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A pharmacist and transgender refugee who was convicted last month for pouring tomato juice over the head of anti-transgender rights activist Posie Parker – prompting the controversial British speaker to promptly leave New Zealand over safety fears – returned to a courtroom today as her lawyer asked to have the conviction rescinded.

Eli Rubashkyn, whose legal name is Eliana Golberstein, had asked during her September 3 sentencing in the District Court at Auckland for a discharge without conviction. Judge Kirsten Lummis decided against the request by the first-time offender, instead entering a conviction for common assault but ordering no other punishment.

In the High Court at Auckland today, defence lawyer James Olsen argued to Justice David Johnstone that Judge Lummis had erred by not fully considering the impact a conviction would have on his client.

“If not this case, then where?” Olsen said of a discharge without conviction. “This is as low as it goes in terms of assaults on the criminal books. The offending and the offence itself is as low as it goes.”

He noted that his client lost her pharmacist job due to media attention over the incident. She would like to re-enter the profession at some point after the attention dies down but having to disclose an “assault” conviction could leave an erroneous impression and create a barrier to finding a new job, Olsen said.

“This was a technical assault in the sense there was no violence inflicted,” he said. “There was no throwing... It was simply poured.”

Eli Rubashkyn is appealing her conviction over the tomato juice attack on anti-transgender rights campaigner Kellie-Jay Keen-Munshill aka Posie Parker. Photo / @ElianaRubashkyn

He acknowledged there was a degree of premeditation to the confrontation, but he said Rubashkyn now regrets her actions – feeling remorse for both the victims and also for the backlash experienced by the transgender community as a result of her actions.

“It simply deepens the political divide,” she acknowledged in an affidavit submitted to the court.

Rubashkyn, now, 36, arrived at the Albert Park band rotunda in Central Auckland on March 25 last year amid a “Let Women Speak” rally by Parker that had elicited a massive, raucous protest and counterprotest. She was charged with two counts of assault after she poured the juice over Parker, whose legal name is Kellie-Jay Keen-Minshull, and event organiser Tania Suzanne Sturt, who was standing next to Parker.

She pleaded guilty to both charges in June.

“There was significant opposition to the rally occurring, especially from the transgender and rainbow communities,” the agreed summary of facts for the case states. “Before the rally, this involved an unsuccessful judicial review of Ms Keen’s visa, which permitted her to enter New Zealand (and, in consequence, attend the rally).

“The opposition to the rally was because of a concern that Ms Keen held anti-transgender views and her intention was to hold rallies espousing those views.”

Rubashkyn gave a TV interview immediately after the incident, taking responsibility.

“Her words are blood because they are killing our people,” she said of Parker. “This is my safe space, my safe haven and I’m not gonna let that be taken away from me because this is my home.

“I feel safe here, I don’t want hate, I don’t want nothing, I don’t want that here, I want to be happy.”

But in a victim impact statement read aloud in court last month, Sturt, the event organiser, said she also wanted to feel safe. She said she was continuing to struggle with symptoms of trauma from the event.

“I waited for my skin to burn,” she said, explaining that she first thought the liquid poured over her was acid. “I felt terror then disgust and violation.”

During today’s hearing, Rubashkyn’s lawyer pointed out that his client had a background of mental health issues stemming from past trauma that contributed to her poor decision-making that day. As an intersex person growing up in Colombia, she was stabbed and shot at before seeking refuge in Asia and spending months in immigration detention. She was eventually granted refugee status by the United Nations and allowed to move to New Zealand.

“It’s not a case of wanton violence against someone,” Olsen told the High Court judge. “This was a very concerned individual, [concerned] about the rhetoric that Ms Keen presented.”

But all of those factors were taken into consideration by the District Court judge, Crown prosecutor Kasey Nihill responded today. The judge evaluated Rubashkyn’s background and her advocacy work, Nihill said, describing the defendant as “quite clearly a cornerstone of this [LGBTGI+] community”.

Judge Lummis also said she was “left questioning whether there is genuinely true remorse”. She found that the consequences of a conviction would not be out of all proportion to the gravity of the offending but also found that Rubashkyn had already received enough punishment, having been subjected to death threats following the assaults.

“Don’t lose faith or hope from that decision, I know it’s not what you wanted,” Lummis told the defedant at the time. “I wish you the very best of luck on your continued journey from here.”

At the High Court today, Justice Johnstone declined to weigh in on the debate immediately. He reserved his decision.

- NZ Herald