McMurdock v Police

[2017] NZHC 1283

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-265 [2017] NZHC 1283

BETWEEN

AMY ROSE MCMURDOCK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 October 2017
Counsel:	G Vear and S Papp for Appellant K R Muirhead for Respondent
Judgment:	31 October 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 31 October 2017 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

MCMURDOCK v POLICE [2017] NZHC 1283 [31 October 2017]

Public Defence Service (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

Introduction

[1]      Ms McMurdock pleaded guilty to a charge of assault with intent to injure.  On

21 July 2017, Judge EM Thomas refused her application to be discharged without conviction.1   Ms McMurdock now appeals that decision.

Background

[2]      In  February 2017, Ms McMurdock was a 19 year old university student studying for a degree in commerce.

[3]      On  the  evening  of  Tuesday,  7 February  2017,  Ms McMurdock  became intoxicated and got into an argument with a female flatmate who was lying on a bed.

Ms McMurdock attempted to strike the flatmate with her arms, but the flatmate grabbed  them  to  prevent  that.    Ms McMurdock  responded  by  leaning  over  the flatmate’s  forehead  and  biting into it for a prolonged period.   Another flatmate intervened and attempted to pull Ms McMurdock off her victim, causing both of them to fall off the bed and onto the floor.   As they fell to the floor, Ms McMurdock continued biting her victim.

[4]      The bite drew blood and left a bite mark.

[5]      The victim impact statement said, in part:

It is very difficult to explain how this event has changed my life. I spent a lot of time crying and feeling completely empty. I had to take 2 weeks off work as my emotions were very uncontrollable. All I wanted to do was stay in bed and sleep although I found myself awake for more than a day at a time.

I felt self conscious that someone would ask me what happened and why I had a bite on my face.

1      Police v McMurdock [2017] NZDC 19586.

The law

[6]      Section 106 of the Sentencing Act 2002 gives a sentencing Judge the discretion to discharge a defendant without conviction who has pleaded or been found guilty of an offence.  Section 107 provides that this discretion cannot be exercised unless the Judge is satisfied that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.

[7]      It is well established that s 107 requires the Court to undertake a three-step analysis and consider:

(a)       The gravity of the offending;

(b)      The direct and indirect consequences of conviction for the offender;

and

(c)       Whether those consequences are out of all proportion to the gravity of the offending.

[8]      If the Court decides that the consequences are out of all proportion, it must then consider whether it should exercise the residual discretion to grant a discharge under s 106.

[9]      An  appeal  against  the  outcome  of  a  s 107  analysis  proceeds  on  normal appellate principles. That means Ms McMurdock has the onus of satisfying me that I should come to a decision different to that of Judge Thomas.  It is only if I consider that Judge Thomas is wrong that I would be justified in interfering with his decision. A Court on appeal does not hear the case all over again.   However, I have the responsibility of arriving at my own assessment of the merits and, if my opinion is different from that of Judge Thomas then I must give effect to my opinion.

The appeal

[10]     Ms McMurdock’s ground of appeal is that the Judge erred in not finding that the direct and indirect consequences of a conviction were out of all proportion to the gravity of the offending.

The Judgment

[11]     Judge Thomas went through the three-step analysis.   First, he assessed the gravity of the offending. The Judge, correctly, recognised that there are two elements to this. The first is to look at the offending itself and the second is to look at all the circumstances  personal  to  the offender,  including the offender’s  response to  the offending.

[12]     Judge Thomas assessed the offending as being at the low end of moderate. He would have assessed it as being more to the serious end of moderate had it not been for Ms McMurdock’s mitigating personal circumstances.  They were her youth, the effect of young age on the ability to make proper decisions, her clinical depression, the plea of guilty, her genuine remorse, and her completion of CADS.

[13]     I agree with the Judge’s analysis of the gravity of the offending, and there is no attempt by Ms McMurdock to argue otherwise.

[14]     Next, Judge Thomas considered the direct and indirect consequences of a conviction for Ms McMurdock. There was only one identified.  Ms McMurdock was a university student studying commerce.  Once she graduates, she wants to seek a career in the commercial world. A conviction would be likely to impair her search for employment.

[15]     Judge Thomas accepted the real and appreciable risk of this consequence.  He said:2

… But I am quite prepared to accept as a matter of common sense that there will be some employers who obtain your previous convictions. Who ask you for your previous convictions. Who upon hearing your explanation of things might  not  be  prepared  to  accept  that  explanation or  might  not  even  be

2 At [9].

interested in the explanation. I am prepared to accept that that might mean that some employment opportunities are not open to you. There will be some employers who are prepared to look through that and beyond that. There will be some who may not.

[16]     The Judge then discussed the final question which is whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[17]     Essentially, the Judge decided that the identified likely consequence is  a commonplace one.  Parliament intended people who committed criminal offences to have those offences made known to others. The offender would have to deal with that. Parliament intended that consequence not to follow offending only if the consequence would be out of all proportion to the gravity of the offending.

[18]     The Judge appears also to have formed the view that in this case the stigma of a conviction would be mitigated by the nature of the sentence:3

… People are patient. They understand that everybody has made mistakes. They understand that everybody has got plenty to offer. They will look at the outcome for you today and they will see that it was obviously not the most serious offence in the world.

[19]     Having refused to discharge Ms McMurdock, Judge Thomas sentenced her to

12 months’ supervision and ordered the payment of $300 by way of emotional harm reparation.

The argument on appeal

[20]     Ms Papp for Ms McMurdock submits that the Judge should have weighed more heavily the consequence for Ms McMurdock of having the burden of this conviction when seeking employment once she graduates:4

12.… There is a real and appreciable risk that her chances of success will be jeopardised if she has a conviction for assault with intent to injure.

3 At [10].

4      Submissions on behalf of the appellant on appeal of sentence, dated 18 October 2017.

[21]     Ms Papp emphasised Ms McMurdock’s personal position.   The identified consequence will be greater for her than for others because of her youth (she does not have a defined career history which might assist her) and the fact that she has been suffering from depression. Ms Papp acknowledged that Ms McMurdock’s depression was not causative of the offending and nor is there evidence that it will make the imposition of a conviction materially more difficult for her to bear than for others. Nevertheless, it is a factor.

[22]     Overall, Ms Papp’s submissions are to the effect that Judge Thomas erred by not giving greater weight to the personal factors he identified and discussed as being mitigating of Ms McMurdock’s offending when assessing the consequences for her of a conviction.

Decision

[23]     In my view, Judge Thomas did not err in concluding that the consequences of a conviction on this charge for Ms McMurdock are not out of all proportion to the gravity of her offending.

[24]     Contrary   to   Ms   Papp’s   submission,   there   is   nothing   unique   about

Ms McMurdock’s position. Ms McMurdock got drunk, had a drunken argument with a flatmate and attacked the flatmate.  The injury she inflicted was not lasting but the bite was sufficiently severe to draw blood. It had a significant emotional effect on her victim.

[25]     Ms McMurdock’s youth, the fact that she suffers from depression and all other mitigating personal  circumstances were taken into account by Judge Thomas in assessing the gravity of the offending.   They were regarded by the Judge as significantly reducing the gravity of the offending.

[26]     When  it  came  to  the  proportionality  assessment,  the  only  consequence identified was the likely impairment of future employment prospects because of the conviction.  The Judge understood that.  But the Judge was right to hold that this is a generic and expected consequence of a conviction.  It is probably true that a young person who has not yet graduated might find it more difficult to get employment

because of a conviction than someone who already has valuable career experience. But that does not by itself elevate an expected consequence of a conviction to a significance which makes it out of all proportion to the gravity of the offending.  If it could, then discharges without conviction for young people who commit violent offences at this level would become commonplace.

Conclusion

[27]     I find myself in agreement with Judge Thomas.

[28]     The appeal is dismissed.

Brewer J