MacDonald v Police - [2020] NZHC 415

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…

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 MacDonald v Police

Details

AGLC: MacDonald v Police [2020] NZHC 415
Case: [2020] NZHC 415
Decision Date: 5 March 2020

CaseChat Overview and Summary

In MacDonald v Police, the appellant, Timothy MacDonald, was convicted and sentenced by Judge Callaghan for an offence under s 21(1)(a) of the Summary Offences Act 1981, which relates to making threats likely to cause fear or intimidation, in this case involving racial slurs and the presentation of a knife. The appellant appealed to the High Court against his conviction, arguing that the District Court Judge erred in fact and in law. The legal issues for the Court to determine included whether the District Court Judge made a material error in his judgment, and whether the Judge applied the principles under s 107 of the Sentencing Act 2002 correctly when considering a discharge without conviction.

The Court found that the District Court Judge correctly assessed the gravity of the offence by considering both aggravating and mitigating factors, such as the presence of a weapon and the appellant's neurological difficulties. The Judge also properly identified the direct and indirect consequences of conviction, such as the potential difficulty with obtaining employment, and correctly applied the three-step test under s 107 to determine that the consequences of the conviction were not out of proportion to the gravity of the offence. The Judge explicitly discussed these factors in his judgment and correctly applied the relevant legal principles.

Consequently, the Court was not satisfied that a miscarriage of justice had occurred, and the appeal was dismissed. The Judge's assessment of the evidence and application of s 107 were found to be correct, and there was no material error in his judgment. The Court concluded that the appellant's lack of previous convictions, difficulties with interpersonal relationships, and neurological difficulties were all properly taken into account, but the consequences of the conviction were not deemed to be out of proportion with the gravity of the offending.

Orders