MacDonald v R - [2019] NZCA 91

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA293/2018
[2019] NZCA 91

BETWEEN	THOMAS DOUGLAS MACDONALD Appellant
AND	THE QUEEN Respondent

Hearing:	27 February 2019 (further material received 26 March 2019)
Court:	French, Dobson and Brewer JJ
Counsel:	M J Phelps for Appellant S K Barr for Respondent
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…

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 R

Details

AGLC: MacDonald v R [2019] NZCA 91
Case: [2019] NZCA 91
Decision Date: 5 April 2019 at 9 am

CaseChat Overview and Summary

In the appeal case of MacDonald v R, the appellant, Thomas Douglas MacDonald, contested the District Court's decision to deny his application for a discharge without conviction and to refuse permanent name suppression. The Court of Appeal of New Zealand, consisting of French, Dobson, and Brewer JJ, heard the case on February 27, 2019, and received additional material on March 26, 2019. The appeal against the conviction and sentence, as well as the refusal of permanent name suppression, was dismissed on April 5, 2019.

The primary legal issue addressed by the Court was whether the District Court judge's assessment of the gravity of the offence and the consequences of a conviction was correct. The Court also had to determine if the refusal to grant permanent name suppression was justified. The appellant's counsel argued that the District Court had erred in assessing the gravity of the offending as moderately serious, and that the consequences of a conviction would be out of all proportion to the gravity of the offence. The Crown, on the other hand, contended that the judge's assessment was accurate, and that the consequences of a conviction were not excessive.

The Court of Appeal held that the District Court judge was correct in assessing the gravity of the offending as moderately serious, despite the mitigating factors presented by the appellant's counsel. The unprovoked attack on a vulnerable victim, combined with the significant injury inflicted, justified the moderate seriousness assessment. Furthermore, the Court found that the consequences of a conviction, even if they made it more difficult for the appellant to enter the United States, were not out of all proportion to the gravity of the offence. The Court also upheld the District Court's decision to deny permanent name suppression, as the appellant's concession that the appeal would be difficult to sustain made it unnecessary to further explore the issue.

In conclusion, the appeal against conviction and sentence, as well as the refusal of permanent name suppression, was dismissed by the Court of Appeal of New Zealand. The Court found that the District Court judge's assessment of the gravity of the offending and the consequences of a conviction was accurate, and that the refusal of permanent name suppression was justified.

Orders