Meijler v Police
[2020] NZHC 3167
•2 December 2020
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 charge.
(b)The offending was unsophisticated. The appellant simply made multiple photocopies of the prescription so that she could receive an effective dosage of the prescribed medication for its intended purpose.
(c)The Judge did not take into account that addiction as the cause of the offending was a mitigating consideration justifying a sentence discount of up to 30 per cent as per Zhang v R.
(d)Although the appellant was unable to complete 10 session of Community and Alcohol and Drug Services (“CADS”) rehabilitation course, the appellant was able to achieve the same result by completing a 4-week CADS course and working with a doctor and a nurse for her detox and weaning off Zopiclone dependence over the course of more than a year.
(e)The appellant pleaded guilty at any early opportunity.
(f)The appellant has expressed remorse.
(g)The appellant had no previous convictions.
(h)The appellant was of previous good character [she is 50].
(i)The unlikelihood of the appellant returning to the Court.
3 Sentencing Act 2002, s 107. Drake v R [2019] NZCA 56 provides a recent example of a successful application for a discharge (on appeal to the Court of Appeal).
4 R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198
at [35]-[36].
5 I have re-ordered some of these submissions.
[7] More serious instances of forgery are readily imaginable. However, forgery is an offence of some seriousness. This reflects that most aspects of human life ultimately rely on the authenticity of documents (digital or otherwise), and that forgery is not difficult to commit but can be difficult to detect. Ms Meijler’s offending was unsophisticated, but it was also premeditated and interrupted only by Police intervention. The Judge was mindful of these aspects.
[8] The Judge did not refer to Zhang. This may reflect it was not cited (a copy of the District Court submissions is on the High Court file). The Judge did, however, refer extensively to Ms Meijler’s rehabilitative efforts. That she did demonstrates appreciation of the significance of drug dependency, and efforts made to address it. For example, the Judge said:6
Judge FitzGerald directed you to complete 10 [weeks] at CADS or similar. As mentioned you completed the four-week Getting Started programme. In March 2019 a CADS clinician recommended you complete their 10-week Managing Moods programme after completion of the Getting Started programme. You did not do this, and I was concerned to read in the review from CADS, provided by you, dated August 2019; “You were offered reviews with the Pitman House nurse and a medical officer on a regular basis, however you found this difficult due to [work] commitments and financial barriers to attend Pitman House.”
I appreciate the difficulties you raise regarding financial restrictions. However, given the severity of your addiction, which led to your offending, in my view it was important that you seized all assistance being offered. Furthermore, and possibly more importantly, in your affidavit you advise you have not worked since 2014, so the suggestion you had work commitments does not align.
[9] Mr Yi submits this treatment is a little begrudging—my term, not Mr Yi’s— for, there is nothing to suggest “any residual concerns [about] drug use”. Mr Yi observes a doctor certified on 18 February 2020, “that Louisa has managed to self-wean off the Diazepam and is now on no benzodiazepines at all and is doing well”.
[10] This argument does not address the Judge’s point, which was this. Ms Meijler was given a specific opportunity by the District Court to complete a course of 10 weeks’ treatment. The programme provider encouraged Ms Meijler to complete this length of course. Ms Meijler did not do so, instead completing a much shorter
6 Police v Meijler, above n 2, at [23]–[24].
course. The programme provider also encouraged Ms Meijler to regularly attend reviews. Ms Meijler did not do so, citing in part, “work commitments”. However, according to her own affidavit, Ms Meijler’s has not worked since 2014.
[11] I raised this point with Mr Yi. He sought instructions from Ms Meijler, who attended the hearing. Mr Yi said Ms Meijler continued to nanny part time throughout 2019, and this compromised her ability to complete regular reviews with the programme provider. This explanation remains difficult to reconcile with Ms Meijler’s affidavit which, again, says she has not worked since 2014. Indeed, Ms Meijler says in her affidavit she cannot work until she is better “physically [and] psychologically”.
[12] This is not to deny Ms Meijler’s progress. Rather, it is to recognise that which has been made is tempered by the apparent disregard of both incentive and advice, and related provision of a less than accurate account, features directly referable to the question of Ms Meijler’s complete rehabilitation.
[13] This leaves arguments (e) through (i). Mr Yi is correct Ms Meijler pleaded guilty, but doubt attaches to whether she did so “at an early opportunity”. As observed, Ms Meijler was charged 8 August 2018. She pleaded guilty 20 March 2019, seven and a half months later. The charge attracted no complexity, legal or otherwise. Ms Meijler’s affidavit outlines difficulties with representation, but these arose after her guilty plea. The remaining mitigating factors had some purchase, albeit there is nothing to suggest the Judge overlooked these.
[14] What then of the Judge’s categorisation of moderate seriousness? I incline to some recalibration. Ms Meijler committed the offence because of her drug dependency; and is otherwise of good character (as a 50-year-old). Ms Meijler’s rehabilitative efforts have been a little awkward, but this feature does not expunge the progress she has made. That said, and like Judge Sinclair, I question whether rehabilitation is complete. Overall, the offending is better characterised as of low to moderate seriousness. Again, this is recalibration, not more.
[15] The Judge concluded potential employment consequences were not out of all proportion to the gravity of the offending. Mr Yi says the Judge also erred on this issue because conviction of forgery carries “a significant stigma of dishonesty” unwarranted in her case.
[16] Ms Meijler was once a part-time nanny, receptionist, and a business development manager. In her affidavit, Ms Meijler says she hopes to return to work (see [11]) once she has addressed personal problems, including those arising from violent and abusive relationships, which contributed to her drug dependency. Nannying is a possibility; so too office work.
[17] Conviction would likely deter some employers. However, it ought not deter fair-minded employers, especially when regard is had to the circumstances in which the offence was committed, and Ms Meijler’s otherwise good character. As observed, Ms Meijler hopes to work as a nanny or in an office. The former would take her into private homes; the latter, to deal with documents. Supervision in relation to either is likely to be modest. This suggests potential employers should know of the offending. So too that it was not trivial. That Ms Meijler has no particular job in mind supports the conclusion potential consequences of a conviction are in the low to moderate range.
[18] In summary, aspects of this case are genuinely mitigating. However, the direct and indirect consequences of conviction are not out of all proportion to the gravity of the offending. Indeed, these appear to align.
[19]The appeal is dismissed.
……………………………..
Downs J