A Government manager who repeatedly planted a spy cam in a gym bathroom is fighting to clear his record by challenging the appeal that went against him.
The man – who cannot be named by law – captured nearly 40,000 images of unsuspecting men and women in various states of undress.
His offending was blamed on a diagnosis of erectile dysfunction that led to a growing obsession and eventual addiction to porn which he battled alongside alcoholism and mental health issues.
Earlier this year, police appealed the man’s discharge without conviction on the basis the wrong summary of facts was used at the sentencing and this minimised the seriousness of the offending.
The police appeal also argued the man’s claim he would lose his job and bring his Government-owned company into disrepute was not backed by evidence.
When considering this case, Justice Simon Moore found the sentencing judge had relied on the incorrect summary of facts.
The correct summary shows the offending included four separate days instead of one.
Justice Moore said the man’s crime was serious, involved “significant premeditation” and that the consequences of a conviction would not be disproportionate.
He quashed the original sentence, entered a conviction and also revoked permanent name suppression.
Yesterday, the defence appealed against the conviction and loss of suppression.
Defence lawyer Ron Mansfield argued Justice Moore had erred in assessing the gravity of the offending.
He told the court the video camera worked by capturing many photos and running them together quickly – which meant the number of images was “quite deceiving”.
The offending occurred in a short period, he said. The four days fall within roughly two weeks in November 2017.
The court has already heard the man no longer works in the same job and the former employer does not support the non-publication order.
Mansfield said his client should not be “prejudiced by the passage of time”.
“Especially, here where his position was weakened with the passage of time.”
The defence says the man should be re-sentenced based on his circumstances at the time of his sentencing.
Crown prosecutor Briar Charmley maintained that Justice Moore was dealing with questions of law raised in an appeal that he was entitled to answer.
The premise of the appeal included questions of fact in relation to both the gravity of offending and consequences on employment.
She said new information was commonly considered in hearings like bail appeals.
“Because of course, things can move on.”
Defendants in court could not have it both ways, relying on new information for appeals when it worked in their favour but expecting new adverse information to be excluded, she said.
Charmley said it would have been wrong for Justice Moore to have ignored new information plainly relevant to the questions he was being asked to consider.
Lawyer Robert Stewart, representing NZME – the publisher of the Herald – and RNZ, told the court a victim had made it known they are opposed to suppression.
Their views are a mandatory consideration by law when it comes to looking at permanent name suppression, Stewart said.
The public also does have a genuine interest in knowing the character of a person who engages in criminal conduct of a sexual nature regardless of discharge or acquittal, he said.
Justice Stephen Kos, Justice Susan Thomas and Justice David Gendall have reserved their decision on the case.
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