MacDonald v R
[2019] NZCA 91
•5 April 2019 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA293/2018 [2019] NZCA 91 |
| BETWEEN | THOMAS DOUGLAS MACDONALD |
| AND | THE QUEEN |
| Hearing: | 27 February 2019 (further material received 26 March 2019) |
Court: | French, Dobson and Brewer JJ |
Counsel: | M J Phelps for Appellant |
Judgment: | 5 April 2019 at 9 am |
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence is dismissed.
BThe appeal against refusal of permanent name suppression is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr MacDonald pleaded guilty in the District Court to a charge of injuring with reckless disregard. He asked the Court to discharge him without conviction under s 106 of the Sentencing Act 2002.
The application for a discharge was declined by Judge Mackintosh.[1] The Judge convicted Mr MacDonald and fined him $1,000 as well as ordering him to pay the victim reparation in the sum of $2,327.46. She also declined an application to grant Mr MacDonald permanent name suppression.
[1]R v MacDonald [2018] NZDC 4092 (Discharge Application and Sentencing Decision).
Mr MacDonald now appeals the Judge’s decision to refuse his s 106 application and the refusal to grant name suppression.
Background
Facts of the offending
Mr MacDonald was initially charged in June 2016 with injuring with intent to injure following an incident that occurred on 24 April 2016. He pleaded guilty to an amended charge of injuring with reckless disregard on 28 March 2017.
A disputed facts hearing was held before Judge Mackintosh on 15 January 2018.[2] The facts of the offending as found by the Judge were as follows.
[2]R v MacDonald [2018] NZDC 602.
On the evening in question, Mr MacDonald had attended a house party. He had been involved in the organisation of the music and security for the party.[3] A melee erupted during the course of which Mr MacDonald, the Judge found, “may have been assaulted”.[4]
[3]At [6].
[4]At [2].
The victim and his girlfriend arrived at the address in a white Ute to pick up a friend. By this time the police had arrived and asked the victim to park further down the road, which he did.[5]
[5]At [2].
Meantime Mr MacDonald, who had left the address to buy some cigarettes, was returning in his vehicle and became convinced the white Ute was following him. He stopped his vehicle on the opposite side of the road, went over to the white Ute and said to the occupants “Have you got a problem?”[6] When the victim replied “No”, Mr MacDonald punched him through the open window in the face, instantly breaking the victim’s nose. The victim attempted to get away from Mr MacDonald by leaning over to the passenger seat, but Mr MacDonald continued to punch him again at least once in the body. Mr MacDonald also seized the victim’s car keys and destroyed them.[7]
[6]At [4].
[7]At [13].
The victim was a stranger to Mr MacDonald and the attack was entirely unprovoked.
The victim was significantly affected by the offending. Two years later, he was said to be still suffering ongoing pain and breathing difficulties causing sleep deprivation. His nose required further surgery which meant having to take more time off work in addition to the time already lost in the immediate aftermath of the assault.[8]
Mr MacDonald’s personal circumstances
[8]At [8].
Mr MacDonald was aged 21 at the time of the offending. He is an aspiring musician who, in the words of his counsel Mr Phelps, has in a short space of time achieved overseas success seldom seen from a New Zealand hip hop artist. In 2015, Mr MacDonald released an album which went to number one on the iTunes music charts. He has also toured with international hip hop artists in Australasia and travelled to the United States to collaborate with other high profile artists including Snoop Dogg.
Mr MacDonald has had previous brushes with the criminal justice system. He has previously received the benefit of a discharge without conviction as well as police diversion. The previous discharge related to allowing unlicensed premises to be used for the consumption of alcohol. The background to that offending also involved a party that got out of control leading to police intervention. The police diversion was granted in respect of a hunting offence.
The District Court sentencing
Applications for discharge are governed by ss 106 and 107 of the Sentencing Act. Those provisions relevantly state:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
107 Guidance for discharge without conviction
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.
It was common ground that the approach to s 107 involves a three step process.[9]
[9]See for example R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; A (CA747/2010) v R [2011] NZCA 328 at [22]; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
First, the sentencing judge should identify the gravity of the offending. This includes an assessment of aggravating and mitigating factors relating to both the offending and the offender.
Secondly, the judge must identify the direct and indirect consequences of a conviction.
Thirdly, it must be determined whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
Applying the three stage test, the Judge assessed the gravity of the offending to be moderately serious.[10] She accepted a conviction would hamper Mr MacDonald’s ability to travel to the United States but despite the impact this would have on his music career, was not persuaded those consequences would be out of all proportion to the gravity of the offending.[11]
[10]Discharge Application and Sentencing Decision, above n 1, at [22].
[11]At [27]–[29].
The Judge therefore declined to grant a discharge without conviction.[12] She also found that publication of Mr MacDonald’s name would not cause him extreme hardship and therefore declined to grant him permanent name suppression.[13]
Arguments on appeal
[12]At [31].
[13]At [34].
Mr Phelps submitted the Judge erred in her assessment of the gravity of the offending as moderately serious. In support of this central contention, he argued the Judge had placed insufficient weight on the following facts:
(a)Mr MacDonald did not have the requisite specific intent to injure the victim, only reckless disregard.
(b)He was responding to a perceived sense of danger as a result of what had happened to him earlier that evening at the party as well as other previous experiences.
(c)He had undertaken counselling to address this aspect of his behaviour and could now be considered low risk.
(d)It was not a sustained assault. There were only two punches.
(e)The punch to the body did not cause any injury.
(f)The victim was not prevented from calling the police and although there was potential for immobilisation it did not happen and he could have driven away. He was a much bigger man than Mr MacDonald and not vulnerable.
(g)Mr MacDonald’s young age.
(h)His remorse and willingness to attend a restorative justice conference.
(i)He had undertaken community work prior to sentencing.
(j)His guilty plea.
In Mr Phelps’ submissions those factors meant the gravity of the offending was relatively low and this was implicitly recognised by the end sentence the Judge herself imposed.
As regards the consequences of conviction, Mr Phelps said a conviction for violence would prevent Mr MacDonald from being able to travel to and work in the United States. That would “all but extinguish his prospects of a career in music” because the opportunities that exist in the United States for hip hop artists are not available in New Zealand.
Such an “extremely adverse consequence” was, in Mr Phelps’ submission, out of all proportion to the gravity of the offending correctly assessed.
Analysis
In our view, the Judge was correct to assess the gravity of the offending as moderately serious even taking into account the mitigating factors identified by Mr Phelps.
This was an unprovoked attack to the head causing significant injury to a man who was vulnerable because he was in a confined space and whose means of escape had been impeded.
As submitted by Mr Barr for the Crown, even if Mr MacDonald did genuinely believe himself to be at risk, his violent response was a complete over-reaction. The police were at hand and he could easily have driven away. Having in the past successfully defended a charge of wounding with intent to injure on the grounds of self defence (stabbing at another party that had got out of control), we accept that Mr MacDonald must have been aware of the circumstances in which defensive action is permissible.
We note too that credit for professed remorse and the guilty plea needs to be tempered against Mr MacDonald’s attempt to minimise his offending at the disputed facts hearing and to attribute blame to the victim. His evidence which included a claim that the victim had yelled abuse at him out the window and was being antagonistic was directly contrary to the majority of the Judge’s findings. The disputed facts hearing also meant of course that the victim was not spared having to give evidence and be cross-examined.
We acknowledge that the previous discharge without conviction related to a different type of offending albeit it was in the same context of a party that had got out of control. However, even in cases where the previous discharge relates to a different type of offending, the fact an applicant has already had the benefit of a discharge is still a relevant factor that weighs against the grant of another discharge.
As regards the consequences of a conviction, this Court has held that speculative consequences relating to travel restrictions will not suffice. The Court will ordinarily expect to be satisfied that under the law and practice of the country concerned:[14]
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
If all of these things can be established, a sentencing court must further be satisfied that the offence is not so serious it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.
[14]Edwards v R [2015] NZCA 583 at [26]–[27].
At the hearing, we questioned Mr Phelps about the processes for entry into the United States by a convicted person, including the ESTA visa waiver, applications for visas generally and applications for waivers of ineligibility. It appears there would not be an absolute ban on a person convicted of violent offending. However, the information provided on behalf of Mr MacDonald was inadequate to enable us to properly assess the consequences of a conviction. We also raised the possibility with Mr Phelps that even if a discharge were granted, the American authorities might still require Mr MacDonald to disclose the fact of the charge anyway.
Mr Phelps conceded that if that were so, it would significantly weaken the case for a discharge. He asked for the opportunity to provide some more authoritative information regarding entry requirements to the United States. We agreed to that request and further information was provided after the hearing.
The supplementary material indicates that Mr MacDonald would be required to disclose his arrest and or his offending regardless of whether the conviction was quashed or not. Entry would still be dependent on the United States authorities exercising their discretion as to whether to waive ineligibility based on all the facts.
We accept it is likely to be more difficult for a convicted person to obtain a waiver of ineligibility as opposed to one who was arrested but discharged. However, our impression from the material supplied is that the different degree of difficulty as between the two scenarios is not so pronounced as to render the consequences of conviction “out of all proportion” to the gravity of the offending.
It follows we agree with Judge Mackintosh that the test under s 107 of the Sentencing Act was not met.
There was no challenge to the end sentence imposed by the Judge which in all the circumstances was lenient.
Finally, we turn to the issue of name suppression. Mr Phelps conceded that if this Court were to dismiss the appeal against the refusal of a discharge, then it would be very difficult to sustain a claim that publication of Mr MacDonald’s name would cause extreme hardship.
That concession was appropriate. We are satisfied the Judge was correct when she held that permanent name suppression would not be justified.
Outcome
The appeal against conviction and sentence is dismissed.
The appeal against refusal of permanent name suppression is dismissed.
Solicitors:
Crown Law, Wellington for Respondent
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