A Wellington man who put a cellphone in his ex-wife’s car so he could “essentially stalk” her and tamper with her vehicle claimed he did it as a “friendly gesture”.

James Garcia said he and his wife of 17 years used to point each other’s windscreen wipers upwards whenever they came across one another’s car as a way of saying “I’m thinking about you”.

But Judge Bill Hastings said in the Porirua District Court yesterday that “in the present circumstances, which are a break up of the marriage and the fact this happened at night, it could be seen less benevolently”.

Garcia’s lawyer, Lara Caris, said he did it to try to regain her affection, but recognised how the victim could see it as intimidating.

He appeared in court for sentencing having previously pleaded guilty to one count of breaching a protection order.

Garcia, an IT professional for the Ministry of Health, placed an old cellphone in his ex-wife’s car after the breakdown of their lengthy marriage, and used the device to track her whereabouts. She had taken out a temporary protection order against him just days earlier.

He then drove to where her car was parked outside her new partner’s house at 4.30am and pointed her windscreen wipers up, the summary of facts said.

Garcia did the same thing at 3.20am the next day.

In his police interview, Garcia admitted putting the phone in the car so he could track the victim’s ongoing location.

Caris applied for a discharge without conviction for Garcia - who already had a previous discharge without conviction for a charge of male assaults female against the same victim. There have been three previous family harm incidents between the couple.

“This is at the lower end of the spectrum in terms of gravity of the offending of this nature,” she said.

She said it was to her client’s credit he did not continue committing the offending upon realising the victim was intimidated.

Caris said a conviction would be out of proportion to the offending, saying it could impact Garcia’s job and ability to gain New Zealand citizenship - though he is still a permanent resident.

She said his actions were “stupid”, but “I don’t think anybody’s likely to conduct themselves in a particularly impeccable way in a situation like that”.

The police prosecutor opposed the application for a discharge without conviction, saying not every relationship breakup ended with a protection order.

“Not everybody behaves like this,” he said.

“This was intimidation to let the victim know she was being watched.”

Judge Hastings laid out the facts of the case during sentencing, noting how Caris had described the offending as unsophisticated and childish.

“You say . . . you did this to let her know that you were there. You say in the past that this was a friendly gesture each of you did on occasion,” he said.

“Prosecution submits you used your specialist knowledge essentially to stalk your ex-wife. I tend to agree with the prosecutor that your actions went beyond mere unsophisticated information gathering.”

Aggravating factors included that Garcia committed the offending twice, causing “significant psychological harm” to the victim, who spent most of the sentencing hearing crying in the back of the courtroom.

She said in her police statement she felt overwhelmed and anxious, struggled to sleep, and was paranoid about Garcia appearing at her home or work.

“Your actions continue to affect her psychologically.”

Mitigating factors included Garcia attending a mandatory living without violence counselling programme, and that the temporary protection order was not made final.

Judge Hastings declined to discharge Garcia without conviction.

He convicted Garcia and ordered him to come up for sentence if called upon within 12 months, meaning if he commits any other offending in that timeframe he will then receive a sentence for the current offending.