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 RespondentJudgment:
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…
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