MEIJLER v R [2021] NZCA 472

MEIJLER v R [2021] NZCA 472 [17 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA5/2021[2021] NZCA 472BETWEEN LOUISE CHARLOTTE MEIJLERAppellantAND THE QUEENRespondentHearing: 1 September 2021Court: Kós P, Mander and Palmer JJCounsel: J Y Yi for Appellant M L Wong for RespondentJudgment: 17 September 2021 at 9 amJUDGMENT OF THE COURTA The appeal against conviction and sentence is allowed.B The appellant's conviction is set aside and her sentence quashed. An order is made discharging the appellant without conviction.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Louise Meijler pleaded guilty to a representative charge of using forged documents and was sentenced to nine months' supervision.1 Ms Meijler's application to be discharged without conviction was declined by Judge Sinclair in the District Court at Auckland,2 and her appeal against that decision dismissed by Downs J1 Crimes Act 1961, s 257(1)(b); and Police v Meijler [2020] NZDC 27393.2 Police v Meijler [2020] NZDC 18214.in the High Court. 3 She was subsequently granted leave to appeal to this Court on the question of whether the High Court Judge erred in dismissing her appeal from the decision not to discharge her without conviction.4Background[2] In July 2018, Ms Meijler's doctor provided her with two prescriptions. These included a script for Zopiclone, which is a sleeping pill she was prescribed to control her anxiety and insomnia.5 She photocopied the scripts and between 13 July and 1 August 2018 presented them to four different pharmacies in order to obtain more sleeping pills than her doctor had prescribed. On each occasion the medication was dispensed. However, a further attempt to use the forged prescription resulted in an alert being triggered and Ms Meijler's subsequent arrest.[3] At the time Ms Meijler entered her guilty plea, Judge Fitzgerald indicated he would discharge her without conviction if she completed a 10-week Community Alcohol and Drug Services (CADS) programme and did not commit any further offences. There was a considerable period of delay, which we will shortly review, but Ms Meijler did not complete the 10-week programme. As a result, when she next appeared before Judge Fitzgerald over a year later, perhaps unsurprisingly, he recorded that the sentence indication was "spent".[4] Ms Meijler persevered with her application to be discharged without conviction when she appeared for sentence before Judge Sinclair. The Judge categorised the seriousness of the offending as moderate and, in the absence of Ms Meijler having any specific employment, she was not satisfied the consequences of conviction would be out of all proportion to the gravity of the offending. 6 On appeal to the High Court, Downs J recalibrated the seriousness of the offending as being low to moderate but did not consider the direct and indirect consequences of the conviction were out of all proportion to the gravity of the offending.73 Meijler v Police [2020] NZHC 3167.4 Meijler v R [2021] NZCA 305.5 The other prescription was for a topical antibiotic ointment for a skin condition called Bactroban.6 Police v Meijler, above n 2, at [25], [31] and [33].7 Meijler v Police, above n 3, at [14] and [18].[5] In reaching that conclusion, the Judge considered that Ms Meijler's rehabilitation efforts had to be tempered by her failure to engage in the programme contemplated by the sentencing Court at the time a discharge without conviction was originally indicated.8 Because Ms Meijler lacked any specific job, the Judge considered any potential consequences for Ms Meijler as a result of being convicted were also low to moderate, and therefore not out of proportion to the gravity of the offence. In any event, the Judge was of the view that the nature of the offending should be known to potential employers given Ms Meijler's stated intention to work as a nanny or an office worker.9The appeal[6] The appeal is brought on the basis that the gravity of the offending should have been assessed as less serious than it was because of Ms Meijler's longstanding addiction to the prescribed medication, the lack of sophistication of the forgery which simply involved photocopying the script, and the absence of any pecuniary motivation for or advantage from the offending. It was further alleged that the first appeal Court had not accurately assessed her efforts at rehabilitation and had been distracted by her failure to complete the programme that had originally been identified as a condition for being discharged without conviction.[7] For Ms Meijler, Mr Yi also submitted that the severity of the consequences of a conviction had been underestimated because of Ms Meijler's non-specific employment plans which, it was suggested, were not unusual for a person recovering from a long-term drug dependency. Mr Yi argued it would be unlikely that any prospective employer would look beyond Ms Meijler's conviction for forgery and consider the circumstances of her offending when assessing her suitability for a position.[8] Mr Yi submitted that the delays in resolving her sentencing, which included occasions when Ms Meijler did not appear in Court, unfairly detracted from the merits of her application and that insufficient regard had been given to the reasons for her8 At [12].9 At [17]–[18].non-appearances about which she provided evidence. These reasons included Ms Meijler being involved in a car accident the day before a scheduled appearance and her counsel becoming indisposed due to a stroke. These events resulted in a breakdown in communication and confusion regarding the need to appear. It also led to Ms Meijler having to instruct replacement counsel.Analysis[9] When considering an application for discharge without conviction the court is required to examine the seriousness of the offence, taking into account all aggravating and mitigating factors of both the offending and the offender. The direct and indirect consequences of conviction for the offender must then be assessed. 10 Only if the court is satisfied that these consequences are "out of all proportion" to the gravity of the offence may it consider exercising its discretion to discharge the defendant without conviction.11 There is no legal onus on a defendant to establish this statutory test but the court must be satisfied that its requirements have been met. 12 That is a matter of judicial evaluation and as such is subject to normal appellate review by way of rehearing, in accordance with the principles in Austin Nichols & Co Inc v Stichting Lodestar.13The seriousness of the offending[10] Ms Meijler is a 51-year-old woman who before this present offence had no previous convictions. It is not disputed that she had become addicted to Zopiclone, which she had been prescribed for some 20 years. The maximum dosage her doctor could provide was no longer effective and Ms Meijler was unable to sleep. She described herself as having become "mentally, emotionally and physically exhausted". Because her doctor was not able to prescribe any greater amount of the drug, she resorted to copying the scripts to obtain more of the medication and increase her dosage.10 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].11 Sentencing Act 2002, s 107.12 R v Taulapapa [2018] NZCA 414 at [23]; R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R [2013] NZCA 255 at [43].13 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].[11] In Zhang v R this Court recognised that addiction may impair a person's rational choice to offend. 14 When a causal nexus can be established between a person's addiction and their offending, it may operate as a mitigating feature. 15 As was responsibly acknowledged by Ms Wong, on behalf of the Crown, there is no reason why addiction should not be relevant to dishonesty offending, and it was accepted that Ms Meijler's addiction plainly caused her to offend in the way she did. It is not disputed that Ms Meijler's addiction at the time of the offending is a significant mitigating consideration that must be factored into the assessment of its seriousness.[12] When assessing the gravity of Ms Meijler's offending, Downs J recognised that Ms Meijler had committed the offence because of her drug dependency. 16However, the importance of this feature appears to have been eroded by the view taken of Ms Meijler's response to the programme that she was originally directed to complete by the District Court. Doubts were expressed as to whether her rehabilitation was complete. 17 Ms Wong submitted that the Judge was entitled to approach the issue of Ms Meijler's rehabilitative efforts with some caution. However, we consider the focus on her non-participation in the recommended course and the reasons she proffered for not doing so have tended to distract from Ms Meijler's success in weaning herself off Zopiclone, which we describe below.[13] The information provided by medical professionals, including from clinicians at CADS, discloses that Ms Meijler made steady progress with overcoming her addiction. Her use of Zopiclone was reduced and then replaced with Diazepam. With the assistance of her doctor, Ms Meijler is now no longer on any benzodiazepines and only takes medication for her anxiety. Ms Meijler attended a four-week course with CADS which is described as a "Getting Started" course. She has not completed the 10-week programme recommended by staff at CADS, which we accept she should have endeavoured to have done. However, we do not consider the non-completion of that recommended course should detract from the significant rehabilitative progress she has made when compared with the state she was in at the time she committed the offence. In plain terms, we consider that greater credit should have been afforded14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137]–[138].15 See at [142]–[150].16 Meijler v Police, above n 3, at [14].17 At [14].to her for freeing herself from the addiction that was at the root of her offending, and for the success she has had in her efforts to manage that addiction.[14] We do not consider the elongated court process that followed the sentence indication is a significant factor in assessing Ms Meijler's rehabilitation. It featured an unfortunate combination of circumstances that include illness, a bad car accident, and her counsel suffering a stroke and ceasing practice, which in turn resulted in a failure of communication regarding court dates.Nor are we concerned about an apparent inconsistency in the material supplied by Ms Meijler about the reasons she offered to CADS for not attending regular reviews. Ms Meijler is recorded as saying she found it difficult to undertake these reviews due to work commitments and financial barriers. Her affidavit indicated she had not worked for some years. Information provided at the hearing of the first appeal was that Ms Meijler had nannied on a part-time basis over this period. We accept that information conflicts with the tenor of Ms Meijler's affidavit, although part-time work as a nanny may not necessarily be inconsistent with being on a jobseeker's benefit. Nor does it necessarily conflict with her statement of wanting "to get back into work" or "the workforce" but needing to first recover, both physically and psychologically, from violent domestic abuse which is also detailed in her evidence. Moreover, we do not consider this apparent discrepancy is directly relevant to Ms Meijler's rehabilitation when the prime driver of her offending, her addiction, has been so successfully addressed.[15] The Crown emphasised the premeditated nature of the offending and the fact it related to restricted drugs. However, we consider the causative reason for Ms Meijler's offending and the extent of her actual rehabilitation should have resulted in the offending being categorised towards the lower end of the scale of seriousness. In reaching that conclusion, we also take into account Ms Meijler's age, that she had no previous convictions, and that she was entitled to be viewed as being of previous good character. We have already mentioned the absence of any personal pecuniary advantage and the unsophisticated nature of the forgery, which simply involved Ms Meijler photocopying the prescriptions.[16] Ms Meijler pleaded guilty and has expressed remorse, particularly to her doctor, whom she has been seeing for some 20 years and to whom she has apologised. Finally, we cannot help but observe that the sentencing Court had initially indicated a willingness to discharge Ms Meijler without conviction on the condition she complete a particular course of rehabilitation. She did not do this but the material before us demonstrates that, by working with CADS and her own doctor, she has substantially achieved the same rehabilitative result. She is no longer dependent on Zopiclone, takes no benzodiazepines at all, and is described by her doctor as doing well.The consequences of the conviction[17] Turning to the consequences of the conviction, Downs J accepted that a forgery conviction would likely deter some employers from employing Ms Meijler but he considered it would not deter fair-minded employers when regard is had to the circumstances in which the offence was committed and Ms Meijler's otherwise good character. The Judge was concerned that Ms Meijler intended to work as a nanny or in an office and that this may result in her either working in private homes or dealing with documents with a minimal level of supervision. This, the Judge believed, suggested that potential employers should know of the offending. When coupled with Ms Meijler having no particular job in mind, it was concluded that the potential consequences of the conviction were in the low to moderate range. 18[18] Ms Meijler had no definitive employment plans. However, Mr Yi submitted that it was not unusual for a person recovering from a long-term drug dependency, who was limited to unskilled employment, to have such undefined plans. His main point was that the offence of forgery carries the stigma of dishonesty and that it is unlikely that Ms Meijler, when pursuing employment, would be given the opportunity to explain the circumstances of her conviction. For its part, the Crown was critical of a lack of evidence relating to Ms Meijler's employment prospects and the effect a conviction would have on her opportunity to secure employment in a particular field such as nannying. In the absence of a conviction being a total bar to employment or an insurmountable hurdle, it was submitted the disproportionality test was not met.18 Meijler v Police, above n 3, at [17].[19] In assessing the "real and appreciable" risk that any given consequence will happen, 19 the court is also required to gauge the nature and severity of its effect. 20A conviction may well affect a person's employment prospects but that will ordinarily be viewed as the usual consequence of committing a criminal offence and by itself will not usually impinge on an employer's right to know.21 However, as this Court recognised in R v Taulapapa, the consequences for an individual may be particularly severe if employers are unwilling to look behind the conviction, and where the circumstances of the offending, if known, would be likely to exclude the person from the particular type of employment being sought. Such a risk may arise where the conviction labels a person as dishonest or violent but does not fairly reflect the offender's character or culpability.22[20] Unskilled or semi-skilled work, such as nannying or clerical positions, is likely to require employers to filter applications without further enquiry. An applicant with a conviction for forgery who is seeking such work is unlikely to advance beyond that preliminary stage. 23 The consequences of a conviction may therefore be severe if it conveys on its face a disqualifying trait that does not accurately reflect the person's actual offending or his or her level of culpability. We consider that Ms Meijler's conviction provides such an example, and that she will face a real and appreciable risk of such a barrier when she searches for work in the future.[21] We also do not think Ms Meijler can reasonably be expected to adduce specific evidence of employers' attitudes in general, or that it is necessary in the circumstances to do so as was submitted by the Crown. 24 We are satisfied that a forgery conviction is likely to be taken as evidence of dishonesty, thereby increasing the risk that employers will discard Ms Meijler's application without considering its merits.19 DC (CA47/2013) v R, above n 12, at [43], citing Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20]; and Currie v Police HC Auckland CRI-2008-404-307, 27 May 2009 at [49].20 R v Taulapapa, above n 12, at [42]; and Prasad v R [2018] NZCA 537 at [18], citing Iosefa v Police, above n 19, at [34]–[35].21 R v Taulapapa, above n 12, at [42](a); and Liang v Police HC Wellington AP38/02, 16 April 2003, at [17].22 R v Taulapapa, above n 12, at [42](b), citing Brown v R [2012] NZCA 197 at [31]; and Edwards v R[2015] NZCA 583 at [18].23 See R v Taulapapa, above n 12, at [42](d), citing Tahitahi v Police [2012] NZHC 663 at [25] and [28]; and Flavell v Ministry of Social Development [2015] NZHC 214 at [16].24 R v Taulapapa, above n 12, at [46](c).The conviction denotes a serious offence but, for reasons previously traversed, Ms Meijler's culpability was much lower than the conviction by itself suggests.[22] These types of concerns are particularly acute when dealing with young offenders whose future is in jeopardy, but we do not consider such considerations are any less relevant to a mature person such as Ms Meijler, who, apart from the forgery conviction, has an otherwise unblemished record. It needs to be emphasised that Ms Meijler is a recovering opioid addict who, despite otherwise being a person of good repute, has clearly struggled over the latter part of her life and whose prospects are uncertain. When regard is had to her personal circumstances and limited employment choices, we consider the effect of a conviction for using forged documents, which carries with it the apparent stain of dishonesty, means the potential consequences of a conviction for Ms Meijler are significant.Decision[23] Having assessed the seriousness of the offending to be low, we consider the consequences for Ms Meijler would be out of all proportion to the gravity of the offending. We therefore consider the appeal should be allowed and Ms Meijler discharged without conviction.Result[24] The appeal against conviction and sentence is allowed.[25] Ms Meijler's conviction is set aside and her sentence quashed. An order is made discharging Ms Meijler without conviction.Solicitors:Crown Law Office, Wellington for Respondent