Police v Porter [2019] NZDC 2276 (8 February 2019)

Last Updated: 26 August 2019

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT WAITAKERE I TE KŌTI-Ā-ROHE KI WAITĀKERE

CRI-2018-009-004139 [2019] NZDC 2276

NEW ZEALAND POLICE Prosecutor

v

[LEVI PORTER] Defendant

Date of Ruling:	8 February 2019
Appearances:	O Griffiths for the Prosecutor S Dickson for the Defendant
Judgment:	8 February 2019

RULING OF JUDGE L TREMEWAN [ON S 106 APPLICATION]

[1] [Levi Porter], you are before the Court today facing sentence on a single charge, causing harm by posting digital communication under the Harmful Digital Communications Act 2015. It is a charge to which you have pleaded guilty. The maximum penalty is a sentence of two years’ imprisonment and a $50,000 fine.

[2] You are 18. You were 17 when this offending occurred, just within the jurisdiction of the adult Court. You are a first offender. Today you seek a discharge without conviction pursuant to s 106 Sentencing Act 2002.

NEW ZEALAND POLICE v [LEVI PORTER] [2019] NZDC 2276 [8 February 2019]

[3] I am required to consider under s 11 of that Act whether yours is an appropriate case to be dealt with in that way. But s 107 of the Act sets out the threshold test and what it says is that the Court must not grant a discharge without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion in terms of the gravity of the offending. So I have to consider the gravity of the offending, I have to then consider the consequences or potential consequences and then I have to undertake a balancing exercise in deciding whether the threshold test is met.

[4] I note that the police have opposed the application made by your lawyer that you be discharged.

[5] Briefly returning to the offending, the circumstances are that on 26 April last year it appears that the victim with whom you had been in a very long term relationship was in a bedroom with a male companion. The door of the room was opened, the police suggest by you. You had said that it was not you who did the filming but, in any event, the Court does not need to make a finding on that because it will not end up being determinative of the case today. But what is accepted and what is clear is that there was filming of the door opening with the victim inside the bedroom in what I am going to describe is a compromising position with the male companion and it is clear that there was an intimate encounter of a sexual nature taking place.

[6] You have accepted that this footage came into your possession and on [date deleted] you contacted the victim informing her that you would post it on Instagram and she asked you to delete it. But you did not and you posted it up and you also sent a video to her mother. Then [one day later] you posted it again on Instagram and it is said that 100 people viewed it.

[7] I do note, having looked at some of the other cases, that the Court often regards as relevant the period of time over which the offending occurred. Now here it is clear that there was more than one aspect to your offending in that it was not just one thing that happened on one occasion. But that said, overall it still occurred over a relatively short period of time. When spoken to by the police you admitted your wrongdoing

and you explained that you had wanted revenge because of the breakup of your relationship.

[8] A point I want to make here is that it was patently obvious who the offender was here, namely you. It was not a case, unlike some others, where there is anonymity for a period as to who the offender is. Some victims, and in some cases there have been a number of victims, are unaware of the identity of who it is who is targeting them. But this is not one of those cases. It was obvious from the outset what the situation was.

[9] There has been, clearly, significant embarrassment and emotional distress caused to the victim, both at home and at school. She made that clear in her earlier victim impact statements. Not only that, this will have had ripple effects in terms of her family.

[10] However, I do want to note that you in effect asked for permission to make an apology. You offered restorative justice and it seems, if I am right, that the RJ provider did not regard it as a suitable case to be having a restorative justice conference. Be that as it may, I accept you did offer to meet with the victim and with her family and I would take the view that you would have been quite keen in fact for that to happen. But as it was not possible, you did want to at least write how regretful you were, how sorry you were about what has happened and I want to say now that I do accept that you are extremely remorseful about what has happened and if you could now change what you did then, you would. But clearly that is not possible.

[11] I have read the letter you wrote. I consider it to be a very good letter but, more importantly, the victim and her family clearly considered it to be a very good letter and I was very heartened to read the response, I think it is from her father, really setting out the views of the family in accepting your apology. It may be helpful in fact if I read into the record what the victim’s father said in his email, and this is an email that was sent to the police. First of all he explained that the victim had read the letter, he had and he named another person who I believe to be his wife, the victim’s mother, and the victim’s father went on to say this, “The letter is sincere and we accept his apology. We don’t have any bad feelings towards [Levi] and never have. We know

[Levi] has had a disruptive childhood and the lack of a clear male role model has in our opinion ill-equipped him to deal with the situation such as a relationship breakup. It is good to hear that he is seeking help to resolve his anger issues as it is clear he needs some clear strategies in place so if in future this was to reoccur the justice system does not see repeat behaviour. We are sure with some help and guidance and moreso, making sure he associates with the right people, [Levi] will have a bright future. He needs to focus on education or a trade to set himself up for the rest of his life. Actions as a youth should not define who you are going to be as an adult and we know he has the IQ that if he was to apply himself correctly he would be a valued member of society. Can you please ensure the Judge and [Levi] are both aware of our comments. Again we accept his apology and wish [Levi] the very best for his future.”

[12] Now I should add that he was made aware, as was the victim and the mother of the victim, that you were seeking a discharge without conviction and although he has not directly commented on that, I read his letter as one of general support. And certainly he takes the view that as a young person you should be given an opportunity to learn from your mistakes, but also he is pleased to hear that you have had, and I will mention it now, some counselling which you have arranged yourself which has been of benefit and he is not wanting anything to stand in the way of your future. In fact, he specifically mentions a trade as being something that he could foresee as being a good future work opportunity for you. And I would like to add that this gentleman clearly knows you well because it is obvious from your letter that you have spent a lot of time with this family. Just to say it again, he considers you to be a very capable person, Mr [Porter], and he wants you to put this behind you, as I read it, and move forward in your life.

[13] What I also want to say about the offending is that I have looked at the video myself and it seemed to me that it was less than five seconds long, about three seconds of which feature the door opening. There is just over a second showing people and it seemed to me, and this was a point made by your lawyer, that if you did not actually know who the people were, you would not be able to recognise them. And although clearly the footage relates to something intimate, it is not as graphic or anywhere near as graphic as is the case in many of the other cases. Also I want to say again, you were 17 when this happened and cases such as Churchward make it very clear that it is right

for the Court to take into account that it takes some time for young people to mature and be better placed to make responsible choices.1 It is right that I also give some weight to that.

[14] And finally, what I want to say is whilst I am not minimising offending which occurs in the name of vengeance, on the other hand there is not a flavour about this case that relates to sexual gratification which is present in some of the other cases that have been referred to me. For example, I can well understand why the Court would decline a discharge application for an offender who is later seeking to enter the medical profession where such concerning and untoward behaviour should rightly be known by the relevant authorities before such a person might be unleashed on an unknowing public.

[15] I see this case with you, Mr [Porter], very, very differently and I see it isolated to its own particular facts. I am confident that you have learnt from what has happened and, irrespective of the outcome today, I doubt whether you would find yourself reappearing in Court on a matter like this because it is obvious to me that you have also suffered in fact as a result of your own poor choice and that is just a consequence of what has happened.

[16] But the question is today, should you also have a conviction? In my view, you have already been held accountable for your wrongdoing. I am of the view that it stands to reason at your age and stage in life that you are wanting to look to enter a trade or field of work. I consider it an honest submission that you say to me that you are interested in becoming a [trade deleted], and why not. I consider it to be credible that you are wanting to relocate to [location deleted] where there would be plenty of work available to you. However, it is my view if you were to have a conviction, particularly of this kind, it could be a barrier to you in terms of future work opportunities. And I am also mindful of recent Court of Appeal authority that makes it clear that particularly for a young person yet to enter a trade or employment, field of work, where the conviction would be of a kind that might particularly cause a potential employer to reject an application out of hand rather than take into account

1 Churchward.

all of the circumstances, then that is a relevant matter for the Court to take into account in favour of granting a discharge. In my view, this is such a case.

[17] It is my view ultimately, Mr [Porter], that the consequences of a conviction for you on this charge at this time, looking at all of the relevant matters, is such that those consequences would be out of all proportion in terms of the gravity of the offending and I now grant you the discharge.

[18] There will be no other requirements of you. Put the matter behind you. I know you have learnt from this and the Court does not want to see you ever appearing again on any matter.

L Tremewan District Court Judge