Waters v R [2011] NZCA 267 (10 June 2011)

Last Updated: 14 June 2011

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.

2. The 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.
   

100. The 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.

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REASONS OF THE COURT

(Given by Allan J)

Introduction

[1] 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]
[2] 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.
[3] 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

[4] 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.
[5] 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.
[6] The dispute continued. In November 2007, Mr Griffin applied to the Disputes Tribunal on behalf of French Touch. He claimed just over $11,000, reduced to $7,500 to bring the claim within the jurisdiction of the Tribunal.
[7] A hearing was scheduled in the Tribunal for 31 January 2008. On 29 January the appellant instructed her lawyer to prepare an affidavit, which she swore the following day. Paragraph 9 of the affidavit was central to the Crown case. It reads:

I have discovered the amount of money he states I owe is in four packing slips/invoices that I have never received. It appears that the signatures on the delivery dockets have been forged. I attach to this affidavit copies of delivery dockets. I have highlighted in pink the signature that it is alleged I have signed. I ask that it be compared with that at the foot of this affidavit. My signature has not changed for many years. The second alleged signature is that of my employee Mrs S Smillie. Delivery docket 20177 is her true signature. Delivery docket 20174 is not her signature. ...

[8] It is to be noted that the delivery receipts referred to in the affidavit were (with one exception) different from those which the appellant had asserted to be forgeries in her discussion with her accountant some eight months earlier.
[9] The appellant lodged the sworn affidavit in the Disputes Tribunal and attended the Tribunal hearing the following day by telephone. The Referee transferred the claim to the District Court, where it has since been withdrawn by Mr Griffin. Among the reasons given by the Referee for transferring the claim to the District Court was the forgery allegation made by the appellant.
[10] In a closely-reasoned decision given at the conclusion of the trial, Judge Rollo found that, not only was the forgery allegation in paragraph 9 of the appellant’s affidavit false, but that she knew it was false. In reaching that conclusion, he was significantly influenced by evidence of the identification in the appellant’s home of an item of furniture claimed by the appellant never to have been delivered to her business. She maintained that the item concerned, a wine cabinet, was a subject of one of the allegedly forged delivery receipts. The Judge found that the appellant swore and then deliberately used the affidavit in the Disputes Tribunal hearing, knowing that the forgery allegation in paragraph 9 was untrue.[3] He held, further, that the false evidence was given “... for the purpose of effecting [sic] the course of justice at the Disputes Tribunal hearing scheduled for later that same day.”[4]

The appellant’s argument

[11] Mr Gorringe’s argument on appeal is that the false statements made on oath by the appellant in her affidavit were incapable of perverting the course of justice. That is because all of the invoices to which the assertions in paragraph 9 of the affidavit related were acknowledged by Mr Griffin as having been paid. It followed, Mr Gorringe argues, that these invoices were “out of the picture” and were therefore to be disregarded by the Disputes Tribunal. Accordingly, he maintains, the appellant’s false evidence was incapable of affecting the outcome of the proceeding before the Disputes Tribunal and therefore incapable also of perverting the course of justice.

Discussion

The conviction appeal

[12] The appellant was charged under s 117(e) of the Crimes Act 1961, which (as relevant) reads:

Every one is liable to imprisonment for a term not exceeding 7 years who - ...

(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.

[13] The scope of the term “the course of justice” has been examined in a number of cases including, notably, R v Rogerson.[5] There, the court held that the course of justice is perverted by impairing the capacity of a court or competent judicial authority to do justice. The course of justice can be perverted in a variety of circumstances. Brennan and Toohey JJ explained that:[6]

Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.

[14] This analysis was adopted recently in McMahon v R.[7] It follows that it is not necessary to prove that the course of justice was in fact perverted or obstructed. It is enough to show merely that the act had a tendency to do so and that the accused intended to pervert the course of justice.
[15] Mr Gorringe argues that the knowingly false affidavit sworn and filed by the appellant could not have had a tendency to pervert the course of justice because it covered (in paragraph 9) matters that were no longer in issue before the Disputes Tribunal.
[16] We disagree.
[17] Although the invoices that were related to the delivery receipts said to have been forged were all marked as paid, they were still of significant importance to the Referee. That is because, as the appellant well knew and accepted at her trial, the arrangements between her and Mr Griffin were conducted on a running balance basis. The appellant’s payments were not ordinarily related to any particular invoice or invoices; rather, she made lump sum payments from time to time as she could afford to do so in reduction of the balance for the time being owed to the supplier. Mr Griffin, in return, credited such payments against the oldest outstanding invoice.
[18] In the Disputes Tribunal the supplier claimed $11,000, reduced to $7,500 in order to bring the claim within the Tribunal’s jurisdiction. The appellant’s plain intention in filing her affidavit was to have the Referee deduct the value of the paragraph 9 invoices from the outstanding balance in order to reduce the appellant’s debt to her supplier. In other words, she was seeking a credit for payments already made because, she maintained, the goods concerned had never been delivered. We accept Ms Edwards’ submission that the claim before the Disputes Tribunal necessarily involved a wide enquiry as to the overall state of accounts between Mr Griffin and the appellant. The appellant’s false statement had the intended tendency to impair the Tribunal’s enquiry into the facts by denying it knowledge of the true circumstances of the case.
[19] We are satisfied that the appellant was rightly convicted. The appeal against conviction must accordingly be dismissed.

The sentence appeal

[20] The Judge very properly regarded this as a serious case involving a high degree of premeditation. He referred to a decision of Courtney J in R v Mangnus and Turney[8] where, in noting R v Mackie,[9] her Honour concluded that decisions of this Court demonstrate that a term of imprisonment will ordinarily be imposed for offending which involves the fabrication of evidence. Mr Gorringe does not cavil at that approach but he submits that, having adopted a starting point of 18 months imprisonment and concluded that the appellant was a suitable candidate for home detention, the Judge neglected to take account of identified mitigating factors.
[21] Several mitigating factors were advanced to Judge Rollo at sentencing. The appellant is 63 years of age and without previous convictions or court appearances. The Judge said that she had led a “blameless life” until now. Moreover, she had been a useful member of the community in that she had been self-sufficient and operated a number of businesses throughout her adult life. She has family responsibilities including the care of her very elderly mother, and child care responsibilities for a grandchild. There are also health difficulties, both physical and emotional. All of these factors were relevant in the sentencing exercise. While they were acknowledged by Judge Rollo, he did not expressly take them into account during the sentencing process. Instead, he simply imposed a sentence of nine months’ home detention in substitution for a starting point of 18 months imprisonment.
[22] As Ms Edwards submits, the halving of the length of a notional term of imprisonment to produce a sentence of home detention has become a common practice. It stems from the fact that a short term sentence of imprisonment (two years or less) will ordinarily lead to release on parole after one half of the sentence being served.[10] But the calculation is not to be undertaken as an inflexible mathematical process.[11]
[23] Mr Gorringe’s submission is that the starting point of 18 months imprisonment ought to have been reduced in order to take into account the identified mitigating factors. There is, we think, some substance in that submission, but it would not necessarily lead inexorably to a reduction in the term of home detention, having regard to the approach mandated in Bisschop. Having said that, we consider that, in the light of the mitigating factors, the sentence of nine months home detention, coupled with 150 hours community work, was manifestly excessive and that it is accordingly appropriate to allow the appeal against sentence. The appellant is entitled to greater recognition of mitigating factors than appears to have been accorded.
[24] We quash the sentence of nine months’ home detention and substitute a term of six months home detention. We do not propose to disturb the sentence of community work.

Result

[25] The appeal against conviction is dismissed.
[26] The 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.
[27] The appellant has been on bail, granted by Judge Rollo at sentencing in the light of counsel’s indication at that time that this appeal was to be pursued. The appellant must now commence serving her sentence of home detention and community work. The conditions of the substituted sentence of home detention are to be those set out in [26] of Judge Rollo’s sentencing notes of 8 December 2010, save for [26](b). The 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.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Waters DC Tauranga CRI-2008-070-9197, 21 October 2010.
[2] R v Waters DC Tauranga, CRI-2008-070-9197, 8 December 2010.
[3] R v Waters DC Tauranga CRI-2008-070-9197, 21 October 2010 at [37].
[4] At [61].
[5] R v Rogerson [1992] HCA 25, (1992) [1992] HCA 25; 174 CLR 268.
[6] At 280.
[7] McMahon v R [2009] NZCA 472 at [46].
[8] R v Mangnus and Turney HC Auckland CRI-2006-004-7577, 1 November 2007.
[9] R v Mackie (1998) 16 CRNZ 248 (HC).
[10] Parole Act 2002, s 86(1).
[11] R v Bisschop [2008] NZCA 229 at [17]–[19].