CARPENTER v NEW ZEALAND POLICE [2021] NZHC 1634

CARPENTER v NEW ZEALAND POLICE [2021] NZHC 1634 [2 July 2021]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2021-463-000027[2021] NZHC 1634BETWEEN ALLAN CARPENTERAppellantAND THE NEW ZEALAND POLICERespondentHearing: 21 June 2021Counsel: J Mather and L Herbke for applicant G Banuelos for respondentJudgment: 2 July 2021JUDGMENT OF KATZ J [Appeal against conviction and sentence]This judgment was delivered by me on 2 July 2021 at 3:00 pmRegistrar/Deputy RegistrarSolicitors: Gordon Pilditch, Office of the Crown Solicitor, RotoruaBarter Law, AucklandCounsel: J Mather, Barrister, Vulcan Chambers, AucklandIntroduction[1] Allan Carpenter pleaded guilty in the Taupo District Court to one charge of intentionally making an intimate visual recording. At sentencing, he applied under s 106 of the Sentencing Act 2002 ("the Act") for a discharge without conviction. Judge M A MacKenzie refused his application. 1 Her Honour also made a protection order in favour of the victim.[2] Mr Carpenter appeals against both the Judge's refusal to grant a discharge without conviction and the making of the protection order. The issues on appeal are:(a) whether the Judge erred by finding that the consequences of Mr Carpenter's conviction were not out of all proportion to the gravity of his offending; and(b) whether the Judge erred by making a protection order against Mr Carpenter in favour of the victim.Facts[3] Mr Carpenter and the victim had known each other for about two years prior to the offending. Their relationship became intimate approximately three months prior.[4] On 27 April 2020, Mr Carpenter was at an outdoor education centre in Turangi. He and the victim had spent the night together. At around 7.15 am, the victim left the bed to use the bathroom. While she was in the bathroom, Mr Carpenter turned his camera on and set it to record video, intending to record sexual activity between himself and the victim when she returned. Mr Carpenter faced the camera towards the bed and concealed it with a hat.[5] When the victim returned to the bed, the parties had sexual intercourse. Mr Carpenter removed the blankets from the bed, revealing the victim's naked body1 Police v Carpenter [2021] NZDC 2743.to the camera. The camera captured footage of the parties engaging in sexual activity for approximately 15 minutes.[6] When spoken to by police, Mr Carpenter said that this was the first time he had done such an act, and that he felt ashamed of himself.Relevant law – discharge without conviction[7] If a person has either been found guilty of, or has pleaded guilty to, an offence, the Court may discharge them without conviction.2 The Court must not do so, however, 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 offending. 3 There are three stages to the Court's assessment: 4(a) First, the Court must identify the gravity of the offending by analysing the particular facts.(b) Second, the Court must identify the direct and indirect consequences of a conviction for the offender.(c) Third, the Court must consider whether those consequences would be out of all proportion to the gravity of the offending.[8] If the court determines that the consequences are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as the Court of Appeal observed in Z v R, it will be a rare case where a court will refuse to grant a discharge in such circumstances). 52 Sentencing Act 2002, s 106(1), unless the applicable statute requires the imposition of a minimum sentence.3 Section 107.4 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620. See also A (CA747/10) v R [2011] NZCA 328.5 At [27].District Court decisionsApplication for a discharge without conviction[9] The Judge assessed the gravity of Mr Carpenter's offending as moderately serious to serious. The aggravating factors were:(a) The gross breach of trust, as the parties were in an intimate relationship.(b) The offending was deliberate rather than spontaneous, as evidenced by the fact that the defendant set up the camera when the complainant was out of the room and took steps to conceal it with his hat.(c) The recording being highly intrusive as it showed the victim naked and engaged in a sexual activity.(d) The profound effect of the offending on the victim. The Judge acknowledged the victim's devastation at the invasion of her privacy but further noted that, while the victim's perspective on the serious of the offending is important, it was one factor for consideration among others. 6[10] The Judge then considered the factors personal to Mr Carpenter. Mr Carpenter was willing to participate in restorative justice and had taken rehabilitative steps, including attending counselling. He had made an offer to make amends, in the form of reparation. Mr Carpenter had also entered an early guilty plea.[11] The Judge did not accept that the offending was an out of character incident for Mr Carpenter. The police investigation into the offending uncovered that he had made a video recording of sexual relations with another intimate partner in similar circumstances. That partner did not, however, want to pursue criminal charges.6 See X v Police [2017] NZHC 3298 at [67] per Hinton J, who stated that "The victim's experiences and views are not to be read down, but are to be taken into account alongside the other features of the offending and the factors personal to the offender." See also Singh v Police [2016] NZHC 2952.Overall, the Judge assessed the gravity of the offending as "towards the upper end of the moderate scale".[12] The Judge then assessed the direct and indirect consequences of a conviction. The Judge accepted that Mr Carpenter would face social stigma, and likely have difficulties obtaining employment in the adventure industry, to the extent that a "conviction may be a barrier, even an impermeable barrier." The Judge noted, however, that Mr Carpenter was a skilled person with a degree, and the evidence suggested that he was currently working in another business.[13] The Judge then turned to the proportionality assessment. The gravity of the overall offending was at the moderate end of the scale. A conviction would carry a social stigma, and seriously impact Mr Carpenter's future career prospects in the adventure industry. However, a discharge without conviction would conceal relevant information from employers that they have a proper interest in knowing, given that the outdoor education area relies on a high degree of trust and confidence.[14] Ultimately her Honour found that the consequences of a conviction were not out of all proportion to the gravity of the offending. The application for a discharge without conviction was accordingly declined.Protection order[15] The Judge held that Mr Carpenter and the victim were in a close personal relationship within the meaning of ss 12 and 14 of the Family Violence Act 2018 ("the FVA"). The conviction for making an intimate visual recording was therefore a family violence offence.[16] The Judge noted that the protection order must be necessary for the protection of the victim.7 It was clear that the victim felt devasted by Mr Carpenter's invasion of her space and sense of safety. The Judge considered that those subjective concerns had an objective reality, and accordingly made a protection order in her favour.7 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.Approach on appealAppeal against refusal to grant a discharge without conviction[17] An appeal against the refusal to grant a discharge without conviction is an appeal against both conviction and sentence. 8 In Jackson v R, the Court of Appeal observed that: 9 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.[18] The threshold test in s 107 is not a matter of discretion, but a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles.10 The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met. 11Appeal against a protection order[19] An appeal against a decision to make or refuse to make a protection order at sentencing is an appeal against sentence. 12 The Court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.13Did the Judge err by finding that the consequences of Mr Carpenter's conviction were not out of all proportion to the gravity of his offending?[20] The Judge's finding that the offending was (towards the upper end) of moderately serious gravity was not challenged. Rather, Mr Mather, counsel for8 Jackson v R [2016] NZCA 627 at [7].9 At [12].10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].11 At [11].12 Sentencing Act 2002, s 123H(1) provides that an appeal under s 123B of the Act is an appeal under subpt 4 of pt 6 of the Criminal Procedure Act 2011.13 Criminal Procedure Act 2011, s 250.Mr Carpenter, submitted that the Judge erred by finding that the consequences of a conviction would not be out of all proportion to the gravity of Mr Carpenter's offending. He noted that Mr Carpenter had invested significant time and effort studying to gain a degree that enabled him to work in the adventure industry. He then gained post-qualification experience working to advance his career.[21] In declining to discharge Mr Carpenter without conviction, the Judge concluded that:[79] While I accept there would be social stigma and significant impact on future employment prospects, potentially impermeable, I do consider that those types of difficulties in obtaining employment in that particular industry are ordinary consequences and not consequences out of all proportion to the gravity of the offending in the circumstances of this case, and given the factors to which I have referred.[22] Mr Mather submitted that the Judge misapplied the proportionality test by:(a) finding that the possibility that Mr Carpenter may face an impermeable barrier to employment in the outdoor industry was an ordinary consequence of a conviction; and(b) finding that Mr Carpenter's conviction was the type of offending which a prospective employer in that industry had a right to know about.[23] Distinguishing between ordinary consequences of conviction and extraordinary consequences is not always an easy task. In R v Taulapapa, the Court of Appeal provided the following guidance:(a) The consequence of a conviction may be severe if employers are unwilling to look behind the conviction to consider the person's merits and that reaction is unfair to the offender in the sense that the conviction itself ought not exclude them from the career or job concerned. Such risk may arise where the conviction speaks to character or records a serious offence but does not fairly reflect the offender's character orculpability. Theft may be an example of an offence that may lead employers to reject an applicant without further inquiry.14(b) The court may assume that applicants with convictions are likely to be excluded without inquiry where employers must filter many applications before arriving at a shortlist for interview.15(c) The consequences of conviction may be severe where an offender points to a specific career or job to which conviction is likely to present a barrier; and that may be especially so where the offender has already spent some time training for that career. 16(d) The consequences may also be severe where the offender points only to general consequences for a young person looking for any employment suited to his or her talents. 17[24] The impact on future employment prospects are commonly raised as a disproportionate consequence of a conviction. In Trembath v Police, Brewer J observed in relation to this issue that:18 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.[25] In that case, Mr Trembath sought a discharge without conviction in relation to the making of an intimate visual recording of a stranger naked in a spa adjoining his motel unit.19 The consequences of a conviction on his employment were limited as he was retraining for a broad-spectrum occupation with no evidence that exemplary14 R v Taulapapa [2018] NZCA 414 at [42(b)].15 At [42(d)].16 At [42(e)].17 At [42(f)].18 Trembath v Police [2019] NZHC 662 at [26].19 At [1] and [7].character was generally regarded as a prerequisite for employment. 20 The consequences of a conviction were not out of all proportion to his offending. 21[26] Mr Mather submitted that the consequences of a conviction on Mr Carpenter's future employment prospects are specific and disproportionate, in contrast to Mr Trembath. Mr Carpenter has studied for and accumulated experience in the adventure industry so that he can have a career in that industry. The consequence of being unable to work in that field is therefore extraordinary.[27] Whether the consequences of a conviction are proportionate or disproportionate will depend on a range of factors, including whether the conviction is relevant to a person's suitability for a particular role. If a conviction is entirely irrelevant to the role sought, but is nevertheless likely to pose a significant impediment to employment (for example because a company has a zero tolerance policy towards job applicants with convictions) then there is a clear risk that the consequences of a conviction will be disproportionate.[28] Where, however, a conviction is of a type that is relevant to a person's suitability for a particular role, the issue is not so clear cut. In such circumstances it is generally not unfair nor unreasonable for employment prospects to be detrimentally affected, sometimes to a significant degree. That is a natural and ordinary consequence of behaviour that renders a person unsuitable (or less suitable than others) for a particular role. In such cases the courts have often taken the view that a prospective employer, rather than the courts, is best placed to assess what weight should be given to a person's offending, and how it impacts on a person's suitability for a role. 22[29] Mr Mather submitted that Mr Carpenter's conviction is not relevant to his employment, as any breach of trust involved in the offending related solely to the parties' intimate relationship. He submitted that that has no link to the position of trust required for his employment, which is based on his training and expertise.20 At [27].21 At [29].22 See for example Stewart v Police [2015] NZHC 165 at [30].[30] In my view, however, the issue is somewhat more nuanced than that. I agree that Mr Carpenter's offending probably has fairly limited bearing on his ability to do his job. He still has the relevant training and expertise and is described as a high achiever. However, his offending is not entirely irrelevant to his suitability for employment in the outdoor adventure industry. First, the industry relies on a high degree of trust and confidence, in particular because of the potentially dangerous nature of the activity. Mr Carpenter's willingness to breach the trust and confidence of a person intimately close to him is indicative (at the least) of extremely poor judgment.[31] Further, although the victim was in an intimate relationship with Mr Carpenter at the time, she was also a work colleague, residing in the same staff accommodation village as Mr Carpenter. It is presumably not uncommon for young people (and perhaps not so young people) in the adventure industry to form intimate relationships with colleagues, particularly where, as here, they are living and working in close quarters. Employers have obligations to their employees to use their best endeavours to provide a safe working environment. Particularly where accommodation is provided in staff quarters as part of the job, an employer may have legitimate concerns about employing someone who has a history of covertly filming unsuspecting young women engaged in sexual activity.[32] Mr Carpenter's history of having twice secretly filmed young women in intimate moments may therefore raise genuine and legitimate issues of concern for an employer in the adventure sector. Such concerns may be heightened in circumstances where the relevant business also employs young women or has a number of young women as clients. Obviously, the depth of such concerns may vary according to context. For example, a job as a white-water rafting guide taking mixed groups out on short river experiences may raise less concern than working and living with others (colleagues and clients) for longer periods in close quarters.[33] Courts are generally reluctant to conceal relevant convictions from potential employers who have a proper interest in knowing of them.23 In R v Taulapapa, the Court of Appeal observed that: 24Conviction 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.[34] A further factor that must be taken into account is that Mr Carpenter's offending has already been the subject of publicity. Mr Mather attached to his submissions a Stuff article titled "Instructor who secretly filmed girlfriend during sex denied a discharge without conviction". This article can be found on the internet by simply searching Mr Carpenter's name. It details that Mr Carpenter had secretly filmed his ex-girlfriend during sexual activity, and that he had also done so to a prior girlfriend.[35] Accordingly, regardless of whether a conviction is entered or not, Mr Carpenter will likely face adverse employment consequences arising from the fact of his offending, and the publicity surrounding that. It is not clear what additional adverse consequences are likely to arise solely as a result of entry of a conviction. Obviously, there may be some, but I expect they will be relatively limited in scope. The primary causes of any adverse consequences for Mr Carpenter will likely be that he offended in the first place, and that his identity and details of his offending have been widely publicised.[36] Even assuming, however, that the entry of a conviction will, in itself, have some impact on Mr Carpenter's ability to secure future work, that is not unusual when persons are convicted of offending of this nature. Difficulty finding employment is a consequence that commonly flows from this kind of offending and the associated publicity.23 Trembath v Police [2019] NZHC 662 at [28].24 R v Taulapapa [2018] NZCA 414 at [42(a)].[37] As noted above, the Judge's finding that the offending was (towards the upper end) of moderately serious gravity was not challenged. The offending was premeditated and grossly intrusive of the victim's privacy. Taking all of the matters I have outlined above into account, it is my view that the Judge did not err in concluding that the consequences of a conviction were not out of all proportion to the gravity of the offending. Accordingly, the Judge did not err by refusing Mr Carpenter's application for a discharge without conviction.Did the Judge err by making a protection order in favour of the victim?[38] Mr Mather submitted that the Judge erred by making a protection order. He submitted that the parties' intimate relationship was not a close personal relationship under the FVA. Even if it was, he submitted, the making of an intimate physical recording does not constitute psychological abuse. In any event, a protection order was not necessary for the protection of the victim, given the absence of any evidence indicating that Mr Carpenter poses a risk of further violence.[39] The respondent submitted that the Judge did not err in finding that the parties' sexual relationship of three months met the threshold for a close personal relationship under the FVA. Further, the sexual nature of the offending meant that it was a family violence offence. The protection order is necessary for the protection of the victim who is suffering from extreme anxiety as a result of the offending.[40] The Court has jurisdiction to make a protection order under s 123B of the Act where an offender is convicted of a family violence offence and there is not currently in force a protection order against the offender made under the FVA for the protection of the victim of the offence. 25 A family violence offence includes an offence involving family violence as defined by s 9 of the FVA. 26[41] Family violence is defined as violence inflicted against a person by any other person with whom that person is, or has been, in a family relationship. 27 Violence25 Sentencing Act 2002, s 123B(1).26 Section 123A definition of "family violence offence".27 Family Violence Act 2018, s 9(1).includes sexual abuse and psychological abuse. 28 A single act may amount to abuse.29However, abuse also includes patterns of abusive behaviour. 30[42] A family relationship includes a close personal relationship as defined by the FVA. 31 In determining whether a person has a close personal relationship with another person, the Court must have regard to the nature and intensity of the relationship, including the time spent together, the places where that time is ordinarily spent, and the manner in which that time is ordinarily spent.32 The Court must also consider the duration of the relationship.33 It is not necessary for the parties to have a sexual relationship in order to have a close personal relationship.34[43] I am satisfied that Mr Carpenter and the victim were in a close personal relationship, as defined by the FVA. The parties were obviously in a sexual relationship, and Mr Carpenter refers to the victim as his "girlfriend" (at the time of the offending) in an affidavit provided to the Court. The victim's victim impact statement correspondingly refers to Mr Carpenter as her "boyfriend" at the time of the offending. Being in an obviously mutual intimate partner relationship for three months meets the threshold of a close personal relationship.[44] Mr Carpenter's offending also amounts to a family violence offence. The conduct was sexual in nature and constituted an offence. A single event is sufficient to constitute sexual abuse, especially considering the gravity of the offending. The Court therefore has jurisdiction to make a protection order under the Act.[45] The Court may make a protection order if it is necessary for the protection of the victim of the offence, and the victim does not object to the making of the order.3528 Section 9(2). I note that violence also includes physical violence, but there is no suggestion of physical violence in the present case.29 Section 10(1).30 Section 9(3).31 Sections 12(d) and 14.32 Section 14(3)(a).33 Section 14(3)(b).34 Section 14(4).35 Sentencing Act 2002, s 123B(2).In Surrey v Surrey, the Court of Appeal outlined the principles relevant to the assessment of whether a protection order is necessary: 36(a) The assessment of necessity requires a broad-based assessment by the Court of the need for protection in the future. 37(b) The level of risk of future violence is "obviously a relevant factor".38This should be assessed on the basis of past conduct, informed by the subjective views of the victim and any other relevant factors. 39(c) The necessity for a protection order must be assessed against the seriousness of the past domestic violence. 40 The more serious the possible future violence, a lesser risk of it re-occurring may justify a protection order than would be the case where the possible future violence is less serious. 41(d) The nature and seriousness of past violence may be a predictor of the type of violence that may occur in the future. 42(e) Once the applicant proves the existence of past violence and his or her reasonable subjective fear of future violence, then an evidential burden passes to the respondent to raise countervailing factors that weigh against the need to grant a protection order. 43(f) The fact that Parliament has mandated that the subjective views of an applicant regarding past violence have to be taken into account suggests that the purpose of a protection order may not only be to ensure that36 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581. While this approach was set out under the Domestic Violence Act 1995, the principles remain applicable under the Family Violence Act 2018. See for example H v R [2021] NZHC 1144 at [4]. See also SN v MN [2017] NZCA 289, [2017] 3 NZLR 448.37 At [38].38 At [39].39 At [40].40 At [41].41 At [41].42 At [42].43 At [43].those who have been subjected to family violence in the past are safe in the future from the risk of family violence, but also that they feel safe from family violence. 44[46] In my view, Mr Carpenter presents a low risk of further violence against the victim. There was only one incident of offending against her. Their relationship has ended, and it is apparent from the victim impact statement that there is absolutely no prospect of it ever being rekindled. There has been no contact between Mr Carpenter and the victim since the incident occurred. In the circumstances, the likelihood of Mr Carpenter further offending against the victim is negligible.[47] The victim is understandably traumatised by Mr Carpenter's offending and regard must be had to her subjective views and concerns. These are not determinative, however. Viewing the matter objectively, Mr Carpenter does not pose any material risk of future family violence (or any other form of offending) towards the victim. A protection order is not therefore necessary for her protection. The Judge therefore erred in making a protection order.[48] The respondent submitted that, if a protection order was unnecessary, the Court should impose a non-association order under s 112 of the Act. Mr Mather did not make submissions on this issue.[49] If an offender is convicted of an offence punishable by imprisonment, the court may make a non-association order in respect of that offender. 45 Before making a non-association order, the Court must be satisfied that the making of the order is reasonably necessary to ensure that the offender does not commit further offences punishable by imprisonment.46[50] As stated above, I do not consider that Mr Carpenter presents a risk of future violence against the victim. It follows that I do not consider that a non-association order is reasonably necessary to ensure that he does not commit further offences punishable by imprisonment.44 At [102].45 Sentencing Act 2002, s 112(1).46 Section 112(2).Result[51] The appeal is allowed in part. The protection order is quashed.[52] The appeal is otherwise dismissed.____________________________Katz J