LOPATI v NEW ZEALAND POLICE [2019] NZHC 198

LOPATI v NEW ZEALAND POLICE [2019] NZHC 198 [18 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2018-404-0356[2019] NZHC 198BETWEEN ULA LOPATIAppellantAND NEW ZEALAND POLICERespondentHearing: 18 February 2019Appearances: P K Hamlin for the appellantH T Reid for the RespondentJudgment: 18 February 2019ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:P K Hamlin, Barrister, AucklandMeredith Connell, AucklandIntroduction[1] On 18 May 2018, in the District Court at Auckland, Ula Lopati pleaded guiltyto one charge of indecent assault.1 On 5 October 2018, he was convicted and orderedto make an emotional harm payment of $500 to the victim. His application for adischarge without conviction under s 106 of the Sentencing Act 2002 was refused byJudge A C Roberts.2 Mr Lopati now appeals that decision.Approach on appeal[2] Courts may discharge an offender without conviction only if the direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence.3 Only then may the Court consider whether to exercise its residualdiscretion.4[3] The proportionality test is a question of fact requiring judicial assessment.There must be a "real and appreciable" risk any given consequence will happen: thisrecognises the court is assessing future likelihood.5 The offender should putinformation before the court to provide a factual basis for a decision the test has beensatisfied. But there is no legal onus on the offender to do so; all that is required is thejudge be satisfied s 107 is met.6[4] If Mr Lopati can establish Judge Roberts' decision was wrong, I will considerthe matter afresh.71 Crimes Act 1961, s 135. Maximum sentence of imprisonment is seven years.2 New Zealand Police v Lopati [2018] NZDC 25782.3 Sentencing Act 2002, s 106; Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].4 An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; seeJackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.5 DC (CA47/2013) v R [2013] NZCA 255 at [43].6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R,above n 5, at [43].7 Austin, Nicholls & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].Gravity of offending—the offending[5] Early on Saturday morning, 21 April 2018, Mr Lopati approached the victimat the bar of Chapel Bar on Ponsonby Road. When she turned to buy drinks, he grabbedher right breast over her clothing, lifting it away from her body. In the followingaltercation, both people were removed from the bar. On his subsequent arrest, MrLopati said he could not remember much but, if he inappropriately touched the victim,he took "the onus on that".—District Court judgment[6] Judge Roberts remarked the charge of indecent assault is one that "knowsmany, many variations".8 He considered the incident a low-level offence of its type,involving touching over clothing rather than skin-to-skin contact. The victimrecognised the inappropriate nature of Mr Lopati's actions and expressed herdispleasure "in no uncertain terms".9 But she was entitled to be "unmolested".10 TheJudge recorded Mr Lopati's first 'strike' offending.[7] The gravity of an offence is assessed by considering all aggravating andmitigating factors relating to the offender and the offending.11 While the Judgeconsidered Parliament intended this to be a serious offence, he ultimately consideredMr Lopati's offending was of low gravity.—analysis[8] That is accepted by both counsel. Mr Lopati's counsel, Phil Hamlin, highlightsthe "fleeting" nature of the indecent assault, Mr Lopati's lack of pre-meditation, andJudge Roberts' comments as to the victim's lack of vulnerability. Mr Hamlin makesextensive reference to Mr Lopati's good character, remorse, and efforts at reparation.8 New Zealand Police v Lopati, above n 1, at [13].9 New Zealand Police v Lopati, above n 1, at [14].10 At [14].11 Z (CA447/12) v R [2012], above n 3, at [27]; Waine v R [2017] NZCA 287 at [21].[9] I agree no premeditation was involved here. Mr Lopati's character references,volunteer work, and expressions of remorse are all mitigating factors. It is clear he iswell-regarded by his colleagues, employer, and friends. On the other hand, a charge ofindecent assault is treated seriously by the courts.12 The victim had every right to enjoyher evening without being accosted by Mr Lopati. Nonetheless, the gravity of theoffending is rightly characterised as low. But it does not necessarily follow theconsequences of convicting Mr Lopati would be out of all proportion to that gravity.Consequences of conviction—District Court judgment[10] The risk of a conviction jeopardising Mr Lopati's employment prospects wasthe primary consequence advanced by counsel, the proposition being clients will notwant to engage with a business represented by a convicted sex-offender. The Judgedid not think these consequences were out of all proportion to the gravity of theoffence. Mr Lopati's employer had full knowledge of the offending, and Mr Lopatiremained employed. Mr Lopati's sought-after qualification and well-regarded recordof employment would hold him in good stead. The Judge considered the claimedconsequences were "speculative",13 and "elevated beyond the positioning they trulydeserve."14 In consequence, the Judge was not prepared to exercise his discretion todischarge. He ordered the conviction be entered.—analysis[11] Mr Hamlin reiterates the employment-specific consequences which could ariseif Mr Lopati was convicted. He submits the approach in Tahitahi v Police befollowed.15 There, the Court considered the likely consequences of a conviction in amore general sense, given the "limited scale of the offending".16 Mr Hamlin points tothe profound effect the offending has had on Mr Lopati, and submits if the convictionis upheld, the shame Mr Lopati feels will follow him for the rest of his life.12 Waine v R, above n 11, at [16].13 New Zealand Police v Lopati, above n 1, at [18].14 At [18].15 Tahitahi v Police [2012] NZHC 663.16 At [31].[12] He acknowledges it is unclear if Mr Lopati's current employer will terminatehis employment. He relies on the proposition that the Court does not need to besatisfied the identified consequences will inevitably occur; it is sufficient if a "real andappreciable risk of such consequences" occurring is present.17[13] Appellate guidance has recently been given on the effects of a conviction onemployment in R v Taulapapa, where the Court stated:18When determining the effects of conviction on employment the court mustidentify the consequence, assess the evidence offered for it, evaluate the riskthat the consequence will happen to the particular applicant, and form anoverall assessment of seriousness.[14] The social stigma of conviction can affect a person's career, but thatconsequence must normally yield to the employer's right to know.19 If employers areunwilling to look past the conviction, the consequences can be severe.20 But there isno single approach to evaluating the consequences of a conviction on employment.21[15] Here, it was unclear if Mr Lopati's employment would be terminated or evendetrimentally affected. Mr Lopati's employer was fully aware of the proceeding – andcontractually entitled to terminate his employment, if even investigation orprosecution had potential to bring its business into disrepute – but only observed itwould evaluate his future if convicted. Even if determined it would terminate hisemployment on conviction, that may not have affected the Judge's view.22Proportionality analysis[16] Judge Roberts did not err in declining a discharge without conviction. MrLopati was found guilty of indecent assault, an offence rightly attracting social stigmaas marked by conviction. Mr Lopati's shame is commensurate with the actualoffending's low gravity, as is the less than 'real and appreciable' risk the identified17 DC (CA47/2013) v R, above n 5, at [43].18 R v Taulapapa [2018] NZCA 414 at [46].19 At [42(a)].20 At [42(b)].21 At [43].22 R v Aylwin [2007] NZCA 458 at [48].employment consequences will eventuate or Mr Lopati's other employment prospectswould suffer. His conviction was not at all disproportionate.Result[17] The appeal is dismissed.—Jagose J