A former Dunedin student has avoided a criminal conviction for filming a young woman in a shower at her university hostel earlier this year.
Luke Anthony William Chapman (19), made the recording when the complainant was using the middle of three shower cubicles at their hall of residence about 10.40pm on July 26.
He entered an adjoining cubicle, turned the water on then held his mobile phone over the top of the young woman's cubicle, angling it down so he could record her.
She saw the phone, and screamed and Chapman pulled the phone back. He did not respond when she called out, asking what he was doing.
She was upset and crying and called him disgusting. He immediately deleted the two videos he had made but remained in the shower and filmed himself.
"He appeared to have been trying to cover his tracks," Judge Michael Crosbie said yesterday when summarising the facts after Chapman appeared in the Dunedin District Court and admitted recklessly making an intimate visual recording of another person.
The Crimes (Intimate Covert Filming) Amendment Act charge carries a maximum penalty of three years' jail.
The fact Chapman was neither convicted nor jailed was due in large part to the fact the victim was "compassionate", Crosbie told the defendant. The case had been scheduled for an audio visual link hearing after another judge earlier indicated a section 106 discharge might be "possible". No victim impact report was available at that stage.
But Crosbie directed the defendant to appear in court in person.
That was because he needed to understand courts were seeing "more and more of this type of offence" where people made recordings of others "because it's relatively easy to do", the judge told Chapman.
What distinguished his case from others, some where offenders had been jailed, was he had not uploaded the recording to Facebook or any social media, "arguably because you were caught".
And the offending had no ongoing aggravating features which would have caused the young woman any more concern, acute embarrassment "or worse" although it had been "a gross invasion of her privacy".
"She was really concerned about what you did," Crosbie told Chapman.
"She felt very vulnerable and scared, did not know what you had done with the photos and thought it was a massive invasion of her privacy."
She felt she should not have to look around for cameras in the bathroom. And she felt disgusted.
"But she has a heart and says, despite what's happened, she supports diversion and a fine."
Defence counsel Noel Rayner put the offending "at the lower level of its type" although it was accepted the breach of the young woman's vulnerability and the particular environment was an aggravating factor.
Chapman had never been in trouble before, had never been diverted, had no convictions and had pleaded guilty, after initially denying the charge. He had had taken steps to have counselling to address any underlying issues and had brought to court a cheque for $1500 as a donation in the complainant's name to the Make a Wish Foundation.
The defendant's university career in Dunedin had been brought to an end by the incident. He had left the hostel and moved off campus and felt that was "a form of conviction", Rayner said. Chapman had also gone through a period of depression.
Crosbie suggested the defendant should think about how much anxiety he had caused the complainant.
But he accepted while the offence had been an invasion of a person's privacy, it was "at the lower end", as nothing else had happened. Had the offending gone a step further, as in the recordings being uploaded, a conviction would not have been disproportionate, the judge said.
But, given Chapman's guilty plea, the emotional harm payment, the steps taken to deal with his issues, the fact neither the police nor the complainant opposed a discharge without conviction, and the naming and shaming of the defendant, a discharge without conviction was appropriate.
It had been "a gross error of judgment" by Chapman and he was fortunate the victim was compassionate, Crosbie said, granting the discharge and ordering Chapman to pay $130 court costs.