MCKENZIE v R [2022] NZCA 172

MCKENZIE v R [2022] NZCA 172 [9 May 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA551/2021[2022] NZCA 172BETWEEN ROY GRAHAM MCKENZIEAppellantAND THE QUEENRespondentHearing: 28 March 2022Court: Brown, Lang and Mallon JJCounsel: Appellant in PersonJ A Eng for RespondentJudgment: 9 May 2022 at 10.00 amJUDGMENT OF THE COURTA The appeal against the refusal to discharge without conviction is allowed.B The conviction is quashed and the sentence of supervision is set aside.C We make an order under s 106(1) of the Sentencing Act 2002 dischargingMr McKenzie without conviction on the charge of indecent assault.D The order requiring Mr McKenzie to pay the sum of $500 to the complainantas compensation for the emotional harm caused by the offending remainsintact.E The record of the first warning given to Mr McKenzie by the District Courton 11 August 2021 is cancelled in respect of the conviction quashed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr McKenzie stood trial in the District Court on a charge of indecent assault.1At the conclusion of the trial the jury found him guilty. On 11 August 2021,Judge Hikaka declined an application by Mr McKenzie to be discharged withoutconviction.2 He then sentenced Mr McKenzie to six months' supervision. In addition,the Judge directed Mr McKenzie to pay the sum of $500 to the complainant ascompensation for the emotional harm caused by his offending.[2] Mr McKenzie appeals against both conviction and the refusal of the Judge todischarge him without conviction.Background[3] On the evening of 9 September 2019 Mr McKenzie went to a supermarket hevisited regularly. When he had completed his shopping, he went to the self-servicecheckout area. As he was checking his items out, he began talking to the complainant.The complainant was a checkout supervisor and was working in the self-servicecheckout area a short distance away from Mr McKenzie.[4] During the conversation Mr McKenzie moved towards the complainant andasked her whether she had been watching a well-known television show. When shesaid she had not, Mr McKenzie told her she was not really missing anything. He saidthis involved "a couple of gay guys all over each other, kissing each other and grabbingeach other's bums". As he said this he leaned over and touched the complainant brieflyon her left buttock over the top of her clothing, applying what the complainantdescribed to be a "firm hold".[5] A short time later the complainant told a work colleague who was nearby whathad happened. By this stage Mr McKenzie had left the checkout area and gone backinto the main body of the supermarket to obtain an item he had forgotten. Before1 Crimes Act 1961, s 135, maximum term of seven years' imprisonment.2 R v McKenzie [2021] NZDC 16174.leaving he had asked the complainant to keep an eye on his grocery items at thecheckout. The complainant and her colleague then told their duty manager thatMr McKenzie had touched the complainant on the buttocks. The duty manager foundMr McKenzie and told him she had received a complaint about what he had done. Shetold Mr McKenzie it was not appropriate for him to touch members of her staff.Mr McKenzie appeared embarrassed and shocked. He also told the duty manager hewould apologise to the complainant. When the duty manager conveyed this suggestionto the complainant she said she did not want to see or speak to Mr McKenzie again.[6] The following morning the complainant went to the police and laid acomplaint. A police officer, Constable Keen, then went to the supermarket and viewedCCTV footage recorded on a camera installed in the vicinity of the self-servicecheckout area. This depicted the incident involving Mr McKenzie and thecomplainant the previous evening. The constable discovered it was not possible todownload the footage from the camera so she recorded it on her cellphone. Later thatday she went to Mr McKenzie's address and arrested him for indecently assaulting thecomplainant.[7] At trial, the Crown called the complainant and her two colleagues to giveevidence. In addition, it played the footage obtained from the CCTV camera near theself-service checkout area. This depicted Mr McKenzie's visit to that area over aperiod of just under 12 minutes. The incident in which Mr McKenzie spoke to thecomplainant and then touched her on the left buttock occurred in the second minute ofthe footage. The footage then shows Mr McKenzie continuing to speak to thecomplainant for a short period before leaving the checkout area and going back intothe main body of the supermarket. He returned to the checkout area several minuteslater and completed the checkout process.The appeal against conviction[8] Mr McKenzie advances two principal grounds in support of his appeal againstconviction. First, he contends the jury's verdict was unreasonable having regard tothe evidence. He says the touching of the complainant's buttock was inadvertent andlasted less than a second. In those circumstances Mr McKenzie contends no jury couldreasonably have concluded he was guilty of indecent assault.[9] Secondly, Mr McKenzie contends the trial Judge conducted the trial in amanner that was biased against him and thereby made the trial unfair. Thesecomplaints extend not only to the Judge's conduct during the trial but also to hissumming up. Mr McKenzie contends the summing up effectively instructed the juryto find him guilty.[10] Mr McKenzie also raises concerns about the police investigation of theincident that led to the charge. He contends the police approached the investigation ina biased manner and made it clear from the outset they considered him to be guilty.[11] Mr McKenzie also criticises the evidence given by the complainant.He considers she told demonstrable lies during her evidence, the cumulative effect ofwhich the Judge failed to bring home to the jury.Approach[12] The appeal must be determined in accordance with s 232 of theCriminal Procedure Act 2011. This Court must allow an appeal against conviction if,having regard to the evidence, the jury's verdict was unreasonable.3 Alternatively,the Court must allow the appeal if a miscarriage of justice has occurred for anyreason.4 In this context the term "miscarriage of justice" means any error, irregularity,or occurrence in or in relation to or affecting the trial that has created a real risk thatthe outcome of the trial was affected, or that has resulted in an unfair trial.5[13] We view Mr McKenzie's appeal as engaging both limbs of s 232. He contendsthe jury's verdict was unreasonable having regard to the evidence given at trial.He also contends the trial was unfair.3 Criminal Procedure Act 2011, s 232(2)(a).4 Section 232(2)(c).5 Section 232(4).Was the jury's verdict unreasonable having regard to the evidence?[14] As we have already recorded, Mr McKenzie contends the touching wasinadvertent and momentary. On that basis he contends the jury's verdict wasunreasonable.[15] In order to prove a charge of indecent assault the Crown must establish threeelements beyond reasonable doubt:6(a) The defendant assaulted the complainant. An assault involves theintentional application of force, whether directly or indirectly, to theperson of another.7(b) The assault occurred in circumstances of indecency, in the sense that itwould be so regarded by right-thinking members of the communitygenerally.(c) The defendant intended or appreciated those aspects of the assault, andthe surrounding circumstances, that rendered it indecent.[16] During his summing up the Judge provided the jury with a question trail thatcontained three questions. These reflected the elements set out above. The trialtranscript records that defence counsel at trial took no issue with the question trail.Mr McKenzie likewise takes no issue with the wording of the question trail on appeal.[17] The first element the Crown was required to prove was that Mr McKenzieintentionally touched the complainant's buttock. The complainant describedMr McKenzie touching her on the left buttock and said that it felt like "a firm hold".She initially said that it lasted for a couple of seconds but in cross-examination sheaccepted it would have lasted for less than a second.6 R v Aylwin [2007] NZCA 458 at [35]. In cases where consent is raised it is also necessary for theCrown to prove the complainant did not consent to being assaulted and there were no reasonablegrounds on which the defendant may have believed the complainant was consenting. That issuedid not arise in the present case.7 Crimes Act 1961, s 2(1).[18] As we have already observed, the complainant said the touching occurred asMr McKenzie was telling her about the television programme in which gay men weregrabbing each other on the buttocks. This suggests Mr McKenzie touched thecomplainant to emphasise what he was saying about the television programme.The CCTV footage clearly showed Mr McKenzie's hand coming into contact with thecomplainant's buttock. We therefore consider the jury was entitled to conclude thatMr McKenzie assaulted the complainant by intentionally touching her on the leftbuttock.[19] The Crown was next required to prove that the circumstances in which thetouching occurred were such that right-thinking members of the community generallywould regard it as indecent. In the present case the relevant circumstances includedthe fact that it involved the intentional touching of the complainant's buttock. It alsooccurred as Mr McKenzie was talking about sexualised conduct that he plainlyconsidered to be unacceptable.[20] We consider a deliberate touching of the buttocks would usually be regardedas indecent by right-thinking members of the community, in the absence of extenuatingcircumstances. These may include the fact that the nature of the relationship betweenthe parties is such that touching of this type would not be regarded as indecent.Mr McKenzie said he saw and spoke to the complainant regularly when he visited thesupermarket. However, the evidence makes it clear that their relationship went nofurther than that. It plainly could not give rise to any suggestion that the touching ofthe complainant's buttocks was a normal or acceptable incident of the relationship.The touching in the present case was undoubtedly brief and it was over the top of thecomplainant's clothing. We nevertheless consider the jury could reasonably haveconcluded that it occurred in circumstances of indecency.[21] Turning to the third element, the jury was entitled to conclude Mr McKenzieintended to touch the complainant's buttocks and that he would have appreciated thatin doing so he was touching a private part of the complainant's body. He must alsohave known that his relationship with the complainant was very limited in nature.It was restricted to greetings when they met each other at the supermarket and theexchanging of pleasantries. It did not extend to physical contact of this type. He alsoknew he was touching the complainant whilst he was telling her aboutsexually-oriented activities he had seen in the television programme. Given thesefactors we consider the jury could reasonably conclude Mr McKenzie intended and/orappreciated the circumstances that made the touching indecent.[22] It follows that we consider there was ample evidence to allow the jury toreasonably conclude the Crown had proved the elements of the charge. The jury'sverdict was not unreasonable having regard to the evidence.Was the trial unfair?[23] In broad terms, Mr McKenzie's claim that the trial was unfair involves threearguments. First, he says that the conduct of the Judge demonstrated bias against himthroughout the trial. Secondly, he says the police were similarly pre-disposed againsthim from the outset. Thirdly, he contends the complainant demonstrably told liesduring the trial and the Judge failed to emphasise this fact to the jury.(a) The Judge's conduct[24] The trial was of short duration. The evidence and closing addresses occupiedthe first day and the Judge delivered his summing up on the morning of the second day.Mr McKenzie contends the Judge was biased against him before the trial began, butthere is nothing in the trial transcript to suggest Mr McKenzie had had any previousdealings with the Judge.[25] We have read the Judge's opening remarks to the jury. They contain standarddirections and there is nothing in them to suggest the Judge was ill-disposed towardsMr McKenzie at the beginning of the trial.[26] A common hallmark of bias in this context is excessive judicial intervention asevidence is being given. As the evidence was being given in the present case, however,the Judge was largely silent. He only asked questions of two witnesses and these wereto obtain clarification of their responses to earlier questions.[27] So far as we have been able to ascertain, the Judge was not required to rule onany contested evidential issues during the first day of the trial. Furthermore, thetranscript of the discussions that took place between the Judge and counsel do notreveal any contentious or fractious discussions between the Judge and Mr McKenzie'scounsel. There is certainly nothing to suggest the Judge was displaying bias in favourof the Crown or against Mr McKenzie during the first day of the trial.[28] This leaves only the Judge's summing up. We have read the summing up anddo not accept Mr McKenzie's argument that it was biased against him. It containedstandard directions for a trial of this type. It set out the arguments for both Crown anddefence on contested issues and emphasised that it was for the jury to decide the factsof the case.[29] There are only two matters of any note arising from the summing up. The firstis that while taking the jury through the question trail the Judge said he doubtedwhether the second question (whether the touching occurred in circumstances ofindecency) would cause them much difficulty. This observation was inappropriatebecause the second element was in dispute during the trial. Later in the summing upthe Judge told the jury that his recollection of the CCTV footage was thatMr McKenzie stepped towards the complainant and touched her. The Judge'sobservation on this issue was arguably unwise because it was for the jury to determinewhat the CCTV footage showed. However, it was less problematic than his earliercomment because Mr McKenzie did not seriously contest the fact that his handtouched the complainant's buttock. The dispute lay in whether the touching wasintentional rather than inadvertent. Mr McKenzie also disputed whether it occurred incircumstances of indecency.[30] Although the Judge's observations on these issues may have been unwise,we do not consider they caused the trial to become unfair or led to a miscarriage ofjustice. As we have already observed, the Judge made it clear to the jury on severaloccasions during his summing up that factual decisions were entirely for them to make.He repeated that advice immediately after referring to his recollection of what theCCTV footage showed. The fact that the jury subsequently asked for the CCTVfootage to be replayed during their deliberations makes it clear they were undertakingtheir own assessment of what it showed.[31] Mr McKenzie contends the Judge failed to emphasise to the jury that thecomplainant had told lies when giving evidence. This submission overlooks the factthat Mr McKenzie's trial counsel, Mr Laurenson, did not suggest to the jury in hisclosing address that the complainant had told lies. Rather, he contended she had blowna trivial incident out of all proportion. He urged the jury to have regard to the CCTVfootage rather than to the evidence the complainant had given about what happened.Mr Laurenson no doubt chose this strategy deliberately because he would have beenconscious that a direct attack on the complainant's veracity ran the risk of alienatingthe jury. For present purposes, however, the absence of any such attack meantthe Judge was not required to deal with the issue in his summing up.[32] Viewing the summing up as a whole we cannot discern any basis forMr McKenzie's argument that the Judge treated him unfairly, let alone that he virtuallydirected the jury to find him guilty. We therefore consider the ground of appeal basedon the Judge's conduct during the trial has no substance.(b) The conduct of the police[33] As we have already observed, Mr McKenzie contends the policepre-determined his guilt and conducted their investigation accordingly. He placesresponsibility for this on Constable Keen, who undertook the investigation andultimately arrested him. However, in considering the weight to be given to thissubmission we bear in mind that it was ultimately for the jury, and not the police, todetermine the issue of guilt.[34] Mr Laurenson was alive to this issue at trial and dealt with it forcefully in hiscross-examination of the constable and his closing address. He suggested theconstable was acting in an aggressive manner when she went to Mr McKenzie'saddress to arrest him. The constable denied that this was the case. Mr Laurenson alsocriticised the constable for arresting Mr McKenzie without first speaking to him andobtaining his version of events. The constable responded to this by saying that shehad spoken to the complainant and seen the CCTV footage. She considered this gaveher sufficient evidence to justify laying the charge. Mr Laurenson closed to the juryon the basis that the constable was determined to arrest Mr McKenzie as soon as shehad spoken to the complainant and seen the film footage. He said she acted unfairlyby deciding to arrest Mr McKenzie without seeking his version of events.We therefore consider this issue was fully vented at trial.[35] Mr McKenzie now criticises the constable for failing to interview anothercheckout supervisor, Ms Allsebrook, in a timely manner. Ms Allsebrook was the onlyother person who saw what happened at the checkout area on the night in question.Constable Keen interviewed her on 30 September 2019, three weeks after the incidentthat gave rise to the charge but 18 months before the trial. Ms Allsebrook gave astatement in which she said she had seen the complainant and Mr McKenzie laughingand joking in the checkout area. She said she then saw Mr McKenzie lean towardsthe complainant and touch her on the side or hip. She said the complainant did notappear to be uncomfortable about this at the time. When Ms Allsebrook heard thecomplainant had gone to the police she said she considered the incident had beenblown out of proportion.[36] Neither the Crown nor the defence called Ms Allsebrook to give evidence atthe trial even though both were presumably in possession of the statement she hadmade to the police. Furthermore, Mr Laurenson did not cross-examineConstable Keen regarding the reason for the delay in interviewing her. These factorsmean the issues Mr McKenzie now raises about the police failing to interviewMs Allsebrook in a timely manner are of no moment for present purposes.[37] Mr McKenzie makes numerous other wide-ranging criticisms of the police inhis submissions, but we do not consider these assist him on the present appeal. To theextent that the issue of police conduct has relevance to the case, we are satisfied it wasbefore the jury at the trial and no arguable ground of appeal arises out of it.The evidence given by the complainant[38] Mr McKenzie also criticises the evidence given at trial by the complainant.He maintains she was shown to have told lies about several issues and he points toother aspects of his dealings with the complainant that he says casts doubt on herveracity. Again, however, it is necessary to bear in mind the strategy Mr Laurensonadopted on Mr McKenzie's behalf at trial. Mr Laurenson cross-examined thecomplainant at some length during the trial regarding several issues. One of theprincipal purposes of the cross-examination was to create the impression that theincident that gave rise to the charge was a trivial affair and that the complainant wasblowing it out of all proportion. This reflected the approach Mr Laurenson later tookin his closing address. As we have already observed, however, he did not directlyattack her veracity. We consider this was sound trial strategy and that any otherapproach may well have alienated the jury. We do not consider it is now open toMr McKenzie to contend Mr Laurenson ought to have taken a different approach.[39] It was not necessary in any event for the jury to rely upon the complainant'sevidence to find the charge proved. The CCTV footage showed what occurred in thecheckout area and, as Mr Laurenson emphasised in his closing address, this providedthe most reliable evidence. The jury obviously heeded Mr Laurenson's advice. Duringtheir deliberations they asked to view the film footage on two occasions. On thesecond of these the jury asked for the footage to be played three times. This suggeststhey were focussing on what could be seen in the film footage rather than on theevidence given by the complainant. We therefore do not consider any arguable groundof appeal arises out of the arguments Mr McKenzie now advances regarding thecomplainant's lack of credibility.Result[40] Whether viewed individually or collectively we do not consider there is anysubstance to the grounds of appeal advanced by Mr McKenzie in support of the appealagainst conviction. He has not demonstrated that the jury's verdict was unreasonableor that the trial was unfair. We are satisfied no miscarriage of justice has occurred asa result of the trial process.The appeal against refusal to grant a discharge without conviction[41] At sentencing Mr McKenzie applied for an order under s 106(1) of theSentencing Act 2002 (the Act) discharging him without conviction. He and his wifefiled affidavits describing the effects that the police investigation and trial process havehad on them and their family. Mr McKenzie said he was suffering from depressionand had developed a sleep disorder. His blood pressure had also increased markedly.Mr McKenzie's wife said she was suffering from health issues including hypertension,insomnia and gastroesophageal reflux.[42] Mr McKenzie also said his mother had suffered a stroke and was in a veryfragile state. She is subject to hospital level care in a rest home. Mr McKenzie wasconcerned that his mother's health would be adversely affected if he was convicted onthe present charge.[43] Mr McKenzie and his wife also outlined the consequences that this process hashad for their children. Their 19 year old son was unable to continue with his NCEALevel 3 examinations after Mr McKenzie was arrested. He is also a talented guitaristbut has not had the motivation to pursue this activity since his father's arrest. Their sonhas also now begun consuming drugs and his relationship with his parents hasdeteriorated markedly. Mr McKenzie's daughter was traumatised by the arrival of thepolice at the family home and what then transpired. She has also been the subject ofbullying on social media. The family has undergone counselling but this has createdits own issues in terms of the dynamics of their relationships with each other.[44] Mr McKenzie is also concerned at the ramifications of a warning he wouldreceive under the so-called "three strikes" legislation if a conviction were entered.Overall, he says his family was suffering and had reached crisis point in terms of theirfinancial, emotional and physical wellbeing.The statutory test for discharge without conviction[45] An application for discharge without conviction is governed by s 106 ofthe Act, which relevantly provides:(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.[46] In applying s 106, the Court must follow the guidance contained in s 107 ofthe Act. This provides: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.[47] A court considering an application for discharge under s 106 must considerthree issues.8 It must first assess the gravity of the offending having regard to the factsof the particular case. This exercise is not restricted to the aggravating and mitigatingfactors of the offending itself. Factors personal to the offender may also be relevant.9Next, it must identify the direct and indirect consequences of a conviction beingentered. In this context there must be a "real and appreciable" risk that any positedconsequence will occur.10 Thirdly, the court must determine whether the consequencesof a conviction would be out of all proportion to the gravity of the offending. Thereis a residual discretion not to grant a discharge under s 106 but that will rarely beexercised where the statutory criteria have been met.11[48] An appellate court is required to reach its own view as to whether the directand indirect consequences are out of all proportion to the gravity of the offending. If itaccepts the statutory threshold has been met, the court must then determine whetherthe court at first instance erred in principle when exercising its discretion to grant, orrefuse to grant, a discharge.12The Judge's approach[49] The Judge noted that both counsel agreed that the culpability of the offendinglay at the lower end of the scale.13 He also agreed that Mr McKenzie's previous8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17], citing Fisheries Inspector vTurner [1978] 2 NZLR 233 (CA) at 241–242 and Police v Roberts [1991] 1 NZLR 205 (CA)at 210.9 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and DC (CA47/2013) v R[2013] NZCA 255 at [35].10 DC (CA47/2013) v R, above n 9, at [43].11 Z (CA447/2012) v R, above n 9, at [27].12 Edwards v R [2015] NZCA 583 at [6].13 R v McKenzie, above n 2, at [10].convictions for burglary and fighting in a public place were of no relevance becausethey were entered in 1975.14[50] The Judge noted the information that Mr McKenzie and his wife had providedin their affidavits regarding the effect of the criminal proceedings on the family as awhole. This prompted him to observe that criminal proceedings are often stressful fordefendants and their families.15 He noted that the difficulties Mr McKenzie's son hasencountered were more extreme, but said these may have been exacerbated by otherunderlying health and wellbeing issues.16 The Judge also noted that the issues thefamily has encountered had been carefully managed to date and there was no reasonto believe this would not continue to be the case in the future.17 The Judge consideredthat Mr McKenzie's decision to take the case to trial was a significant factor in creatingthe issues now confronting the family.18[51] The Judge concluded it was not appropriate to grant a discharge withoutconviction for the following reasons:[30] The gravity of the offending I accept is at the lower end but increasedas a result of the process that was followed and, if I can put it as benignly aspossible, the difficulty Mr McKenzie had in accepting responsibility and beingheld accountable for his offending. I have already referred to theconsequences.[31] Given the intervention that has already been secured and the ongoingoversight for all those who have been negatively impacted, and while I am nottaking issues lightly, I nonetheless do not see that in all the circumstances theconsequences as being real and appreciable in the way that would be required.In my view, the consequences of conviction are not out of all proportion to thegravity of the offending. There is obvious embarrassment, shame, stress,stigma attached to any criminal process and conviction that follows.[32] This situation, where Mr McKenzie has in a sense taken licence toconduct himself in the way with this victim, was simply not appropriate.In view of the above, a conviction is entered.14 At [11].15 At [13].16 At [14].17 At [15].18 At [16].Decision[52] Mr McKenzie has not filed any material to update the Court on his family'ssituation following the entry of the conviction at sentencing. Had there been anysignificant deterioration in their situation following conviction we would haveexpected evidence of this to be placed before us. We also agree with the Judge thatmany of the issues the family has been required to confront are likely to be the resultof the criminal justice process itself rather than the consequences of a conviction.[53] However, we differ from the Judge in one important respect. The passage setout above suggests he considered that the overall gravity of the offending wasincreased by the fact that Mr McKenzie elected to defend the charge. This was anerror of principle. In defending the charge Mr McKenzie lost the mitigating benefitof a guilty plea but the culpability of his offending did not increase as a result.[54] This appears to have been a significant factor in the Judge's assessment of theoverall culpability of Mr McKenzie's offending. Earlier in his remarks the Judge hadmade the following observations:[17] Even at the time of his interview after arrest, he noted: "I know Itouched her, but it wasn't in a sexual manner I don't think. Considering theevidence as it was heard and Mr McKenzie's linking of his concern about gaymen touching each other's bottoms on television, and the suggestion that allhe was in effect doing was demonstrating what he had seen on the TV. Butwith this young woman who was in a public service environment in a majorretail outlet, as the jury found, so do I, that it is hard to escape the indecentcontext of the, albeit brief, touching of the victim's bottom.[18] The fact that the victim had to go through a trial process, having putto her, her fragility, her 'over the top' reaction was one way it was put, hercrying as a result of having to go through the whole process. That all onaccount of Mr McKenzie denying the act and the indecent context of the act.[19] It was abundantly clear at first the touch and, as explained by thedefendant himself, the context of being indecent. While the touch itself wasmomentary, it was brief, not extended. However, the overall circumstancesleading to proof of the charge, added a layer of gravity to the offending. Itcould have been avoided, with space made available early for a restorativejustice had there been an earlier acceptance of responsibility. But that was notthe case. As I have said, that was entirely Mr McKenzie's choice. Heexercised it and the sentencing process occurs at this point.[55] This passage makes it clear that the Judge placed considerable emphasis onMr McKenzie's decision to defend the charge and put the Crown to proof whendetermining whether to discharge Mr McKenzie without conviction. We also note thathe did not acknowledge that the overall gravity of the offending was reduced by themitigating factors to which we shall shortly refer. These were errors that affected theassessment the Judge was required to undertake. Therefore, we need to reassess theoverall culpability of Mr McKenzie's offending afresh.[56] The starting point is the act that constituted the indecent assault. As willalready be obvious, this occurred when Mr McKenzie touched the complainant's leftbuttock for less than a second over the top of her clothing. It was plainly opportunisticand not premeditated. It also occurred in the context of Mr McKenzie telling thecomplainant about the television programme he had watched. This means it may havebeen a misguided attempt to emphasise what he was telling her. The offending wasplainly inappropriate and caused the complainant great distress. As offending of itstype, however, it fell at the very lowest end of the scale in terms of culpability.[57] Furthermore, the distress to the complainant appears to have increased as timewent on and is unlikely to have been evident to Mr McKenzie at the time the incidentoccurred. As Mr Laurenson pointed out when he cross-examined the complainant, shedid not immediately leave the checkout area after Mr McKenzie touched her.The complainant continued talking to Mr McKenzie for several minutes until he leftthe area to get the item he had forgotten.[58] Mr McKenzie's response when confronted by the duty manager is alsorelevant. He looked shocked and embarrassed when the duty manager confronted himabout what he had done and told him it was not acceptable. Rather than deny touchingthe complainant he immediately offered to apologise to her. As matters transpired hedid not have the opportunity to apologise to the complainant but that was due to herunderstandable decision that she did not want to see him again. We neverthelessconsider he deserves credit for his initial response to the allegations.[59] Furthermore, although Mr McKenzie cannot claim credit for a guilty plea, heis still entitled to credit for the fact that he has not been before the courts for more than45 years. This is also the first occasion on which he has committed a sexual offence.[60] Taking these factors into account we would assess the overall culpability ofMr McKenzie's offending as being very low.[61] We accept that many of the consequences Mr McKenzie and his wife describeare likely to have been the result of his arrest and the criminal justice process thatfollowed. We also consider, however, that the entry of a conviction would inevitablyhave added to the stress from which this family is suffering.[62] Furthermore, at 66 years of age Mr McKenzie will now have the stigma of botha conviction for sexual offending and a warning under the so-called "three strikes"legislation. The impact of these on a person his age should not be underestimated.[63] Taking these factors into account we are satisfied the consequences of aconviction are out of all proportion to the very low gravity of the offending. It istherefore appropriate to make an order discharging Mr McKenzie without conviction.[64] When an offender is discharged without conviction the court retains the powerto make an order requiring the offender to make a payment by way of compensationfor emotional harm the offending has caused.19 In the present case Mr McKenzie'soffending has caused the complainant considerable emotional harm. We thereforeleave intact the order requiring Mr McKenzie to make a payment to the complainantin the sum of $500 to compensate her for the emotional harm his offending has caused.Result[65] The appeal against the refusal to discharge without conviction is allowed.[66] The conviction is quashed and the sentence of supervision is set aside.19 Sentencing Act 2002, s 106(3)(b)(ii).[67] We make an order under s 106(1) of the Sentencing Act 2002 dischargingMr McKenzie without conviction on the charge of indecent assault.[68] The order requiring Mr McKenzie to pay the sum of $500 to the complainantas compensation for the emotional harm caused by the offending remains intact.[69] The record of the first warning given to Mr McKenzie by the District Court on11 August 2021 is cancelled in respect of the conviction quashed.Solicitors:Crown Law Office, Wellington for Respondent