MEIJLER v POLICE [2020] NZHC 3167

MEIJLER v POLICE [2020] NZHC 3167 [2 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000359[2020] NZHC 3167BETWEEN LOUISE CHARLOTTE MEIJLERAppellantAND NEW ZEALAND POLICERespondentHearing: 1 December 2020Counsel: J Yi for AppellantBJ Hamilton for RespondentJudgment: 2 December 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 2 December 2020 at 12 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Auckland.J Yi, Auckland.The appeal[1] Louise Meijler committed forgery.1 Judge P J Sinclair declined to dischargeMs Meijler without conviction.2 Ms Meijler appeals. She contends the Judge erred.Ms Meijler invites attention to her drug dependency; otherwise good character; andarguably disproportionate employment consequences.Background[2] On 13 July 2018, Ms Meijler saw her doctor. The doctor issued twoprescriptions; one for Zopiclone; the other for Bactroban. Ms Meijler made multiplecopies of each the same day. Between then and 2 August, she presented forged copiesof both at pharmacies in and around the Auckland area on four separate occasions.Ms Meijler obtained more Zopiclone and Bactroban than her doctor anticipated, orauthorised.[3] On 2 August, Ms Meijler presented the forged prescriptions to anotherpharmacy in Auckland. The Test Safe Pharmaceutical Database alerted staff, whocalled 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 programmeand committed no other offences, he would discharge her without conviction.On 2 July 2020, that Judge withdrew his indication observing it was "spent by October2019 when for the third time in a row, there was no appearance and no evidence ofany steps being taken and nothing filed for today". Ultimately, Judge Sinclair was thesentencing Judge.Principle[5] A Court may discharge a defendant without conviction when satisfied thedirect and indirect consequences of a conviction would be out of all proportion to the1 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, whichincludes both aggravating and mitigating factors. The Court next assesses direct andindirect consequences of conviction. It then asks whether these would be out of allproportion to the gravity of the offending. If so, the Court has a residual discretion todischarge the defendant without conviction. An appellate Court must be persuadedthe Court below was wrong; but reach its decision on its own view of the case.4Analysis[6] The Judge concluded the offending was moderately serious. On behalf ofMs Meijler, Mr Yi contends the Judge erred. He says:5(a) The offending sits at the very low end of the using a forged documentcharge. Although the maximum sentence is ten years, this offendinginvolved no personal pecuniary advantage that is ordinarily present insuch charge.(b) The offending was unsophisticated. The appellant simply mademultiple photocopies of the prescription so that she could receive aneffective dosage of the prescribed medication for its intended purpose.(c) The Judge did not take into account that addiction as the cause of theoffending was a mitigating consideration justifying a sentencediscount of up to 30 per cent as per Zhang v R.(d) Although the appellant was unable to complete 10 session ofCommunity and Alcohol and Drug Services ("CADS") rehabilitationcourse, the appellant was able to achieve the same result bycompleting a 4-week CADS course and working with a doctor and anurse for her detox and weaning off Zopiclone dependence over thecourse 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 successfulapplication 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 198at [35]-[36].5 I have re-ordered some of these submissions.[7] More serious instances of forgery are readily imaginable. However, forgery isan offence of some seriousness. This reflects that most aspects of human lifeultimately rely on the authenticity of documents (digital or otherwise), and that forgeryis not difficult to commit but can be difficult to detect. Ms Meijler's offending wasunsophisticated, but it was also premeditated and interrupted only by Policeintervention. The Judge was mindful of these aspects.[8] The Judge did not refer to Zhang. This may reflect it was not cited (a copy ofthe District Court submissions is on the High Court file). The Judge did, however,refer extensively to Ms Meijler's rehabilitative efforts. That she did demonstratesappreciation of the significance of drug dependency, and efforts made to address it.For example, the Judge said:6Judge FitzGerald directed you to complete 10 [weeks] at CADS or similar. Asmentioned you completed the four-week Getting Started programme. InMarch 2019 a CADS clinician recommended you complete their 10-weekManaging Moods programme after completion of the Getting Startedprogramme. You did not do this, and I was concerned to read in the reviewfrom CADS, provided by you, dated August 2019; "You were offered reviewswith the Pitman House nurse and a medical officer on a regular basis, howeveryou found this difficult due to [work] commitments and financial barriers toattend 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 youhave not worked since 2014, so the suggestion you had work commitmentsdoes 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 Yiobserves a doctor certified on 18 February 2020, "that Louisa has managed toself-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 Meijlerwas given a specific opportunity by the District Court to complete a course of10 weeks' treatment. The programme provider encouraged Ms Meijler to completethis length of course. Ms Meijler did not do so, instead completing a much shorter6 Police v Meijler, above n 2, at [23]–[24].course. The programme provider also encouraged Ms Meijler to regularly attendreviews. 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, whoattended the hearing. Mr Yi said Ms Meijler continued to nanny part time throughout2019, and this compromised her ability to complete regular reviews with theprogramme provider. This explanation remains difficult to reconcile withMs 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 whichhas been made is tempered by the apparent disregard of both incentive and advice, andrelated provision of a less than accurate account, features directly referable to thequestion of Ms Meijler's complete rehabilitation.[13] This leaves arguments (e) through (i). Mr Yi is correct Ms Meijler pleadedguilty, 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 afterher guilty plea. The remaining mitigating factors had some purchase, albeit there isnothing to suggest the Judge overlooked these.[14] What then of the Judge's categorisation of moderate seriousness? I incline tosome recalibration. Ms Meijler committed the offence because of her drugdependency; and is otherwise of good character (as a 50-year-old). Ms Meijler'srehabilitative efforts have been a little awkward, but this feature does not expunge theprogress she has made. That said, and like Judge Sinclair, I question whetherrehabilitation is complete. Overall, the offending is better characterised as of low tomoderate seriousness. Again, this is recalibration, not more.[15] The Judge concluded potential employment consequences were not out of allproportion to the gravity of the offending. Mr Yi says the Judge also erred on thisissue 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 businessdevelopment manager. In her affidavit, Ms Meijler says she hopes to return to work(see [11]) once she has addressed personal problems, including those arising fromviolent 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 deterfair-minded employers, especially when regard is had to the circumstances in whichthe 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 intoprivate homes; the latter, to deal with documents. Supervision in relation to either islikely 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 supportsthe conclusion potential consequences of a conviction are in the low to moderaterange.[18] In summary, aspects of this case are genuinely mitigating. However, the directand indirect consequences of conviction are not out of all proportion to the gravity ofthe offending. Indeed, these appear to align.[19] The appeal is dismissed...Downs J