Kapiti councillor found guilty of rubbing genitals on staff member gets first warning under three strikes law, $1500 fine for 'inexplicable' behaviour

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A Kapiti Coast district councillor found guilty of indecently assaulting a council staff member has been convicted and fined $1500.

David Scott, 71, stood trial in the Wellington District Court last month, accused of rubbing his genitals against a woman staff member during a council morning tea in April 2017.

Today he was also given a first strike warning under the Three Strikes law.

The judge declined an application for a discharge without conviction after Scott's lawyer submitted a conviction would be punishment enough.

The judge said Scott's offending involved a breach of trust in the workplace and he was not entitled to any credit for remorse as he has shown none.

The judge said the offending was at lower end of scale, and moderately serious.

While it was brief and over clothing, aggravating features were that Scott was an elected official in a role that comes with power and influence, and he relied on staff  for support to carry it out. The victim is a senior staff member with the council.  

Under the Local Government Act, Scott will be automatically disqualified as a councillor and a by-election will be needed, the judge said.

He added it's "nothing more than speculation" to suggest that Scott's community work would come to an end if he was convicted.

Scott's lawyer said  there can be no doubt he is of good character and "it seems inexplicable "that this man for some reason would elect to indecent assault woman in this manner".

The trial

The Crown said what made his actions indecent were his grabbing of the woman, holding her and thrusting himself into her.

The defence said the complainant had exaggerated what happened and while Mr Scott accepted he had moved past her at some stage during the morning tea, that was not accompanied by any criminal intention.

The jury deliberated for three and a half hours before returning its verdict.

In her closing address, Crown Prosecutor Kate Feltham told the jury that whether the complainant felt Mr Scott's penis rubbing against her, or whether it was something else, didn't matter.

However defence lawyer Mike Antunovic said it was utter nonsense to suggest that after 71 years of crime-free living, Mr Scott would choose a council morning tea as the place to begin offending.

He said Mr Scott accepted he had moved past the complainant at some stage, but that was not accompanied by any criminal intention on his part.

Judge Hobbs told the jury the Crown had to prove three things beyond reasonable doubt.

Firstly, was there an assault at all; secondly would what happened be regarded as indecent by "right-minded members of the community", and thirdly did Mr Scott appreciate that his actions were indecent.

"You'll all be aware when you've put a hand on someone's shoulder or back to alert them to the need to make room for you to pass. That may be done more forcefully if you're in a crowded area.

"Technically that's an assault but the criminal law is not involved because it is not accompanied by any criminal intent and not thought to be indecent."

Judge Hobbs told jurors the complainant described feeling a hand then a man's body rubbing along her.

"Hands gripped her very tightly so she could not move forward or back. She described feeling the stomach, then a belt and then a man's anatomy pushing into her buttocks.

"The Crown says if you accept that, it is an intentional indecent assault by Mr Scott."

However, he said the defence had a different explanation for what happened during the council morning tea.

"[They say] you can't dismiss that he might have brushed past in a crowded room with this result.

"If you find that's what happened you must enter a not guilty verdict."

Judge Hobbs said the Crown had suggested that Mr Scott's claim he could not have rubbed his genitals against the woman because of an operation on his penis 15 weeks before the incident was implausible.

"[The Crown says that] is inconsistent with the evidence of his doctor.

"The doctor said the stitches should be gone in about three weeks and after a month it should be fairly well healed."

However, the Judge said the defence had also suggested the complainant had exaggerated her account of what occurred.

"The defence says no witnesses mentioned him stopping and pushing his groin into her for more than three seconds.

"[They also] remind you of evidence from [a couple] who described David Scott as being white as a sheet and unsteady on his feet and expressing a need for food [before the morning tea began].

"The defence says that's consistent with him needing insulin as he described and in need of food."

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