MacDonald v Police
[2020] NZHC 415
•5 March 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-175
[2020] NZHC 415
TIMOTHY MACDONALD v
NEW ZEALAND POLICE
Hearing: 5 March 2020 Counsel:
M Cole for Appellant
S Mallett for Respondent
Judgment:
5 March 2020
JUDGMENT OF CHURCHMAN J
Introduction
[1] Mr Macdonald (the appellant) has been charged with s 21(1)(a) of the Summary Offences Act 1981. Under this provision, a person commits an offence who, knowing that their conduct is likely to cause another person reasonably to be frightened or intimidated, threatens to injure that other person.1 This charge carries within it a maximum penalty of three months’ imprisonment or a $2,000 fine.
[2] On 23 October 2019, Judge Callaghan convicted and sentenced the appellant for this offence, ordering that he pay a sum of $500 to the victims.2 No other penalty
1 Summary Offences Act 1981, s 21(1)(a).
2 Police v MacDonald [2019] NZDC 23479 at [25]-[26].
MACDONALD v NEW ZEALAND POLICE [2020] NZHC 415 [5 March 2020]
was imposed, but a conviction was entered. The appellant now appeals to this Court against his conviction, on the basis that the Judge erred in fact and in law.
Background
Factual background
[3] On 1 December 2018, the appellant was residing at his home address with the two victims. The appellant was frustrated with the victims and became increasingly aggressive. He banged on doors and yelled racial slurs about killing Mexicans and how Hitler was right to kill immigrants.3 The appellant then produced a large knife from the kitchen and took it into the bathroom, supposedly for the purpose of trimming his facial hair.4 He then returned to the kitchen where the victims were present and presented the knife towards them, stating words to the effect: “what are you doing in my country?” and “kill migrants”.5 One of the victims then called the Police.
District Court decision
[4] At the District Court, the appellant sought a discharge without conviction, on the basis that he had no previous convictions, that he had neurological difficulties, and that the imposition of a conviction would make it difficult for him to find employment. The Police (the respondent) opposed the discharge without conviction on the basis that the particular offending in this case could be classified as moderate to serious in the spectrum of offences of a similar nature, due to the nature of the threats uttered and the presence of a weapon. It was further submitted that the hostility of the appellant towards a group of persons who share a common characteristic such as race or nationality should also be treated by the Court as an aggravating factor.
[5] The District Court Judge acknowledged the appellant’s neurological difficulties and lack of previous convictions, but ultimately ruled the appellant should be convicted.6 The Judge indicated that the appellant’s actions could be considered in the moderate to medium band on the spectrum for this type of offending, and that the
3 Police v MacDonald, above n 2, at [2].
4 At [2].
5 At [2].
6 At [25].
conviction itself would not be the root cause of the appellant’s difficulty with finding employment, but rather his difficulties in maintaining interpersonal relationships.7
Submissions of the parties
The appellant
[6] Ms Cole, counsel for the appellant, submitted that the District Court Judge erred in his judgment in two ways. Firstly, that the Judge erred when he decided that an employer would be entitled to know about the appellant’s neurological and interpersonal difficulties, as well as his tendency to react in an aggressive manner in stressful situations. According to counsel for the appellant, in making this statement the Judge assumed that the aggressive behaviour was normal for the appellant, whereas an affidavit from the appellant’s social worker submitted by counsel indicated that he was not normally aggressive.
[7] Secondly, counsel submitted that the Judge failed to properly take into account the appellant’s neurological difficulties as they related to the gravity of his offending under s 8(h) of the Sentencing Act 2002. According to Ms Cole, the appellant’s neurological deficits should have been more significant weight, particularly in light of counsel’s submission that the appellant was not normally an aggressive person.
The respondent
[8] Mr Mallett, counsel for the respondent, submitted that the appeal should be dismissed, and that the conviction should remain. It was noted by Mr Mallett that the appellant in his submissions did not allege that Judge erred in applying the principles under s 107, but rather focused on the two errors discussed above.
[9] Counsel noted that in relation to the Appellant’s first ground of appeal, the District Court Judge was simply paraphrasing Police submissions, and that all that would be disclosed to a future potential employer would be the appellant’s conviction, not his neurological difficulties or his tendency to react in an aggressive manner. Consequently, the first ground was submitted to have no merit.
7 At [24].
[10] In relation to the second ground of appeal, counsel submitted that the Judge explicitly took the appellant’s neurological difficulties into account when considering his decision, and that in the affidavit of the appellant’s support worker, it was acknowledged that the appellant could potentially say “very inappropriate things when in a conflict”. Furthermore, counsel noted that while neurological issues and interpersonal difficulties are matters that can properly be taken into account when assessing the gravity of the offending, they are not a defence to the charge or a justification or excuse to the appellant’s behaviour.
[11] Counsel for the respondent also referred to the case of R v Nilsson. That case concerned an appeal by the appellant against an assault conviction on the basis that the sentencing Judge failed to attach sufficient mitigating weight to the appellant’s psychiatric condition as a factor in the offending.8 The Court of Appeal held that the appellant’s psychiatric condition significantly reduced, but did certainly did not extinguish, the appellant’s culpability for his actions.9
Approach to appeal
[12] An appeal against the refusal to grant a discharge without conviction is a composite appeal against both conviction and sentence.10 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:11
(a)by virtue of a material error by the sentencing judge in entering a conviction; or
(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Act.
8 R v Nilsson CA552/99, 27 July 2000 at [6].
9 R v Nilsson, above n 8, at 16.
10 Jackson v R [2016] NZCA 627 at [6]-[16].
11 Jackson v R [2016] NZCA 627, above n 10, at [12].
Relevant law
[13] Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, a Court may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence.12
[14] Section 106 is complemented by s 107. Under this provision, a Court must not discharge an offender without conviction under s 106 unless that Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.13
[15] The Court of Appeal has characterised an assessment under s 107 as a three step test:14
[11]It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.
[16] In Z v R, the Court of Appeal clarified the approach to applying each element of the s 107 assessment:15
[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are
12 Sentencing Act 2002, s 106.
13 Sentencing Act 2002, s 107.
14 Prasad v R [2018] NZCA 537 at [11].
15 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
Analysis
The gravity of the offence
[17] The Judge rightly considered the gravity of the offending through an assessment of all the aggravating and mitigating factors relating to the appellant and his offending. The Judge firstly considered the aggravating factors, which included the presence of a weapon during the offending, the racial nature of the threats and that the threats implied death.16 The mitigating factors were then considered. These included the appellant’s lack of previous convictions, his underlying neurological disorders, his ability to maintain employment, his guilty plea and his efforts to try and address problem gambling and drinking issues.17 In taking these factors into account, the Judge concluded that the gravity of the offending was moderate to medium.18 Ms Cole conceded that this was an appropriate categorisation.
Direct and indirect consequences of the conviction
[18] The Judge then considered the direct and indirect consequences of the conviction, particularly the potential difficulty with obtaining a job if a conviction was imposed. The Judge acknowledged that a conviction was a potential factor that an employer would take into account, but ultimately held that the conviction itself would not necessarily be the “root cause” of the Appellant’s difficulty to find employment.19 Instead, the appellant’s interpersonal relationship difficulties would in the Judge’s view, impact more on the appellant’s ability to find employment than a conviction.20 This appears to be a correct application of the second step in the s 107 test, as the consequences of the conviction were properly balanced and assessed.
16 Police v MacDonald, above n 2, at [18].
17 At [19]-[22].
18 At [23].
19 At [24].
20 At [24].
Proportionality of consequences to gravity of offence
[19] The Judge ultimately concluded that given the moderate to medium nature of the offence, and the fact that the main consequence of the conviction put forward by the appellant (difficulty finding employment) was more impacted by the appellant’s own interpersonal issues than what a conviction would be, the consequences of the conviction were not out of proportion with the gravity of the offending. Consequently, a discharge without conviction was not warranted.
Conclusion
[20] I am not satisfied that the District Court Judge erred in his assessment of the evidence, and application of s 107 and that a miscarriage of justice has occurred. Counsel for the Appellant is correct in submitting that the Appellant’s lack of previous convictions, difficulties with interpersonal relationships and neurological difficulties are all important factors to be taken into account when considering the offending and conviction. However the Judge correctly considered these factors, and explicitly discussed them in his judgment. The Judge acknowledged the three-step test that he was required to utilise under s 107,21 and correctly applied all three steps, by considering the gravity of the offending including aggravating and mitigating factors, identifying the consequences of conviction, and determining whether those consequences were out of all proportion to the gravity of the offence.
[21] There is no miscarriage of justice in this case, because the Judge correctly applied the s 107 principles and did not make a material error in his judgment. Consequently, the appeal is dismissed.
Churchman J
Solicitors:
Crown Solicitor’s Office, Christchurch for respondent
21 Police v MacDonald, above n 2, at [17].
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