Police say a judge made errors when she granted a porn-addicted Government manager who planted a spy camera in a gym bathroom a discharge without conviction and permanently suppressed his name.
They say the judge effectively minimised the seriousness of the offending by relying on the wrong information at sentencing.
And they say the decision was based on the man's claim he would lose his job and bring his Government-owned company into disrepute but there was no evidence either scenario would eventuate.
The Herald has previously reported the man captured almost 40,000 images of unsuspecting men and women in various states of undress.
His offending was blamed on a diagnosis of erectile dysfunction that led to a growing obsession and eventual addiction to porn which he battled alongside alcoholism and mental health issues.
Today in the High Court at Auckland, Crown Prosecutor Mark Harborow argued the sentencing judge did not have the correct summary of facts but instead an earlier copy.
That "infiltrated everything" included the assessment of consequences and the judgment regarding name suppression.
The amended summary of facts shows offending that is in a "whole other category" and correctly noted the offending included four separate dates.
Velcro attached to the sink indicated he had either more than one camera or placed the same camera in more than one room, Harborow said.
Therefore, it was a "fundamental error" to characterise the offending as isolated.
In the first video, a naked couple were seen going to use the shower which the police could have argued would have "buoyed him" to offend further in the hope of capturing sexual activity.
"This is not spontaneous offending."
Harborow said the defendant's expression of remorse must be considered with "some caution" given he had tried to tell police the offending happened on one occasion.
Further technological analysis undertaken by police revealed the true nature of the offending, he said.
Harborow also argued the judge erred assessing the man's employment prospects if convicted.
The nature of offending itself naturally would have had the most impact on his employment, which he was obliged by way of contract to disclose, he said.
"It's not the consequence of the conviction which bites, it's the consequence of the offending," he said.
"The distinction is one that has been recognised repeatedly by the Court of Appeal."
But Harborow said those consequences might have now fallen away, given he no longer works in that role and the former employer "does not support the non-publication order".
Defence lawyer Ron Mansfield said it was not apparent to those in court during the district sentencing that the judge had the wrong summary of facts.
If it was accepted that the judge had the wrong copy, he argued the case should be remitted back to the district court without a decision being made regarding conviction.
Mansfield said his client's remorse was "aptly described as genuine" when it was considered he had sought treatment before a charge was laid against him.
In a doctor's report he had conceded he had "done a very shameful thing" and had addiction issues.
He had always been honest with health professionals and provided that material to the court, Mansfield said.
Lawyer Robert Stewart, acting for NZME and RNZ, said loss of employment was an ordinary consequence for offenders and the courts had never considered that amounted to extreme hardship.
The court heard that if the appeal is allowed it is not necessarily any critique of the sentencing judge, who would have been provided with the summary used.
"Whatever the reason, it does seem to me that Her Honour was preceding on a document that didn't properly reflect the offending," Justice Simon Moore said.
However, Harborow did argue part of what happened that day had included a lack of discipline in use of judicial reasoning.
Justice Moore has reserved his decision on the appeal.
At sentencing in the District Court Judge Bennett deemed the man - who had never appeared before the courts - as being of previous good character and said there was an "abundance" of material supporting his applications for a discharge and suppression.
She said the man was "extremely remorseful" and had taken significant steps towards rehabilitation including 73 sessions with a psychotherapist.
"A conviction will likely have a considerable impact on your employment and on your family relationship," Judge Bennett said.
"I am satisfied in the circumstances that the consequences would be out of all proportion to the gravity of the offending.
"I discharge the defendant without conviction ... in addition to my decision ... I also make an order for costs in the sum of $500".
Regarding the name suppression, Judge Bennett said she was satisfied the man would "suffer extreme hardship" if his identity was revealed.
"And ... his employer would likewise suffer extreme hardship from the publication of his name," she said.