An Auckland man staying at a Rotorua motel who admitted filming a woman naked in a spa pool through a gap in a fence has lost his appeal to be discharged without a conviction.
Michael Scott Trembath, who was 34 on February 13 last year when he committed the offence, appealed his conviction in the High Court at Auckland of making an intimate visual recording of another person.
The appeal was heard on April 1 and Justice Timothy Brewer's findings have just been released publicly.
The finding said Trembath, a salesman, was staying in a Rotorua motel and had been drinking alcohol in his unit when he heard the outdoor spa in a neighbouring unit turn on about 9pm.
The person in the spa was a woman from the United Kingdom in her early 60s, who had come to New Zealand after her husband of more than 40 years had died.
Trembath walked outside to his private outdoor area and noticed a gap in the fence separating the two outdoor areas.
Trembath fetched a chair and stood on it. He then put his cellphone up to the gap and began recording the person in the spa pool. He recorded six separate videos of the person, looking at each one before going on to record the next.
The woman in the pool, who was naked, eventually noticed the phone and yelled out "get away with that camera, I can see you with that camera".
Trembath immediately stopped, ran into his room and deleted the videos.
The woman alerted motel management and called police. While police were speaking with the woman, they saw Trembath get into his car and drive off at speed. Police then chased Trembath, who pulled over and was arrested.
He told police he had filmed the woman for sexual reasons "hoping to see someone in a bathing suit". He also said he liked the risk factor associated with photographing women and that he got sexual gratification from the photos.
The woman's victim impact statement said her husband had died about 18 months earlier and it had taken a lot for her to make the trip to New Zealand.
She was "significantly affected" by what happened to her in terms of loss of self-confidence and openness. Her holiday was marred by the incident and she needed to get counselling because of the impact on her and how she saw men in her life, the finding said.
The finding said Trembath was married with a young child and lost his job as a salesman for the family-owned company he worked for.
Trembath, who has no previous convictions, engaged with alcohol counselling, including Community Alcohol and Drugs Services and Alcoholics Anonymous. He undertook counselling at his own expense to deal with his personal issues.
Judge Lisa Tremewan convicted Trembath on November 27 and refused to discharge him without conviction. She sentenced him to eight months' supervision and 60 hours' community work. He was ordered to pay the victim $500 in emotional harm reparation.
Trembath's lawyer said Judge Tremewan overstated the seriousness of the offending.
However Justice Brewer said although the offending was opportunistic, it was carried out deliberately. He said it was obvious to him he was videoing a woman of mature years who was naked and enjoying a spa bath in an area private to her. His actions immediately afterwards demonstrated he appreciated the seriousness of what he was doing, the finding said.
Trembath had begun retraining in gardening and ground-keeping for future employment. His lawyer said some of the roles could require working on sites where there were women and children, including schools, and revealing a conviction of this nature could impact his chances of future employment.
However, Justice Brewer said the courts were reluctant to conceal relevant convictions from potential employers who had a proper interest in knowing of them.
"It my view, employment in those sorts of roles should be offered on an informed basis."
In dismissing the appeal, he said the consequences of Trembath's conviction were not out of proportion with the gravity of his offending.