SMITH v POLICE [2017] NZHC 2856

SMITH v POLICE [2017] NZHC 2856 [21 November 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-000241[2017] NZHC 2856IN THE MATTER OF an appeal against conviction and sentenceBETWEEN KEN LEROI SMITHAppellantAND NEW ZEALAND POLICERespondentHearing: 6 November 2017Counsel: D P H Jones QC and H T Drury for the AppellantE J Smith for the RespondentJudgment: 21 November 2017JUDGMENT OF EDWARDS JThis judgment was delivered by Justice Edwardson 21 November 2017 at 1.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Counsel: D P H Jones QC, AucklandSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandIntroduction[1] On several occasions over an eight-month period, Mr Smith posted sexuallyexplicit messages and images about A, R and R's sister to Instagram accounts set upunder a false identity. The offending began the day after his 17th birthday. A, R andR'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 withintent to cause harm.1 His application to be discharged without conviction wasdeclined in the District Court and he was sentenced to 12 months' supervision andthree months' community detention for both charges.2[3] Mr Smith appeals from the decision declining his application to be dischargedwithout conviction. He submits that the Judge erred in his assessment of the gravityof 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 amedical professional are disproportionate to the gravity of his offending.[4] Mr Smith seeks to adduce evidence on appeal which was not before the DistrictCourt. That evidence includes updating evidence, and a report from a psychologist.The Crown opposes the application in relation to the evidence which goes beyond justupdating the Court, submitting that such evidence is not cogent.Offending[5] Mr Smith's offending took place between September 2015 and June 2016.3 Itinvolved the posting of images and texts on several Instagram accounts set up byMr Smith using false identities.1 Harmful Digital Communications Act 2015, s 22. Each charge attracts a maximum penalty oftwo years' imprisonment or a $50,000 fine.2 Police v Smith [2017] NZDC 13864 (discharge without conviction); Police v Smith [2017] NZDC14864 (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. Theyattended different high schools but remained connected through social media.[7] On one of the Instagram accounts, Mr Smith posted a photo of R, which wastaken 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 Rherself was wanting sexually explicit acts done to her. Another picture of R appearedto have ejaculation on R's face. It is not clear from the summary of facts whether thisphoto was messaged directly to R, or posted to an Instagram account.[8] Mr Smith also posted other photos which were taken from other girls' socialmedia 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 andconfronted him about it. He denied involvement and told her about the stresses he wasunder in his personal and family life at the time. Following that confrontation, thephotos of R were removed.[10] However, the offending did not end there. Some months later, Mr Smith setup another Instagram account under another false identity giving it the display name,"[R] Cumslut". Mr Smith posted three pictures of cartoon figures in sexually explicitposes (commonly referred to as hentai) to this Instagram account and commented oneach of the pictures. The comments were text stories containing sexually explicit rapefantasies involving A, R, and R's sister as the primary objects. It was these posts thattriggered the complaint to the police.[11] Neither A, R or R's sister gave Mr Smith permission to use or re-post theirphotographs, or to write sexually explicit stories about them. Both R and A have madevictim impact statements in which they describe the anxiety, stress, and difficulties intrusting people that they have experienced as a result of the offending. They said thedescription 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 reviewedthose posts for the purposes of assessing the gravity of the offending.Instagram posts made them feel disgusted, guilty (as if they had done somethingwrong) 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 avery full exchange and discussion at the conference about the reasons why Mr Smithoffended, and the effect it had on R. Mr Smith expressed deep remorse for hisoffending and the harm it had caused R, and said that he did not fully recognise theextent of the harm he had caused until that conference. At the conclusion of theconference, R thanked Mr Smith for holding himself accountable and told him thatshe had forgiven him.Personal circumstances[13] Mr Smith is 19 years old and studying at University. He has no priorconvictions, and, up until the subject offending, he had an unblemished record.Mr Smith has an impressive list of academic and sporting achievements, and he hasglowing references from his school.[14] Mr Smith's offending commenced a day after his 17th birthday. It took placeduring a very difficult time for him personally. He was under immense pressure toperform 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 wasa turbulent relationship which created stresses and strains at home. Mr Smith had alsobroken up with his girlfriend earlier in the year.[15] Following the charges being laid, Mr Smith took immediate steps to addressthe underlying causes of his offending by seeing a psychologist and a counsellor. Thepsychologist'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 Smithengage in further therapy. That was only partially completed by the time theapplication for discharge came before the District Court. Mr Smith has sincecompleted 12 sessions with a psychotherapist and produced an updated report at theappeal hearing. The psychotherapist reports that Mr Smith was motivated, acceptedhis wrongdoing, and was willing to engage in whatever therapeutic work might assisthim to repair any harm he had done. The risk of re-offending was considered low andfurther treatment was deemed to be "not only unnecessary but contraindicated".District Court decision[17] Mr Smith's application for a discharge without conviction came beforeJudge Ronayne on 23 June 2017.[18] The Judge described the offending in some detail. He considered that theoffending was targeted and sophisticated and went beyond "immature, sexualisedtaunting by a teenager against teens".4 He identified the aggravating features asfollows: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 carefullythought out actions on your part.(d) The statements that you made were all false.(e) The communications were grossly offensive, sexual in content andincluded rape fantasies. As I have said, those were nothing short ofsinister.(f) There were three young, vulnerable female victims; one was only 14years of age.(g) They were known to you and thus must have been chosen andtargeted.(h) You have no motivational excuse, such as some sort of relationshiptoxicity or volatility, so there was no justification for what you didother than to hurt.(i) The harm to the victims has been considerable.(j) Next, and perhaps not so importantly, the charges themselves areinherently moderately serious; attracting as they do a maximum oftwo 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 asfollows:6(a) Your lack of convictions and your prior good character, and thecharacter references that have been put before the Court. Those ofcourse all have to be relevant, but to an extent your lack of priorconvictions and your prior good character is tempered a little at leastby the duration of your offending.(b) You have a bright future ahead of you; of that I have no doubt, andyou have future plans and goals.(c) You have apologised formally and you have expressed what I considerto be true remorse, although there is no mention of the 14 year oldvictim.(d) You have pleaded guilty to the charges at the first reasonableopportunity.(e) You are relatively young; you were just 17 when you committed theseoffences.(f) You have, as I have mentioned, participated positively in a restorativejustice conference and the outcome has been positive.(g) You are engaged and progressing well with counselling and I havealready made reference to the report from Mr Putt in that regard.[20] Overall, the Judge characterised the gravity of the offending as serious in thecontext of the type of charges faced.7[21] Regarding the consequences of the offending, the Judge considered counsel'ssubmission that a conviction may impede Mr Smith's plans to become a registeredmedical practitioner, and that it might hinder more general life expectations. He said: it is submitted that your offending is not evidence of a characterinappropriate for medical practice but nevertheless [a conviction] could beprejudicial to your position Your behaviour is characterised as stress-triggered, risk-taking behaviour. That, in my view, is precisely what those withstatutory obligations to properly vet application for admission to suchprofessions as medicine need to know about. Put another way; deciding notto convict you deprives the authorities of what appears to be highly relevantinformation. It should be for those authorities, with their specialist expertiseand focus, to assess your suitability and fitness in possession of all informationand 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 anabsolute 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 thatnotwithstanding Mr Smith's age, the consequences of conviction were not out of allproportion to the gravity of the offending. He declined the application for a dischargeaccordingly.8Approach on appeal[23] Section 106 of the Sentencing Act 2002 gives the Court the discretion todischarge an offender without conviction. Section 107 provides that this discretioncannot be exercised unless the direct and indirect consequences of a conviction wouldbe 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 ofthe offence.[25] If the offender meets the s 107 threshold, then the Court may go on to considerwhether to exercise the residual discretion under s 106.10[26] The proportionality test under s 107 is a question of fact requiring judicialassessment. It is subject to the Austin, Nichols approach, so that if the appellant canshow that the first instance decision was wrong, the appellate court undertakes theevaluation of the s 107 factors afresh.118 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 alsoobserved that the application of the Criminal Procedure Act 2011 to decisions made under s 106may require consideration in another case and not by a Divisional Court. In that case, the CourtFresh evidence on appeal[27] Mr Smith sought to adduce evidence on appeal which was not before theDistrict Court, including a report of Dr Clarke, a clinical psychologist.[28] Dr Clarke's report reviews Mr Smith's relevant history, including his childhoodand adolescent experiences, and canvasses his family difficulties. She reports thatwhilst 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: "undiagnoseddepression; family conflict; isolation from peers; restrictive parenting; the absence ofopen communication; perceived powerlessness; anxiety relating to academic decline;pre-occupied parents; and the absence of any creative outlet". Dr Clarke also reportson 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 wasrecommended.[29] Section 335 of the Criminal Procedure Act 2011 allows the Court to receiveevidence on appeal if it considers that it is "necessary or expedient in the interests ofjustice". The principles relating to fresh evidence on appeal are well settled and wererecently summarised by the Court of Appeal in Ahmad v R.12 The Court is to considerthe admission of fresh evidence by the application of a sequential series of testsrelating to the freshness, credibility and cogency of the evidence. In Pora v R, thePrivy Council referred with approval to the following passage from its decision inLundy v R which summarises the test as follows:13120. The Board considers that the proper basis on which admission of freshevidence 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, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on theproceeded on the basis that the appeal was correctly treated as an appeal against conviction withoutdetermining 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] 2NZLR 273 at [120].safety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis 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 personalcircumstances is relevant to the assessment of the gravity of the offending. To thatextent, the evidence is relevant. But it is of limited relevance in this case becauseDr Clarke does not say anything new or different to the assessments made by thepsychotherapist and counsellor. In that respect, the evidence lacks cogency.[31] Mr Smith's personal mitigating factors were before the Judge and were referredto in the course of his judgment. I do not consider Dr Clarke's report would havechanged the Judge's analysis. In that respect, the exclusion of the evidence would notrisk a miscarriage of justice.[32] Accordingly, I decline to admit the evidence. The appeal grounds areconsidered 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 theoffending as serious. In particular, he submits that the Judge erred by:(a) Finding that Mr Smith did not have a "motivational excuse" and thatthere was no justification for what he did. Mr Smith says the evidencebefore the court showed that his offending was triggered by extremestress, academic pressure, family conflict and social isolation;(b) Finding that Mr Smith's previous good character and lack of previousconvictions were tempered by the duration of the offending. It is saidthat this factor resulted in a double-counting, with duration seen as bothan aggravating feature and a feature diluting the good charactermitigating 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 newoffence. The Act came into force on 3 July 2015.14 The explanatory note to the Billrecords that modern technology provides for a unique form of harassment, and thatchildren and young people are particularly vulnerable to harassment by digitalcommunications. The Act creates a civil enforcement regime and the creation of newoffences to deal with the most serious of harmful digital communications.15 Themaximum 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. Theoffending was graphic and explicit in nature and involved written fantasies detailingacts of sexual violence. The targeting of young females, and the frequency andduration of the offending, also adds to the gravity of the offending. It was alsounprovoked (which is perhaps what the Judge meant by lack of "motivationalexcuse").[36] However, as the Court of Appeal has confirmed, in assessing the gravity of theoffence the aggravating and mitigating factors relevant to the offender must be takeninto account in addition to those features of the offence.16[37] Mr Smith's young age was clearly a relevant mitigating feature to be weighedin the balance. The offending started exactly one day after his 17th birthday. It isgenerally accepted that teenagers have not yet developed the full rational decision-making abilities of an adult, and their capacity for good judgment is accordinglyreduced. It is for this reason that the courts have consistently recognised discounts inthe sentencing process available for youth.17[38] Mr Smith's exemplary character and his lack of previous convictions was alsorelevant to the overall assessment of gravity. The Judge found that this factor was14 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 theJudge and is consistent with Court of Appeal authority on discounts for prior goodcharacter 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'soffending, it does provide some context in which to assess it. Coupled with his youngage, 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 Smithhas expressed genuine remorse, voluntarily engaged in counselling prior to therestorative justice conference, continued and completed counselling, and does notrequire further treatment.[41] The Judge carefully identified relevant mitigating features which werepersonal to Mr Smith. However, it is not apparent from his judgment that he accordedany or much weight to those factors in the overall assessment of the gravity of theoffending. To that extent, I consider that the Judge erred. Conducting the balancingexercise afresh, I consider the overall gravity of the offending to be moderate ratherthan serious as identified by the Judge.Consequences of conviction[42] The second part of the s 107 test requires an assessment of the direct andindirect consequences of conviction. A "real and appreciable risk" that a consequencewill ensue is all that is required.19 In Maraj v Police, the Court of Appeal held that itis appropriate for the court to consider the likelihood of the consequencematerialising.2018 R v Zhang (2004) 20 CRNZ 915 (CA) at [26] followed in Ferris-Bromley v R [2017] NZCA 115at [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 ChristchurchCIV-2005-409-64, 21 April 2005 at [34]–[35].[43] Mr Smith submits that Judge Ronayne erred in his assessment of theconsequences of conviction on Mr Smith's future career prospects. In particular, hesubmits that the Judge erred by:(a) Stating that not entering a conviction would effectively deprive therelevant regulatory authorities of highly relevant information.(b) Considering that a conviction poses a possible impediment but noabsolute bar to future advancement.[44] There are two stages at which a conviction may have consequences forMr Smith's medical career. The first is at the time he applies for entry to the Universitymedical school. The second is when he has completed his degree and applies to themedical council for registration.[45] As to the first stage, Mr Smith has annexed to his affidavit the requirementsfor entry to the University medical school. This includes a police vetting procedure,and a fitness to practice inquiry. The commentary to the fitness to practicerequirements emphasises that patients' safety is the most important goal and that "ingeneral" fitness to practice concerns are managed in a rehabilitative and supportiveway. The commentary also provides that "on rare occasions" fitness to practiceconcerns may affect a student's ability to enter or complete the programme.[46] Candidates must answer questions as to whether they have ever been chargedor convicted with a crime or offence in New Zealand. If any of those questions areanswered "yes" then the candidate must provide further detailed information inwriting, which is said to "inform the faculty as to the possible need for supportmechanisms 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 thesix-year medical degree. Those requirements provide that registration is only possibleif a candidate has not: been convicted by any Court in New Zealand (or overseas), of an offencepunishable by imprisonment for a term of three months or longer; or theCouncil is satisfied that the offence does not reflect adversely on your fitnessto practice [48] In respect of the first stage, the evidence suggests that the medical school willhave 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 theoffending from the relevant authorities are mistaken.[49] However, I do not consider this point advances Mr Smith's appeal. Courtshave generally been reluctant to intervene in issues which will be fully assessed andevaluated 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 ofconviction to be resolved by the appropriate authorities, rather than the Courtattempting to pre-empt that decision-making process by a decision todischarge 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 theirperception of what the right immigration consequences should be. That is bestleft to the immigration authorities. But a Court's assessment of culpability inthe sentencing exercise may assist those authorities. And there will always beoccasions where in a finely balance case a discharge may be warranted onthese types of grounds: R v Hermard. The case for discharge may not be sostrong where the details of the offending will be known and closely examinedby the relevant authority in any event, than where the query will be only as toprior 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 withoutconviction was granted to a 17-year-old charged with possession of ecstasy forsupply.22 Woodhouse J observed that in many cases involving applications fordischarge it will be appropriate to weigh whether it would be better to leave thesignificance of conviction for a professional body or an employer.23 However,His Honour said "it should not become a general basis for declining applications", andreferred to the decision of the Court of Appeal in Brown v R.2421 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 toemployment in the IT sector. This was because prospective employers would not lookpast the fact of a conviction to ascertain the appellant's true culpability, which wasassessed at the very bottom of the scale of gravity for that type of offending. InBullock, Woodhouse J considered it to be reasonably likely that prospective employerswould simply not entertain an application from the appellant in that case if he had beenconvicted of drug dealing.25[52] In this case, it is clear from the evidence that there will be a full evaluation ofthe details of the offending. At the medical school stage, that will occur whether aconviction 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 beserious enough to warrant a conviction may well be a factor in the decision of themedical school in deciding whether to grant entry. I accept that may be so. But, fromthe evidence before the Court, it appears much more likely that the evaluation willconcern the nature of any offending and its impact on the candidate's fitness to practiceand on patient safety. Mr Smith's extensive rehabilitative efforts, and the fact that hehas completed treatment, will also be considered by the medical school. It will onlybe 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 schoolare 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 aconviction may make it more difficult to gain registration. That is because there is apresumption against registration of a candidate who has been convicted of an offencepunishable by imprisonment for a term of three months or longer. However, it is notan automatic ban. There is a process whereby the council may grant an exemption onthe 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 the25 Bullock v Police [2012] NZHC 1374 at [26] and [31]–[32].circumstances of the offending, the triggers for the offending, the fact that Mr Smithwas 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 rememberedthat if Mr Smith gets to this point, then he will have already gained entry into medicalschool despite his conviction, and completed the six-year degree.[55] Finally, I accept that another consequence of a conviction is the stigma whichit attracts. That stigma may be particularly significant for Mr Smith given his youngage, and his previous unblemished record. However, that stigma may not followMr Smith for the rest of his life. Although neither counsel specifically addressed theapplication of the Criminal Records (Clean Slate) Act 2004, if it does apply, then theconviction will be concealed after seven years except in limited circumstances.[56] In summary, I consider there is a risk that the conviction will haveconsequences for Mr Smith, both in terms of the pursuit of his chosen career as amedical professional, and in relation to the stigma that arises from conviction. Thelikelihood of those consequences arising as a result of a conviction, as opposed to thenature of the offending, is considered in the proportionality analysis which follows.Proportionality analysis[57] The assessment of proportionality requires the consequences of a conviction tobe considered in context, and measured against the gravity of the offending. Theinclusion of the word "all" before "proportion" indicates that Parliament intended thatthe direct and indirect consequences of a conviction must clearly outweigh the gravityof the offending; it cannot be a finely balanced matter.26[58] Mr Jones submits that the Judge erred in his proportionality assessment. Hesubmits that the prospect of a young man losing the ability to pursue his chosen careerpath is a serious consequence for someone who, at just 17 years of age and beset withemotional and psychological problems, acted in the way he did. On that basis, it issubmitted that the consequences are out of all proportion to the gravity of theoffending.26 Sarandovs v Police [2014] NZHC 926 at [29].[59] I accept that a conviction may create some additional hurdles for Mr Smith inpursuing his chosen career path. But they are not insurmountable. In fact, any barrierto becoming a medical professional is more likely to arise out of the nature of theoffending, rather than the fact of conviction. In those circumstances, the risk that aconviction will result in Mr Smith losing his ability to follow his chosen career path islow. The consequences arising out of any conviction are not out of all proportion tothe 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 impactof that on Mr Smith is not to be underestimated. But that stigma is a consequencewhich flows from a conviction in the ordinary course, and it could be said that allyoung people facing conviction for the first time will feel the impact of that stigmamore keenly. Mr Smith's young age does not, alone, make the consequences ofconviction out of all proportion to the gravity of the offending.[61] In this case, the consequences of being branded with a conviction must bemeasured against the sexually explicit material Mr Smith posted over an eight-monthperiod. Those posts caused considerable anxiety and stress to the young females hespecifically targeted. Although I am not without sympathy for the circumstanceswhich triggered Mr Smith's offending, it does not excuse it. The entry of a convictionholds Mr Smith accountable. The stigma which flows from a conviction is notdisproportionate 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 ofall proportion to the gravity of Mr Smith's offending. The Judge did not err in hisoverall 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