A man who tried to film up a woman's skirt without her knowledge has been discharged without conviction after appealing to the High Court over a judge's initial decision.
Kunal Pradhan admitted a charge of attempting to make an intimate visual recording of another person after he was caught by Farmers security staff saw him attempted to record a video up the skirt of a woman, according to a High Court judgement last month.
The attempt - made by putting his phone in a bag with the zip open and standing behind the woman - failed and the victim didn't notice, but security reported the incident to police.
Pradhan handed himself in after police posted CCTV footage of him on social
Judge Keith de Ridder said at that time Pradhan's offending was "quite deliberate, planned and premeditated" and his actions were a "moderately serious type of offending".
But Judge de Ridder also considered "the absence of prior offending" and steps taken by Pradhan to rehabilitate and accept responsibility were powerful mitigating factors.
Pradhan had told the court he had a job offer, but Judge de Ridder said it was "far from clear" that Pradhan risked having that offer withdrawn if he was convicted, or that future employment could be affected.
"The Judge balanced what he considered was reasonably serious/moderately serious offending against consequences which were far from clear.
"He concluded the consequences were not out of all proportion to the offending, and dismissed the application [for a discharge without conviction]."
Pradhan appealed Judge de Ridder's decision on the grounds the judge had overstated the gravity of the offending and understated the consequences of a conviction, and the likelihood of those consequences.
Pradhan's lawyer David Dickinson argued Judge de Ridder had erred in his conclusion about the gravity of the offending, described Pradhan's crime as "victimless" and said the judge should have placed greater weight on mitigating factors, such as Pradhan's remorse and rehabilitative action he'd taken.
The lawyer for police, Sam Teppett said the judge had correctly considered Pradhan's rehabilitation and remorse as mitigating factors.
He also said it was not a victimless crime, and it was available to the judge to conclude the offending was premeditated, and to weigh this against the mitigating factors.
Justice Christian Whata wrote in his High Court appeal decision that he agreed with Dickinson that the judge's assessment of the offending as "reasonably serious and/or moderately serious" mischaracterised the gravity of the offending for the section 107 assessment.
Section 107 of the Sentencing Act 2002 provides guidance as to how the discretion of the court to discharge without conviction should be used.
"Like indecent assaults, the courts must take this type of offending seriously, but the charge does not automatically fall into a separate "serious" category for discharge purposes."
Justice Whata also noted the mitigating factors, including Pradhan going through counselling, seeking help from his church and saying he would take part in restorative justice if the victim was identified.
"This substantially reduces the gravity of his offending for section 107 purposes. In combination, the unsophisticated, isolated and brief nature of the attempted videoing and Mr Pradhan's personal mitigating factors, mean that the gravity of the offending properly sits at the lower end of the spectrum."
Dickinson told Justice Whata, Pradhan lost his present job days after he was convicted, the judgement said.
"There is some speculation however as to whether the conviction contributed to the termination of employment, because Mr Pradhan was already subject to a redundancy offer."
He agreed with Judge de Ridder's expression of concern about offending of this nature, and accept that it is not a victimless crime, Justice Whata wrote in his decision.
But overall the crime's seriousness, giving regard to the mitigating features, was low.
"Given the real and appreciable risk the conviction will pre-empt full consideration by prospective employers of any employment application by Mr Pradhan, and his already parlous financial circumstances, I am satisfied the consequences of conviction are out of all proportion to the offending."