"From the evidence in the District Court it does appear that Mr Aksentijevic was subject to abusive comment. He also engaged in abuse," Justice Peter Woodhouse said when considering the programmer's appeal.
Some people who received the messages complained to the Department of Internal Affairs, which executed a search warrant at Aksentijevic's home.
One of the issues in the appeal was whether or not the communication involved "commercial electronic messages".
Aksentijevic said that CrazyTilt was free software and that he was not trying to promote or sell anything.
He argued he was trying to expose an ongoing scam and prevent further sales of counterfeit games.
While this did not change Aksentijevic's liability, it did influence the appeal over the level of penalty.
"I have concluded that the question whether the messages were commercial electronic messages does not turn on the intention or motivation of the defendant. The fact that the defendants was not seeking to make a profit, and did not make a profit, does not bear on liability. But it does bear on penalty, as [the District Court] Judge said, and there is no evidence that Mr Aksentijevic sought to make money. That reduces the gravity of the offending substantially, or it comes in as a significant mitigating circumstance," Justice Woodhouse said.
Aksentijevic told the court he was an unemployed computer programmer, with an income of $420 per week from property rental income and outgoings of $415 per week.
The judge believed the maximum penalty in the case could not be more than $1000.
"Because this did amount to a test case, on liability and on penalty at this very low level of offending, and because of the indication of modest financial means, the penalty should be $250," said Justice Woodhouse.
