MACDONALD v R [2019] NZCA 91

MACDONALD v R [2019] NZCA 91 [5 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA293/2018[2019] NZCA 91BETWEEN THOMAS DOUGLAS MACDONALDAppellantAND THE QUEENRespondentHearing: 27 February 2019 (further material received 26 March 2019)Court: French, Dobson and Brewer JJCounsel: M J Phelps for AppellantS K Barr for RespondentJudgment: 5 April 2019 at 9 amJUDGMENT OF THE COURTA The appeal against conviction and sentence is dismissed.B The appeal against refusal of permanent name suppression is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr MacDonald pleaded guilty in the District Court to a charge of injuring withreckless disregard. He asked the Court to discharge him without conviction unders 106 of the Sentencing Act 2002.[2] The application for a discharge was declined by Judge Mackintosh.1 The Judgeconvicted Mr MacDonald and fined him $1,000 as well as ordering him to paythe victim reparation in the sum of $2,327.46. She also declined an application togrant Mr MacDonald permanent name suppression.[3] Mr MacDonald now appeals the Judge's decision to refuse his s 106 applicationand the refusal to grant name suppression.BackgroundFacts of the offending[4] Mr MacDonald was initially charged in June 2016 with injuring with intent toinjure following an incident that occurred on 24 April 2016. He pleaded guilty to anamended charge of injuring with reckless disregard on 28 March 2017.[5] A disputed facts hearing was held before Judge Mackintosh on15 January 2018.2 The facts of the offending as found by the Judge were as follows.[6] On the evening in question, Mr MacDonald had attended a house party. He hadbeen involved in the organisation of the music and security for the party.3 A meleeerupted during the course of which Mr MacDonald, the Judge found, "may have beenassaulted".4[7] The victim and his girlfriend arrived at the address in a white Ute to pick up afriend. By this time the police had arrived and asked the victim to park further downthe road, which he did.5[8] Meantime Mr MacDonald, who had left the address to buy some cigarettes,was returning in his vehicle and became convinced the white Ute was following him.He stopped his vehicle on the opposite side of the road, went over to the white Ute and1 R v MacDonald [2018] NZDC 4092 (Discharge Application and Sentencing Decision).2 R v MacDonald [2018] NZDC 602.3 At [6].4 At [2].5 At [2].said to the occupants "Have you got a problem?"6 When the victim replied "No",Mr MacDonald punched him through the open window in the face, instantly breakingthe victim's nose. The victim attempted to get away from Mr MacDonald by leaningover to the passenger seat, but Mr MacDonald continued to punch him again at leastonce in the body. Mr MacDonald also seized the victim's car keys and destroyedthem.7[9] The victim was a stranger to Mr MacDonald and the attack was entirelyunprovoked.[10] The victim was significantly affected by the offending. Two years later, he wassaid to be still suffering ongoing pain and breathing difficulties causing sleepdeprivation. His nose required further surgery which meant having to take more timeoff work in addition to the time already lost in the immediate aftermath of the assault.8Mr MacDonald's personal circumstances[11] Mr MacDonald was aged 21 at the time of the offending. He is an aspiringmusician who, in the words of his counsel Mr Phelps, has in a short space of timeachieved overseas success seldom seen from a New Zealand hip hop artist. In 2015,Mr MacDonald released an album which went to number one on the iTunes musiccharts. He has also toured with international hip hop artists in Australasia and travelledto the United States to collaborate with other high profile artists includingSnoop Dogg.[12] Mr MacDonald has had previous brushes with the criminal justice system.He has previously received the benefit of a discharge without conviction as well aspolice diversion. The previous discharge related to allowing unlicensed premises tobe used for the consumption of alcohol. The background to that offending alsoinvolved a party that got out of control leading to police intervention. The policediversion was granted in respect of a hunting offence.6 At [4].7 At [13].8 At [8].The District Court sentencing[13] Applications for discharge are governed by ss 106 and 107 of theSentencing Act. Those provisions relevantly state:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.107 Guidance for discharge without convictionThe Court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[14] It was common ground that the approach to s 107 involves a three stepprocess.9[15] First, the sentencing judge should identify the gravity of the offending.This includes an assessment of aggravating and mitigating factors relating to boththe offending and the offender.[16] Secondly, the judge must identify the direct and indirect consequences of aconviction.[17] Thirdly, it must be determined whether the direct and indirect consequences ofa conviction would be out of all proportion to the gravity of the offending.[18] Applying the three stage test, the Judge assessed the gravity of the offendingto be moderately serious.10 She accepted a conviction would hamper Mr MacDonald'sability to travel to the United States but despite the impact this would have on his9 See for example R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222; A (CA747/2010) v R [2011]NZCA 328 at [22]; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8].10 Discharge Application and Sentencing Decision, above n 1, at [22].music career, was not persuaded those consequences would be out of all proportion tothe gravity of the offending.11[19] The Judge therefore declined to grant a discharge without conviction.12She also found that publication of Mr MacDonald's name would not cause himextreme hardship and therefore declined to grant him permanent name suppression.13Arguments on appeal[20] Mr Phelps submitted the Judge erred in her assessment of the gravity ofthe offending as moderately serious. In support of this central contention, he arguedthe Judge had placed insufficient weight on the following facts:(a) Mr MacDonald did not have the requisite specific intent to injurethe victim, only reckless disregard.(b) He was responding to a perceived sense of danger as a result of whathad happened to him earlier that evening at the party as well as otherprevious experiences.(c) He had undertaken counselling to address this aspect of his behaviourand could now be considered low risk.(d) It was not a sustained assault. There were only two punches.(e) The punch to the body did not cause any injury.(f) The victim was not prevented from calling the police and although therewas potential for immobilisation it did not happen and he could havedriven away. He was a much bigger man than Mr MacDonald and notvulnerable.(g) Mr MacDonald's young age.11 At [27]–[29].12 At [31].13 At [34].(h) His remorse and willingness to attend a restorative justice conference.(i) He had undertaken community work prior to sentencing.(j) His guilty plea.[21] In Mr Phelps' submissions those factors meant the gravity of the offending wasrelatively low and this was implicitly recognised by the end sentence the Judge herselfimposed.[22] As regards the consequences of conviction, Mr Phelps said a conviction forviolence would prevent Mr MacDonald from being able to travel to and work inthe United States. That would "all but extinguish his prospects of a career in music"because the opportunities that exist in the United States for hip hop artists are notavailable in New Zealand.[23] Such an "extremely adverse consequence" was, in Mr Phelps' submission, outof all proportion to the gravity of the offending correctly assessed.Analysis[24] In our view, the Judge was correct to assess the gravity of the offending asmoderately serious even taking into account the mitigating factors identified byMr Phelps.[25] This was an unprovoked attack to the head causing significant injury to a manwho was vulnerable because he was in a confined space and whose means of escapehad been impeded.[26] As submitted by Mr Barr for the Crown, even if Mr MacDonald did genuinelybelieve himself to be at risk, his violent response was a complete over-reaction.The police were at hand and he could easily have driven away. Having in the pastsuccessfully defended a charge of wounding with intent to injure on the grounds ofself defence (stabbing at another party that had got out of control), we accept thatMr MacDonald must have been aware of the circumstances in which defensive actionis permissible.[27] We note too that credit for professed remorse and the guilty plea needs to betempered against Mr MacDonald's attempt to minimise his offending at the disputedfacts hearing and to attribute blame to the victim. His evidence which included a claimthat the victim had yelled abuse at him out the window and was being antagonisticwas directly contrary to the majority of the Judge's findings. The disputed factshearing also meant of course that the victim was not spared having to give evidenceand be cross-examined.[28] We acknowledge that the previous discharge without conviction related to adifferent type of offending albeit it was in the same context of a party that had got outof control. However, even in cases where the previous discharge relates to a differenttype of offending, the fact an applicant has already had the benefit of a discharge isstill a relevant factor that weighs against the grant of another discharge.[29] As regards the consequences of a conviction, this Court has held thatspeculative consequences relating to travel restrictions will not suffice. The Court willordinarily expect to be satisfied that under the law and practice of the countryconcerned:14(1) the conviction must be disclosed but, assuming a discharge is given,the fact that the offence was committed need not be; and(2) in consequence of the conviction, the applicant is prima facieinadmissible, and for how long; and(3) there is no alternative entry process available or that, if there is, suchprocess is unreasonably difficult and uncertain in all thecircumstances.If all of these things can be established, a sentencing court must further besatisfied that the offence is not so serious it would be wrong to allow theapplicant to present himself or herself to foreign immigration authoritieswithout disclosing it.14 Edwards v R [2015] NZCA 583 at [26]–[27].[30] At the hearing, we questioned Mr Phelps about the processes for entry intothe United States by a convicted person, including the ESTA visa waiver, applicationsfor visas generally and applications for waivers of ineligibility. It appears there wouldnot be an absolute ban on a person convicted of violent offending.However, the information provided on behalf of Mr MacDonald was inadequate toenable us to properly assess the consequences of a conviction. We also raised thepossibility with Mr Phelps that even if a discharge were granted, the Americanauthorities might still require Mr MacDonald to disclose the fact of the charge anyway.[31] Mr Phelps conceded that if that were so, it would significantly weaken the casefor a discharge. He asked for the opportunity to provide some more authoritativeinformation regarding entry requirements to the United States. We agreed to thatrequest and further information was provided after the hearing.[32] The supplementary material indicates that Mr MacDonald would be requiredto disclose his arrest and or his offending regardless of whether the conviction wasquashed or not. Entry would still be dependent on the United States authoritiesexercising their discretion as to whether to waive ineligibility based on all the facts.[33] We accept it is likely to be more difficult for a convicted person to obtain awaiver of ineligibility as opposed to one who was arrested but discharged.However, our impression from the material supplied is that the different degree ofdifficulty as between the two scenarios is not so pronounced as to render theconsequences of conviction "out of all proportion" to the gravity of the offending.[34] It follows we agree with Judge Mackintosh that the test under s 107 ofthe Sentencing Act was not met.[35] There was no challenge to the end sentence imposed by the Judge which in allthe circumstances was lenient.[36] Finally, we turn to the issue of name suppression. Mr Phelps conceded that ifthis Court were to dismiss the appeal against the refusal of a discharge, then it wouldbe very difficult to sustain a claim that publication of Mr MacDonald's name wouldcause extreme hardship.[37] That concession was appropriate. We are satisfied the Judge was correct whenshe held that permanent name suppression would not be justified.Outcome[38] The appeal against conviction and sentence is dismissed.[39] The appeal against refusal of permanent name suppression is dismissed.Solicitors:Crown Law, Wellington for Respondent