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…

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 McMurdock v Police

Details

AGLC: McMurdock v Police [2017] NZHC 1283
Case: [2017] NZHC 1283
Decision Date: 31 October 2017

CaseChat Overview and Summary

Ms McMurdock pleaded guilty to assault with intent to injure. The District Court Judge refused her application to be discharged without conviction and she appeals that decision. Ms McMurdock was a university student who became intoxicated and bit her flatmate’s forehead. The bite drew blood and left a mark. The victim suffered emotional harm. Ms McMurdock’s ground of appeal is that the District Court 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 High Court found that the District Court Judge did not err in concluding that the consequences of a conviction for Ms McMurdock were not out of all proportion to the gravity of her offending. The appeal was dismissed. Ms McMurdock’s mitigating personal circumstances were taken into account by the District Court Judge in assessing the gravity of the offending. The likely impairment of future employment prospects because of the conviction was a generic and expected consequence of a conviction.

Orders