Meijler v The Queen - [2021] NZCA 305

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA5/2021
[2021] NZCA 305

BETWEEN	LOUISE CHARLOTTE MEIJLER Appellant
AND	THE QUEEN Respondent

Court:	Courtney, Mander and Hinton JJ
Counsel:	J Y Yi for Appellant S E Trounson for Respondent
Judgment: (On the papers)	8 July 2021 at 3.30 pm

JUDGMENT OF THE COURT

Leave to appeal is granted on the question:
Did the Judge err in dismissing Ms Meijler’s appeal?

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Over the course of some twenty years Louise Meijler became addicted to the sleeping pill Zopiclone, which was prescribed to control her anxiety and insomnia. By 2018 the maximum that her doctor could prescribe was insufficient for this purpose. She photocopied a prescription her doctor had provided and used the photocopies to obtain more pills than she was entitled to. She was charged with one count of forgery, to which she pleaded guilty.[1]
[1]Crimes Act 1961, s 257(1)(b).
In April 2019 Judge A J Fitzgerald gave a sentencing indication that Ms Meijler would be discharged without conviction provided she completed a 10‑week Community Alcohol and Drug Services (CADS) programme and did not commit further offences. Ms Meijler undertook a four-week CADS programme but did not complete the 10-week programme contemplated by the Judge. She instead worked with her GP and a CADS nurse over the course of a year to wean herself off the sleeping pills. During 2019 and 2020 Ms Meijler also failed to appear on three occasions.
When Ms Meijler appeared in July 2020 the Judge indicated that the earlier sentencing indication was “spent” as a result of her failing to appear and not having taken steps to file any material relating to an application for discharge without conviction under s 106 of the Sentencing Act 2002.
Ms Meijler filed an application under s 106 and appeared for sentence before Judge P J Sinclair in August 2020. The Judge characterised the gravity of the offending as moderate.[2] She did not accept that the consequences of conviction would be out of proportion to the gravity of the offending, taking into account the fact that Ms Meijler did not have any specific employment in view upon her return to the workforce and that the offending ought not to be hidden from a prospective employer.[3] The Judge refused the application and imposed a sentence of nine months’ supervision.[4]
[2]Police v Meijler [2020] NZDC 18214 (Ruling of Judge P J Sinclair on s 106 application) at [25].
[3]At [31].
[4]Police v Meijler [2020] NZDC 27393.
Downs J dismissed Ms Meijler’s appeal.[5] He regarded the offending less seriously — characterising it as low to moderate[6] — but still considered that it ought to be known to a prospective employer and, given that Ms Meijler did not have a particular job in mind, regarded the consequences of conviction as also being in the low to moderate range (and therefore not out of proportion to the gravity of the…

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 Meijler v The Queen

Details

AGLC: Meijler v The Queen [2021] NZCA 305
Case: [2021] NZCA 305
Decision Date: 8 July 2021 at 3.30 pm

CaseChat Overview and Summary

Louise Charlotte Meijler appeals against her conviction and sentence for forgery, which arose from her addiction to the sleeping pill Zopiclone. After becoming addicted to the drug, Meijler resorted to photocopy a prescription provided by her doctor to obtain more pills than she was entitled to. She pleaded guilty to one count of forgery. Initially, the sentencing indication was that Meijler would be discharged without conviction if she completed a 10-week Community Alcohol and Drug Services (CADS) programme and did not commit further offences. However, Meijler undertook a shorter CADS programme and instead worked with her GP and a CADS nurse to wean herself off the sleeping pills. Due to her failure to appear on three occasions and not filing any material relating to an application for discharge without conviction, the earlier sentencing indication was deemed "spent" by the Judge. Meijler then filed an application under s 106 and appeared for sentence. The Judge characterised the gravity of the offending as moderate, refused the application, and imposed a sentence of nine months' supervision.

The legal issues before the court were whether the Judge erred in dismissing Meijler’s appeal, specifically if the Judge failed to properly determine the gravity of the offending, consider Meijler's efforts at rehabilitation, place sufficient weight on the consequences of a conviction, particularly in relation to employment prospects, and treat Meijler's failures to appear in Court as detracting from the factors in mitigation. The court considered that there was a risk of a miscarriage of justice if leave to appeal was not granted due to the lengthy and unsatisfactory history of the matter in the District Court and the potential misapprehension of the extent of Meijler’s rehabilitation efforts.

The court found that there was a risk of a miscarriage of justice if leave to appeal was not granted. Therefore, leave to appeal was granted on the question: Did the Judge err in dismissing Meijler’s appeal? The court highlighted that the appeal also raises issues regarding the assessment of the gravity of dishonesty offending where addiction is a causative factor, in light of the Court's comments in Zhang v R in the context of methamphetamine offending. The court noted that this aspect was not argued in the District Court and was effectively treated as being overtaken by Meijler's failure to undertake the specific rehabilitation programme directed by Judge Fitzgerald.

Orders