Smith v Police
[2017] NZHC 2856
•21 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-000241 [2017] NZHC 2856
IN THE MATTER OF an appeal against conviction and sentence BETWEEN
KEN LEROI SMITH Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 November 2017 Counsel:
D P H Jones QC and H T Drury for the Appellant
E J Smith for the RespondentJudgment:
21 November 2017
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 21 November 2017 at 1.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
SMITH v POLICE [2017] NZHC 2856 [21 November 2017]
Counsel : D P H Jones QC, Auckland
Solicit ors : Meredith Connell (Office of the Crown Solicitor), Auckland
Introduction
[1] On several occasions over an eight-month period, Mr Smith posted sexually explicit messages and images about A, R and R’s sister to Instagram accounts set up under a false identity. The offending began the day after his 17th birthday. A, R and R’s sister were between 14 and 17 years of age at the time.
[2] Mr Smith pleaded guilty to two charges of posting digital communications with intent to cause harm.1 His application to be discharged without conviction was declined in the District Court and he was sentenced to 12 months’ supervision and three months’ community detention for both charges.2
[3] Mr Smith appeals from the decision declining his application to be discharged without conviction. He submits that the Judge erred in his assessment of the gravity of the offending, the consequences of a conviction, and in the proportionality analysis. He submits that the consequences of the conviction on his future career prospects as a medical professional are disproportionate to the gravity of his offending.
[4] Mr Smith seeks to adduce evidence on appeal which was not before the District Court. That evidence includes updating evidence, and a report from a psychologist. The Crown opposes the application in relation to the evidence which goes beyond just updating the Court, submitting that such evidence is not cogent.
Offending
[5] Mr Smith’s offending took place between September 2015 and June 2016.3 It involved the posting of images and texts on several Instagram accounts set up by
Mr Smith using false identities.
1 Harmful Digital Communications Act 2015, s 22. Each charge attracts a maximum penalty of two years’ imprisonment or a $50,000 fine.
2 Police v Smith [2017] NZDC 13864 (discharge without conviction); Police v Smith [2017] NZDC
14864 (sentence).
3 The summary of facts does not contain a full description of the chronology of events. However, the events as described by R in her victim impact statement are accepted by Mr Smith, and the
[6] Mr Smith knew A and R, having attended intermediate school with them. They attended different high schools but remained connected through social media.
[7] On one of the Instagram accounts, Mr Smith posted a photo of R, which was taken from her own personal Instagram account, and made comments on the photos. The comments contained sexually explicit wording, written in the first person, as if R herself was wanting sexually explicit acts done to her. Another picture of R appeared to have ejaculation on R’s face. It is not clear from the summary of facts whether this photo was messaged directly to R, or posted to an Instagram account.
[8] Mr Smith also posted other photos which were taken from other girls’ social media accounts. These photos had accompanying sexually explicit comments. Several of these photos were friends of R who she knew from school.
[9] R eventually suspected it was Mr Smith who was posting this material and confronted him about it. He denied involvement and told her about the stresses he was under in his personal and family life at the time. Following that confrontation, the photos of R were removed.
[10] However, the offending did not end there. Some months later, Mr Smith set up another Instagram account under another false identity giving it the display name, “[R] Cumslut”. Mr Smith posted three pictures of cartoon figures in sexually explicit poses (commonly referred to as hentai) to this Instagram account and commented on each of the pictures. The comments were text stories containing sexually explicit rape fantasies involving A, R, and R’s sister as the primary objects. It was these posts that triggered the complaint to the police.
[11] Neither A, R or R’s sister gave Mr Smith permission to use or re-post their photographs, or to write sexually explicit stories about them. Both R and A have made victim impact statements in which they describe the anxiety, stress, and difficulties in
trusting people that they have experienced as a result of the offending. They said the
description of the offending is taken from both the summary of facts and victim impact statement. I also sought and received copies of the posts that formed the basis of the charges, and reviewed those posts for the purposes of assessing the gravity of the offending.
Instagram posts made them feel disgusted, guilty (as if they had done something wrong) and unclean.
[12] Prior to sentencing, Mr Smith attended a restorative justice conference with R. That appears to have been a very positive experience for all concerned. There was a very full exchange and discussion at the conference about the reasons why Mr Smith offended, and the effect it had on R. Mr Smith expressed deep remorse for his offending and the harm it had caused R, and said that he did not fully recognise the extent of the harm he had caused until that conference. At the conclusion of the conference, R thanked Mr Smith for holding himself accountable and told him that she had forgiven him.
Personal circumstances
[13] Mr Smith is 19 years old and studying at University. He has no prior convictions, and, up until the subject offending, he had an unblemished record.
Mr Smith has an impressive list of academic and sporting achievements, and he has glowing references from his school.
[14] Mr Smith’s offending commenced a day after his 17th birthday. It took place during a very difficult time for him personally. He was under immense pressure to perform academically at school, but had not met expectations in his mid-year exams. His father had recently moved back in to live with both him and his mother, but it was a turbulent relationship which created stresses and strains at home. Mr Smith had also broken up with his girlfriend earlier in the year.
[15] Following the charges being laid, Mr Smith took immediate steps to address the underlying causes of his offending by seeing a psychologist and a counsellor. The psychologist’s report records that the offending occurred in the context of an “intolerable level of stress” for Mr Smith.
[16] A condition arising out of the restorative justice conference was that Mr Smith engage in further therapy. That was only partially completed by the time the application for discharge came before the District Court. Mr Smith has since completed 12 sessions with a psychotherapist and produced an updated report at the
appeal hearing. The psychotherapist reports that Mr Smith was motivated, accepted his wrongdoing, and was willing to engage in whatever therapeutic work might assist him to repair any harm he had done. The risk of re-offending was considered low and further treatment was deemed to be “not only unnecessary but contraindicated”.
District Court decision
[17] Mr Smith’s application for a discharge without conviction came before
Judge Ronayne on 23 June 2017.
[18] The Judge described the offending in some detail. He considered that the offending was targeted and sophisticated and went beyond “immature, sexualised taunting by a teenager against teens”.4 He identified the aggravating features as follows:5
(a) It was repetitive.
(b) It went on for around eight months so it had a considerable duration.
(c) It was carefully planned and required, in my view, many carefully thought out actions on your part.
(d) The statements that you made were all false.
(e) The communications were grossly offensive, sexual in content and included rape fantasies. As I have said, those were nothing short of sinister.
(f) There were three young, vulnerable female victims; one was only 14 years of age.
(g) They were known to you and thus must have been chosen and targeted.
(h) You have no motivational excuse, such as some sort of relationship toxicity or volatility, so there was no justification for what you did other than to hurt.
(i) The harm to the victims has been considerable.
(j) Next, and perhaps not so importantly, the charges themselves are inherently moderately serious; attracting as they do a maximum of two years’ imprisonment and/or a fine of up to $50,000.
4 Police v Smith [2017] NZDC 13864 at [11].
5 At [16].
[19] The mitigating features were also identified by the Judge. He listed them as follows:6
(a) Your lack of convictions and your prior good character, and the character references that have been put before the Court. Those of course all have to be relevant, but to an extent your lack of prior convictions and your prior good character is tempered a little at least by the duration of your offending.
(b) You have a bright future ahead of you; of that I have no doubt, and you have future plans and goals.
(c) You have apologised formally and you have expressed what I consider to be true remorse, although there is no mention of the 14 year old victim.
(d) You have pleaded guilty to the charges at the first reasonable opportunity.
(e) You are relatively young; you were just 17 when you committed these offences.
(f) You have, as I have mentioned, participated positively in a restorative justice conference and the outcome has been positive.
(g) You are engaged and progressing well with counselling and I have already made reference to the report from Mr Putt in that regard.
[20] Overall, the Judge characterised the gravity of the offending as serious in the context of the type of charges faced.7
[21] Regarding the consequences of the offending, the Judge considered counsel’s submission that a conviction may impede Mr Smith’s plans to become a registered medical practitioner, and that it might hinder more general life expectations. He said:
… it is submitted that your offending is not evidence of a character inappropriate for medical practice but nevertheless [a conviction] could be prejudicial to your position … Your behaviour is characterised as stress- triggered, risk-taking behaviour. That, in my view, is precisely what those with statutory obligations to properly vet application for admission to such professions as medicine … need to know about. Put another way; deciding not to convict you deprives the authorities of what appears to be highly relevant information. It should be for those authorities, with their specialist expertise
and focus, to assess your suitability and fitness in possession of all information and that would of course include the counselling that you will have completed.
In any event, it is apparent that convictions of this sort do not create an absolute bar to registration as a doctor …
6 Police v Smith [2017] NZDC 13864 at [17].
7 At [18].
[22] Finally, in terms of the proportionality analysis, the Judge held that notwithstanding Mr Smith’s age, the consequences of conviction were not out of all proportion to the gravity of the offending. He declined the application for a discharge accordingly.8
Approach on appeal
[23] Section 106 of the Sentencing Act 2002 gives the Court the discretion to discharge an offender without conviction. Section 107 provides that this discretion cannot be exercised unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[24] Section 107 requires the Court to undertake a three-step analysis and consider:9
(a) The gravity of the offence;
(b) The direct and indirect consequences of a conviction; and
(c) Whether those consequences are out of all proportion to the gravity of the offence.
[25] If the offender meets the s 107 threshold, then the Court may go on to consider whether to exercise the residual discretion under s 106.10
[26] The proportionality test under s 107 is a question of fact requiring judicial assessment. It is subject to the Austin, Nichols approach, so that if the appellant can show that the first instance decision was wrong, the appellate court undertakes the
evaluation of the s 107 factors afresh.11
8 Police v Smith [2017] NZDC 13864 at [12].
9 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
10 At [9].
11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; H v R [2012] NZCA 198 at [34]–[36]; and Maraj v Police [2016] NZCA 279 at [11]. The Court of Appeal in Maraj v Police also observed that the application of the Criminal Procedure Act 2011 to decisions made under s 106
may require consideration in another case and not by a Divisional Court. In that case, the Court
Fresh evidence on appeal
[27] Mr Smith sought to adduce evidence on appeal which was not before the
District Court, including a report of Dr Clarke, a clinical psychologist.
[28] Dr Clarke’s report reviews Mr Smith’s relevant history, including his childhood and adolescent experiences, and canvasses his family difficulties. She reports that whilst Mr Smith had recently turned 17, he was effectively a child in several ways. She identifies the triggers of Mr Smith’s offending as including: “undiagnosed depression; family conflict; isolation from peers; restrictive parenting; the absence of open communication; perceived powerlessness; anxiety relating to academic decline; pre-occupied parents; and the absence of any creative outlet”. Dr Clarke also reports on Mr Smith’s genuine remorse and the insight he has since gained into his offending. Mr Smith’s risk of re-offending was deemed to be low, and no further treatment was recommended.
[29] Section 335 of the Criminal Procedure Act 2011 allows the Court to receive evidence on appeal if it considers that it is “necessary or expedient in the interests of justice”. The principles relating to fresh evidence on appeal are well settled and were recently summarised by the Court of Appeal in Ahmad v R.12 The Court is to consider the admission of fresh evidence by the application of a sequential series of tests relating to the freshness, credibility and cogency of the evidence. In Pora v R, the Privy Council referred with approval to the following passage from its decision in Lundy v R which summarises the test as follows:13
120. The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the
proceeded on the basis that the appeal was correctly treated as an appeal against conviction without determining the point. I proceed on that basis also.
12 Ahmad v R [2017] NZCA 320 at [10]–[13].
13 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [40]; Lundy v R [2013] UKPC 28, [2014] 2
NZLR 273 at [120].
safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[30] There is no contest around the freshness and credibility of Dr Clarke’s report. The real dispute concerns its cogency. Evidence concerning Mr Smith’s personal circumstances is relevant to the assessment of the gravity of the offending. To that extent, the evidence is relevant. But it is of limited relevance in this case because Dr Clarke does not say anything new or different to the assessments made by the psychotherapist and counsellor. In that respect, the evidence lacks cogency.
[31] Mr Smith’s personal mitigating factors were before the Judge and were referred to in the course of his judgment. I do not consider Dr Clarke’s report would have changed the Judge’s analysis. In that respect, the exclusion of the evidence would not risk a miscarriage of justice.
[32] Accordingly, I decline to admit the evidence. The appeal grounds are considered on the basis of the evidence before the Judge as set out below.
Gravity of offending
[33] Mr Smith submits that the Judge erred in his assessment of the gravity of the offending as serious. In particular, he submits that the Judge erred by:
(a) Finding that Mr Smith did not have a “motivational excuse” and that there was no justification for what he did. Mr Smith says the evidence before the court showed that his offending was triggered by extreme stress, academic pressure, family conflict and social isolation;
(b)Finding that Mr Smith’s previous good character and lack of previous convictions were tempered by the duration of the offending. It is said that this factor resulted in a double-counting, with duration seen as both an aggravating feature and a feature diluting the good character mitigating factor; and
(c) Failing to give sufficient weight to Mr Smith’s young age.
[34] The offence under the Harmful Digital Communications Act is a relatively new offence. The Act came into force on 3 July 2015.14 The explanatory note to the Bill records that modern technology provides for a unique form of harassment, and that children and young people are particularly vulnerable to harassment by digital communications. The Act creates a civil enforcement regime and the creation of new offences to deal with the most serious of harmful digital communications.15 The maximum penalty to be imposed is two years’ imprisonment, or a fine of up to
$50,000.
[35] Mr Smith does not dispute that what he did was serious offending. The offending was graphic and explicit in nature and involved written fantasies detailing acts of sexual violence. The targeting of young females, and the frequency and duration of the offending, also adds to the gravity of the offending. It was also unprovoked (which is perhaps what the Judge meant by lack of “motivational excuse”).
[36] However, as the Court of Appeal has confirmed, in assessing the gravity of the offence the aggravating and mitigating factors relevant to the offender must be taken into account in addition to those features of the offence.16
[37] Mr Smith’s young age was clearly a relevant mitigating feature to be weighed in the balance. The offending started exactly one day after his 17th birthday. It is generally accepted that teenagers have not yet developed the full rational decision- making abilities of an adult, and their capacity for good judgment is accordingly reduced. It is for this reason that the courts have consistently recognised discounts in the sentencing process available for youth.17
[38] Mr Smith’s exemplary character and his lack of previous convictions was also relevant to the overall assessment of gravity. The Judge found that this factor was
14 Harmful Digital Communications Act 2015, s 2(1).
15 Harmful Digital Communications Bill 2015 (168-1)(explanatory note) at 1–2.
16 Z (CA477/12) v R [2012] NZCA 599 at [27]; DC (CA47/2013) v R [2013] NZCA 255 at [35].
17 Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [76]–[92].
tempered by the duration of the offending. I consider such a finding was open to the Judge and is consistent with Court of Appeal authority on discounts for prior good character in the face of repetitive offending over a period of time.18
[39] The fact that the offending took place during a time of extreme stress, loneliness, and depression is also significant. While this does not excuse Mr Smith’s offending, it does provide some context in which to assess it. Coupled with his young age, these factors also reduce Mr Smith’s overall culpability in my view.
[40] Finally, it is also material to the assessment of overall gravity that Mr Smith has expressed genuine remorse, voluntarily engaged in counselling prior to the restorative justice conference, continued and completed counselling, and does not require further treatment.
[41] The Judge carefully identified relevant mitigating features which were personal to Mr Smith. However, it is not apparent from his judgment that he accorded any or much weight to those factors in the overall assessment of the gravity of the offending. To that extent, I consider that the Judge erred. Conducting the balancing exercise afresh, I consider the overall gravity of the offending to be moderate rather than serious as identified by the Judge.
Consequences of conviction
[42] The second part of the s 107 test requires an assessment of the direct and indirect consequences of conviction. A “real and appreciable risk” that a consequence will ensue is all that is required.19 In Maraj v Police, the Court of Appeal held that it is appropriate for the court to consider the likelihood of the consequence
materialising.20
18 R v Zhang (2004) 20 CRNZ 915 (CA) at [26] followed in Ferris-Bromley v R [2017] NZCA 115 at [9].
19 DC (CA47/2013) v R [2013] NZCA 255 at [43].
20 Maraj v Police [2016] NZCA 279 at [10] citing Iosefa v New Zealand Police HC Christchurch
CIV-2005-409-64, 21 April 2005 at [34]–[35].
[43] Mr Smith submits that Judge Ronayne erred in his assessment of the consequences of conviction on Mr Smith’s future career prospects. In particular, he submits that the Judge erred by:
(a) Stating that not entering a conviction would effectively deprive the relevant regulatory authorities of highly relevant information.
(b)Considering that a conviction poses a possible impediment but no absolute bar to future advancement.
[44] There are two stages at which a conviction may have consequences for
Mr Smith’s medical career. The first is at the time he applies for entry to the University medical school. The second is when he has completed his degree and applies to the medical council for registration.
[45] As to the first stage, Mr Smith has annexed to his affidavit the requirements for entry to the University medical school. This includes a police vetting procedure, and a fitness to practice inquiry. The commentary to the fitness to practice requirements emphasises that patients’ safety is the most important goal and that “in general” fitness to practice concerns are managed in a rehabilitative and supportive way. The commentary also provides that “on rare occasions” fitness to practice concerns may affect a student’s ability to enter or complete the programme.
[46] Candidates must answer questions as to whether they have ever been charged or convicted with a crime or offence in New Zealand. If any of those questions are answered “yes” then the candidate must provide further detailed information in writing, which is said to “inform the faculty as to the possible need for support mechanisms or other actions that may be necessary … during the programme”.
[47] As to the second stage, Mr Smith also produced the “fitness for registration” requirements to achieve registration in New Zealand following the completion of the six-year medical degree. Those requirements provide that registration is only possible if a candidate has not:
… been convicted by any Court in New Zealand (or overseas), of an offence punishable by imprisonment for a term of three months or longer; or the Council is satisfied that the offence does not reflect adversely on your fitness to practice …
[48] In respect of the first stage, the evidence suggests that the medical school will have full access to the details of the offending whether Mr Smith is convicted or not. At least in respect of that stage, the Judge’s comments about keeping the details of the offending from the relevant authorities are mistaken.
[49] However, I do not consider this point advances Mr Smith’s appeal. Courts have generally been reluctant to intervene in issues which will be fully assessed and evaluated by relevant authorities. In Zhang v Ministry of Economic Development, Asher J discussed this principle in an immigration context as follows:21
… the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: R v Foox, Liang v Police and Steventon v Police. There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balance case a discharge may be warranted on these types of grounds: R v Hermard. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.
(emphasis added and footnotes omitted)
[50] Mr Jones QC referred me to Bullock v Police in which a discharge without conviction was granted to a 17-year-old charged with possession of ecstasy for supply.22 Woodhouse J observed that in many cases involving applications for discharge it will be appropriate to weigh whether it would be better to leave the significance of conviction for a professional body or an employer.23 However, His Honour said “it should not become a general basis for declining applications”, and
referred to the decision of the Court of Appeal in Brown v R.24
21 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at
[14].
22 Bullock v Police [2012] NZHC 1374.
23 At [10]–[11].
24 Brown v R [2012] NZCA 197.
[51] I do not disagree with those comments, but each case turns on its own facts. The evidence in Brown v R was that the conviction was likely to present a barrier to employment in the IT sector. This was because prospective employers would not look past the fact of a conviction to ascertain the appellant’s true culpability, which was assessed at the very bottom of the scale of gravity for that type of offending. In Bullock, Woodhouse J considered it to be reasonably likely that prospective employers would simply not entertain an application from the appellant in that case if he had been convicted of drug dealing.25
[52] In this case, it is clear from the evidence that there will be a full evaluation of the details of the offending. At the medical school stage, that will occur whether a conviction is entered or not as candidates for entry to medical school are police vetted, and must disclose details of offending with which they have been charged.
[53] Mr Jones submits that the fact that the Court considers the offending to be serious enough to warrant a conviction may well be a factor in the decision of the medical school in deciding whether to grant entry. I accept that may be so. But, from the evidence before the Court, it appears much more likely that the evaluation will concern the nature of any offending and its impact on the candidate’s fitness to practice and on patient safety. Mr Smith’s extensive rehabilitative efforts, and the fact that he has completed treatment, will also be considered by the medical school. It will only be a “rare” case that entry to medical school will be declined. In those circumstances, it appears that any adverse consequences for Mr Smith gaining entry to medical school are likely to flow from the offending itself, rather than conviction.
[54] As to the second point in time, the evidence before the Court suggests that a conviction may make it more difficult to gain registration. That is because there is a presumption against registration of a candidate who has been convicted of an offence punishable by imprisonment for a term of three months or longer. However, it is not an automatic ban. There is a process whereby the council may grant an exemption on
the basis that the offence does not reflect adversely on a candidate’s fitness to practice.
It may be inferred from that exemption that there will be an evaluation of the
25 Bullock v Police [2012] NZHC 1374 at [26] and [31]–[32].
circumstances of the offending, the triggers for the offending, the fact that Mr Smith was only just 17 years of age at the relevant time, and that he took immediate, comprehensive, and effective steps to rehabilitate himself. It must also be remembered that if Mr Smith gets to this point, then he will have already gained entry into medical school despite his conviction, and completed the six-year degree.
[55] Finally, I accept that another consequence of a conviction is the stigma which it attracts. That stigma may be particularly significant for Mr Smith given his young age, and his previous unblemished record. However, that stigma may not follow
Mr Smith for the rest of his life. Although neither counsel specifically addressed the application of the Criminal Records (Clean Slate) Act 2004, if it does apply, then the conviction will be concealed after seven years except in limited circumstances.
[56] In summary, I consider there is a risk that the conviction will have consequences for Mr Smith, both in terms of the pursuit of his chosen career as a medical professional, and in relation to the stigma that arises from conviction. The likelihood of those consequences arising as a result of a conviction, as opposed to the nature of the offending, is considered in the proportionality analysis which follows.
Proportionality analysis
[57] The assessment of proportionality requires the consequences of a conviction to be considered in context, and measured against the gravity of the offending. The inclusion of the word “all” before “proportion” indicates that Parliament intended that the direct and indirect consequences of a conviction must clearly outweigh the gravity of the offending; it cannot be a finely balanced matter.26
[58] Mr Jones submits that the Judge erred in his proportionality assessment. He submits that the prospect of a young man losing the ability to pursue his chosen career path is a serious consequence for someone who, at just 17 years of age and beset with emotional and psychological problems, acted in the way he did. On that basis, it is submitted that the consequences are out of all proportion to the gravity of the
offending.
26 Sarandovs v Police [2014] NZHC 926 at [29].
[59] I accept that a conviction may create some additional hurdles for Mr Smith in pursuing his chosen career path. But they are not insurmountable. In fact, any barrier to becoming a medical professional is more likely to arise out of the nature of the offending, rather than the fact of conviction. In those circumstances, the risk that a conviction will result in Mr Smith losing his ability to follow his chosen career path is low. The consequences arising out of any conviction are not out of all proportion to the gravity of Mr Smith’s offending in those circumstances.
[60] The stigma which flows from conviction will be significant for Mr Smith, particularly given his young age and his previously unblemished record. The impact of that on Mr Smith is not to be underestimated. But that stigma is a consequence which flows from a conviction in the ordinary course, and it could be said that all young people facing conviction for the first time will feel the impact of that stigma
more keenly. Mr Smith’s young age does not, alone, make the consequences of conviction out of all proportion to the gravity of the offending.
[61] In this case, the consequences of being branded with a conviction must be measured against the sexually explicit material Mr Smith posted over an eight-month period. Those posts caused considerable anxiety and stress to the young females he specifically targeted. Although I am not without sympathy for the circumstances which triggered Mr Smith’s offending, it does not excuse it. The entry of a conviction holds Mr Smith accountable. The stigma which flows from a conviction is not disproportionate to the gravity of offending, even if the latter is assessed as moderate.
[62] Overall, I am not persuaded that the consequences of a conviction are out of all proportion to the gravity of Mr Smith’s offending. The Judge did not err in his overall analysis and the appeal must be dismissed.
Result
[63] The application for leave to adduce fresh evidence is declined.
[64] The appeal is dismissed.
Edwards J
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