Trembath v Police
[2019] NZHC 662
•2 April 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-434
[2019] NZHC 662
BETWEEN MICHAEL SCOTT TREMBATH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 April 2019 Counsel:
A G Speed for Appellant J T Parry for Respondent
Judgment:
2 April 2019
JUDGMENT OF BREWER J
This judgment was delivered by me on 2 April 2019 at 3:00 pm
Registrar/Deputy Registrar
Solicitors:
Meredith Connell (Auckland) for Respondent
TREMBATH v POLICE [2019] NZHC 662 [2 April 2019]
Introduction
[1] On 27 November 2018, Judge L Tremewan refused to discharge Mr Trembath without conviction on one charge of intentionally making an intimate visual recording of another person.1 Mr Trembath now appeals that refusal.
Approach on appeal
[2] I must allow the appeal if I am satisfied that, for any reason, Judge Tremewan made an error such that Mr Trembath should have been discharged without conviction.2
[3] The law recognises that sometimes the consequences for an offender of being convicted of their offending will be so harsh that justice is better served by not entering a conviction. The test is set out in s 107 of the Sentencing Act 2002:
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] It can be seen there is a high threshold between an offender and a discharge without conviction. It is not enough to satisfy the Judge that the consequences of a conviction would be disproportionate to the gravity of the offence. The Judge must be satisfied the consequences would be out of all proportion to the gravity of the offence.
[5] To apply the test properly, a Judge must (as did Judge Tremewan) conduct a three-step analysis:3
(a)Assess the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is.
1 Police v Trembath [2018] NZDC 25035.
2 See Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]–[13].
3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]–[9].
(b)Determine the direct and indirect consequences of a conviction for the offender.
(c)Determine whether those consequences are out of all proportion to the gravity of the offending.
[6] I will examine Judge Tremewan’s reasoning against the circumstances before her and, in doing so, I will make my own assessment as to whether there is an error and, if so, whether there should be a different result.
Did the Judge make an error such that Mr Trembath should be discharged without conviction?
The gravity of the offending
[7] On 13 February 2018, Mr Trembath was in a unit at a motel in Rotorua. He was drinking alcohol. At about 9:00 pm he heard the outdoor spa pool in a neighbouring unit turn on. Mr Trembath walked outside to his own private outdoor area and heard someone in the neighbouring unit’s spa pool. He noticed a gap at the top of the fence separating the two outdoor areas.
[8] Mr Trembath fetched a chair and stood on it. He then put his cellphone up to the gap and began recording the person in the spa pool. He recorded six separate videos of the person, looking at each one before going on to record the next.
[9] The victim, who was naked in her pool, noticed the phone. She yelled at Mr Trembath to “get away with that camera, I can see you with that camera”. Mr Trembath immediately desisted, ran into his room, and immediately deleted the videos.
[10] The victim alerted motel management and then telephoned the Police. While Police were speaking with the victim at the motel they saw Mr Trembath get into a car and drive off at speed. The Police followed Mr Trembath who pulled over and was arrested.
[11] Mr Trembath gave an explanation to the Police to the effect he had recorded the video for sexual reasons. He said he was hoping to see someone in a bathing suit. He also said he liked the risk factor associated with photographing women and that he got sexual gratification from the photos.
[12] The victim was a widow visiting New Zealand from the United Kingdom. She was in her early 60s. In her victim impact statement, she set out that she had lost her husband of over 40 years about 18 months or so prior to her visit to New Zealand, and it had taken a lot for her to make the trip. The victim was affected significantly by the offending in terms of loss of self-confidence and openness. Her holiday was marred by the incident and she was receiving counselling because of the impact on her and how she sees men in her life.
[13] As to Mr Trembath’s personal characteristics, he was 34 years old at the time of the offending, married and a father of a young child. He was a salesman for a family-owned company and he lost his job as a result of the offending. He engaged with alcohol counselling, including CADS and Alcoholics Anonymous. He undertook counselling at his own expense to deal with his personal issues (including the issues that contributed to his increase in drinking at the time of the offending). He has no previous convictions.
[14] I am advised, and Judge Tremewan was aware, that Mr Trembath has begun retraining in gardening and ground-keeping for future employment.
[15] Judge Tremewan characterised the offending as on the lower side of moderately serious.
[16] The sentence imposed by Judge Tremewan was eight months’ supervision and 60 hours’ community work. The Judge ordered Mr Trembath to make emotional harm reparation of $500.
[17] The maximum sentence for this offence is three years’ imprisonment.4 Mr Speed submits Judge Tremewan overstated the seriousness of the offending. In
4 Crimes Act 1961, s 216.
Mr Speed’s submission it falls in the lower end of the spectrum for this type of offending.
[18] In my view, the offending itself was moderately serious. Although it was opportunistic, it was carried out deliberately. Mr Trembath made six separate videos and viewed each one before making the next. It was, therefore, obvious to him that he was videoing a woman of mature years who was naked and enjoying a spa bath in an area private to her. Mr Trembath’s actions upon being discovered demonstrated he fully appreciated the seriousness of what he was doing (immediately deleting the videos and then fleeing from the motel in his car).
[19]Further, the offending had a significant impact on his victim.
[20] The issue at this point is the extent to which Mr Trembath’s personal circumstances mitigate the culpability of his offending.
[21] It is suggested Mr Trembath’s alcohol problem contributed to the offending. To that extent, engaging with counselling to address his alcohol problem is somewhat mitigating. Mr Trembath is also entitled to have taken into account he was a first-time offender and he lost his employment as a consequence of the offending. It is submitted his remorse was genuine and immediate and, in this regard, he was willing to undertake restorative justice.
[22] In my view, as is represented by the sentence the Judge imposed, it was correct to conclude with a description of the offending as being at the lower end of moderate.
[23] I note at this point Mr Speed criticises Judge Tremewan for placing too great a weight on the victim impact statement and on an update obtained by the Police in which the victim expresses her dismay at the prospect of a discharge without conviction. I am satisfied there is nothing in this point. The Judge took into account the views of the victim, as she should have done, but specifically stated the victim’s views were not determinative.
Consequences of a conviction
[24] There is only one consequence identified. That is the stifling effect of a conviction of this nature on Mr Trembath’s prospects of future employment.
[25] Mr Trembath is retraining as a gardener and ground-keeper. I accept that many employers now require disclosure of criminal convictions by potential employees. I accept a conviction of this type might very well disadvantage Mr Trembath in obtaining future employment. Judge Tremewan acknowledged this.
Consequences out of all proportion to gravity?
[26] The problem for Mr Trembath is that a conviction almost always carries with it the real and appreciable risk that employment prospects will be detrimentally affected. This is recognised by the Courts and generally some specific and disproportionate threat to future employment must be identified before it will be considered relevant to an application for discharge without conviction.
[27] In this case Mr Trembath is retraining for a broad-spectrum occupation. There is no evidence that exemplary character is generally regarded as a prerequisite for employment in it.
[28] I note also that the Courts are reluctant to conceal relevant convictions from potential employers who have a proper interest in knowing of them. Mr Speed submits Mr Trembath may seek roles requiring work on sites where women and children are present, including schools. In my view, employment in those sorts of roles should be offered on an informed basis.
Decision
[29] It follows I agree with Judge Tremewan that the consequences of this conviction for Mr Trembath are not out of all proportion to the gravity of his offending.
[30]The appeal is dismissed.
Brewer J