Police v Head
[2021] NZHC 809
•19 April 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000172
[2021] NZHC 809
BETWEEN NEW ZEALAND POLICE
Appellant
AND
JAMES EDWARD HEAD
Respondent
Hearing: 25 February 2021 Appearances:
A L Mills for the Appellant
M M Cole and E Huda for the Respondent
Judgment:
19 April 2021
JUDGMENT OF NATION J
Introduction
[1] This Court recognises that Judges sentencing in the District Court do so in very different circumstances from those in the High Court dealing with an appeal. In the District Court, the Judge is required to deal with a number of matters on the same day, usually with a modest amount of time in advance to prepare for the sentencing. A sentencing Judge is almost always required to give an oral decision where there is not the time or opportunity to carefully assess what they are proposing to say and to edit their anticipated comments in a way that, upon reflection, they might have considered advisable. When giving oral decisions, it is possible for slips to be made and for comments to be made impulsively when, on further reflection, they might not have been.
POLICE v HEAD [2021] NZHC 809 [19 April 2021]
[2] Nevertheless, what a Judge says will always matter. In particular, when a statement reveals the way a Judge’s thinking has led to the determination under challenge. This is such a case.
Background
[3]The respondent pleaded guilty to making an intimate visual recording.1
[4] On 29 December 2019 at approximately 11.00 am, the respondent was in a changing cubicle at Kmart in Christchurch. He placed his cell phone beneath the wall of the next cubicle, filming a woman as she changed her clothing. She banged on the cubicle wall. He then removed the cell phone.
[5] Judge Brandts-Giesen discharged the respondent without conviction conditional on his paying $300 to Women’s Refuge.2 The Crown applies for leave to appeal that discharge. It contends the Judge erred in law.
District Court decision
[6] The Judge began by accepting the respondent pleaded guilty at the first available opportunity. He set out the facts as just referred to. He noted, in explanation, the respondent stated he had made a big mistake and he had not previously appeared before the District Court. The Judge outlined the three-stage test for a discharge without conviction.
[7] The Judge first considered the gravity of the offence, viewing it objectively. He found the offending was low to moderate in seriousness. He considered it “unlikely in a changing cubicle that the person would strip down to their naked selves”.3
[8] In that sense, the Judge found the offending was different than, for example, a surreptitious recording of someone changing at a swimming pool. As to that, he
1 Crimes Act 1961, s 216H – maximum penalty three years’ imprisonment.
2 Police v Head [2020] NZDC 20879.
3 At [7].
commented “[w]omen are probably more sensitive about that than men are, and that is something any mature male should appreciate”.4
[9] He then considered the respondent’s personal circumstances, stating this was “looking at it subjectively, what sort of person” the respondent was.5 In that regard, he said he was assisted by a report from Mr Metoui, a consultant forensic psychologist, who had traversed the respondent’s background. Mr Metoui noted the respondent was, as the Judge put it, “in many respects a perfectly normal male and that this offending is somewhat out of character”.6
[10] The Judge referred to Mr Metoui’s opinion that the respondent was very remorseful for the offending, had feelings of considerable shame and embarrassment, and the respondent said he had never previously attempted to take a recording of an unsuspecting female. The Judge noted the psychologist’s opinion that the offending presented a stark departure in behaviour from the respondent’s normal character impulse control and prosocial value system, and that the respondent told Mr Metoui the offending was not pre-planned. Noting that, the Judge said, having regard to the respondent’s personal circumstances and the fact he was generally a law-abiding citizen, the overall gravity of the offending was low. He also noted the filming was extremely brief.
[11] The Judge then considered the consequences of conviction. As to employment, he referred to the respondent’s employment including a clause which permitted termination for serious misconduct or where the employer no longer had the necessary trust and confidence in him. The Judge said such a clause “could, at a stretch, justify the termination of [his] employment”.7 The Judge found there was a real possibility the respondent’s employers would attempt to terminate his employment.
[12]The Judge then said:8
4 At [7].
5 At [8].
6 At [8].
7 At [14].
8 Police v Head, above n 2.
[15] Undoubtedly in other consequences your standing in the community, because this sort of offence has about it a sexual aspect which in a reasonably puritanical society as we are is frowned upon, publication of this matter in the sort of circles in which you live and work, could very well lower your standing in the community. It might be different if you were part of a roading gang or an engineering shop where what could best be described as obscene calendars are often displayed, it may very well be that it would be treated differently in such circles, but not in a business like the one in which you are employed.
[13] The Judge then considered how the respondent’s relationship with his partner would be affected. He said, if she came to learn of this behaviour, it could affect her emotionally and, given she was pregnant, “could also have other impacts”.9
[14] The Judge considered, “[b]y a narrow margin”10 and with regard to the decision of Whata J in Pradhan v Police,11 the respondent should be discharged without conviction. However, that was conditional on him making a payment of $300 to Women’s Refuge.
[15] An application was made for suppression of the respondent’s name. The Judge noted the importance of open justice, reinforced in relevant legislation. He did not consider the criteria for suppression, set out in s 200 of the Criminal Procedure Act 2011, had been met. He dismissed that application.
The test for a discharge without conviction
[16] Section 107 of the Sentencing Act 2002 states an offender should only be discharged without conviction if the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. When considering a discharge, the court must first “examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender”.12 The court must next identify the direct and indirect consequences of conviction and consider “whether those consequences are ‘out of all proportion’ to the gravity of the offence”.13 There must be a “real and appreciable”
9 At [16].
10 At [17].
11 Pradhan v Police [2018] NZHC 2966.
12 R v Taulapapa [2018] NZCA 414, at [22].
13 At [22].
risk that any given consequence will occur.14 If that has been established, the court moves to consider the residual discretion under s 106.15
Principles on appeal
[17] Because this is an appeal by the prosecutor, the Police lodged an application for leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011. Section 296 permits the prosecution to appeal against a ruling by the District Court only on a question of law. The question of law must arise in the District Court’s determination of the charge.16 Here, that determination was the discharge without conviction. An error of law, such as the Police argue occurred here, arises when:17
(a) a misdirection of law is apparent in the decision;
(b) there is oversight of a relevant matter or consideration of an irrelevant matter;
(c) there is a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence; or
(d) the decision is plainly wrong.
[18]The Crown sought leave to appeal on the following three questions:
1. Did the Judge take into account irrelevant considerations, as set out below, when considering the gravity of the offending?
a.whether the offending has any relationship with puritanical ideas concerning sex;
b.the analogy with workplace pornography;
c.whether there is any meaningful distinction with offending at a swimming pool versus a department store changing room; and
d.the proposition that women are more sensitive than men in being intimately recorded.
14 DC (CA47/2013) v R [2013] NZCA 255 at [43].
15 R v Taulapapa, above n 12, at [22].
16 Criminal Procedure Act 2011, ss 296(2) and 296(3)(b).
17 R v Taulapapa, above n 12, at [17].
2. Did the Judge take into account irrelevant considerations, as set out below, when considering the consequences of a conviction?
a.the detriment to the defendant’s employment prospects and standing in the community; and
b.the emotional impact learning of the offending would have upon the defendant’s partner.
3. Was the Judge plainly wrong in his conclusion that the consequences of conviction were out of all proportion to the gravity of the offending?
[19] The respondent did not oppose the application for leave. There was no suggestion that the contended errors were not errors of law. I accordingly grant the Police leave to appeal.
[20]Section 299 of the Criminal Procedure Act states:
299 Power of first appeal court to amend question stated
The first appeal court may, at any time before determining an appeal under this subpart, amend or restate any question of law to be determined in the appeal if it considers it necessary or desirable to do so.
[21] The appeal relates to a number of observations the Judge made about aspects of human behaviour or thinking that the Police contend the Judge took into account when reaching his decision. The Police argued these observations were irrelevant and/or not supported by evidence. Those submissions were made with specific reference to the observations made by the Judge, as adverted to in the questions, framed as questions of law, in the application for leave to appeal.18
[22] Having considered the Judge’s decision and the submissions from both parties, I consider, to do justice on the issues raised by the appeal, the questions of law should be framed as follows:
(a) did the Judge take into account irrelevant considerations when considering the gravity of the offending and/or the consequences of conviction;
(b) did the Judge err in deciding there was a real possibility the employer would try to terminate the respondent’s employment when there was no
18 Above at [18].
evidence as to the sort of business the respondent was employed in and why a conviction for this offence would put his employment at risk; and
(c) was the Judge plainly wrong in his conclusion that the consequences of conviction were out of all proportion to the gravity of the offending.
[23] I consider these questions with regard to the observations which were the subject of criticism.
The Judge’s reference to “a reasonably puritanical society”
[24] On the application for leave to appeal, it was contended this reference was to an irrelevant consideration in assessing the gravity of the offence. Ms Mills, for the Police, submitted the Judge’s assessment of society as reasonably puritanical was irrelevant to the consideration of the gravity or consequences of conviction.
[25] Ms Cole, for the respondent, submitted there was no relevant error in the Judge’s reference to what society would think of the offending. The Judge recognised that society frowned upon this type of offending because it had a sexual aspect to it.
[26] Mr Huda, who also appeared as counsel for the respondent, submitted the Judge’s reference to society being reasonably puritanical was not relevant to his assessment of the gravity of the offending. It was a comment the Judge made at the second stage of the s 106 test when he was considering the consequences of conviction. That is how I analyse his decision.
[27] The Judge referred to our “reasonably puritanical society”19 when moving on to consider the consequences of conviction and in making an assessment as to how a conviction would affect the respondent’s standing in the community. He had already determined the gravity of the offending was low.
[28] The Judge’s reference to our “reasonably puritanical society” was however unnecessary and ill-advised. Someone reading his decision would have taken him to
19 Police v Head, above n 2, at [15].
be using “puritanical” in the sense referred to in the Collins Dictionary or Oxford Lexico:
If you describe someone as puritanical, you mean that they have very strict moral principles, and often try to make other people behave in a more moral way.20
Having or displaying a very strict or censorious moral attitude towards self- indulgence or sex.21
[29] The respondent here photographed a woman in a situation where she would properly and reasonably have expected her privacy to be respected, when she was not wanting to expose any part of her body to someone else’s view. When Parliament made making an intimate visual recording an offence, Mark Burton, then Minister of Justice, introducing the legislation for its second reading, said:22
The real issue is that [covert filming] constitutes an invasion of personal privacy. Intimate covert filming objectifies individuals and can be seen as an affront to the dignity and autonomy of an individual.
[30] The Judge was required to consider the consequences of a conviction for the offence charged, not the consequences of the offending itself. It might be thought from the Judge’s comment that only people who were puritanical would take a dim view of the offending. If that was his view, he was probably wrong. However, that would have been an error of fact. What a puritanical society might have thought of the offending was irrelevant to assessing the consequences of a conviction.
[31] In making that comment when assessing the consequences of a conviction, I consider the Judge made an error of law.
The analogy with workplace pornography
[32] Ms Mills, for the Police, said the Judge’s observation on workplace pornography was irrelevant and there was no basis for him to draw the distinction he did on the material before him.
Collins Dictionary “Definition of ‘puritanical’” (June 2018)
Lexico “Meaning of puritanical in English” (June 2019)
March 2006) 629 NZPD 1778.
[33] Mr Huda again said the Judge’s reference to this did not relate to his assessment of the gravity of the offending, it was not material to his assessment of the consequences of conviction and it was not unusual for a Judge to have regard to community attitudes and refer to them when sentencing.
[34] I find, with the way the Judge framed his decision, his observation was, at least on the face of his decision, not something he weighed in the balance in assessing the gravity of the offending. He made that comment after making his assessment as to the gravity of the offending and when he was discussing the consequences of a conviction. Nevertheless, even in the latter context, the observation he made was irrelevant.
[35] The Judge may have thought he knew enough about the work premises of roading gangs or engineering shops to justify his statement that obscene calendars are often displayed in them. Even if he did, there was no need for him to make such a generalisation about what might be shown in such premises. There was no reference to that in the material before him and no suggestion that the respondent was working in such an environment.
[36] Furthermore, in the reference he made to the way such calendars might be displayed, there was an implicit suggestion that people who might put on display and look at photographs of women who had consented to being photographed for calendars would, in some way, consider it acceptable for a man to surreptitiously photograph a woman when she was in the process of changing clothes, in a place which she understood was private and where no one would be observing her. His apparent consideration to that effect should not have been relevant in his assessment of how a conviction would affect the respondent’s standing in the community. In making that assumption and in mentioning it, he made an error of law. I also consider his assumption was likely wrong but that would have been an error of fact.
The distinction between offending at a swimming pool and surreptitiously recording a person getting changed in a changing room at a department store
[37] The Judge distinguished offending at a swimming pool from a department store when assessing the gravity of the offending. It is however apparent from his decision that the distinction he drew was that the offending would be more serious where the
person being recorded was likely to be in a greater state of nakedness than in another situation where the person would not necessarily be exposing the most private parts of their body. The Judge could have begun his discussion at that point by explaining this was the distinction, rather than beginning with the statement that the surreptitious recording of a person getting changed in a shop changing cubicle was a little different than, for example, the changing room at a swimming baths. Had he done so, there could have been no criticism of the distinction he made. I find there was no error of law in the opinion he was expressing.
The observation that women would be more sensitive to being recorded in this context than would men
[38] Ms Mills submitted there was no factual basis for that observation and it was thus irrelevant to a consideration of the gravity of the offending.
[39] Ms Cole noted, when making that comparison, the Judge said a mature male should be sensitive to a woman’s sensitivity in this regard. Ms Cole submitted he should not be criticised for noting it given the way feminist writers record how a woman’s self-esteem can suffer through the western culture’s obsession with the “male gaze” at women’s bodies.
[40] The Judge’s observation was a generalisation. There was no material before him to suggest the generalisation was true. Even if he felt qualified to make the generalisation, it was unnecessary and thus irrelevant to the determination he had to make.
[41]All the Judge needed to note was:
(a) any woman in the process of using a changing or fitting room in a department store would have had a reasonable expectation that her privacy would be completely respected;
(b) she would be understandably upset and angry to find that someone was surreptitiously trying to film or photograph her in such circumstances; and
(c) the respondent should have known this.
[42] The Judge was suggesting that a male might not have been so sensitive to being filmed in the way this woman was. That would likely have been another error of fact but, in any event, the Judge’s observation about how a man might feel about being recorded in the context here was irrelevant to his assessment of the gravity of the offending. With that observation, there was an error of law.
The detriment to the respondent’s employment prospects and standing in the community
[43] Ms Mills submitted the only evidence before this Court as to the respondent’s employment was the nature of his role and that his employment contract contained a standard condition that he could be terminated for serious misconduct. She submitted, in discussing employment, the Judge referred to an irrelevant consideration, what he considered would be the views of people working in other places such as an engineering shop.
[44] Ms Cole acknowledged there could be some force in the submission that management and those working on the shop floor would have the same view of this offending but the relevant point for the Judge was that society would not look beyond a conviction to ascertain an offender’s culpability, a view which was consistent with that of the High Court in Pradhan.23
[45] In the circumstances of this case, I consider there was an error of law in the way the Judge determined there was a real possibility the respondent’s employer would at least try to terminate the respondent’s employment. There was no evidence as to the nature of the business the respondent was employed in, the contact he would have with customers or the way a conviction for the offence charged would affect his employer’s trust in him given his role within the business.
[46] The pre-sentence report informed the court the respondent was employed full- time as a quality and training coordinator, a position of responsibility he had held for approximately eight years. The probation officer had not been able to verify this with
23 Pradhan v Police, above n 11.
his employer because the respondent had not disclosed his offending to his employer, fearful that, if he did so, he could lose his job.
[47] In a comprehensive report for the court, Mr Metoui said he had no way of knowing the actual risks to the respondent’s personal circumstances if his name were published. Mr Metoui provided the court with little information as to the precise nature of the respondent’s employment or the business at which he was employed other than to say it was a Christchurch company that made various products for the agricultural sector. He did advise the court that the respondent said his employment is his livelihood and security, and he had worked hard over the years to make a success of his career and gain the trusted and senior position he now occupies as a quality and training co-ordinator.
[48]In R v Taulapapa, the Court of Appeal said:24
[23] The offender should ordinarily put information before the court to provide a factual basis for a decision that the test has been satisfied. There is no legal onus on the offender to do so however, and the standard of proof in s 107 is simply that the judge be satisfied that the requirements of the section are met.
[49] In Taulapapa, the Court said, while noting that s 107 required the court to be “satisfied” that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offence, the applicant “bears a practical onus in the sense that he or she must ordinarily point to evidence or circumstances tending to establish that the consequence will happen”.25
[50]The Court of Appeal went on to state:
[46] When determining the effects of conviction on employment the court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness. These are matters of judicial judgement. We make three points about this:
(a) When assessing the evidence offered, the court may find that the stated consequence of conviction for a given career or job is a question of present fact that is capable of proof in the normal way.
24 R v Taulapapa, above n 12, at [23] citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [49] and [53]; and DC (CA47/2013) v R, above n 14, at [43].
25 R v Taulapapa, above n12, at [45].
(b) For this reason, where an applicant points to the effect of conviction on a specific career it is usually necessary to provide the court with entry criteria establishing that the stated effect exists.26
(c) Evidence of the attitude of employers may not be reasonably available, and in that case the court will do the best it can on the evidence available. Judicial notice of facts may be taken where appropriate.27
[51] In the particular circumstances of Taulapapa, the Court of Appeal had regard to the way a young person’s future employment prospects would be adversely affected.
[52] Here, the respondent was suggesting his present employment would be at risk. In those circumstances, it could be expected he would provide specific information to the court about his employment, sufficient for the Judge dealing with the matter to assess the risk of his losing employment on an informed basis.28
[53] In other cases, the courts have had evidence of the particular nature of the offender’s employment or chosen field of employment, allowing them to consider whether a conviction would affect their ability to obtain or retain employment in their chosen field of employment.29
[54]In R v Malu, the Court of Appeal said:30
We accept that where the alleged consequence of a conviction is loss of employment a court will need to scrutinise carefully whether that consequence flows from the conviction or from the underlying admitted conduct. A conviction will often be inconsequential to an employer’s evaluation of an employee’s suitability because it is the underlying conduct that would normally be relevant.
[55] I consider the Judge made an error of law in the way he determined there was a risk the respondent’s employer would attempt to terminate his employment. The Judge had insufficient information or evidence to make that assessment.
26 Police v M [2013] NZHC 1101, (2013) 26 CRNZ 308 at [58]–[62].
27 R v Hemard HC Christchurch T30/03, 11 April 2003 at [14]–[15].
28 For examples of cases where the courts had such information see R v Malu [2017] NZCA 546; and Police v Graham [2017] NZHC 3299.
29 Brown v R [2012] NZCA 197; Pradhan v Police, above n 11.
30 R v Malu, above n 28, at [23].
The consequences for the respondent’s partner and detriment to his standing in the community
[56] The pre-sentence report prepared a month prior to sentencing advised the court that, at the time the report was completed, the respondent said “he was still trying to bring himself to disclose his offending to his employer and his partner”.
[57] Ms Mills submitted the consequences for the respondent’s partner and the lowering of the respondent’s standing in the community were not relevant considerations because, in both instances, the Judge was referring to the potential consequences of the offending itself, not of a conviction.
[58] Ms Cole submitted the Judge was entitled to make a judgement based on life experience and knowledge of people generally to assess how there might be an impact on the respondent’s relationship with his partner and on the partner herself.
[59] The Judge said he was concerned the respondent’s partner did not know of the offending. Mr Metoui’s report indicated the respondent was deeply remorseful and was taking steps to ensure there would be no repetition of the offending. The probation officer assessed the respondent as having a low risk of reoffending. The respondent had attended, with his mother, a meeting with Restorative Justice. He indicated to Corrections he would be willing to attend a restorative justice meeting with the victim of the offending.
[60] The Judge did not agree to suppress his name. In these circumstances, the Judge could not have determined that a discharge without conviction was necessary to ensure the respondent’s partner would not learn of the offending and should not be able to learn of his offending.
[61] There was no information before the Judge to suggest the respondent had any particular standing in the community other than through his employment. In mentioning how the respondent’s standing in the community could be lowered, the Judge related that not to the fact of conviction but publication of the offending in the sort of circles in which the respondent lived and worked. There was little evidence or information as to just what those circumstances were.
[62] I find there was an error of law in the way the Judge took these potential consequences into account. They were a potential consequence of the offending, not of a conviction. As the Court of Appeal in Malu emphasised when discussing consequences for employment, the distinction is important.31
Conclusion as to whether there were errors of law
[63] I thus find the Judge did make errors of law in determining the respondent should be discharged without conviction.
[64] The High Court determining an appeal by the prosecutor may confirm the ruling appealed against32 or, as an alternative to other specified outcomes, make “any other order that the court considers justice requires”.33 Where first appeal courts have found there was an error of law, as I have done here, the court will usually go on to consider afresh whether a discharge should have been granted.34 I do that now.
The gravity of the offending
[65] The summary of facts was brief and said no more than was stated at the outset of the judgment. The pre-sentence report said the respondent stated he had not singled out his victim prior. He said, having become aware there was a female in the changing room next to his, he acted impulsively and used his mobile phone to film her without thinking of the consequences.
[66] In an affidavit, the respondent said he withdrew the camera when it was discovered. When he went to delete the record, he could not see any recording of the victim and so did not believe the camera had in fact recorded anything.
[67] The District Court had the benefit of a psychological assessment provided by Mr Metoui. Mr Metoui had considerable experience in providing reports to the courts at all levels. It was clear from the substance of the report that he was providing it independently as an expert for the assistance of the court. He had interviewed the
31 At [23].
32 Criminal Procedure Act, s 300(1)(a).
33 Section 300(1)(e).
34 See R v Taulapapa, above n 12; and Police v Graham, above n 28.
respondent for approximately three hours before preparing it. The information in the report indicated the respondent had engaged fully with Mr Metoui’s investigation.
[68] Mr Metoui said the respondent had denied the offending was in any way premeditated. The respondent said, because the men’s changing rooms were full at the time, he was directed by staff to the female changing areas. Once in the cubicle, he bent down to take his shoes off and, at that point, saw the feet of a woman from the gap under the cubicle wall. He acknowledged to Mr Metoui that he instantly felt “excited” and quickly became intrigued and curious to see the woman he presumed was in a state of undress. On specific questioning, the respondent acknowledged he also felt sexually aroused. He placed his cell phone on some clothes with the camera positioned in a way he hoped would catch his victim and began recording. He then slid it discretely under the gap towards his victim. No sooner had he done this, the victim yelled and banged on the wall. The respondent said he quickly removed his phone and deleted the video recording without looking at it. The respondent told Mr Metoui that he had used cannabis prior to the offending and was feeling slightly “stoned” at the time.
[69] I consider it unlikely the respondent inadvertently saw that a woman was in the next cubicle.
[70] The offending involved a deliberate invasion of the privacy of the woman he videoed, in circumstances where he knew she would have an expectation of privacy. He videoed her in circumstances where that recording would have been offensive and distressing to the victim, as he would have known, even if he did not consider that at the time. The victim was robust and assertive enough to bang on the wall and call out in a manner that brought the recording to an end. In her victim impact report she said she was “a bit flustered and distressed” and annoyed this had happened. She was also compassionate enough to say she hoped he would now get the help he needed and would not do what he had done to anyone else.
[71] This offending was serious enough to result in a charge for which the maximum sentence is three years’ imprisonment.
[72] The recording was brief but that was because the victim’s actions brought the recording to an end. Had she not done so, the information in Mr Metoui’s report suggests it would have continued. If any images were recorded, they were deleted, but all the information in Mr Metoui’s report indicates the respondent would have done this because, knowing his actions had been observed, he realised the seriousness of his actions and was filled with feelings of panic, regret and disbelief about what he had done. It seems likely he removed what could have been recorded because of what he thought would be the consequences for himself of having the recording rather than out of compassion for the victim. Nevertheless, the removal of the images was of benefit to her, especially so given the concern she expressed in her victim impact report that he could have uploaded the video.
[73] The offending was deliberate, with the respondent taking advantage of the situation he was in. I accept however that the offending was not highly premeditated and the respondent had not carefully orchestrated a situation where he could make the recording.
[74] Information in Mr Metoui’s report, the pre-sentence report and also from a counsellor to whom the respondent had been referred by restorative justice indicated he was genuinely remorseful and ashamed at his actions. Mr Metoui noted the respondent is an individual with an anxious predisposition, very introverted in his personality structure, currently saturated by a profound sense of shame and embarrassment relating to the offending and had significant worries for all aspects of his future. In that sense, it might be thought his shame and remorse is because of the situation he finds himself in but, importantly, Mr Metoui reported the respondent was aware he likely traumatised his victim. Consistent with that, he said he wished to apologise to his victim and would have willingly participated in a restorative justice process to acknowledge and apologise to the victim for the harm he caused her.
[75] The respondent has no previous convictions. He is in stable employment in a position with some responsibility.
[76] Mr Metoui reported that, on the balance of probabilities and with the information available to him, he considered it unlikely the respondent had an
underlying deviancy involving pervasive voyeuristic behaviour and, in his opinion, the risks of similar offending in the future were low. This was also the opinion of the probation officer in the pre-sentence report.
[77] The respondent pleaded guilty at the first reasonable opportunity. There was a delay between the respondent being charged and his pleading guilty but that was due to the time it took to arrange counsel and COVID-19 lockdown restrictions.
[78] In Pradhan, Whata J considered somewhat similar offending there was at the lower end of the spectrum of seriousness but, there, the offender had attempted to record a video up a woman’s skirt while she was shopping in a retail store.35 It was not a situation where she was likely to be in the process of changing clothes and in a situation of privacy, as was the victim here. Also, in that case, the victim had not been aware of what the offender was trying to do.
[79] Giving the respondent credit for his remorse and the steps he has taken and was continuing to take to address the causes of his offending, I assess the gravity of the offending as being low to moderate.
The consequences of the offending
[80] I accept, as did Whata J in Pradhan, a conviction for an offence of this type is likely to have an element of social stigma associated with it.36 That is however a consequence that flows from most convictions for offences where a potential penalty is imprisonment. There was no information available to suggest this respondent’s standing in the community was such that his conviction for this offence would cause him particular hardship or loss of reputation.
[81] The respondent was clearly fearful a conviction for this offence would result in the loss of his current employment but there is no evidence that the respondent’s employment or the business he is engaged with are of such a nature that his actions, on one occasion away from work, would reasonably cause his employer to lose trust and confidence in him. Without more information as to the business he is employed
35 Pradhan v Police, above n 11.
36 At [19].
in, I cannot be satisfied it would be incompatible for whatever business he is involved in to employ someone with a conviction for the offence to which he has pleaded guilty.37
[82] I accept, with his current employment or any potential future employment he might be interested in, the respondent might be asked if he has a conviction and would have to disclose a conviction for this offending. In such a situation, it is likely he would have to disclose the particular circumstances of his offending but, in doing that, he would also be able to provide information as to how he responded to the charge, the steps he took to obtain help and the way others appropriately qualified consider him to be at low risk of further offending. He would thus be able to encourage those who might be interested in the fact he has a conviction to look beyond the mere fact of that conviction to assess its relevance to any decision they might be making about potential future employment. I cannot take judicial notice of the circumstances of his employment in a way that would satisfy me there is a real risk his current employment would be ended if he has a conviction.
[83] As far as the respondent’s personal relationships are concerned, I accept that those close to him will be concerned at the fact he committed this offence. Such people, including his partner, will know how he has responded to the situation he put himself in. Those people are likely to learn of his offending. Indeed, it could be said that, in accepting responsibility for what he did and to further reduce the risk of any reoffending of this sort, the respondent needs to tell those closest to him of all that has happened. He initially did not wish to tell anyone in his family of what had occurred but he ultimately did tell his mother and her partner, and found they were supportive and compassionate towards him. His anxiety about his partner becoming aware of the offending would be consistent with the respondent’s particular anxious predisposition and emotional vulnerability as referred to by Mr Metoui. In his report, Mr Metoui accepted that the loss of his relationship and/or employment would be significantly destabilising for the respondent and he would struggle to cope with the scenario, at least in the short to medium term, although they are difficulties he would likely recover from in time.
37 As was the situation in R v Malu, above n 28.
[84] Mr Metoui acknowledged that, if the consequences for the respondent were more forgiving than the respondent has imagined, the respondent’s coping and overall prognosis would be less of a concern.
[85] On the information available to me, I consider it is a likely consequence of a conviction that the respondent will have to tell his employer and partner of what happened. These will be difficult but necessary conversations. There is no evidence either his employer or his partner will not take into account all the available information as to what happened and how the respondent has dealt with the situation.
[86] The potential consequences of a conviction, both as to employment and for his family, are not as serious as they were for the offender in Pradhan where the consequences were significant to Whata J deciding there to grant the offender a discharge.38
[87] Accordingly, the respondent has not satisfied me that the consequences of a conviction would be out of all proportion to the seriousness of the offence for which he could be convicted.
[88] With my reaching that conclusion, I have to conclude that the Judge was wrong to grant the respondent a discharge. The errors of law resulted from factors he took into account in reaching his decision. Had he been more careful in explaining the reasons for his decision, it may have been difficult to conclude that his decision was plainly wrong in the sense required for that to constitute an error of law.39 But, with my finding there were errors of law in his ultimate determination, I must substitute the sentence which I consider to be appropriate.
[89] The respondent has already paid $300 to Women’s Refuge. I acknowledge the way the respondent has demonstrated real remorse for his offending. Mr Metoui pointed out that the respondent’s involvement with the court process has very much
38 Pradhan v Police, above n 11.
39 As apparent from the Court of Appeal’s judgment in R v Malu, above n 28, the threshold for finding a determination was plainly wrong so as to constitute an error of law is materially different from whether it was wrong. The latter is the issue for an appeal court where it is an offender who is appealing against the refusal of a discharge.
overwhelmed him. That ordeal has been extended through the prosecution unusually applying for leave to appeal, not because of anything the respondent did but because of the way errors of law were made by the sentencing Judge in the District Court. Through no fault of the respondent, there is the potential for his case to be the subject of greater exposure in the media than would otherwise have been likely.
[90] The probation officer, in the pre-sentence report, recommended the respondent be sentenced to come up for sentence if called upon.
[91] In all the circumstances, having regard to the low to moderate seriousness of the offence, the matters relating to him personally for which he can be given credit, and the credit he is entitled to for his plea of guilty, I consider his offending should have been dealt with by way of a conviction and discharge.
[92] The appeal is accordingly allowed. The grant of a discharge without conviction is quashed. The respondent is convicted and discharged.
Solicitors:
Crown Solicitor’s Office, Christchurch M M Cole, Barrister, Christchurch
E Huda, Barrister, Christchurch.
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