Howard v Police

[2017] NZHC 2779

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2017-454-12 [2017] NZHC 2779

BETWEEN

CONOR RYAN HOWARD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	10 November 2017
Counsel:	C R Howard in person M J R Blaschke for Crown
Judgment:	13 November 2017

JUDGMENT OF WILLIAMS J

[1]      Mr Howard was convicted and sentenced in the District Court on 28 May 2013 on one charge of driving with excess breath alcohol.   He was 19 at the time and therefore subject to the lower breath alcohol threshold.  He turned 20 four days later.

[2]      Mr Howard was disqualified from driving for three months.

[3]      Now (four and a half years later) he seeks leave to appeal out of time. The sole reason for doing so is that he wishes to join the police force. He is currently employed as a leading aircraftsman in the Royal New Zealand Air Force. He is also undertaking part-time study towards a diploma in logistics management.  He will have completed that in 2019 and wishes to apply to join the New Zealand Police Force intake mid-way through 2020, by which time he will be about 27. And the conviction will have been

10 years in the past.

HOWARD v NEW ZEALAND POLICE [2017] NZHC 2779 [13 November 2017]

[4]      Mr Howard now seeks a discharge without conviction on the basis that the consequences of a conviction will be far greater than the seriousness of the crime. Had Mr Howard been charged four days later the breath alcohol level of 174 mcg per litre of breath would have been well inside the legal limit of 400 mcg per litre of breath alcohol for a 20-year-old.

[5]      Mr Howard is worried that with a conviction he will be prevented without further inquiry from entering the New Zealand Police Force because, he apprehends a drink driving conviction means his application will be automatically declined.

[6]      Mr Howard appended to his application a reference from his Commanding

Officer, Squadron Leader McKeogh, written specifically for this purpose. It provided:

LAC Howard has been with the RNZAF since enlisting on 14th  May 2012. LAC Howard has since completed both his initial and advanced trade training and  is  currently  employed  as  the  JNCO  I/C Warehouse  within  Material Support Wing Auckland.  LAC Howard is a good operator who is committed to the RNZAF.   Although specifics cannot be given, LAC Howard’s conviction may impact  future  overseas  exercise and deployment opportunities.  Further to this, LAC Howard has on more than one occasion indicated his desire to the join the New Zealand Police. As I understand it, his current conviction would preclude him from doing so.   LAC Howard is a highly capable individual who should not be precluded from future opportunities due to this conviction.

[7]      After an initial hearing last week, I prevailed upon Mr Blaschke, for the Crown, to make enquiries of the police as to the exact position with respect to the acceptability of prior drink driving convictions for recruitment purposes.   If a drink driving conviction of any kind is a disqualifying circumstance, there may well be, in my view, an argument, even after four years, to consider a discharge without conviction given Mr Howard’s youth at the time, and character and exemplary performance since.

[8]      Mr Blaschke made the necessary enquiries and spoke with a police recruitment advisor, Ms Sarah Trolove.  She advised that there is no black and white rule and that Mr Howard’s youth at the time of his offending would be taken into account in deciding whether to admit him to the mid-2020 intake. So will the lengthy intervening period during which Mr Howard has been, it seems, an exemplary member of the Air Force. He will thus be eligible for consideration although the conviction will be taken into account.   In any event Mr Blaschke advised, the police will be aware of the

existence of a discharge without conviction even if one is granted, so the general advantage in the private sector of that outcome is greatly diminished in applications to the police.

[9]      The advice was that a decision by a court not to record a conviction will still be taken into account when determining the gravity of an offence at the time of application, but that effect is obviously more limited than the potential employer not knowing of the conviction at all.

[10]     In the circumstances, I consider that it is not appropriate to grant leave to appeal.   The effect of any appeal, if successful, will be too limited to meet the disproportionality test in s 106.

[11]     But I do want to make it very clear that I consider Mr Howard’s application to join the police ought to be treated sympathetically.  His conviction reflected no more than youthful indiscretion.  If, as I have said, he had been pulled over four days later, he would have been well within the legal limit. And, perhaps even more importantly, he has excelled in his career in the Air Force in the intervening years.  He is, I would have thought, precisely the kind of young man the New Zealand Police Force needs. I can only express the hope that a conviction that will be seven years old by then, will not prejudice that prospect.

[12]     The application for leave is dismissed.

Williams J

Solicitors:

Crown Solicitor’s Office, Palmerston North

cc:       C R Howard