McLachlan v The Queen
[2014] NZHC 2605
•22 October 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-441-0008 [2014] NZHC 2605
BETWEEN STUART RUSSELL MCLACHLAN
Appellant
AND
THE QUEEN Respondent
Hearing: 22 October 2014 Appearances:
A J Willis for Appellant
M J Mitchell for RespondentJudgment:
22 October 2014
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 22 October 2014 at 4.45 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Elvidge & Partners, Napier
Copy for: Public Defence Service, Napier
MCLACHLAN v R [2014] NZHC 2605 [22 October 2014]
Introduction
[1] The Appellant (“Mr McLachlan”) appeals a decision of Judge B M Mackintosh,1 declining his application to be discharged without conviction.2 At the conclusion of the hearing I advised the parties that I would allow the appeal and that my reasons would follow, as they now do.
Relevant facts
[2] Mr McLachlan was convicted on a charge of assault, following a defended hearing before Judge Mackintosh on 30 January 2014.3 Section 9 Summary Offences Act 1981 provides:4
9 Common assault
Every person is liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 who assaults any other person.
[3] The conviction arose from an incident at a local supermarket on 9 March
2013. Mr McLachlan intended to purchase a lotto ticket, regularly attending this particular outlet for that purpose. On being handed the ticket he and the shop assistant (and later the complainant) discovered that Mr McLachlan needed another
$1.20 to pay for the ticket.
[4] The complainant wished to have the ticket back pending payment. Mr McLachlan wished to retain it, saying that he would get the $1.20 from someone he knew in the supermarket, who was situated some 30 metres away. Alternatively Mr McLachlan suggested he pay the $1.20 to the owner of the franchise when he, Mr McLachlan, next came in.
[5] The complainant did not wish Mr McLachlan to leave with the ticket and blocked his way out of the door. Mr McLachlan persisted in seeking to leave and the complainant was equally persistent in blocking Mr McLachlan’s path. The Judge
found that there was pushing and shoving by both, and that Mr McLachlan became
1 Police v McLachlan DC Hastings CRI-2013-020-0944, 25 February 2014.
2 Sentencing Act 2002, s 106.
3 Police v McLachlan DC Hastings CRI-2013-020-0944, 30 January 2014.
4 Summary Offences Act 1981, s 9.
angry, swore at the complainant and was otherwise verbally abusive. Mr McLachlan then “stuffed” the ticket down the top of the complainant’s shirt and left.5 The Judge determined that action was an assault for the purposes of s 9.
Application for discharge
[6] Mr McLachlan applied for a discharge without conviction pursuant to s 106
Sentencing Act 2002 (“Act”), on two principal grounds:
(a) Mr McLachlan, in his late 60s, has an unblemished criminal and traffic record. A conviction for assault would tarnish an otherwise exemplary record and career; and
(b) Mr McLachlan’s personal circumstances.
[7] Judge Mackintosh declined the application.6
Approach to appeal
[8] Section 106(1) Sentencing Act 2002 (“Act”) provides:
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.
…
[9] Section 107 is also relevant and provides:
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.
[10] If satisfied as to the matters in s 107, the Court has discretion to grant a discharge pursuant to s 106(1).
5 Police v McLachlan, above n 3, at [8].
6 Police v McLachlan, above n 1.
[11] An appeal against a refusal of a discharge is by way of rehearing. The Court hearing the appeal is required to make its own assessment of whether s 107 is satisfied.7
[12] The manner in which s 107 is to be applied was addressed in Z v R. In that case, the Court said:8
...[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 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...
Section 107
[13] In so far as concerns the gravity of the offending, the Judge determined that “it is not the most serious offence of its kind”.9 That said, the Judge also considered some aspects of the offending were disturbing. These were that it was a relatively prolonged incident, Mr McLachlan exercised poor judgment, he had been consuming alcohol (although denied being intoxicated), the complainant had found the incident unpleasant and stressful and subsequently visited the Doctor with a sore knee (although there was no clear finding that this was attributable to Mr McLachlan).10
[14] In so far as concerns the consequences of conviction, the Judge referred to the following.
[15] First, Mr McLachlan had, in the words of the Judge, been a person of very good character.11 The Judge referred to Mr McLachlan’s service in the Police force for 32 years. In the affidavit he swore in support of his application, and provided to me on appeal, Mr McLachlan gives evidence that he held many positions whilst in the Police force, including investigating fatal car crashes for some 15 years and
assisting Coroners with their enquiries into the same. The Judge recorded that this
7 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [11].
8 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
9 Police v McLachlan, above n 1, at [12].
10 At [12] and [13].
11 At [6].
work had been stressful. The gist of Mr McLachlan’s affidavit is that such work imposes a personal toll, given what the investigator has to confront.
[16] The Judge also referred to Mr McLachlan’s assistance to the community since retirement. This has included caretaking at his parish church, mentoring children and young people through CYFS and, effectively, acting as a teacher’s aide for a disruptive child.12
[17] Mr McLachlan has no criminal or traffic convictions and I accept, as I believe the Judge did, that a conviction now for assault would tarnish what has been an otherwise exemplary record.
[18] The Judge then considered the effect of the conviction on Mr McLachlan’s financial situation.13 Mr McLachlan is a superannuitant who, through no fault of his own, is required to seek employment. On his retirement Mr McLachlan invested his substantial Police pension – representing funds saved over his entire career – and, as a result of events beyond his control, the entire amount was lost.
[19] Mr McLachlan has since been employed as a private investigator, security officer, document server, taxi driver and a truck driver on an orchard. Physical work is now beyond him.
[20] Mr McLachlan’s evidence is that the conviction would almost certainly impinge on his gaining employment in the fields now open to him.14 The Judge accepted that good character and lack of convictions were often a requirement for employment in those fields.
[21] At the time of swearing his affidavit, Mr McLachlan had made more than
50 applications for work, and had advertised for work in the local newspaper. These efforts had been entirely unsuccessful.15 The Judge referred to comment in the
public arena regarding the case, causing Mr McLachlan embarrassment.16
12 Ibid.
13 At [7] and [8].
14 At [10].
15 Affidavit of S McLachlan sworn 19 February 2014, at [16].
16 McLachlan v Police, above n 1, at [9].
[22] The Judge came to the conclusion that the consequences of the offending did not outweigh its gravity. Counsel for Mr McLachlan submitted that I should take a different view.
[23] Crown counsel submitted that I should decline the appeal as the event had been upsetting and troubling to the complainant and because Mr McLachlan had not put evidence before the Court to establish beyond doubt that he would be unable to gain employment in the absence of a discharge. Crown counsel did not dispute, however, that the conviction would be likely to impede Mr McLachlan’s search for work.
[24] Having heard the parties, I concluded that the consequences of a conviction were out of all proportion to the gravity of the offending. I do not diminish the offending or the distress caused to the complainant. Equally, however, the consequences are severe and, in my view, wholly disproportionate.
Section 106
[25] Having reached the view that s 107 is satisfied, I was also persuaded that I
should allow the appeal and grant the discharge sought. I ordered accordingly.
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M Peters J
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