In Meijler v. R., [2021] NZCA 472, September 17, 2021, the accused pleaded guilty to using forged documents. She had photocopied a prescription and obtained additional medication. She had longstanding addiction issues. She was fifty-one years of age and had no prior convictions.
At sentencing, she sought to be “discharged without conviction”. The sentencing judge rejected her submission and imposed “nine months’ supervision”. She appealed from sentence to the New Zealand Court of Appeal.
The appeal was allowed and she was discharged without conviction.
Discharges in New Zealand:
The Court of Appeal indicated that “[w]hen 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. 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. 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” (at paragraph 9).
The Consequences of the Conviction:
The Court of Appeal noted that “Ms. Meijler had no definitive employment plans”, but concluded that if a conviction was entered she would face “a barrier when she searches for work in the future” (at paragraphs 19 to 22):
In assessing the “real and appreciable” risk that any given consequence will happen, the court is also required to gauge the nature and severity of its effect. A 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. 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.
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. 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.
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. 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. The conviction denotes a serious offence but, for reasons previously traversed, Ms Meijler’s culpability was much lower than the conviction by itself suggests.
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.
