Lee v Police
[2024] NZHC 1966
•17 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-230
[2024] NZHC 1966
BETWEEN RICHARD JAMES LEE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 June 2024 Appearances:
J C Z Loh for Appellant
R H Vercoe for Respondent
Judgment:
17 July 2024
JUDGMENT OF MOORE J
This judgment was delivered by me on 17 July 2024 at 12.00 pm
…………………..
Registrar/Deputy Registrar
Solicitors:
Inder Lynch, Auckland
Kayes Fletcher Walker, Auckland
RICHARD JAMES LEE v NEW ZEALAND POLICE [2024] NZHC 1966 [17 July 2024]
Introduction
[1] The appellant, Richard Lee, pleaded guilty to one charge of theft by a person in a special relationship.1
[2] On 18 April 2024, he appeared before Judge N Tahana for sentence. He applied to be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. The application was founded on the potential impact a conviction would have on his ability to continue to operate his vehicle inspection business as well as the likely impact on his mental health.
[3] The Judge declined the application.2 She said she was not satisfied that the consequences of conviction were real and appreciable or that any such consequences were out of all proportion to the gravity of the offending.
[4]Mr Lee now appeals that decision on the grounds that the Judge erred:
(a)in finding that the gravity of the offending was low to moderate, rather than low;
(b)in finding that the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending; and
(c)in not exercising her discretion to discharge the appellant without conviction.
[5] The Police, as respondent, submits that there is no discernible error in the Judge’s application of the test under ss 106 and 107 of the Sentencing Act. It says the appeal should be dismissed.
1 Crimes Act 1961, ss 220 and 223(a). Maximum penalty seven years’ imprisonment.
2 Police v Lee [2024] NZDC 10180 [Decision on appeal].
The facts of the offending
[6] Mr Lee pleaded guilty to an agreed summary of facts the salient aspects of which are reproduced below.
[7] Mr Lee is the owner of Independent Training Audit Services (ITAS). ITAS is a service provider for both the training and mentoring of new vehicle inspectors and mentoring new vehicle inspectors. It is an approved Inspection Organisation for Certificates of Fitness and Entry Level Inspections. It is also an approved trainer for heavy vehicle braking testing protocols and heavy vehicle inspectors. Of particular relevance to this appeal, is that ITAS was contracted by the New Zealand Police to conduct vehicle inspections on vehicles involved in serious crashes.
[8] On 5 August 2023, the victim, Mr C, was involved in and survived a serious, fatal, car crash. His vehicle was taken to a tow yard where it was inspected by Mr Lee the same day. During this inspection Mr Lee found Mr C’s iPhone on the back seat. He removed the iPhone and a five dollar note he had also discovered and placed them in a drawer of a work desk where money and other valuable items were stored.
[9] Sometime later he removed the iPhone before taking it to his own vehicle and then, some days later, he disposed of it in a rubbish bin.
[10] Although not covered in the summary of facts, it appears common ground that on reflection, Mr Lee is unable to explain his actions in taking the phone and then, later, discarding it. However, when approached by the Police, he admitted the theft. He pleaded guilty approximately five weeks after being charged. He has made full reparation to Mr C of $1,433.95.
The victim impact statement
[11] Mr C has made a victim impact statement. He said that at the time the phone was stolen it was still new and in its box. He said that he initially was not concerned about his phone after the crash but later realised it was missing. He did not know when it was taken and thought that someone at the scene had stolen it. He was taken to hospital by ambulance and the person in the other car died. He described that the
events of the crash were hard enough to deal with and that “the loss of my phone is just on top of everything else”.
Legal principles – discharge without conviction
[12] If a person pleads guilty to an offence, the Court may, instead of imposing a sentence, direct that the offender be discharged.3 The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.4
[13] In Z (CA447/2012) v R, the Court of Appeal set out a three-stage test to be applied by the Courts when considering applications for a discharge without conviction:5
That is: when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[footnotes omitted].
[14] The use of the expression “out of all proportion” means that there must be a significant disproportion in consequences compared to the gravity of the offence.6 The likelihood of a risk materialising will also be relevant to the proportionality assessment.7
[15] If the Court determines that the consequences are out of all proportion to the gravity of the offence, it must still consider whether it should exercise its residual
3 Sentencing Act 2002, s 106(1).
4 Section 107.
5 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27], citing A (CA747/2010) v R
[2011] NZCA 328; and Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
6 Ni v New Zealand Police [2013] NZHC 2925 at [17].
7 Maraj v Police [2016] NZCA 279 at [31].
discretion to grant a discharge, although it will be a rare case where a Court will refuse to grant a discharge in such circumstances.8
District Court decision
[16] In the District Court, Mr Lee advanced his application on the basis that the consequences of the offending were wholly disproportionate to the gravity of the offending which counsel submitted was at the lowest end of the available scale.
[17] In assessing the gravity of the offending, the Judge considered that it fell towards the lower end of the spectrum given the value of the iPhone, and the fact that Mr Lee repaid the cost of the iPhone to Mr C. However, she considered that dishonesty offending of this nature was concerning given the blatant abuse of trust. She also noted that Mr Lee had a conviction for shoplifting in 1986. While she noted the historical nature of that conviction, she observed:
… it cannot be said that you are coming to court with totally clean hands, given that previous conviction. It is recognised that a previous conviction for offending of the same type must count against a discharge on a large occasion.
[18] The Judge noted and took into account that Mr Lee had taken steps to address the underlying causes of the offending. She accepted that he had entered a guilty plea at the earliest opportunity.
[19] The Judge then turned to the consequences of conviction. She observed that these were twofold; the effect on ITAS and the effect a conviction would have on Mr Lee’s mental health and reputation.
[20] As for the first, the Judge acknowledged Mr Lee’s concerns about the effect of losing his standing as a fit and proper person in respect of the Waka Kotahi/New Zealand Transport Agency (“NZTA”) requirements but considered that this was NZTA’s responsibility:
[12] In my view, NZTA is the appropriate body to make the assessment and it is not the role of the Court to assert that decision-making role. I also note that NZTA may not have concerns regarding the charge if all of the
8 Z (CA447/2012) v R, above n 5, at [27], citing Blythe v R, above n 5, at [13].
information, including the psychological assessment, is properly considered. It also appears, from your affidavit, that the potential loss of present and future contracts would result in considerable financial hardship for the business, its employees and your partner. Again, there is no information or evidence before me from either of those groups, the employees or current clients. In my view there is insufficient information that has been provided to find that a conviction of this type would impact on your existing contracts.
[21] As for Mr Lee’s mental health and reputation, the Judge referred to a psychological report which said:
[14] The psychological report … confirms that the current risk of self-harm is considered mitigated. Further, [the report] says this: “He could overcome his sense of shame and fear of rejection, losing his respected status as a specialist then his sense of acute stress would dissipate. Anticipatory anxiety regarding his current court matters should dissipate once the process has resolved. Mr Lee presented as characteristically pragmatic, hardy and future focused.”
[22] From this, the Judge concluded that Mr Lee had no pre-existing mental health conditions and considered it relevant that Mr Lee had initiated mental health assistance only after the index offending. She said that the Court had long recognised that shame, anxiety and reputation or damage were natural consequences of a conviction.
Approach on appeal
[23] An appeal against the refusal to grant a discharge without conviction is an appeal against both conviction and sentence.9 In Jackson v R, the Court of Appeal observed that 10
the principled basis for determining an appeal against a discharge without conviction is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing judge in entering a conviction. That is because a trial includes a proceeding in which the appellant has pleaded guilty. Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles for discharging an offender without conviction found in s 107 of the Sentencing Act.
[24] The threshold test in s 107 is not a matter of discretion, but rather a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate
9 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[9].
10 At [12].
principles.11 The Court’s discretion to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.12
Analysis
Did the Judge overstate the gravity of Mr Lee’s offending?
[25] Mr Loh, for Mr Lee, submitted the Judge erred in her assessment of the gravity of the offending in two respects: taking into account Mr Lee’s previous conviction and failing to give sufficient weight to the mitigating factors of his offending.
[26] As for the first, Mr Loh pointed out that Mr Lee was 21 years old at the time of that previous conviction and in the 38 years which had followed he had built a career, a positive reputation and a successful business. Viewed in that way he submitted that the index offending was isolated, out of character and thus at the “low to lowest end of the scale”.
[27] In my view, a previous conviction of this sort, given the nature of the offence and its antiquity, is such that it must necessarily carry little to no weight in terms of aggravation.
[28] However, reading the Judge’s comments on this point, I agree with Ms Vercoe for the Police that she did not treat the conviction as an aggravating factor. Otherwise, in terms of orthodox sentencing methodology, she would have said so. What the Judge was doing at a relatively early point in her decision was placing the conviction in the context of the broader assessment of whether a discharge without conviction would be justified.
[29] Furthermore, as Ms Vercoe submitted, the Judge’s observation that a previous conviction must count against a discharge on a later occasion for the same type of offending cannot be faulted as a statement of general principle. I also regard it as noteworthy that other than this relatively brief reference, Mr Lee’s previous conviction did not feature again anywhere in the decision.
11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
12 At [11].
[30] For that reason, I am inclined to agree with Ms Vercoe that the Judge treated the previous conviction more as the absence of an aggravating feature than as a factor which added to the matters of aggravation.
[31] As for the second, Mr Loh submitted the Judge did not properly consider Mr Lee’s compromised judgement and decision making at the time of the offending. He referred to a psychological report which explained that Mr Lee had gradually experienced burn-out as a result of the increased and chronic workplace stress he was subjected to. According to the report, these pressures were present at the time of the index offending. Mr Loh submitted that Mr Lee’s impaired judgment at the time was a mitigating factor which the Judge failed to address.
[32] I cannot agree for the reasons which follow. First, it is incorrect that the Judge did not address Mr Lee’s impaired judgment in her assessment. In fact, the Judge expressly recognised Mr Lee’s mental health and the steps he had taken to address the issues when assessing the gravity of the offending. She said:13
As I said, you have paid reparation, you have also taken some steps to address your mental health and fatigue and that has gone some way to address your offending. Finally, you entered a guilty plea at an early opportunity. Given all those circumstances I assess the gravity of your offending as low to moderate.
[33] I also regard it as noteworthy that the psychological report expressly addressed whether there was a causal connection between Mr Lee’s psychological presentation and his “index dishonesty offending”. It addressed the point in the executive summary as follows:
Within the context of increased and chronic workplace stress, over time, Mr Lee gradually experienced burnout. It is likely that, over time, Mr Lee’s failure to recognise/mitigate workplace burnout trapped him in a vicious cycle and compromised his typically sound professional judgment and decision making. There was no clinical evidence to suggest a nexus between vicarious post traumatic stress related to years of inspecting serious crash vehicles and Mr Lee’s index dishonesty offending. That Mr Lee subsequently experienced significant shame, regret, remorse and disgust in himself suggested that his actions were out of character. He presents with a very-low likelihood of reoffending. Respecting that the ultimate decision rests with the Court it is the writer’s opinion that Mr Lee’s future positive progress and prosocial
13 Decision on appeal, above n 2, at [9].
contribution to society could be strengthened by supporting his s 106 application and continued name suppression.
[34]The Judge also made express findings drawn from that report. These included:
(a)that Mr Lee did not have any pre-existing mental health issues;
(b)that there were no signs of a major mental health illness and/or neurocognitive disturbance; and
(c)that he only engaged with mental health services after the index offending occurred.
[35] In these circumstances, I agree with Ms Vercoe that the Judge cannot be criticised for placing little weight on the impact of Mr Lee’s mental health. She appropriately considered the fact that he had taken steps to address his health as a factor which mitigated the gravity of the offending.
[36] In any event, I cannot agree that an assessment of the gravity of Mr Lee’s offending, taking into account all mitigating factors, has it sitting at the lowest end of the scale as Mr Loh contended. It cannot be overlooked that the charge is, in itself, relatively serious (being an aggravated form of dishonesty). Then there is the offending itself. Although I accept it was a single and isolated event, the offending was a blatant abuse of trust by a victim who, at that time, was vulnerable given he had just been involved in a car crash with fatal consequences for others. He was entitled to repose trust in those dealing with the aftermath of the crash that they would respect his personal and property rights while he was indisposed. Furthermore, it was only after Police investigated the theft and identified Mr Lee that he took any steps to accept fault and attempt to redress the harm caused to Mr C by his offending.
[37] In all the circumstances, I do not consider the Judge erred in her assessment that the offending was in the low to moderate range. Indeed, when all the above factors are considered, I view the Judge’s classification as generous to Mr Lee. I consider the offending could well have been assessed as moderate.
Did the Judge err in finding there were no real and appreciable consequences of conviction?
[38] Mr Loh next submitted that the Judge erred in determining there was no real and appreciable risk the following direct and indirect consequences could occur:
(a)that Mr Lee’s appointment as a fit and proper person would be revoked, consequentially losing his ability to operate his business;
(b)that Mr Lee’s business contacts, reputation, employees and partner would be adversely impacted; and
(c)that Mr Lee’s mental health would suffer.
[39] Mr Loh submitted that the Judge erred in determining there was no information from NZTA indicating that Mr Lee’s standing would be in jeopardy if he were convicted. Contrary to what the Judge said, he submitted that Mr Lee’s affidavit before her set out the NZTA’s guidelines, which referred to the applicable legislation and regulations. Against that backdrop, he submitted that there was a real and appreciable risk a conviction would provide a justifiable basis for NZTA to revoke his appointment.
[40] With respect, I disagree. There was no independent evidence before the Judge, nor this Court, that a conviction would necessarily lead to NZTA assessing Mr Lee as unfit for the purposes of r 2.5(2)(a) of the Land Transport Rules: Vehicle Standards Compliance 2002 or under the Land Transport Act 1998.
[41] More fundamentally however, I agree with the Judge that NZTA is the appropriate body to make the assessment of whether Mr Lee is a fit and proper person, and that Courts should take care in ensuring they do not usurp the powers of professional and regulatory bodies charged with such decision-making. It is well- established that save for where a conviction would be an absolute bar to the entry of a profession or career, the Court should not use its discretion under s 106 to substitute the judgement of a professional or statutory body with its own.14
14 Maraj v Police [2016] NZCA 279 at [28] citing Roberts v Police (1989) 5 CRNZ 34 (HC) at 36
[42] Powell J faced a similar submission in Al Qaysi v New Zealand Police.15 There an Uber driver claimed that if a conviction was entered, NZTA would remove his passenger endorsement on the grounds that he was not a fit and proper person. The result would render him unable to continue his line of work. On this point Powell J said:16
[27] It is also particularly important with regard to the decision to be made by NZTA. This is because it is clear that the NZTA decision involves specific consideration of public safety issues, as identified by NZTA in the letter. Importantly, to the extent the documentation from Uber provided by Mr Al Qaysi reflects his own contractual arrangements, it would seem that Uber relies upon NZTA doing its job effectively to ensure that Uber drivers are fit and proper people to safely carry passengers. In addition, as a discharge without conviction has the effect of an acquittal, granting a discharge in this case would lead to the artificial position that the NZTA is aware of the domestic violence at issue in this appeal and to which Mr Al Qaysi has pleaded guilty, but is effectively required not to take it into account notwithstanding the criteria for determining what a fit and proper person may be has formed absolutely no part of the analysis required in this appeal. Such an approach clearly fails to allow the NZTA to properly perform its function.
[43] Similar observations were made by Edwards J in Gorrie v New Zealand Police.17 That case involved a defendant convicted of assault on a child. On the question of the consequences of conviction the appellant claimed he would be at risk at losing his NZTA passenger endorsement for his bus driver’s licence and he was also at risk of losing his licence to sell alcohol due to a suitability requirement under the Sale and Supply of Alcohol Act 2012.
[44] As Edwards J observed, any risk of not meeting the fit and proper person and suitability requirements flow not from the fact of conviction, but rather from the nature of the offending itself. On this point she said:18
[64] What is apparent from the NZTA notice is that the NZTA has considered the circumstances of the offending in reaching its decision on whether to decline renewal. The consequence does not just flow from the conviction itself, but also flows from the nature of the offending. The NZTA is in a position to assess whether Mr Gorrie is a “fit and proper person” and Mr Gorrie has an avenue of appeal to challenge that determination.
15 Al Qaysi v New Zealand Police [2020] NZHC 1231 at [27].
16 Footnotes omitted.
17 Gorrie v New Zealand Police [2018] NZHC 2129.
18 At [64].
[45] That general principle has particular application in this case. Whereas the offending in Al Qaysi and Gorrie involved offending committed outside the context of driving a taxi or a bus, Mr Lee’s offending was committed in the context of his contract with the Police to inspect vehicles involved in serious crashes. In my view it would be wholly inappropriate and contrary to well-established legal principle if the facts and circumstances of Mr Lee’s offending were concealed to NZTA as a consequence of this Court discharging him without conviction, which is of course a consequence deemed to be an acquittal.19
[46] Even so, it is clear that even if the Court was to grant Mr Lee a discharge without conviction, his offending would, nonetheless, inevitably come to NZTA’s attention. This is because of NZTA’s inspecting organisation application for certificates of fitness. Under the heading “Consent and declaration” the applicant is required to give various undertakings and consents. One is of particular relevance. It reads:
I consent to the disclosure by the NZ Police and other relevant persons or authorities of all charges and convictions against me and any other information they hold about me to Waka Kotahi.
The information about me that the NZ Police may consider relevant to my application and release to Waka Kotahi in vetting comprises any conviction history, infringement/demerit reports; and it may include any other information such as active charges and warrants to arrest, any information received or obtained by NZ Police, and any interaction I have had with NZ Police in any context, even where I have not been charged, or charges are withdrawn, or I have been acquitted (not guilty) of a charge, or I have been discharged without conviction. …
I authorise Waka Kotahi to make all enquiries as to my character and suitability to operate an inspecting organisation for the purposes of this application and for the term of my appointment as an inspecting organisation (under the Official Information Act 1982 and the Privacy Act 2020).
[47] Although I accept this document relates to an application to become an authorised inspecting organisation, whereas Mr Lee is already the holder of this certificate, such certificates are subject to a specified term following which renewal is required.
19 Sentencing Act 2002, s 106(2).
[48] That being the case, it is difficult to see how, even if Mr Lee was granted a discharge without conviction, the fact of his offending could be withheld from NZTA.
[49] This further underscores the distinction Edwards J made in Gorrie, between the consequences of a conviction and the consequences of the offending.
[50] It follows that I cannot accept that the entry of a conviction would create a real and appreciable risk that Mr Lee’s and/or ITAS’s certification would be revoked.
[51] The next consequence advanced on Mr Lee’s behalf was the impact to his business contracts, his reputation, his employees and his partner. These were listed in Mr Lee’s supporting affidavit. To some extent this point overlaps with the previous discussion, particularly in relation to ITAS’s business contracts. The detrimental effects on ITAS’s employees, should its certificate be revoked, is obviously a matter of concern although I note that if Mr Lee’s certificate was revoked it would not necessarily prevent ITAS from continuing to operate if a suitably qualified replacement principal could be engaged. I also note the potential deleterious effects on Mr Lee’s partner who is also an employee of ITAS and who has made a significant investment in time and resources in establishing the company.
[52] As for Mr Lee’s reputation, that too is a factor which deserves consideration, particularly given the efforts Mr Lee has invested in building ITAS.
[53] However, whether these factors are considered individually or collectively, I agree with the Judge that most, if not all, are natural consequences of a conviction. In that context I refer to the Court of Appeal’s comments in R v Taulapapa when it observed:20
Conviction carries a social stigma which the law sustains by recording and publishing convictions. It may affect a person’s career, but that consequence must normally yield to the employer’s right to know. This principle extends to independent bodies charged with assessing the character or suitability for a particular career. It applies to all offenders for whom convictions are recorded, including the young.
20 R v Taulapapa [2018] NZCA 414 at [42(a)]. Footnotes omitted.
[54] The third factor which Mr Loh submitted the Judge erred in either not considering or giving insufficient weight to is the impact a conviction would have on Mr Lee’s mental health.
[55] The Judge addressed this both in assessing the gravity of Mr Lee’s offending and, more specifically, when addressing the real and appreciable risk in terms of the direct and indirect consequences of a conviction. She said:21
[15] I also take into account that you have no pre-existing mental health issues and the psychological report confirms this. It said there are no signs or symptoms of major mental health illness and/or neuro-cognitive disturbance. I think it is relevant that it is only since the offending that you have engaged your doctor and been prescribed anti-depressant medication after the index offending and undertaken psychological assessment and I have also received the letter confirming that you have been having counselling sessions. The Court has long recognised that shame, anxiety and reputation[al] damage are natural consequences of a conviction.
[56] Mr Loh criticised the treatment of this issue by the Judge as selective. He referred to passages in Mr Lee’s affidavit where he speaks of the uncertainty around what may happen and the effect a conviction would have on ITAS and its people. He posited that if a conviction was entered Mr Lee’s psychological presentation would deteriorate. Mr Loh said that Mr Lee’s observations were supported by the opinion expressed in the psychological report that Mr Lee’s court matters and the consequences arising from them had precipitated and maintained his acute distress. The psychological report explained that Mr Lee’s acute stress could dissipate if he were able to overcome his sense of shame and fear of losing his respected status as a specialist. Mr Loh’s point was that when the psychological report was read in conjunction with Mr Lee’s affidavit it was clear that the distress and fear experienced by Mr Lee stemmed from his concerns about the outcome of these proceedings and the potential consequential impact.
[57] Ms Vercoe acknowledged Mr Lee’s pre-existing psychological vulnerability arising out of workplace stress and burn out. However, she referred me to extracts from the psychological report which suggested that any deterioration in Mr Lee’s
21 Decision on appeal, above n 2.
mental health tended to stem from feelings of shame and embarrassment which are well accepted as being the ordinary consequences of conviction.
[58] I agree. It is hardly surprising that Mr Lee is embarrassed and stressed by the situation he finds himself in. He committed an act of dishonesty in the course of undertaking his professional responsibilities. As a consequence, he put at risk not only his reputation, but also the business he has built up and the people it employs. He had good reason to be anxious about the outcome of the criminal proceedings brought against him. However, it is simply not possible to say that these effects were out of all proportion even though I accept they may be more acutely felt by Mr Lee than by some others.
Did the Judge err in determining that the consequences of conviction were not wholly out of proportion to the gravity of the offending?
[59] Mr Loh submitted that the Judge’s assessment that there was no real and appreciable risk of the direct and indirect consequences identified by Mr Lee, should a conviction be entered, was in error. He submitted that Mr Lee’s remorse was apparent from his affidavit. He entered an early guilty plea and paid reparation to Mr C well before his sentencing. It was offending which occurred while Mr Lee was experiencing burn out thus compromising his professional judgement and decision making. He has since engaged in counselling and is taking medication to manage his stress and anxiety. Mr Loh submitted that Mr Lee’s positive progress and pro-social contribution to society would be strengthened by a discharge without conviction.
[60] As was the Judge, I am satisfied that Mr Lee’s remorse is genuine and that once his offending was revealed he took active and immediate steps to mitigate its adverse effects on others, particularly Mr C. For that he is to be commended.
[61] However, I cannot accept that the Judge erred in her proportionality assessment.
[62] The Judge identified the gravity of the offending as low to moderate, after undertaking an account of the relevant aggravating and mitigating factors of the
offending and of the offender. As already discussed, another Judge might reasonably have assessed the gravity of the offending as being a good deal higher.
[63] In terms of the direct and indirect consequences of conviction, the Judge’s reasoning also cannot be faulted. She took into account all relevant considerations and weighed them appropriately. Here, the consequences of conviction simply do not reach the standard of being out of all proportion to the gravity of the offence. It follows I cannot agree that she erred in any material respect or that justice miscarried as a result.
Result
[64]The appeal is dismissed.
Moore J
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