GOTTLER v POLICE [2020] NZHC 3191

GOTTLER v POLICE [2020] NZHC 3191 [3 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-356[2020] NZHC 3191BETWEEN JOHN GOTTLERAppellantAND NEW ZEALAND POLICERespondentHearing: 30 November 2020Appearances: J Maddox for the AppellantJ M Xulue for the RespondentJudgment: 3 December 2020JUDGMENT OF GORDON JThis judgment was delivered by meon 3 December 2020 at 4 pmRegistrar/Deputy RegistrarDate:Solicitors: Crown Solicitor, ManukauLiberty Law, ManukauIntroduction[1] The appellant, John Gottler, was found guilty of one charge of careless drivingcausing injury1 following a judge-alone trial in the District Court at Manukau on9 January 2020.2[2] His application for discharge without conviction was declined on 23 July 2020.Mr Gottler was sentenced to pay compensation of $1,500 and was disqualified fromholding or obtaining a New Zealand drivers' licence for eight months.3[3] Mr Gottler appeals against his conviction and the decision declining adischarge without conviction. His grounds of appeal against conviction are that theJudge erred by incorrectly applying the relevant test and that an adverse factual findingwas not supported by the evidence. On the decision declining a discharge withoutconviction, he says the Judge erred in his assessment of the gravity of the offendingand in his proportionality assessment.[4] The respondent says that there was no error in the Judge's analysis of theevidence and no miscarriage of justice occurred. Nor was there any error in thedecision to decline a discharge without conviction.Background[5] On 7 December 2018, at about 5.00 am, Mr Gottler was driving his car downa residential street in Howick. Mr Gottler came to an intersection with another road.The intersection was T shaped. Mr Gottler was on the road approaching the top of theT. He was on the part of the intersection controlled by a compulsory stop sign. Thevictim, Jeannie Smith, was on her bike and was approaching Mr Gottler in his car fromhis right. He pulled out, colliding with her and driving his car over her. She waslodged beneath the car and suffered significant injuries, including a fractured ankle,pelvis and ribs and a broken clavicle. She also suffered spinal related injuries.1 Land Transport Act 1998, s 38. Maximum penalty: three months' imprisonment or fine notexceeding $4,500.2 Police v Gottler [2020] NZDC 23501.3 Police v Gottler [2020] NZDC 14286.[6] At trial, evidence was given by Ms Smith, two Police officers who attendedthe incident and Mr Gottler.District Court conviction decision[7] The Judge identified a single issue in dispute: had the prosecution provedMr Gottler was careless in operating his car? That is, the prosecution was required toprove Mr Gottler's actions fell below the standard of care of a "reasonably prudent4driver" in the circumstances of this event.[8] The Judge noted the weather conditions were good, although it was dark at thetime. He referred to and accepted Ms Smith's evidence was that she was wearing arain jacket with fluorescent markings on the front around chest level. She was wearinggloves with fluorescent markings. Front and rear lights were fitted to her bike. TheJudge was satisfied they were operating and the front light emitted a bright light; thePolice officers who attended the accident did not see the collision but saw the lightson the bike and their evidence was that they were working. The Judge referred tosome differences in the evidence as to whether the front light was pulsating or whetherit was in a steady state. He said he did not know whether the extent of that mattered.The Judge noted that Mr Gottler was in a position where he was controlled by acompulsory stop sign. He was required to stop and ascertain the way was clear beforeproceeding into the intersection.[9] The Judge said there was some dispute as to whether the bike's pedals hadreflectors. However, the official New Zealand road code was produced in evidenceand established the requirement that, where a bike did not have reflective material onthe pedals, the rider was required to wear reflective clothing. The Judge could not becertain about the pedals. He said he was inclined to regard that as not proven but hadaccepted the victim was wearing reflective clothing and so was satisfied as to therequirements of the road code.4 The text of the ruling has the word "proven" rather than "prudent". There was no suggestion thatthis was other than a typographical error.[10] The evidence of Ms Smith was that, as she approached the intersection, shehesitated, she saw the car was stopped and she assumed the driver had seen her becausethe car was stopped. She then continued forward. She said she was right in front ofMr Gottler's car and it smashed into her.[11] The Judge noted Mr Gottler was a local resident who lived nearby. The Judgealso acknowledged Mr Gottler's professional qualifications and experience on mattersof road safety, as a road safety auditor and crash reconstruction expert (but recordedhe did not give expert evidence in the proceeding). The Judge referred to Mr Gottler'sevidence of leaving his home in normal road conditions, approaching the intersection,indicating his intention to turn right, coming to a complete stop, and looking to hisright, to his left and to his right again. He said he thought nothing was coming on hisright so started to take his right turn. Ms Smith suddenly appeared directly in front ofhim. The Judge noted Mr Gottler gave evidence that his car did not hit Ms Smith'sbicycle but rather she fell off her bike and his car then went over her. The Judgeaccepted Mr Gottler provided assistance to her following the accident.[12] Mr Gottler's defence was that he took every reasonable step in driving up toand into the intersection. He insisted that Ms Smith was not there so far as he wasconcerned. The Judge stated clearly she was there. The question for him to determine,he said, was whether Mr Gottler's actions fell below the standard expected of areasonable and prudent driver.[13] The Judge referred to Mr Gottler's evidence that the streetlights at thisintersection had a particular effect which made it difficult to see cyclists, pedestriansand small objects on the road. There is no depth of field until something is directly infront of a driver. Mr Gottler said the streetlights had been improved since the accident.[14] The Judge stated that Mr Gottler had this knowledge as he approached theintersection. The Judge considered additional care was required in negotiating theintersection in consequence. The Judge referred to Mr Gottler's theory that Ms Smithmay have skidded towards his car, which is why Mr Gottler said it did not hit her bike.He noted Mr Gottler's insistence that he was a careful driver and also the absence ofany prior convictions or engagement with traffic control authorities. Mr Gottler didnot think the front light on the bike was flashing but, given his evidence that he didnot see Ms Smith, the Judge said little weight could be attributed to his evidence onthis point.[15] The Judge did not consider the issue of whether contact was with the bike orwith Ms Smith was of any significance to the question to be determined. The Judgethought the impact may have occurred towards the middle of the road as Ms Smithmoved to her right, away from Mr Gottler's car, to avoid the imminent collision as hepulled into the intersection. The Judge stated she may have fallen off the bike in thismanoeuvre or the bike may have been shunted by the car, causing her to come off thebike. However, the Judge said Police did not have to establish contact, only thatMr Gottler's actions caused Ms Smith's injuries.[16] The Judge then concluded as follows:[24] I am satisfied beyond reasonable doubt that Mr Gottler knew andindeed needed to take more steps than he did to ascertain, to make certain thatthe way was clear. This may have meant edging out very cautiously andperhaps keeping a continuous eye on vehicles that may be approaching fromhis right, given the difficulties he would have had in spotting a cyclist on hisevidence. Whatever the position, Ms Smith fell from her bicycle and wasinjured by Mr Gottler's vehicle in merging from that intersection governed bythe compulsory stop sign.[25] The fact that it was governed by a compulsory stop sign does not meanthat any accident following from that is his fault. This is not an offence ofstrike [sic] liability. There can be situations where in an intersection followinga compulsory stop that the circumstances are such that it would not bereasonable to have ascertained the presence of another person. However, inthis, I am sure that Mr Gottler knew of the dangers inherit [sic] in it. He saysthat so far as he was concerned that she was not there. I can understand hisperspective and his evidence, but the fact remains that she was, and it seemsto me, and I so find, that Mr Gottler should have proceeded with more cautionthan in fact he did.[26] The charge is proven, and Mr Gottler will be convicted.Appeal against convictionApproach[17] Section 229 of the Criminal Procedure Act 2011 provides that a person has ageneral right of appeal against conviction.[18] Under s 232(2), the Court must allow the appeal if it is satisfied that, in thecase of a Judge-alone trial, the Judge erred in his or her assessment of the evidence tosuch an extent that a miscarriage of justice has occurred, or if a miscarriage of justicehas occurred for any other reason. A "miscarriage of justice" is defined in s 232(4) asan error, irregularity, or occurrence in or in relation to or affecting the trial that hascreated a real risk that the outcome of the trial was affected or resulted in an unfairtrial.[19] An appeal against conviction proceeds by way of rehearing.5 If the appellatecourt comes to a different view on the evidence, the trial judge necessarily will haveerred and the appeal must be allowed.6 But the appellant must show that an error hasbeen made; the appellate court is not to consider the evidence de novo.7 The appealcourt must remember the advantages a trial judge has, especially where the challengeis to credibility findings based on contested oral evidence.8Submissions[20] In his written submissions, Mr Maddox, on behalf of Mr Gottler, identified twoissues with the Judge's decision:(a) The Judge failed to properly consider the question of lighting; and(b) The Judge held Mr Gottler to a higher standard of care than a reasonableand prudent driver, based on Mr Gottler's professional qualifications.[21] In his oral submissions Mr Maddox said the ground relied on was (b) above.[22] Mr Xulue, on behalf of the Crown, says the Judge properly considered thelighting evidence and correctly found that greater care was required. The Judgecorrectly applied the reasonable and prudent driver test and did not hold Mr Gottler toa higher standard on the basis of his expertise in traffic safety.5 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32].6 At [38].7 At [38].8 At [38].Discussion[23] I am satisfied there was sufficient evidence to support the Judge's conclusionthat Mr Gottler's conduct fell below the standard of care of the reasonable and prudentdriver in the circumstances of the accident.9 He did not apply a higher standardbecause of Mr Gottler's qualifications and experience in the field of road engineeringand road safety.[24] The Judge assessed the effect of the lighting on Mr Gottler's ability to seeMs Smith. This included consideration of Mr Gottler's evidence that he confusedMs Smith's front bike light with a streetlight some 200 metres behind her. It followsfrom his finding that he did not accept this precluded Mr Gottler from seeingMs Smith. As noted, he found that she had a front light on her bike emitting a brightlight and that she was wearing fluorescent material on the front of her jacket and hergloves. The Judge was satisfied that Mr Gottler needed to take more steps to be surethe way was clear, such as edging out very cautiously and perhaps keeping acontinuous eye for any vehicles approaching from his right. The Judge found that,because Mr Gottler was waiting at a compulsory stop sign, he was required to takemore care to ensure his path was clear and that he needed to give way to on-comingvehicles.[25] Mr Maddox submits the Judge failed to consider the difficulty in identifyingthe cyclist in the particular area. He refers to Mr Gottler's unchallenged evidence that:(a) the high-pressure lighting (HPL) then installed in the area, beingmonochromatic light, provides some reflectivity on fluorescentclothing, but it is not as good as white light from LED lights for thispurpose;(b) HPS lighting creates a flat picture so you do not get the depth of fieldas you do with LED lights;(c) there were dark pools between the HPS lights; and9 Simpson v Peat [1952] 2 QB 24; Baugh v Ministry of Transport HC Wellington AP147/90, 1August 1990.(d) Mr Gottler mistook the headlight on the bike for a streetlight some200 metres behind Ms Smith.[26] The difficulty with that submission is that, first Mr Gottler did not say HPSlights do not create any reflectivity at all. He said "you will get some reflectivity". Asnoted, Ms Smith had a reflective fluorescent patch on the chest of her jacket and onthe backs of her gloves. But more significantly, Mr Gottler accepted that he did seethe light on her bike. He assumed it was a streetlight further down the road. He didnot take care, as a reasonable and prudent driver would have, to check that assumption.[27] The standard of care a reasonable and prudent driver must demonstrate alwaysdepends on the surrounding environment (or circumstances).10 An intersection whichhas no lights, or which is poorly lit, will always require a driver to take additional stepsto ensure the road is clear before proceeding. Any driver approaching that intersectionwould recognise the lighting deficiencies and take appropriate action beforeproceeding. A reasonable and prudent driver does not need Mr Gottler's expertise torecognise a situation where greater care is required.[28] The Judge took Mr Gottler's evidence into account in assessing Mr Gottler'sactions. He carefully reviewed the evidence as to the victim's visibility – her bike wasequipped with a functioning light at the front and she was wearing reflective clothing– and concluded that she was there to be seen. A reasonable and prudent driver wouldhave seen her by keeping a careful watch to the right given the lighting issues at theintersection.[29] In short, there was no error by the Judge in his assessment of the evidence nordid he hold Mr Gottler to a standard higher than the reasonable and prudent driverstandard.District Court decision declining discharge without conviction[30] The Judge assessed the gravity of the offending as moderate, taking intoaccount several aggravating features. They were the vulnerability of the victim, the10 Police v Vialle [1989] 1 NZLR 521 (CA) at 523.serious injuries she had suffered and the ongoing effect of those injuries, thecircumstances of the offending and the degree of carelessness. On the circumstancesof the offending, the Judge observed the victim was there to be seen—she was wearingreflective clothing and the bike's lights were functioning—and the degree ofcarelessness was not the lowest level despite evidence about lighting at theintersection. The Judge accepted Mr Gottler demonstrated genuine remorse for thesignificant harm his actions caused to the victim.[31] As to consequences of the offending, the Judge acknowledged Mr Gottler'sage, good character, professional expertise and experience and his prominent roles inseveral industry organisations. However, he rejected submissions that Mr Gottler'sprofessional reputation and credibility, and his employment, were at serious risk ofdamage if convicted. The Judge did not consider those consequences flowed fromconviction but from the fact of the offending. He characterised the offending as oneof momentary inattention and doubted that Mr Gottler's employment or position inother organisations would be affected by conviction.[32] The Judge concluded that the consequences of conviction would not be out ofall proportion to the gravity of the offending. Conviction may affect Mr Gottler'sposition but those consequences did not meet the statutory test.[33] Mr Gottler was convicted and sentenced to a period of disqualification andpayment of compensation.Appeal from decision refusing dischargeApproach[34] Section 106 of the Sentencing Act 2002 gives the Court a discretion todischarge an offender without conviction. This discretion is subject to the test in s 107being satisfied. Section 107 provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unlessthe court is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[35] In assessing the gravity of the offence, the Court is not restricted to anassessment of the conduct that gives rise to the charge. In R v Hughes, the Court ofAppeal approved the comments of Miller J in Delaney v Police where the Judge said:11[29] I consider that "the gravity of the offence" should be read asincluding not only the offence itself but also anything that may affect theCourt's subsequent assessment of overall culpability. That includes guiltypleas, expressions of remorse and the Court's assessment of how likely it isthat the offender will reoffend, the victim's perspective, and any consequencealready suffered by way of reparation, community work, or publicity.[36] The law in relation to ss 106 and 107 is succinctly stated by the Court of Appealin Taulapapa v R:12[22] It is settled law that a court considering a discharge should: examinethe gravity of the particular offence, taking into account all aggravating andmitigating factors of the offending and the offender; identify the direct andindirect consequences of conviction; and consider whether thoseconsequences are "out of all proportion" to the gravity of the offence. Onlythen does it move to considering the residual discretion under s 106. Theremust be a "real and appreciable" risk that any given consequence will happen:this standard recognises that the court is assessing the likelihood of somethingthat may happen in the future.[23] The offender should ordinarily put information before the court toprovide a factual basis for a decision that the test has been satisfied. There isno legal onus on the offender to do so however, and the standard of proof ins 107 is simply that the judge be satisfied that the requirements of the sectionare met.(citations omitted)[37] A three-step approach is thus required by the Court which must:(a) determine the gravity of the offence, having regard to both theaggravating and mitigating factors of the offending and the offender;(b) determine the direct and indirect consequences of conviction; and(c) determine whether those consequences are out of all proportion to thegravity of the offence.11 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005, at [29] as cited in R v Hughes[2008] NZCA 546, [2009] 3 NZLR 222 at [27].12 Taulapapa v R [2018] NZCA 414.[38] Only if the threshold in (c) above is met can the Court move to consider theresidual discretion under s 106.13 There must be a "real and appreciable" risk that anygiven consequence will happen.14 This standard recognises that the Court is assessingthe likelihood of something that may happen in the future.15 If the s 107 test issatisfied, a discharge will normally follow.Submissions[39] On gravity, Mr Maddox submits the Judge characterised the degree ofcarelessness as higher than the lowest level but also as the result of momentaryinattention. I understand Mr Maddox's submission to be that these two remarkscontradict each other and go to the gravity assessment.[40] Mr Maddox's submission on consequences is that the Judge speculated anyconsequences for Mr Gottler would arise from the offending rather than conviction.Mr Maddox says there was no evidence to support this statement. Rather, a letter fromMr Gottler's employer indicated tenders to government organisations may becompromised by any convictions.[41] Mr Xulue submits the Judge made no error on gravity. As to consequences,Mr Xulue acknowledges Mr Gottler's evidence that his membership of professionalbodies and employment may be affected by conviction. However, there was noevidence before the Judge to support those assertions or establish a real andappreciable risk that conviction would lead to one of those consequences. Moreover,prospective employers ought to make fully informed decisions about a person,particularly where professional activities are connected with proven offending.Mr Gottler's role in the transport industry raises the public interest in this regard.Finally, on proportionality, Mr Xulue says this is a case where Mr Gottler should beconvicted so that employers can make appropriate inquiries to manage any future risk.13 Z (CA 447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and Taulapapa v R, above n 12,at [22].14 DC (CA47/2013) v R [2013] NZCA 255 at [43] and Taulapapa v R, above n 12, at [22].15 Taulapapa v R, above n 12, at [22].Gravity assessment[42] I do not see any error in the Judge's gravity assessment as moderate. The pointMr Maddox raises is a minor one which would have, at best, limited effect on a muchbroader exercise. The Judge took account of the nature of the carelessness in hisassessment of gravity which he set at above the lowest level. But carelessness wasonly one factor to take account of and the Judge correctly incorporated others into hisreasoning, including the circumstances of the accident, the injuries to the victim andMr Gottler's remorse.[43] In any event, "momentary" inattention is a temporal consideration; it seems tome possible that the spectrum of carelessness can be covered in a short period of time.That Mr Gottler's inattention was brief does not undermine the Judge's assessment ofcarelessness.Consequences of conviction[44] I first refer to the evidence available to the Judge. His summary of Mr Gottler'sbackground accurately reflects the evidence and submissions. He said:[7] In terms of the consequences of a conviction, they must be real andappreciable consequences, not necessarily certain, and they have beenidentified in the affidavit in [sic] submissions filed on Mr Gottler's behalf. MrGottler is a man I think of 63 years or he may be older now but a man ofprevious good character. He has been driving I have no doubt for many yearswith no previous traffic convictions or convictions of any sort for that matter.He is a person who is well respected in the community, he has membership ofa number of professional bodies and his qualifications and membership isoutlined in the submissions. He is the vice-president of TRAFINZ, a charteredmember of Engineering New Zealand, transport, planning, management andcontrol in Sydney, post-graduation [sic] transportation certificate Universityof Auckland, a registered engineer associate, a holder of a New ZealandDiploma in Engineering, certified code of practice for temporary trafficmanagement, member of the National Safety Working Group for current roadsafety auditor guidelines, he is an engineering expert and a safety-qualifiedsupervisor, a certified level crossing auditor and tram safety specialist.[45] There was further evidence from Mr Gottler in the District Court. He annexedto his affidavit relevant provisions of his employment contract which records that ifcriminal background checks are "not satisfactory" his employment may be summarilyterminated. The contract also states that it is a condition of his employment thatMr Gottler hold appropriate qualifications and professional memberships for hisposition. Mr Gottler deposed in his affidavit that while his qualifications are notaffected by a conviction, his membership of the professional bodies he belongs to maywell be affected due to the nature of the charge.[46] In that regard, there was evidence before the Judge from the President of theNew Zealand Traffic Institute (TRAFINZ) who deposed that he had known Mr Gottlerfor approximately 25 years; that Mr Gottler had worked in both the public and privatesectors on road safety in New Zealand and many other countries around the world;and his contribution to saving lives on the roads had been immense. The witnessdeposed that Mr Gottler is the Vice-President of TRAFINZ and was made a lifemember of that organisation for his on-going contribution to traffic safety and toreflect the esteem in which he is held professionally and personally by his peers. Hestates that should Mr Gottler be convicted, he would lose his life membership and hisposition as Vice President. Finally, he says the loss of Mr Gottler's professional statusand reputation would adversely affect his ability to work in other countries in the roadsafety field.[47] There was also a letter from Mr Gottler's employer, dated 4 March 2020, whichconfirmed that Mr Gottler is an engineer employed in the role of National Traffic andSafety Engineering Director. The employer stated that in that role Mr Gottler worksfor government clients on high-profile major projects. Due to the nature of his work,there might be a potential for a traffic-related conviction to negatively affectMr Gottler's reputation and his employer's reputation. The letter continued that theemployer's business involved competitive tendering for clients and that it wascommon practice for tender conditions to require disclosure of any convictions of keypersonnel. Tender assessment commonly relied on "point scoring" and the employerconsidered it very possible that convictions of key personnel such as Mr Gottler wouldresult in marks against a tender. The letter concluded that no decisions had been madein relation to Mr Gottler's employment at that stage.[48] However, events have since moved on. The Court was provided with a letterdated 24 November 2020 from Mr Gottler's employer terminating his employment,effective as at the date of the letter. There were said to be two bases for the dismissal– the failure to provide information when requested about the prosecution and theincongruity of Mr Gottler's road traffic safety role with a conviction for carelessdriving. As to the first ground, the letter states this was a serious breach onMr Gottler's part. As to the second ground, the letter states that Mr Gottler'sconviction exposes the employer to risk in terms of its reputation and its business.[49] As is obvious, there is now not simply a real and appreciable risk of loss ofemployment. The risk has eventuated. Mr Gottler has lost his job and the convictionwas said to be one of the two reasons for ending his employment.[50] Although the letter clearly states that it is the conviction (rather than theoffending per se) which was operative in the employer's decision, there are aspects ofthe letter which arguably refer to the offending itself, as opposed to the conviction.This raises the issue of the right of a future employer to know of the offending.[51] As was noted by the Court of Appeal in R v Taulapapa,16 where the Court setout principles arising from a survey of cases relating to consequences for employment,a conviction may affect a person's career, but that consequence must normally yieldto the employer's right to know. The Court noted that this principle extends toindependent bodies charged with assessing the character or suitability of personsseeking registration to practise a particular profession or trade.17[52] In this case the offending has a connection to Mr Gottler's professionalposition. In saying that, I am not suggesting one way or the other whether theoffending would affect Mr Gottler's capacity to discharge his professional duties.However, there is a link between the offending and his role. That is to be contrastedwith say a conviction for a minor assault. It seems to me that this is therefore a casewhere a future employer does have the right to know and it is not the function of theCourt to pre-empt future employers' decisions of the significance of the conviction.[53] However, even if I am wrong on this point, there are indications in theemployer's letter of 24 November 2020 that the fact of the offending itself (as opposedto the conviction) was a relevant consideration. The letter refers to the "ethical16 R v Taulapapa, above n 12.17 At [42](a).obligations around transparency and integrity" in relation to work for two Governmentagencies. Additionally, the letter refers to Mr Gottler's position description. He isrequired to be a "role model", with a focus on road safety, and in that role to workdirectly with road safety clients.[54] The consequences of conviction for Mr Gottler's future employment musttherefore take account of four factors. First, in his current employment, there is nolonger a risk; his employment has been terminated. Second, however, the convictionwas one of two matters related to the offending for which Mr Gottler was disciplined.It was not the only consideration. Third, given the relationship between Mr Gottler'soffending and his professional roles, this is a situation where current and futureemployers' right to know is given greater weight than the consequences to a defendantof conviction. Fourth, and finally, Mr Gottler's employer expressly refers to theconsequences of conviction in the letter sent to him, but the content of the letter as awhole suggests the offending rather than conviction was a significant concern inconsidering his continuing employment.Proportionality[55] Taking into account the circumstances referred to above, I do not consider theconsequences of conviction are out of all proportion to the gravity of the offence:(a) Mr Gottler works in the field of road safety and the offending has aconnection to that field of work; and(b) Any consequence must yield to a future employer's right to know ofthe offending;[56] No doubt any future employer will take into account the nature of the chargeand the circumstances of the offending. The charge is one which sits at the lower levelof driving offences. That is reflected in the relatively low level of the maximumpenalty of three months' imprisonment or a fine not exceeding $4,500. The Judge didnot impose imprisonment or a fine. Rather, Mr Gottler was disqualified for eightmonths and directed to pay compensation of $1,500 to Ms Smith. There was no othersentencing consequence for Mr Gottler.Result[57] The appeal is dismissed.___________________________________Gordon J