POLICE v HEAD [2021] NZHC 809

POLICE v HEAD [2021] NZHC 809 [19 April 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-000172[2021] NZHC 809BETWEEN NEW ZEALAND POLICEAppellantAND JAMES EDWARD HEADRespondentHearing: 25 February 2021Appearances: A L Mills for the AppellantM M Cole and E Huda for the RespondentJudgment: 19 April 2021JUDGMENT OF NATION JIntroduction[1] This Court recognises that Judges sentencing in the District Court do so in verydifferent circumstances from those in the High Court dealing with an appeal. In theDistrict Court, the Judge is required to deal with a number of matters on the same day,usually with a modest amount of time in advance to prepare for the sentencing. Asentencing Judge is almost always required to give an oral decision where there is notthe time or opportunity to carefully assess what they are proposing to say and to edittheir anticipated comments in a way that, upon reflection, they might have consideredadvisable. When giving oral decisions, it is possible for slips to be made and forcomments to be made impulsively when, on further reflection, they might not havebeen.[2] Nevertheless, what a Judge says will always matter. In particular, when astatement reveals the way a Judge's thinking has led to the determination underchallenge. This is such a case.Background[3] The respondent pleaded guilty to making an intimate visual recording.1[4] On 29 December 2019 at approximately 11.00 am, the respondent was in achanging cubicle at Kmart in Christchurch. He placed his cell phone beneath the wallof the next cubicle, filming a woman as she changed her clothing. She banged on thecubicle wall. He then removed the cell phone.[5] Judge Brandts-Giesen discharged the respondent without convictionconditional on his paying $300 to Women's Refuge.2 The Crown applies for leave toappeal that discharge. It contends the Judge erred in law.District Court decision[6] The Judge began by accepting the respondent pleaded guilty at the firstavailable opportunity. He set out the facts as just referred to. He noted, in explanation,the respondent stated he had made a big mistake and he had not previously appearedbefore the District Court. The Judge outlined the three-stage test for a dischargewithout conviction.[7] The Judge first considered the gravity of the offence, viewing it objectively.He found the offending was low to moderate in seriousness. He considered it "unlikelyin a changing cubicle that the person would strip down to their naked selves".3[8] In that sense, the Judge found the offending was different than, for example, asurreptitious recording of someone changing at a swimming pool. As to that, he1 Crimes Act 1961, s 216H – maximum penalty three years' imprisonment.2 Police v Head [2020] NZDC 20879.3 At [7].commented "[w]omen are probably more sensitive about that than men are, and thatis something any mature male should appreciate".4[9] He then considered the respondent's personal circumstances, stating this was"looking at it subjectively, what sort of person" the respondent was.5 In that regard,he said he was assisted by a report from Mr Metoui, a consultant forensic psychologist,who had traversed the respondent's background. Mr Metoui noted the respondent was,as the Judge put it, "in many respects a perfectly normal male and that this offendingis somewhat out of character".6[10] The Judge referred to Mr Metoui's opinion that the respondent was veryremorseful for the offending, had feelings of considerable shame and embarrassment,and the respondent said he had never previously attempted to take a recording of anunsuspecting female. The Judge noted the psychologist's opinion that the offendingpresented a stark departure in behaviour from the respondent's normal characterimpulse control and prosocial value system, and that the respondent told Mr Metouithe offending was not pre-planned. Noting that, the Judge said, having regard to therespondent's personal circumstances and the fact he was generally a law-abidingcitizen, the overall gravity of the offending was low. He also noted the filming wasextremely brief.[11] The Judge then considered the consequences of conviction. As to employment,he referred to the respondent's employment including a clause which permittedtermination for serious misconduct or where the employer no longer had the necessarytrust and confidence in him. The Judge said such a clause "could, at a stretch, justifythe termination of [his] employment".7 The Judge found there was a real possibilitythe respondent's employers would attempt to terminate his employment.[12] The Judge then said:84 At [7].5 At [8].6 At [8].7 At [14].8 Police v Head, above n 2.[15] Undoubtedly in other consequences your standing in the community,because this sort of offence has about it a sexual aspect which in a reasonablypuritanical society as we are is frowned upon, publication of this matter in thesort of circles in which you live and work, could very well lower your standingin the community. It might be different if you were part of a roading gang oran engineering shop where what could best be described as obscene calendarsare often displayed, it may very well be that it would be treated differently insuch circles, but not in a business like the one in which you are employed.[13] The Judge then considered how the respondent's relationship with his partnerwould be affected. He said, if she came to learn of this behaviour, it could affect heremotionally and, given she was pregnant, "could also have other impacts".9[14] The Judge considered, "[b]y a narrow margin"10 and with regard to the decisionof Whata J in Pradhan v Police,11 the respondent should be discharged withoutconviction. However, that was conditional on him making a payment of $300 toWomen's Refuge.[15] An application was made for suppression of the respondent's name. The Judgenoted the importance of open justice, reinforced in relevant legislation. He did notconsider the criteria for suppression, set out in s 200 of the Criminal Procedure Act2011, had been met. He dismissed that application.The test for a discharge without conviction[16] Section 107 of the Sentencing Act 2002 states an offender should only bedischarged without conviction if the court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence. When considering a discharge, the court must first "examine the gravity ofthe particular offence, taking into account all aggravating and mitigating factors of theoffending and the offender".12 The court must next identify the direct and indirectconsequences of conviction and consider "whether those consequences are 'out of allproportion' to the gravity of the offence".13 There must be a "real and appreciable"9 At [16].10 At [17].11 Pradhan v Police [2018] NZHC 2966.12 R v Taulapapa [2018] NZCA 414, at [22].13 At [22].risk that any given consequence will occur.14 If that has been established, the courtmoves to consider the residual discretion under s 106.15Principles on appeal[17] Because this is an appeal by the prosecutor, the Police lodged an applicationfor leave to appeal pursuant to s 296 of the Criminal Procedure Act 2011. Section 296permits the prosecution to appeal against a ruling by the District Court only on aquestion of law. The question of law must arise in the District Court's determinationof the charge.16 Here, that determination was the discharge without conviction. Anerror of law, such as the Police argue occurred here, arises when:17(a) a misdirection of law is apparent in the decision;(b) there is oversight of a relevant matter or consideration of an irrelevantmatter;(c) there is a factual finding unsupported by any evidence or an omission todraw an inference of fact which is the only reasonably possible one on theevidence; or(d) the decision is plainly wrong.[18] The Crown sought leave to appeal on the following three questions:1. Did the Judge take into account irrelevant considerations, as set outbelow, when considering the gravity of the offending?a. whether the offending has any relationship with puritanical ideasconcerning sex;b. the analogy with workplace pornography;c. whether there is any meaningful distinction with offending at aswimming pool versus a department store changing room; andd. the proposition that women are more sensitive than men in beingintimately recorded.14 DC (CA47/2013) v R [2013] NZCA 255 at [43].15 R v Taulapapa, above n 12, at [22].16 Criminal Procedure Act 2011, ss 296(2) and 296(3)(b).17 R v Taulapapa, above n 12, at [17].2. Did the Judge take into account irrelevant considerations, as set outbelow, when considering the consequences of a conviction?a. the detriment to the defendant's employment prospects and standingin the community; andb. the emotional impact learning of the offending would have upon thedefendant's partner.3. Was the Judge plainly wrong in his conclusion that the consequences ofconviction were out of all proportion to the gravity of the offending?[19] The respondent did not oppose the application for leave. There was nosuggestion that the contended errors were not errors of law. I accordingly grant thePolice leave to appeal.[20] Section 299 of the Criminal Procedure Act states:299 Power of first appeal court to amend question statedThe first appeal court may, at any time before determining an appeal underthis subpart, amend or restate any question of law to be determined in theappeal if it considers it necessary or desirable to do so.[21] The appeal relates to a number of observations the Judge made about aspectsof human behaviour or thinking that the Police contend the Judge took into accountwhen reaching his decision. The Police argued these observations were irrelevantand/or not supported by evidence. Those submissions were made with specificreference to the observations made by the Judge, as adverted to in the questions,framed as questions of law, in the application for leave to appeal.18[22] Having considered the Judge's decision and the submissions from both parties,I consider, to do justice on the issues raised by the appeal, the questions of law shouldbe framed as follows:(a) did the Judge take into account irrelevant considerations when consideringthe gravity of the offending and/or the consequences of conviction;(b) did the Judge err in deciding there was a real possibility the employerwould try to terminate the respondent's employment when there was no18 Above at [18].evidence as to the sort of business the respondent was employed in andwhy a conviction for this offence would put his employment at risk; and(c) was the Judge plainly wrong in his conclusion that the consequences ofconviction were out of all proportion to the gravity of the offending.[23] I consider these questions with regard to the observations which were thesubject of criticism.The Judge's reference to "a reasonably puritanical society"[24] On the application for leave to appeal, it was contended this reference was toan irrelevant consideration in assessing the gravity of the offence. Ms Mills, for thePolice, submitted the Judge's assessment of society as reasonably puritanical wasirrelevant to the consideration of the gravity or consequences of conviction.[25] Ms Cole, for the respondent, submitted there was no relevant error in theJudge's reference to what society would think of the offending. The Judge recognisedthat society frowned upon this type of offending because it had a sexual aspect to it.[26] Mr Huda, who also appeared as counsel for the respondent, submitted theJudge's reference to society being reasonably puritanical was not relevant to hisassessment of the gravity of the offending. It was a comment the Judge made at thesecond stage of the s 106 test when he was considering the consequences of conviction.That is how I analyse his decision.[27] The Judge referred to our "reasonably puritanical society"19 when moving onto consider the consequences of conviction and in making an assessment as to how aconviction would affect the respondent's standing in the community. He had alreadydetermined the gravity of the offending was low.[28] The Judge's reference to our "reasonably puritanical society" was howeverunnecessary and ill-advised. Someone reading his decision would have taken him to19 Police v Head, above n 2, at [15].be using "puritanical" in the sense referred to in the Collins Dictionary or OxfordLexico:If you describe someone as puritanical, you mean that they have very strictmoral principles, and often try to make other people behave in a more moralway.20Having or displaying a very strict or censorious moral attitude towards self-indulgence or sex.21[29] The respondent here photographed a woman in a situation where she wouldproperly and reasonably have expected her privacy to be respected, when she was notwanting to expose any part of her body to someone else's view. When Parliamentmade making an intimate visual recording an offence, Mark Burton, then Minister ofJustice, introducing the legislation for its second reading, said:22The real issue is that [covert filming] constitutes an invasion of personalprivacy. Intimate covert filming objectifies individuals and can be seen as anaffront to the dignity and autonomy of an individual.[30] The Judge was required to consider the consequences of a conviction for theoffence charged, not the consequences of the offending itself. It might be thoughtfrom the Judge's comment that only people who were puritanical would take a dimview of the offending. If that was his view, he was probably wrong. However, thatwould have been an error of fact. What a puritanical society might have thought ofthe offending was irrelevant to assessing the consequences of a conviction.[31] In making that comment when assessing the consequences of a conviction, Iconsider the Judge made an error of law.The analogy with workplace pornography[32] Ms Mills, for the Police, said the Judge's observation on workplacepornography was irrelevant and there was no basis for him to draw the distinction hedid on the material before him.20 Collins Dictionary "Definition of 'puritanical'" (June 2018)https://www.collinsdictionary.com/dictionary/english/puritan21 Oxford Lexico "Meaning of puritanical in English" (June 2019)https://www.lexico.com/definition/puritanical22 (14 March 2006) 629 NZPD 1778.[33] Mr Huda again said the Judge's reference to this did not relate to his assessmentof the gravity of the offending, it was not material to his assessment of theconsequences of conviction and it was not unusual for a Judge to have regard tocommunity attitudes and refer to them when sentencing.[34] I find, with the way the Judge framed his decision, his observation was, at leaston the face of his decision, not something he weighed in the balance in assessing thegravity of the offending. He made that comment after making his assessment as to thegravity of the offending and when he was discussing the consequences of a conviction.Nevertheless, even in the latter context, the observation he made was irrelevant.[35] The Judge may have thought he knew enough about the work premises ofroading gangs or engineering shops to justify his statement that obscene calendars areoften displayed in them. Even if he did, there was no need for him to make such ageneralisation about what might be shown in such premises. There was no referenceto that in the material before him and no suggestion that the respondent was workingin such an environment.[36] Furthermore, in the reference he made to the way such calendars might bedisplayed, there was an implicit suggestion that people who might put on display andlook at photographs of women who had consented to being photographed for calendarswould, in some way, consider it acceptable for a man to surreptitiously photograph awoman when she was in the process of changing clothes, in a place which sheunderstood was private and where no one would be observing her. His apparentconsideration to that effect should not have been relevant in his assessment of how aconviction would affect the respondent's standing in the community. In making thatassumption and in mentioning it, he made an error of law. I also consider hisassumption was likely wrong but that would have been an error of fact.The distinction between offending at a swimming pool and surreptitiously recording aperson getting changed in a changing room at a department store[37] The Judge distinguished offending at a swimming pool from a department storewhen assessing the gravity of the offending. It is however apparent from his decisionthat the distinction he drew was that the offending would be more serious where theperson being recorded was likely to be in a greater state of nakedness than in anothersituation where the person would not necessarily be exposing the most private parts oftheir body. The Judge could have begun his discussion at that point by explaining thiswas the distinction, rather than beginning with the statement that the surreptitiousrecording of a person getting changed in a shop changing cubicle was a little differentthan, for example, the changing room at a swimming baths. Had he done so, therecould have been no criticism of the distinction he made. I find there was no error oflaw in the opinion he was expressing.The observation that women would be more sensitive to being recorded in this contextthan would men[38] Ms Mills submitted there was no factual basis for that observation and it wasthus irrelevant to a consideration of the gravity of the offending.[39] Ms Cole noted, when making that comparison, the Judge said a mature maleshould be sensitive to a woman's sensitivity in this regard. Ms Cole submitted heshould not be criticised for noting it given the way feminist writers record how awoman's self-esteem can suffer through the western culture's obsession with the "malegaze" at women's bodies.[40] The Judge's observation was a generalisation. There was no material beforehim to suggest the generalisation was true. Even if he felt qualified to make thegeneralisation, it was unnecessary and thus irrelevant to the determination he had tomake.[41] All the Judge needed to note was:(a) any woman in the process of using a changing or fitting room in adepartment store would have had a reasonable expectation that her privacywould be completely respected;(b) she would be understandably upset and angry to find that someone wassurreptitiously trying to film or photograph her in such circumstances; and(c) the respondent should have known this.[42] The Judge was suggesting that a male might not have been so sensitive to beingfilmed in the way this woman was. That would likely have been another error of factbut, in any event, the Judge's observation about how a man might feel about beingrecorded in the context here was irrelevant to his assessment of the gravity of theoffending. With that observation, there was an error of law.The detriment to the respondent's employment prospects and standing in thecommunity[43] Ms Mills submitted the only evidence before this Court as to the respondent'semployment was the nature of his role and that his employment contract contained astandard condition that he could be terminated for serious misconduct. She submitted,in discussing employment, the Judge referred to an irrelevant consideration, what heconsidered would be the views of people working in other places such as anengineering shop.[44] Ms Cole acknowledged there could be some force in the submission thatmanagement and those working on the shop floor would have the same view of thisoffending but the relevant point for the Judge was that society would not look beyonda conviction to ascertain an offender's culpability, a view which was consistent withthat of the High Court in Pradhan.23[45] In the circumstances of this case, I consider there was an error of law in theway the Judge determined there was a real possibility the respondent's employerwould at least try to terminate the respondent's employment. There was no evidenceas to the nature of the business the respondent was employed in, the contact he wouldhave with customers or the way a conviction for the offence charged would affect hisemployer's trust in him given his role within the business.[46] The pre-sentence report informed the court the respondent was employed full-time as a quality and training coordinator, a position of responsibility he had held forapproximately eight years. The probation officer had not been able to verify this with23 Pradhan v Police, above n 11.his employer because the respondent had not disclosed his offending to his employer,fearful that, if he did so, he could lose his job.[47] In a comprehensive report for the court, Mr Metoui said he had no way ofknowing the actual risks to the respondent's personal circumstances if his name werepublished. Mr Metoui provided the court with little information as to the precisenature of the respondent's employment or the business at which he was employed otherthan to say it was a Christchurch company that made various products for theagricultural sector. He did advise the court that the respondent said his employmentis his livelihood and security, and he had worked hard over the years to make a successof his career and gain the trusted and senior position he now occupies as a quality andtraining co-ordinator.[48] In R v Taulapapa, the Court of Appeal said:24[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 in s107 is simply that the judge be satisfied that the requirements of the sectionare met.[49] In Taulapapa, the Court said, while noting that s 107 required the court to be"satisfied" that the direct and indirect consequences of conviction would be out of allproportion to the gravity of the offence, the applicant "bears a practical onus in thesense that he or she must ordinarily point to evidence or circumstances tending toestablish that the consequence will happen".25[50] The Court of Appeal went on to state:[46] When determining the effects of conviction on employment the courtmust identify the consequence, assess the evidence offered for it, evaluate therisk that the consequence will happen to the particular applicant, and form anoverall assessment of seriousness. These are matters of judicial judgement.We make three points about this:(a) When assessing the evidence offered, the court may find that thestated consequence of conviction for a given career or job is aquestion of present fact that is capable of proof in the normal way.24 R v Taulapapa, above n 12, at [23] citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at[49] and [53]; and DC (CA47/2013) v R, above n 14, at [43].25 R v Taulapapa, above n12, at [45].(b) For this reason, where an applicant points to the effect ofconviction on a specific career it is usually necessary to providethe court with entry criteria establishing that the stated effectexists.26(c) Evidence of the attitude of employers may not be reasonablyavailable, and in that case the court will do the best it can on theevidence available. Judicial notice of facts may be taken whereappropriate.27[51] In the particular circumstances of Taulapapa, the Court of Appeal had regardto the way a young person's future employment prospects would be adversely affected.[52] Here, the respondent was suggesting his present employment would be at risk.In those circumstances, it could be expected he would provide specific information tothe court about his employment, sufficient for the Judge dealing with the matter toassess the risk of his losing employment on an informed basis.28[53] In other cases, the courts have had evidence of the particular nature of theoffender's employment or chosen field of employment, allowing them to considerwhether a conviction would affect their ability to obtain or retain employment in theirchosen field of employment.29[54] In R v Malu, the Court of Appeal said:30We accept that where the alleged consequence of a conviction is loss ofemployment a court will need to scrutinise carefully whether that consequenceflows from the conviction or from the underlying admitted conduct. Aconviction will often be inconsequential to an employer's evaluation of anemployee's suitability because it is the underlying conduct that wouldnormally be relevant.[55] I consider the Judge made an error of law in the way he determined there wasa risk the respondent's employer would attempt to terminate his employment. TheJudge had insufficient information or evidence to make that assessment.26 Police v M [2013] NZHC 1101, (2013) 26 CRNZ 308 at [58]–[62].27 R v Hemard HC Christchurch T30/03, 11 April 2003 at [14]–[15].28 For examples of cases where the courts had such information see R v Malu [2017] NZCA 546;and Police v Graham [2017] NZHC 3299.29 Brown v R [2012] NZCA 197; Pradhan v Police, above n 11.30 R v Malu, above n 28, at [23].The consequences for the respondent's partner and detriment to his standing in thecommunity[56] The pre-sentence report prepared a month prior to sentencing advised the courtthat, at the time the report was completed, the respondent said "he was still trying tobring himself to disclose his offending to his employer and his partner".[57] Ms Mills submitted the consequences for the respondent's partner and thelowering of the respondent's standing in the community were not relevantconsiderations because, in both instances, the Judge was referring to the potentialconsequences of the offending itself, not of a conviction.[58] Ms Cole submitted the Judge was entitled to make a judgement based on lifeexperience and knowledge of people generally to assess how there might be an impacton the respondent's relationship with his partner and on the partner herself.[59] The Judge said he was concerned the respondent's partner did not know of theoffending. Mr Metoui's report indicated the respondent was deeply remorseful andwas taking steps to ensure there would be no repetition of the offending. The probationofficer assessed the respondent as having a low risk of reoffending. The respondenthad attended, with his mother, a meeting with Restorative Justice. He indicated toCorrections he would be willing to attend a restorative justice meeting with the victimof the offending.[60] The Judge did not agree to suppress his name. In these circumstances, theJudge could not have determined that a discharge without conviction was necessary toensure the respondent's partner would not learn of the offending and should not beable to learn of his offending.[61] There was no information before the Judge to suggest the respondent had anyparticular standing in the community other than through his employment. Inmentioning how the respondent's standing in the community could be lowered, theJudge related that not to the fact of conviction but publication of the offending in thesort of circles in which the respondent lived and worked. There was little evidence orinformation as to just what those circumstances were.[62] I find there was an error of law in the way the Judge took these potentialconsequences into account. They were a potential consequence of the offending, notof a conviction. As the Court of Appeal in Malu emphasised when discussingconsequences for employment, the distinction is important.31Conclusion as to whether there were errors of law[63] I thus find the Judge did make errors of law in determining the respondentshould be discharged without conviction.[64] The High Court determining an appeal by the prosecutor may confirm theruling appealed against32 or, as an alternative to other specified outcomes, make "anyother order that the court considers justice requires".33 Where first appeal courts havefound there was an error of law, as I have done here, the court will usually go on toconsider afresh whether a discharge should have been granted.34 I do that now.The gravity of the offending[65] The summary of facts was brief and said no more than was stated at the outsetof the judgment. The pre-sentence report said the respondent stated he had not singledout his victim prior. He said, having become aware there was a female in the changingroom next to his, he acted impulsively and used his mobile phone to film her withoutthinking of the consequences.[66] In an affidavit, the respondent said he withdrew the camera when it wasdiscovered. When he went to delete the record, he could not see any recording of thevictim and so did not believe the camera had in fact recorded anything.[67] The District Court had the benefit of a psychological assessment provided byMr Metoui. Mr Metoui had considerable experience in providing reports to the courtsat all levels. It was clear from the substance of the report that he was providing itindependently as an expert for the assistance of the court. He had interviewed the31 At [23].32 Criminal Procedure Act, s 300(1)(a).33 Section 300(1)(e).34 See R v Taulapapa, above n 12; and Police v Graham, above n 28.respondent for approximately three hours before preparing it. The information in thereport indicated the respondent had engaged fully with Mr Metoui's investigation.[68] Mr Metoui said the respondent had denied the offending was in any waypremeditated. The respondent said, because the men's changing rooms were full atthe time, he was directed by staff to the female changing areas. Once in the cubicle,he bent down to take his shoes off and, at that point, saw the feet of a woman from thegap under the cubicle wall. He acknowledged to Mr Metoui that he instantly felt"excited" and quickly became intrigued and curious to see the woman he presumedwas in a state of undress. On specific questioning, the respondent acknowledged healso felt sexually aroused. He placed his cell phone on some clothes with the camerapositioned in a way he hoped would catch his victim and began recording. He thenslid it discretely under the gap towards his victim. No sooner had he done this, thevictim yelled and banged on the wall. The respondent said he quickly removed hisphone and deleted the video recording without looking at it. The respondent told MrMetoui that he had used cannabis prior to the offending and was feeling slightly"stoned" at the time.[69] I consider it unlikely the respondent inadvertently saw that a woman was in thenext cubicle.[70] The offending involved a deliberate invasion of the privacy of the woman hevideoed, in circumstances where he knew she would have an expectation of privacy.He videoed her in circumstances where that recording would have been offensive anddistressing to the victim, as he would have known, even if he did not consider that atthe time. The victim was robust and assertive enough to bang on the wall and call outin a manner that brought the recording to an end. In her victim impact report she saidshe was "a bit flustered and distressed" and annoyed this had happened. She was alsocompassionate enough to say she hoped he would now get the help he needed andwould not do what he had done to anyone else.[71] This offending was serious enough to result in a charge for which the maximumsentence is three years' imprisonment.[72] The recording was brief but that was because the victim's actions brought therecording to an end. Had she not done so, the information in Mr Metoui's reportsuggests it would have continued. If any images were recorded, they were deleted,but all the information in Mr Metoui's report indicates the respondent would have donethis because, knowing his actions had been observed, he realised the seriousness of hisactions and was filled with feelings of panic, regret and disbelief about what he haddone. It seems likely he removed what could have been recorded because of what hethought would be the consequences for himself of having the recording rather than outof compassion for the victim. Nevertheless, the removal of the images was of benefitto her, especially so given the concern she expressed in her victim impact report thathe could have uploaded the video.[73] The offending was deliberate, with the respondent taking advantage of thesituation he was in. I accept however that the offending was not highly premeditatedand the respondent had not carefully orchestrated a situation where he could make therecording.[74] Information in Mr Metoui's report, the pre-sentence report and also from acounsellor to whom the respondent had been referred by restorative justice indicatedhe was genuinely remorseful and ashamed at his actions. Mr Metoui noted therespondent is an individual with an anxious predisposition, very introverted in hispersonality structure, currently saturated by a profound sense of shame andembarrassment relating to the offending and had significant worries for all aspects ofhis future. In that sense, it might be thought his shame and remorse is because of thesituation he finds himself in but, importantly, Mr Metoui reported the respondent wasaware he likely traumatised his victim. Consistent with that, he said he wished toapologise to his victim and would have willingly participated in a restorative justiceprocess to acknowledge and apologise to the victim for the harm he caused her.[75] The respondent has no previous convictions. He is in stable employment in aposition with some responsibility.[76] Mr Metoui reported that, on the balance of probabilities and with theinformation available to him, he considered it unlikely the respondent had anunderlying deviancy involving pervasive voyeuristic behaviour and, in his opinion,the risks of similar offending in the future were low. This was also the opinion of theprobation officer in the pre-sentence report.[77] The respondent pleaded guilty at the first reasonable opportunity. There was adelay between the respondent being charged and his pleading guilty but that was dueto the time it took to arrange counsel and COVID-19 lockdown restrictions.[78] In Pradhan, Whata J considered somewhat similar offending there was at thelower end of the spectrum of seriousness but, there, the offender had attempted torecord a video up a woman's skirt while she was shopping in a retail store.35 It wasnot a situation where she was likely to be in the process of changing clothes and in asituation of privacy, as was the victim here. Also, in that case, the victim had not beenaware of what the offender was trying to do.[79] Giving the respondent credit for his remorse and the steps he has taken and wascontinuing to take to address the causes of his offending, I assess the gravity of theoffending as being low to moderate.The consequences of the offending[80] I accept, as did Whata J in Pradhan, a conviction for an offence of this type islikely to have an element of social stigma associated with it.36 That is however aconsequence that flows from most convictions for offences where a potential penaltyis imprisonment. There was no information available to suggest this respondent'sstanding in the community was such that his conviction for this offence would causehim particular hardship or loss of reputation.[81] The respondent was clearly fearful a conviction for this offence would resultin the loss of his current employment but there is no evidence that the respondent'semployment or the business he is engaged with are of such a nature that his actions,on one occasion away from work, would reasonably cause his employer to lose trustand confidence in him. Without more information as to the business he is employed35 Pradhan v Police, above n 11.36 At [19].in, I cannot be satisfied it would be incompatible for whatever business he is involvedin to employ someone with a conviction for the offence to which he has pleadedguilty.37[82] I accept, with his current employment or any potential future employment hemight be interested in, the respondent might be asked if he has a conviction and wouldhave to disclose a conviction for this offending. In such a situation, it is likely hewould have to disclose the particular circumstances of his offending but, in doing that,he would also be able to provide information as to how he responded to the charge,the steps he took to obtain help and the way others appropriately qualified considerhim to be at low risk of further offending. He would thus be able to encourage thosewho might be interested in the fact he has a conviction to look beyond the mere factof that conviction to assess its relevance to any decision they might be making aboutpotential future employment. I cannot take judicial notice of the circumstances of hisemployment in a way that would satisfy me there is a real risk his current employmentwould be ended if he has a conviction.[83] As far as the respondent's personal relationships are concerned, I accept thatthose close to him will be concerned at the fact he committed this offence. Suchpeople, including his partner, will know how he has responded to the situation he puthimself in. Those people are likely to learn of his offending. Indeed, it could be saidthat, in accepting responsibility for what he did and to further reduce the risk of anyreoffending of this sort, the respondent needs to tell those closest to him of all that hashappened. He initially did not wish to tell anyone in his family of what had occurredbut he ultimately did tell his mother and her partner, and found they were supportiveand compassionate towards him. His anxiety about his partner becoming aware of theoffending would be consistent with the respondent's particular anxious predispositionand emotional vulnerability as referred to by Mr Metoui. In his report, Mr Metouiaccepted that the loss of his relationship and/or employment would be significantlydestabilising for the respondent and he would struggle to cope with the scenario, atleast in the short to medium term, although they are difficulties he would likely recoverfrom in time.37 As was the situation in R v Malu, above n 28.[84] Mr Metoui acknowledged that, if the consequences for the respondent weremore forgiving than the respondent has imagined, the respondent's coping and overallprognosis would be less of a concern.[85] On the information available to me, I consider it is a likely consequence of aconviction that the respondent will have to tell his employer and partner of whathappened. These will be difficult but necessary conversations. There is no evidenceeither his employer or his partner will not take into account all the availableinformation as to what happened and how the respondent has dealt with the situation.[86] The potential consequences of a conviction, both as to employment and for hisfamily, are not as serious as they were for the offender in Pradhan where theconsequences were significant to Whata J deciding there to grant the offender adischarge.38[87] Accordingly, the respondent has not satisfied me that the consequences of aconviction would be out of all proportion to the seriousness of the offence for whichhe could be convicted.[88] With my reaching that conclusion, I have to conclude that the Judge was wrongto grant the respondent a discharge. The errors of law resulted from factors he tookinto account in reaching his decision. Had he been more careful in explaining thereasons for his decision, it may have been difficult to conclude that his decision wasplainly wrong in the sense required for that to constitute an error of law.39 But, withmy finding there were errors of law in his ultimate determination, I must substitute thesentence which I consider to be appropriate.[89] The respondent has already paid $300 to Women's Refuge. I acknowledge theway the respondent has demonstrated real remorse for his offending. Mr Metouipointed out that the respondent's involvement with the court process has very much38 Pradhan v Police, above n 11.39 As apparent from the Court of Appeal's judgment in R v Malu, above n 28, the threshold for findinga determination was plainly wrong so as to constitute an error of law is materially different fromwhether it was wrong. The latter is the issue for an appeal court where it is an offender who isappealing against the refusal of a discharge.overwhelmed him. That ordeal has been extended through the prosecution unusuallyapplying for leave to appeal, not because of anything the respondent did but becauseof the way errors of law were made by the sentencing Judge in the District Court.Through no fault of the respondent, there is the potential for his case to be the subjectof greater exposure in the media than would otherwise have been likely.[90] The probation officer, in the pre-sentence report, recommended the respondentbe sentenced to come up for sentence if called upon.[91] In all the circumstances, having regard to the low to moderate seriousness ofthe offence, the matters relating to him personally for which he can be given credit,and the credit he is entitled to for his plea of guilty, I consider his offending shouldhave been dealt with by way of a conviction and discharge.[92] The appeal is accordingly allowed. The grant of a discharge without convictionis quashed. The respondent is convicted and discharged.Solicitors:Crown Solicitor's Office, ChristchurchM M Cole, Barrister, ChristchurchE Huda, Barrister, Christchurch.