Thomas Ryan, 24, was sentenced to nine months’ supervision when he appeared before the Dunedin District Court in October after admitting making and posting an intimate visual recording.
Yesterday, Anne Stevens, KC, argued the sentencing judge’s decision to decline a discharge without conviction was flawed.
She told the High Court at Dunedin a criminal record would provide an almost insurmountable barrier to Ryan’s career aspirations in education.
"He’d be a very good teacher, given the opportunity," she said.
"But a conviction he can never be rehabilitated out of; it’s a permanent stain."
Ryan met the victim while socialising in June, the court previously heard.
They returned to his Dunedin flat and the defendant surreptitiously recorded the woman in the midst of an intimate act before sending the footage to a Snapchat group of more than 30 people, featuring fellow members of his Green Island rugby team and others.
Ryan added the caption to the clip: "up the battlers" — referencing the nickname of his team.
His 24-year-old flatmate and team-mate Oliver Bugden was one of those who saw the video and later entered the bedroom to film the pair in bed.
He was convicted on identical charges and received the same penalty when he was sentenced in November.
Mrs Stevens said it was Bugden’s video which revealed the victim’s identity and led to her being informed about the crimes.
She put Ryan’s actions down to "immaturity, brain development and some alcohol added to that mix".
His response to the prosecution had been telling, Mrs Stevens said.
Ryan had sought counselling and attended Alcoholics Anonymous in the aftermath.
Crown prosecutor James Collins suggested it was "not a really tough" decision for Justice Melanie Harland to decline the appeal.
"Mr Ryan was seeking to enhance his status in this social group and did what he’s done to intentionally diminish the victim," he said.
"He’s used her humiliation and exposure to enhance himself."
Mr Collins urged the judge to focus on the consequences of the conviction, not the consequences of the offending.
He said the Teaching Council undertook extensive police vetting, which would reveal Ryan’s crime whether or not he was convicted.
"Of course, it can’t be argued with 100% certainty he’ll be ruled out [of the profession] by reason of a conviction. The argument is the barrier is much higher with a conviction," Mrs Stevens argued.
"He needs the opportunity to redeem himself without the millstone of a conviction."
The court heard Ryan had found employment regardless of his criminal record — a factor underscored by the Crown — but his counsel said it was not the work he wanted.
"It’s all very well to say he can obtain employment as a fencer. He doesn’t want to be a fencer. He wants to be a teacher. That’s an aspirational goal," Mrs Stevens said.
In a statement, the victim earlier told the court the incident had left her "consumed by anxiety, fear and shame".
While Ryan did not attend yesterday’s hearing, the woman sat in the public gallery to hear the arguments.
Green Island Rugby Club said it was collaborating with other agencies to provide workshops on such matters to its players for the coming season, an initiative Otago Rugby was considering rolling out around the region.
Justice Harland reserved her decision on the appeal and indicated she would likely release a ruling in the next couple of weeks.
