MACDONALD v NEW ZEALAND POLICE [2020] NZHC 415

MACDONALD v NEW ZEALAND POLICE [2020] NZHC 415 [5 March 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-175[2020] NZHC 415TIMOTHY MACDONALDvNEW ZEALAND POLICEHearing: 5 March 2020Counsel: M Cole for AppellantS Mallett for RespondentJudgment: 5 March 2020JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Macdonald (the appellant) has been charged with s 21(1)(a) of theSummary Offences Act 1981. Under this provision, a person commits an offence who,knowing that their conduct is likely to cause another person reasonably to befrightened or intimidated, threatens to injure that other person.1 This charge carrieswithin it a maximum penalty of three months' imprisonment or a $2,000 fine.[2] On 23 October 2019, Judge Callaghan convicted and sentenced the appellantfor this offence, ordering that he pay a sum of $500 to the victims.2 No other penalty1 Summary Offences Act 1981, s 21(1)(a).2 Police v MacDonald [2019] NZDC 23479 at [25]-[26].was imposed, but a conviction was entered. The appellant now appeals to this Courtagainst his conviction, on the basis that the Judge erred in fact and in law.BackgroundFactual background[3] On 1 December 2018, the appellant was residing at his home address with thetwo victims. The appellant was frustrated with the victims and became increasinglyaggressive. He banged on doors and yelled racial slurs about killing Mexicans andhow Hitler was right to kill immigrants.3 The appellant then produced a large knifefrom the kitchen and took it into the bathroom, supposedly for the purpose of trimminghis facial hair.4 He then returned to the kitchen where the victims were present andpresented the knife towards them, stating words to the effect: "what are you doing inmy country?" and "kill migrants".5 One of the victims then called the Police.District Court decision[4] At the District Court, the appellant sought a discharge without conviction, onthe basis that he had no previous convictions, that he had neurological difficulties, andthat the imposition of a conviction would make it difficult for him to find employment.The Police (the respondent) opposed the discharge without conviction on the basis thatthe particular offending in this case could be classified as moderate to serious in thespectrum of offences of a similar nature, due to the nature of the threats uttered andthe presence of a weapon. It was further submitted that the hostility of the appellanttowards a group of persons who share a common characteristic such as race ornationality should also be treated by the Court as an aggravating factor.[5] The District Court Judge acknowledged the appellant's neurologicaldifficulties and lack of previous convictions, but ultimately ruled the appellant shouldbe convicted.6 The Judge indicated that the appellant's actions could be considered inthe moderate to medium band on the spectrum for this type of offending, and that the3 Police v MacDonald, above n 2, at [2].4 At [2].5 At [2].6 At [25].conviction itself would not be the root cause of the appellant's difficulty with findingemployment, but rather his difficulties in maintaining interpersonal relationships.7Submissions of the partiesThe appellant[6] Ms Cole, counsel for the appellant, submitted that the District Court Judgeerred in his judgment in two ways. Firstly, that the Judge erred when he decided thatan employer would be entitled to know about the appellant's neurological andinterpersonal difficulties, as well as his tendency to react in an aggressive manner instressful situations. According to counsel for the appellant, in making this statementthe Judge assumed that the aggressive behaviour was normal for the appellant,whereas an affidavit from the appellant's social worker submitted by counsel indicatedthat he was not normally aggressive.[7] Secondly, counsel submitted that the Judge failed to properly take into accountthe appellant's neurological difficulties as they related to the gravity of his offendingunder s 8(h) of the Sentencing Act 2002. According to Ms Cole, the appellant'sneurological deficits should have been more significant weight, particularly in light ofcounsel's submission that the appellant was not normally an aggressive person.The respondent[8] Mr Mallett, counsel for the respondent, submitted that the appeal should bedismissed, and that the conviction should remain. It was noted by Mr Mallett that theappellant in his submissions did not allege that Judge erred in applying the principlesunder s 107, but rather focused on the two errors discussed above.[9] Counsel noted that in relation to the Appellant's first ground of appeal, theDistrict Court Judge was simply paraphrasing Police submissions, and that all thatwould be disclosed to a future potential employer would be the appellant's conviction,not his neurological difficulties or his tendency to react in an aggressive manner.Consequently, the first ground was submitted to have no merit.7 At [24].[10] In relation to the second ground of appeal, counsel submitted that the Judgeexplicitly took the appellant's neurological difficulties into account when consideringhis decision, and that in the affidavit of the appellant's support worker, it wasacknowledged that the appellant could potentially say "very inappropriate things whenin a conflict". Furthermore, counsel noted that while neurological issues andinterpersonal difficulties are matters that can properly be taken into account whenassessing the gravity of the offending, they are not a defence to the charge or ajustification or excuse to the appellant's behaviour.[11] Counsel for the respondent also referred to the case of R v Nilsson. That caseconcerned an appeal by the appellant against an assault conviction on the basis thatthe sentencing Judge failed to attach sufficient mitigating weight to the appellant'spsychiatric condition as a factor in the offending.8 The Court of Appeal held that theappellant's psychiatric condition significantly reduced, but did certainly did notextinguish, the appellant's culpability for his actions.9Approach to appeal[12] An appeal against the refusal to grant a discharge without conviction is acomposite appeal against both conviction and sentence.10 The basis for determiningan appeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:11(a) by virtue of a material error by the sentencing judge in entering aconviction; or(b) as a result of an error by the judge in applying the principles ofdischarging an offender without conviction under s 107 of the Act.8 R v Nilsson CA552/99, 27 July 2000 at [6].9 R v Nilsson, above n 8, at 16.10 Jackson v R [2016] NZCA 627 at [6]-[16].11 Jackson v R [2016] NZCA 627, above n 10, at [12].Relevant law[13] Section 106 of the Sentencing Act 2002 provides that if a person who ischarged with an offence is found or pleads guilty, a Court may discharge the offenderwithout conviction, unless by any enactment applicable to the offence the Court isrequired to impose a minimum sentence.12[14] Section 106 is complemented by s 107. Under this provision, a Court must notdischarge an offender without conviction under s 106 unless that Court is satisfied thatthe direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offence.13[15] The Court of Appeal has characterised an assessment under s 107 as a threestep test:14[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressingthe guidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[16] In Z v R, the Court of Appeal clarified the approach to applying each elementof the s 107 assessment:15[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences are12 Sentencing Act 2002, s 106.13 Sentencing Act 2002, s 107.14 Prasad v R [2018] NZCA 537 at [11].15 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].out of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).AnalysisThe gravity of the offence[17] The Judge rightly considered the gravity of the offending through anassessment of all the aggravating and mitigating factors relating to the appellant andhis offending. The Judge firstly considered the aggravating factors, which includedthe presence of a weapon during the offending, the racial nature of the threats and thatthe threats implied death.16 The mitigating factors were then considered. Theseincluded the appellant's lack of previous convictions, his underlying neurologicaldisorders, his ability to maintain employment, his guilty plea and his efforts to try andaddress problem gambling and drinking issues.17 In taking these factors into account,the Judge concluded that the gravity of the offending was moderate to medium.18Ms Cole conceded that this was an appropriate categorisation.Direct and indirect consequences of the conviction[18] The Judge then considered the direct and indirect consequences of theconviction, particularly the potential difficulty with obtaining a job if a conviction wasimposed. The Judge acknowledged that a conviction was a potential factor that anemployer would take into account, but ultimately held that the conviction itself wouldnot necessarily be the "root cause" of the Appellant's difficulty to find employment.19Instead, the appellant's interpersonal relationship difficulties would in the Judge'sview, impact more on the appellant's ability to find employment than a conviction.20This appears to be a correct application of the second step in the s 107 test, as theconsequences of the conviction were properly balanced and assessed.16 Police v MacDonald, above n 2, at [18].17 At [19]-[22].18 At [23].19 At [24].20 At [24].Proportionality of consequences to gravity of offence[19] The Judge ultimately concluded that given the moderate to medium nature ofthe offence, and the fact that the main consequence of the conviction put forward bythe appellant (difficulty finding employment) was more impacted by the appellant'sown interpersonal issues than what a conviction would be, the consequences of theconviction were not out of proportion with the gravity of the offending. Consequently,a discharge without conviction was not warranted.Conclusion[20] I am not satisfied that the District Court Judge erred in his assessment of theevidence, and application of s 107 and that a miscarriage of justice has occurred.Counsel for the Appellant is correct in submitting that the Appellant's lack of previousconvictions, difficulties with interpersonal relationships and neurological difficultiesare all important factors to be taken into account when considering the offending andconviction. However the Judge correctly considered these factors, and explicitlydiscussed them in his judgment. The Judge acknowledged the three-step test that hewas required to utilise under s 107,21 and correctly applied all three steps, byconsidering the gravity of the offending including aggravating and mitigating factors,identifying the consequences of conviction, and determining whether thoseconsequences were out of all proportion to the gravity of the offence.[21] There is no miscarriage of justice in this case, because the Judge correctlyapplied the s 107 principles and did not make a material error in his judgment.Consequently, the appeal is dismissed.Churchman JSolicitors:Crown Solicitor's Office, Christchurch for respondent21 Police v MacDonald, above n 2, at [17].