Meijler v Police - [2020] NZHC 3167

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000359

[2020] NZHC 3167

BETWEEN
LOUISE CHARLOTTE MEIJLER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 December 2020

Counsel:

J Yi for Appellant

BJ Hamilton for Respondent

Judgment:

2 December 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 2 December 2020 at 12 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. J Yi, Auckland.

MEIJLER v POLICE [2020] NZHC 3167 [2 December 2020]

The appeal

[1] Louise Meijler committed forgery.1 Judge P J Sinclair declined to discharge Ms Meijler without conviction.2 Ms Meijler appeals. She contends the Judge erred. Ms Meijler invites attention to her drug dependency; otherwise good character; and arguably disproportionate employment consequences.

Background

[2] On 13 July 2018, Ms Meijler saw her doctor. The doctor issued two prescriptions; one for Zopiclone; the other for Bactroban. Ms Meijler made multiple copies of each the same day. Between then and 2 August, she presented forged copies of both at pharmacies in and around the Auckland area on four separate occasions. Ms Meijler obtained more Zopiclone and Bactroban than her doctor anticipated, or authorised.

[3] On 2 August, Ms Meijler presented the forged prescriptions to another pharmacy in Auckland. The Test Safe Pharmaceutical Database alerted staff, who called Police. Ms Meijler was arrested. She exercised her right to silence.

[4] Ms Meijler was charged 8 August 2018. She pleaded guilty 20 March 2019. Judge A J Fitzgerald told Ms Meijler if she completed a 10-week CADS programme and committed no other offences, he would discharge her without conviction. On 2 July 2020, that Judge withdrew his indication observing it was “spent by October 2019 when for the third time in a row, there was no appearance and no evidence of any steps being taken and nothing filed for today”. Ultimately, Judge Sinclair was the sentencing Judge.

Principle

[5] A Court may discharge a defendant without conviction when satisfied the direct and indirect consequences of a conviction would be out of all proportion to the

1 Crimes Act 1961, s 257(1)(b).
2 Police v Meijler [2020] NZDC 18214.

gravity of the offence.3 The Court first assesses the gravity of the offending, which includes both aggravating and mitigating factors. The Court next assesses direct and indirect consequences of conviction. It then asks whether these would be out of all proportion to the gravity of the offending. If so, the Court has a residual discretion to discharge the defendant without conviction. An appellate Court must be persuaded the Court below was wrong; but reach its decision on its own view of the case.4

Analysis

[6] The Judge concluded the offending was moderately serious. On behalf of Ms Meijler, Mr Yi contends the Judge erred. He says:5

(a)The offending sits at the very low end of the using a forged document charge. Although the maximum sentence is ten years, this offending involved no personal pecuniary advantage that is ordinarily present in such…

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.

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Details

Case: [2020] NZHC 3167
Decision Date: 2 December 2020

CaseChat Overview and Summary

Louise Charlotte Meijler appealed against a decision of the District Court which refused her application for a discharge without conviction. The appellant had committed forgery by making multiple copies of her doctor's prescriptions and using them to obtain more medication than she was entitled to. The District Court had found the offending to be moderately serious, and that the consequences of conviction were not disproportionate to the gravity of the offence. Ms Meijler argued the offending was of low seriousness, and that the consequences of a conviction were disproportionate. The High Court held that the District Court did not err in finding the offending moderately serious, and that the consequences of conviction were not out of all proportion to the gravity of the offence. The appeal was dismissed.
The Court considered the appellant's offending to be unsophisticated, but also premeditated. The Court held that the appellant's rehabilitative efforts were commendable but did not necessarily indicate complete rehabilitation. The Court found the appellant's offending to be of low to moderate seriousness, and that the consequences of conviction were not out of all proportion to the gravity of the offence. The Court held that the appellant's offending was of low to moderate seriousness, and that the direct and indirect consequences of conviction were in line with the seriousness of the offending.

Orders