Meijler v R [2021] NZCA 305 (8 July 2021)

Last Updated: 13 July 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA5/2021 [2021] NZCA 305

	BETWEEN	LOUISE CHARLOTTE MEIJLER Appellant
	AND	THE QUEEN Respondent

Court:	Courtney, Mander and Hinton JJ
Counsel:	J Y Yi for Appellant S E Trounson for Respondent
Judgment: (On the papers)	8 July 2021 at 3.30 pm

JUDGMENT OF THE COURT

Leave 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 the sleeping pill Zopiclone, which was prescribed to control her anxiety and insomnia. By 2018 the maximum that her doctor could prescribe was insufficient for this purpose. She photocopied a prescription her doctor had provided and used the photocopies to obtain more pills than she was entitled to. She was charged with one count of forgery, to which she pleaded guilty.^[1]
• [2] In April 2019 Judge A J Fitzgerald gave a sentencing indication that Ms Meijler would be discharged without conviction provided she completed a 10‑week Community Alcohol and Drug Services (CADS) programme and did not commit further offences. Ms Meijler undertook a four-week CADS programme but did not complete the 10-week programme contemplated by the Judge. She instead worked with her GP and a CADS nurse over the course of a year to wean herself off the sleeping pills. During 2019 and 2020 Ms Meijler also failed to appear on three occasions.
• [3] When Ms Meijler appeared in July 2020 the Judge indicated that the earlier sentencing indication was “spent” as a result of her failing to appear and not having taken steps to file any material relating to an application for discharge without conviction under s 106 of the Sentencing Act 2002.
• [4] Ms Meijler filed an application under s 106 and appeared for sentence before Judge P J Sinclair in August 2020. The Judge characterised the gravity of the offending as moderate.^[2] She did not accept that the consequences of conviction would be out of proportion to the gravity of the offending, taking into account the fact that Ms Meijler did not have any specific employment in view upon her return to the workforce and that the offending ought not to be hidden from a prospective employer.^[3] The 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 less seriously — characterising it as low to moderate^[6] — but still considered that it ought to be known to a prospective employer and, given that Ms Meijler did not have a particular job in mind, regarded the consequences of conviction as also being in the low to moderate range (and therefore not out of proportion to the gravity of the offending).^[7]
• [6] Ms Meijler seeks leave for a second appeal against conviction and sentence.^[8] This Court cannot grant leave unless satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.^[9]
• [7] The proposed ground of appeal is that a miscarriage of justice has occurred or will occur unless leave is granted. Ms Meijler asserts the following errors by the 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 to moderate” gravity whereas, having regard to the causative effect of Ms Meijler’s longstanding addiction to the medication, the lack of sophistication of the offending and the lack of pecuniary advantage, the offending 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 different route towards rehabilitation than that directed by the Judge and failed properly 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 submitted that having an undefined employment plan is natural and ordinary for a person recovering from a long-term drug dependency and in unskilled employment.

(d) Treating her failures to appear in Court as detracting from the factors in mitigation. In her affidavit Ms Meijler explained the reasons for her non-appearances, which include being involved in a car accident the day before another scheduled appearance and her solicitor having a stroke on one of the other days she was due to appear.

• [8] The Crown opposes leave being granted.
• [9] It is evident that this matter had a lengthy, unsatisfactory history in the District Court for a variety of reasons. It is not clear that either the sentencing Judge or the High Court Judge fully appreciated the extent of the difficulties relating to Ms Meijler’s failure to appear, nor the true nature and effect of the rehabilitation that she undertook.
• [10] The proposed appeal also raises issues regarding assessment of the gravity of dishonesty offending where addiction is a causative factor, in light of this Court’s comments in Zhang v R in the context of methamphetamine offending.^[10] This aspect was not argued in the District Court and, although raised in the High Court and referred to by the Judge, was effectively treated as being overtaken by Ms Meijler’s failure to undertake the specific rehabilitation programme directed by Judge Fitzgerald.
• [11] In these circumstances we consider that there is a risk of a miscarriage of justice if leave to appeal is not granted. Leave to appeal is accordingly granted on the question:

Did the Judge err in dismissing Ms Meijler’s appeal?





Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 257(1)(b).

^[2] 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].

^[8] An appeal against a refusal to grant a discharge without conviction is treated as an appeal against both 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).

^[10] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [142]–[150].