that, and her evidence was that she was told that the dog did not “come with a contract”. Because Ms Thompson did not want Carter to breed with their existing dog her original intention was to acquire Carter and then have him neutered.
[7] After agreement was reached in June 2011, Ms Thompson paid for Carter’s transportation down to Linton where she then resided, and took possession of him.
[8] Things did not work out with Carter. Eventually Ms Thompson and her partner decided to re-home him with another person they knew, and although there was some initial ongoing contact, after a while they lost contact.
1 Police v Wilson DC Hamilton CRI-2012-019-2555, 11 April 2013.
[9] The next thing they knew was that Carter (by then known as Solo) was listed on Trade Me by the PAWS Animal Shelter in Fielding. It turned out that the person to whom Carter had initially gone had had some problems with Carter, so the dog was passed on to a farmer that person knew. Subsequently Carter had been impounded by the Manawatu District Council as a wandering dog. After a period in the pound he was placed with the PAWS Animal Shelter.
[10] As an animal re-housing charity PAWS’s policy was that each dog re-housed by them had to be de-sexed, vaccinated, microchipped and registered with the Council. It was on that basis that PAWS listed Carter on Trade Me in an effort to find him a new home.
[11] It transpired that a number of people who had been involved in Carter’s life saw that listing, or had it drawn to their attention. This included the defendant, Ms Thompson, and the person to whom Ms Thompson had originally passed Carter.
[12] Accounts differ as to the content and tenure [sic] of discussions which followed between, amongst others, the defendant or persons acting on her behalf, and representatives of the PAWS Animal Shelter. Each side asserts that the other was aggressive and abusive, but it is not necessary in the present contact to resolve or determine which account, if any, is accurate. The end result, however, was something of a standoff arise in the sense that PAWS, who had Carter in their possession, refused to deliver Carter to the defendant, whereas the defendant asserted that Carter was her dog. During this period various assertions were made by or on behalf of the defendant, sometimes under the “letterhead” of a firm called North Waikato Collections, associated with the defendant or her associates, and including assertions that theft charges would be laid with the police and a “warrant issued to have the dog uplifted and returned”.
[13] At one point these communications included a spurious “notice” under “sections 145 to 156 of the Animal Welfare Act 1999, which notice contained the threat:
... in the event of Cater not being yielded up this notice shall be served upon the District Council and all Vets in NZ (note: if possession of Carter is yielded up then this notice will be withdrawn and it will not be delivered to the council or the vets).
[14] Eventually, on or about 8 February 2012 the defendant lodged a claim with the Disputes Tribunal, naming two named individuals said to be “trading as PAWS Fielding” and claiming $15,000 for the lost “value of this dog to my breeding programme”. It was in support of that claim that the “lease” which is at the heart of this case was submitted by the defendant to the Disputes Tribunal.
The “lease” document
[3] The Judge described the history and provenance of the “lease” as “somewhat murky.” Ms Thompson’s evidence was that she had not expected to receive any lease because the basis upon which she had taken Carter was that he would be neutered in due course. She denied receiving a lease and it was said by the Judge to be common ground that whoever signed the “lease” document it was not Ms Thompson. If corroboration of Ms Thompson’s evidence was necessary, it was provided in the form of documents indicating that the signature on the purported “lease” bore no resemblance to her usual signature.
[4] It was the appellant’s evidence, however, that she had prepared the “lease”, following a precedent which had earlier been prepared for her. She said that she signed the document and gave it to a friend, Helen Wells, with other papers including a copy of the dog’s pedigree papers and vaccination certificates at the time Ms Wells was to transport the dog to Linton. Ms Wells said that she had received the documents including a lease which she placed in an envelope and delivered to Ms Thompson with Carter.
[5] The appellant’s evidence was that sometime after Carter’s departure she returned home from work to find the “lease” on her kitchen table apparently signed by Ms Thompson. She placed the lease in a filing cabinet in Carter’s file where it remained undisturbed for some months until retrieved by her.
[6] Judge Tompkins described the “lease” in these terms:
[21] The “lease” is an odd document. It is replete with grammatic and typographical errors. It includes an erroneous microchip number and a description of Carter. It appears to have been drafted by a non lawyer in such a way as to endeavour to convey the impression that a lawyer was involved in its drafting. For example, it contains the phrase “The Lessee. Here after called ...”, who is said to agree “to the following terms and c conditions (s)”. It is not a lease in any real sense. Its intended effect is to impose obligations on the new owner of Carter which are likely (although not requiring decision in this proceeding) to be unenforceable. No “rent” or the like is payable under this “lease” and even on the defendant’s account, it was to be executed after delivery of Carter, and in circumstances where the
defendant it seems had no recourse if the recipient of Carter had simply refused to execute the return the document.
The District Court Judge’s findings
[7] Judge Tompkins correctly identified that the prosecution was required to prove beyond reasonable doubt:
(a)first, that the “lease” was a false document as defined in s 255 of the Act;
(b)second, that the “lease” was either made with the intention of using it to obtain any property, privilege, service, pecuniary advantage, benefit or valuable consideration, or made with the intention of it being used or relied on as genuine;2 and
(c)third, that the appellant, knowing the document to be forged, used, dealt with, or acted upon the document as if it were genuine.3
[8] According to the Judge, it was common ground that filing the document in the Disputes Tribunal as part of a claim brought in that Tribunal amounted to using, dealing with or acting upon the document as if it were genuine. The defence, however, was that the prosecution had failed to prove that the document was forged and/or that Ms Wilson knew that the document was forged at the time she used it.
[9] The Judge concluded that the “lease” was forged in terms of the definition in the Act. He held that Ms Thompson did not receive or sign the lease which purported to bear her signature. He reached this view, in part, because he accepted Ms Thompson’s evidence that she acquired Carter (who had been advertised as “free to a good home”) on the basis that he would be neutered and that there was no discussion with the appellant about any contract. He held that the false signature was a “material part of the document” and that that was sufficient to satisfy the definition in s 255 of the Act. Second, the Judge concluded that the false lease was
2 Crimes Act 1961, s 256(1) and (2).
3 Ibid, s 257(b).
clearly made with the intention of being used or relied on as genuine. Referring to the judgment of the Supreme Court in Li v R,4 the Judge was satisfied that the making of the false “lease” supported the “irresistible inference that it was made with a deceptive intention”.
[10] On appeal, Mr Meyrick argued, first, that there was no proof that the document was forged; and, second, that it was not proved that the appellant had “used” the document as required by the Act. It appears that Mr Meyrick did not argue these points before the District Court Judge and there may be good reason for that because they are entirely misconceived.
[11] First, Judge Tompkins was entitled to find, on the evidence of Ms Thompson, that she had not signed the document which was produced to the Disputes Tribunal. In those circumstances it was a clear and obvious inference, open to the Judge, that whoever put a signature on the document purporting it to be the genuine signature of Ms Thompson did so with the intention of deceiving someone into believing it was genuine. That is sufficient to bring the document within the definition.
[12] Second, Mr Meyrick’s argument that the document could not have been intended to deceive Ms Thompson, the directors of PAWS or the Disputes Tribunal is also without merit. The defendant would not have sent the lease to the Tribunal if she had not intended it to be treated as genuine and as evidence that she had some proprietary claim to Carter which formed the basis of her claim against PAWS. The Judge was right to find that the document had been used or dealt with as if it were genuine.
[13] The real issue in the case, as the Judge identified, was whether, at the time she used or dealt with the document, the appellant knew that it was forged. That element would have been proved had the prosecution proved beyond reasonable doubt that the appellant was the forger. But proof that she had forged the document was not a necessary ingredient of the offence with which she was charged. The Judge reached no firm conclusion as to the precise identity of the forger but did conclude that either the appellant or someone associated with her signed the “lease”
4 Li v R [2008] NZSC 114, [2009] 1 NZLR 754.
purporting to append Ms Thompson’s signature to it. The Judge tended to the conclusion that it was the appellant’s formerly estranged husband, a convicted fraudster, who was living or at least working closely with her, who had created the document. He referred to “stylistic, grammatical and syntactical errors” appearing in the “lease”, and the spurious notice under the Animal Welfare Act 1999 Mr Heslehurst created and to which he appended his alias. The Judge, however, noted that similar typographical errors appeared in other documents created by other members of the defendant’s family.
[14] Nevertheless, the Judge properly directed himself to determining whether the Police had proved beyond reasonable doubt that the appellant, in circumstances where it was not proved that she was the forger, nevertheless knew that the document was false. For a number of reasons, the Judge held that he was compelled to conclude that the prosecution had proved this ingredient to the necessary high standard:
(a)He rejected the appellant’s evidence and accepted Ms Thompson’s evidence that there was no discussion of any lease or contract related to Carter’s acquisition, the dog having been advertised as “free to a good home” without any related obligations.
(b)He accepted Ms Thompson’s evidence that she received Carter unencumbered by any obligations such as those purportedly contained within the lease document and this was consistent with her conduct when Carter proved to be unsuitable.
(c)He was satisfied that the lease had not been delivered to Ms Thompson with Carter.
(d)He rejected the evidence by and on behalf of the appellant that the lease simply turned up in the mail, was cleared from the appellant’s post office box and left on the kitchen table for her to file.
(e)He considered that the various spurious documents created by or on behalf of the appellant, in the context of the dispute with the PAWS Animal Shelter were noteworthy.
(f)He declared himself satisfied that once threats and intimidatory pressure which the defendant and her family sought to apply to the Animal Shelter staff failed to produce the result of return to Carter, the appellant sought financial redress from the Disputes Tribunal as a way of punishing the shelter. Judge Tompkins concluded the appellant needed evidence of her ownership of the dog and that she or someone in her family created the lease. The creator of the document must have had access to the defendant’s breeding and related records because it was the microchip number of Carter’s mother that was wrongly inserted into the lease document.
Discussion
[15] Mr Meyrick was right to submit that the time at which the appellant had the requisite knowledge of the forgery was crucial but the Judge dealt with that issue by satisfying himself from the evidence that having regard to what he considered to be the factual background to the negotiations or the discussions with Ms Thompson over the acquisition of Carter that the appellant knew full well that Ms Thompson had never signed such a document.
[16] I am not persuaded that there is any merit in Mr Meyrick’s argument that Judge Tompkins’s reasoning was inconsistent. He did not make a finding that it was the appellant who actually created the false document and he was not required to do so. What he did, as required, was to make a finding that she knew it was forged at the time she used it as alleged. The conclusion that the appellant knew that the document was a forgery, whether or not she was the forger, was overwhelming. The Judge was not only entitled to reach that view but I am satisfied that he was entirely right to do so.
[17] The appellant was properly convicted.
The sentence appeal
[18] The appeal against sentence was based on three propositions:
(a)first, that the Judge should have received and accepted a submission that the appellant should be discharged under s 106 of the Sentencing Act 2002;
(b)second, that a sentence of 100 hours’ community service was excessive for a first offence; and
(c)third, that the order for reparation was not justified.
Application for discharge under s 106 Sentencing Act 2002
[19] It is clear from the transcript of Judge Tompkins’s sentencing notes that the Judge was dismissive of the attempt by Mr Meyrick, without notice to either the prosecution or the Court, to make an oral application for a s 106 discharge. It may have been better, nevertheless, if the Judge had addressed the merits of the application but I have afforded Mr Meyrick that opportunity.
[20] Section 107 of the Sentencing Act provides that the Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. I am satisfied that the grounds for a discharge without conviction are not made out.5 The basis for Mr Meyrick’s submission was that the conviction will have serious consequences for Ms Wilson’s continued ability to participate in dog breeding. This proposition is entirely speculative; Mr Meyrick had produced no evidence of any inevitable adverse effect on the appellant’s ability to pursue her
occupation as a dog breeder. Whether or not her conviction for an offence of dishonesty will have that consequence is, in any event, a matter for the persons having regulatory control over dog breeding. The Court is not in a position to
5 See the test set out in DC v R [2013] NZCA 255 and Z v R [2012] NZCA 599, [2013] NZAR 142.
second-guess what might be decided if the appellant’s continued registration as a dog breeder is called into question.
Community service
[21] An order for community service ranks just above a fine in the hierarchy of sentences.6 Forgery carries a maximum penalty of 10 years’ imprisonment. The seriousness of this offending, which involved deliberate dishonesty, was aggravated by the fact that the forged document was used in an attempt to mislead a judicial body. The appellant might consider herself fortunate not to have been charged with wilfully attempting to pervert the course of justice,7 a conviction for which may well have justified a custodial sentence. Community service was an appropriate response to what was done by the appellant.
Reparation
[22] The appellant also challenges the order for reparation, on the basis that the burden of paying $850 reparation to the Animal Shelter to compensate it for the cost of care of Carter should not fall upon the appellant. It was submitted that the appellant had offered at an early stage to take over the care of the dog, but that it was only by reason of an ideological objection to dog breeders profiting from the breeding of dogs that PAWS refused to return the animal to her.
[23] The basis for the reparation order, however, was that the cost incurred was directly related to the forgery. The appellant having relied on the “lease” to initiate proceedings in the Disputes Tribunal seeking compensation for the unlawful retention of the dog, PAWS was required to keep the dog in its care for longer than would otherwise have been the case. The Judge, therefore, had jurisdiction to make the reparation order. The sum was not disputed.
6 Sentencing Act 2002, s 10A(2)(c).
7 Crimes Act 1961, s 117(e).
[24] For these reasons, I dismiss the appeals against conviction and sentence.
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Toogood J