Trembath v Police - [2019] NZHC 662

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trembath v Police

Details

AGLC: Trembath v Police [2019] NZHC 662
Case: [2019] NZHC 662
Decision Date: 2 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Michael Scott Trembath appealed against Judge L Tremewan's refusal to discharge him without conviction for intentionally making an intimate visual recording of another person. The court had to determine whether the refusal was justified under section 107 of the Sentencing Act 2002, which requires a conviction to be out of all proportion to the gravity of the offence for a discharge without conviction to be appropriate. The court reviewed the gravity of the offending, the consequences of a conviction, and whether these consequences were out of all proportion to the gravity of the offence.

The court found the offending moderately serious as it was deliberate and carried out in a private area. Trembath recorded six videos and immediately deleted them upon being discovered, demonstrating his understanding of the seriousness of his actions. The victim was significantly impacted, suffering from a loss of self-confidence and openness. Trembath, a first-time offender, lost his job as a result of the offending and engaged in alcohol and personal counselling. Although some mitigating factors were present, the court concluded the offending was moderately serious.

The primary consequence of a conviction was the potential impact on Trembath's future employment prospects. Trembath was retraining as a gardener and ground-keeper, and while a conviction might disadvantage him in obtaining employment, the court noted that a conviction almost always carries the risk of affecting employment prospects. The court held that a specific and disproportionate threat to future employment must be identified for it to be considered relevant to a discharge without conviction. Given Trembath's retraining for a broad-spectrum occupation, the court found that the consequences of the conviction were not out of all proportion to the gravity of the offence.

The appeal was dismissed.

Orders