TREMBATH v POLICE [2019] NZHC 662

TREMBATH v POLICE [2019] NZHC 662 [2 April 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-434[2019] NZHC 662BETWEEN MICHAEL SCOTT TREMBATHAppellantAND NEW ZEALAND POLICERespondentHearing: 1 April 2019Counsel: A G Speed for AppellantJ T Parry for RespondentJudgment: 2 April 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 2 April 2019 at 3:00 pmRegistrar/Deputy RegistrarSolicitors:Meredith Connell (Auckland) for RespondentIntroduction[1] On 27 November 2018, Judge L Tremewan refused to discharge Mr Trembathwithout conviction on one charge of intentionally making an intimate visual recordingof 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 Tremewanmade an error such that Mr Trembath should have been discharged withoutconviction.2[3] The law recognises that sometimes the consequences for an offender of beingconvicted of their offending will be so harsh that justice is better served by not enteringa 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 courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[4] It can be seen there is a high threshold between an offender and a dischargewithout conviction. It is not enough to satisfy the Judge that the consequences of aconviction would be disproportionate to the gravity of the offence. The Judge mustbe satisfied the consequences would be out of all proportion to the gravity of theoffence.[5] To apply the test properly, a Judge must (as did Judge Tremewan) conduct athree-step analysis:3(a) Assess the gravity of the offending. That means first looking at all therelevant circumstances of the offending and of the offender, and thenstanding 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 theoffender.(c) Determine whether those consequences are out of all proportion to thegravity of the offending.[6] I will examine Judge Tremewan's reasoning against the circumstances beforeher and, in doing so, I will make my own assessment as to whether there is an errorand, if so, whether there should be a different result.Did the Judge make an error such that Mr Trembath should be dischargedwithout conviction?The gravity of the offending[7] On 13 February 2018, Mr Trembath was in a unit at a motel in Rotorua. Hewas drinking alcohol. At about 9:00 pm he heard the outdoor spa pool in aneighbouring unit turn on. Mr Trembath walked outside to his own private outdoorarea and heard someone in the neighbouring unit's spa pool. He noticed a gap at thetop of the fence separating the two outdoor areas.[8] Mr Trembath fetched a chair and stood on it. He then put his cellphone up tothe gap and began recording the person in the spa pool. He recorded six separatevideos of the person, looking at each one before going on to record the next.[9] The victim, who was naked in her pool, noticed the phone. She yelled atMr Trembath to "get away with that camera, I can see you with that camera".Mr Trembath immediately desisted, ran into his room, and immediately deleted thevideos.[10] The victim alerted motel management and then telephoned the Police. WhilePolice were speaking with the victim at the motel they saw Mr Trembath get into a carand drive off at speed. The Police followed Mr Trembath who pulled over and wasarrested.[11] Mr Trembath gave an explanation to the Police to the effect he had recordedthe video for sexual reasons. He said he was hoping to see someone in a bathing suit.He also said he liked the risk factor associated with photographing women and that hegot sexual gratification from the photos.[12] The victim was a widow visiting New Zealand from the United Kingdom. Shewas in her early 60s. In her victim impact statement, she set out that she had lost herhusband of over 40 years about 18 months or so prior to her visit to New Zealand, andit had taken a lot for her to make the trip. The victim was affected significantly by theoffending in terms of loss of self-confidence and openness. Her holiday was marredby the incident and she was receiving counselling because of the impact on her andhow she sees men in her life.[13] As to Mr Trembath's personal characteristics, he was 34 years old at the timeof the offending, married and a father of a young child. He was a salesman for afamily-owned company and he lost his job as a result of the offending. He engagedwith alcohol counselling, including CADS and Alcoholics Anonymous. He undertookcounselling at his own expense to deal with his personal issues (including the issuesthat contributed to his increase in drinking at the time of the offending). He has noprevious convictions.[14] I am advised, and Judge Tremewan was aware, that Mr Trembath has begunretraining in gardening and ground-keeping for future employment.[15] Judge Tremewan characterised the offending as on the lower side ofmoderately serious.[16] The sentence imposed by Judge Tremewan was eight months' supervision and60 hours' community work. The Judge ordered Mr Trembath to make emotional harmreparation of $500.[17] The maximum sentence for this offence is three years' imprisonment.4Mr Speed submits Judge Tremewan overstated the seriousness of the offending. In4 Crimes Act 1961, s 216.Mr Speed's submission it falls in the lower end of the spectrum for this type ofoffending.[18] In my view, the offending itself was moderately serious. Although it wasopportunistic, it was carried out deliberately. Mr Trembath made six separate videosand viewed each one before making the next. It was, therefore, obvious to him thathe was videoing a woman of mature years who was naked and enjoying a spa bath inan area private to her. Mr Trembath's actions upon being discovered demonstrated hefully appreciated the seriousness of what he was doing (immediately deleting thevideos and then fleeing from the motel in his car).[19] Further, the offending had a significant impact on his victim.[20] The issue at this point is the extent to which Mr Trembath's personalcircumstances mitigate the culpability of his offending.[21] It is suggested Mr Trembath's alcohol problem contributed to the offending.To that extent, engaging with counselling to address his alcohol problem is somewhatmitigating. Mr Trembath is also entitled to have taken into account he was a first-timeoffender and he lost his employment as a consequence of the offending. It is submittedhis remorse was genuine and immediate and, in this regard, he was willing toundertake restorative justice.[22] In my view, as is represented by the sentence the Judge imposed, it was correctto conclude with a description of the offending as being at the lower end of moderate.[23] I note at this point Mr Speed criticises Judge Tremewan for placing too great aweight on the victim impact statement and on an update obtained by the Police inwhich the victim expresses her dismay at the prospect of a discharge withoutconviction. I am satisfied there is nothing in this point. The Judge took into accountthe views of the victim, as she should have done, but specifically stated the victim'sviews were not determinative.Consequences of a conviction[24] There is only one consequence identified. That is the stifling effect of aconviction of this nature on Mr Trembath's prospects of future employment.[25] Mr Trembath is retraining as a gardener and ground-keeper. I accept that manyemployers now require disclosure of criminal convictions by potential employees. Iaccept a conviction of this type might very well disadvantage Mr Trembath inobtaining future employment. Judge Tremewan acknowledged this.Consequences out of all proportion to gravity?[26] The problem for Mr Trembath is that a conviction almost always carries withit the real and appreciable risk that employment prospects will be detrimentallyaffected. This is recognised by the Courts and generally some specific anddisproportionate threat to future employment must be identified before it will beconsidered relevant to an application for discharge without conviction.[27] In this case Mr Trembath is retraining for a broad-spectrum occupation. Thereis no evidence that exemplary character is generally regarded as a prerequisite foremployment in it.[28] I note also that the Courts are reluctant to conceal relevant convictions frompotential employers who have a proper interest in knowing of them. Mr Speed submitsMr Trembath may seek roles requiring work on sites where women and children arepresent, including schools. In my view, employment in those sorts of roles should beoffered on an informed basis.Decision[29] It follows I agree with Judge Tremewan that the consequences of thisconviction for Mr Trembath are not out of all proportion to the gravity of his offending.[30] The appeal is dismissed.________________________________Brewer J