Graham-Grey v Police

[2012] NZHC 491

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-393 [2012] NZHC 491

BETWEEN  TRACY GRAHAM-GREY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 March 2012

Counsel:         M Wotherspoon for Appellant

K Chang for Respondent

Judgment:      21 March 2012

JUDGMENT OF MILLER J

[1]      Ms Graham-Grey appeals against refusal of a discharge without conviction.

[2]      On 20 February 2011 Ms Graham-Grey was living with her son and her former partner.  The couple were separated but effectively flatting together and co- parenting their son.  An argument developed between the couple, and the police were called when she refused to leave the property.  She was very intoxicated.

[3]      The police decided to take Ms Graham-Grey to her parents’ address, having decided that she was too drunk to simply be released.  She did not want to go to her parents and she became highly agitated.  When placed in a police car she smacked her head against the interior of the car window and punched the front seat with considerable force.  She continued to thrash about although warned not to do so, and when an officer attempted to restrain her she struck the officer in the face and on the forearm.   She was duly charged with assaulting an officer contrary to s 10 of the

Summary Offences Act 1981, an imprisonable offence.

TRACY GRAHAM-GREY V NEW ZEALAND POLICE HC AK CRI-2011-404-393 [21 March 2012]

[4]      Before the District Court on 7 October 2011, Ms Graham-Grey sought a discharge without conviction.  The police did not oppose.  She acknowledged that she is heavily addicted to alcohol.   Her history includes two drink-driving convictions.   Although a registered nurse, she was not practising because of her alcoholism but intended to apply to the Nursing Council for a practising certificate once she had undergone rehabilitation.  She said that she had openly disclosed her history of alcoholism to the Nursing Council.  Her application for a discharge was based on three points:  the assault was low level, the conviction could jeopardise her prospects of being registered with the Nursing Council and resuming work as a nurse, and she was committed to abstinence from alcohol.

[5]      The Judge noted that the case had been put up for diversion and declined in March.  A plea of not guilty was then entered.  Not until October had the plea been changed.  The Judge discounted the absence of opposition, noting that it was for the Court to be satisfied that the direct consequences of conviction would be out of all proportion to the gravity of the offence.   He accepted that the offending was not particularly grave;  she was drunk and irrational and happened to strike the constable who was attempting to restrain her.  The assault fell into the category of “nuisance value”.   But the crux of the matter was the impact of a conviction on her future registration as a nurse.  In her affidavit she said that a conviction for assault would serious prejudice her chances of successfully applying for a practising certificate. Such situations are not uncommon for people in the professions.   Further, the conviction did not result in an absolute bar to readmission to the nursing profession. Rather, an independent body, the Nursing Council, is charged with determining suitability for employment.  It is best able to make a decision with the benefit of full disclosure of all facts.   There was no certainty at all that she would be prohibited from being a registered nurse again.   Accordingly, it could not be said that the consequences of conviction were out of all proportion to the gravity of the offence. She was convicted and discharged.

[6]      On appeal, the case is advanced on a different footing.   Mr Wotherspoon explained that Ms Graham-Grey remains a registered nurse but does not hold a practising certificate.  Should she apply again for an annual practising certificate her application would be sent to the Nursing Council, which is already well aware of her

alcoholism.   The Nursing Council is not really the problem.   If her alcoholism is under control the Council may well issue a practising certificate notwithstanding her convictions.

[7]      Rather, Mr Wotherspoon submitted that the assault conviction may adversely affect her in many, if not all, other job applications that she may make in the next seven years or so, because she will have to disclose the conviction for that period of time to every prospective employer who asks about convictions.   Her most likely field of employment is in the “people care” industry, including nurse aiding or childcare.  All that an employer would learn from a police check is the bare fact of the conviction for assault on the police and the penalty.

[8]      I regret  to  say that  the  appeal  falls  far  short  of  persuading  me  that  the consequences of conviction are out of all proportion to the gravity of the offence.  So far as the gravity of the offence is concerned, the assault was not very serious but Ms Graham-Grey did strike the police officer in the face and arm in circumstances where she was extremely intoxicated.  Her intoxication is an aggravating factor.

[9]      Turning to consequences of conviction, there is nothing specific to suggest that she would be unable to get work in the “people care” industry.  It is a reasonable supposition that some employers would regard her as a risk to vulnerable people because of an assault conviction, but there is no evidence that she will be unable to find work in the industry.   She is also at liberty to provide an employer with the District Court decision, or this one for that matter.   It must be assumed that she would disclose alcoholism as an illness and that, so long as it is untreated, would present the real barrier to employment.   Should she deal with her alcoholism, she could secure a nurse’s practising certificate, which should satisfy many employers.

[10]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Auckland for Respondent