MEIJLER v R [2021] NZCA 305

MEIJLER v R [2021] NZCA 305 [8 July 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA5/2021[2021] NZCA 305BETWEEN LOUISE CHARLOTTE MEIJLERAppellantAND THE QUEENRespondentCourt: Courtney, Mander and Hinton JJCounsel: J Y Yi for AppellantS E Trounson for RespondentJudgment:(On the papers)8 July 2021 at 3.30 pmJUDGMENT OF THE COURTLeave 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)[1] Over the course of some twenty years Louise Meijler became addicted to thesleeping pill Zopiclone, which was prescribed to control her anxiety and insomnia. By2018 the maximum that her doctor could prescribe was insufficient for this purpose.She photocopied a prescription her doctor had provided and used the photocopies toobtain more pills than she was entitled to. She was charged with one count of forgery,to which she pleaded guilty.11 Crimes Act 1961, s 257(1)(b).[2] In April 2019 Judge A J Fitzgerald gave a sentencing indication that Ms Meijlerwould be discharged without conviction provided she completed a 10-weekCommunity Alcohol and Drug Services (CADS) programme and did not commitfurther offences. Ms Meijler undertook a four-week CADS programme but did notcomplete the 10-week programme contemplated by the Judge. She instead workedwith her GP and a CADS nurse over the course of a year to wean herself off thesleeping pills. During 2019 and 2020 Ms Meijler also failed to appear on threeoccasions.[3] When Ms Meijler appeared in July 2020 the Judge indicated that the earliersentencing indication was "spent" as a result of her failing to appear and not havingtaken steps to file any material relating to an application for discharge withoutconviction under s 106 of the Sentencing Act 2002.[4] Ms Meijler filed an application under s 106 and appeared for sentence beforeJudge P J Sinclair in August 2020. The Judge characterised the gravity of theoffending as moderate.2 She did not accept that the consequences of conviction wouldbe out of proportion to the gravity of the offending, taking into account the fact thatMs Meijler did not have any specific employment in view upon her return to theworkforce and that the offending ought not to be hidden from a prospective employer.3The Judge refused the application and imposed a sentence of nine months'supervision.4[5] Downs J dismissed Ms Meijler's appeal.5 He regarded the offending lessseriously — characterising it as low to moderate6 — but still considered that it oughtto be known to a prospective employer and, given that Ms Meijler did not have aparticular job in mind, regarded the consequences of conviction as also being in thelow to moderate range (and therefore not out of proportion to the gravity of theoffending).72 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 27393.5 Meijler v Police [2020] NZHC 3167.6 At [14].7 At [17]–[18].[6] Ms Meijler seeks leave for a second appeal against conviction and sentence.8This Court cannot grant leave unless satisfied the appeal involves a matter of generalor public importance or a miscarriage of justice may have occurred or may occurunless the appeal is heard.9[7] The proposed ground of appeal is that a miscarriage of justice has occurred orwill occur unless leave is granted. Ms Meijler asserts the following errors bythe Judge:(a) Failing properly to determine the gravity of the offending. Specifically,that the Judge was wrong to treat the offending as being of "low tomoderate" gravity whereas, having regard to the causative effect ofMs Meijler's longstanding addiction to the medication, the lack ofsophistication of the offending and the lack of pecuniary advantage, theoffending should have been characterised as of low gravity.(b) Failing properly to consider her efforts at rehabilitation. On this aspect,the Judge wrongly emphasised the fact that Ms Meijler took a differentroute towards rehabilitation than that directed by the Judge and failedproperly to consider the extent of the actual rehabilitation.(c) Placing insufficient weight on the consequences of a conviction,particularly in relation to employment prospects. It is further submittedthat having an undefined employment plan is natural and ordinary fora person recovering from a long-term drug dependency and in unskilledemployment.(d) Treating her failures to appear in Court as detracting from the factorsin mitigation. In her affidavit Ms Meijler explained the reasons for hernon-appearances, which include being involved in a car accident theday before another scheduled appearance and her solicitor having astroke on one of the other days she was due to appear.8 An appeal against a refusal to grant a discharge without conviction is treated as an appeal againstboth conviction and sentence: Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[8].9 Criminal Procedure Act 2011, ss 237(2) and 253(3).[8] The Crown opposes leave being granted.[9] It is evident that this matter had a lengthy, unsatisfactory history in the DistrictCourt for a variety of reasons. It is not clear that either the sentencing Judge orthe High Court Judge fully appreciated the extent of the difficulties relating toMs Meijler's failure to appear, nor the true nature and effect of the rehabilitation thatshe undertook.[10] The proposed appeal also raises issues regarding assessment of the gravity ofdishonesty offending where addiction is a causative factor, in light of this Court'scomments in Zhang v R in the context of methamphetamine offending.10 This aspectwas not argued in the District Court and, although raised in the High Court and referredto by the Judge, was effectively treated as being overtaken by Ms Meijler's failure toundertake the specific rehabilitation programme directed by Judge Fitzgerald.[11] In these circumstances we consider that there is a risk of a miscarriage ofjustice if leave to appeal is not granted. Leave to appeal is accordingly granted on thequestion:Did the Judge err in dismissing Ms Meijler's appeal?Solicitors:Crown Law Office, Wellington for Respondent10 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [142]–[150].