Franks v New Zealand Police [2013] NZHC 3556 (20 December 2013)

Last Updated: 27 March 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000241 [2013] NZHC 3556

BETWEEN GINA LOUISE FRANKS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 17 December 2013

Appearances: S Thode for Appellant

J B Hamlin for Respondent

Judgment: 20 December 2013

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 20 December 2013 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

FRANKS v NZ POLICE [2013] NZHC 3556 [20 December 2013]

Introduction

[1] The appellant, Gina Louise Franks, is a 26 year old registered nurse. In May this year she returned to New Zealand, having spent two years working as a primary school teacher and volunteer nurse in Thailand. She spent the afternoon of 4 June

2013 with friends and family. She consumed wine at lunch and then wine again in the evening. At 1.09 am on 5 June 2013 she was stopped as she drove home and found to have a breath alcohol level of 653 mcg of alcohol per litre of breath.

[2] Judge P Sinclair refused Ms Franks’ application for a discharge without

conviction. Ms Franks appeals the decision on the ground that the Judge: (a) Erred in her assessment of the gravity of the offending;

(b) Failed to properly consider the consequences of a conviction in terms of the legislative framework of the Health Practitioners Competence Assurance Act 2003 (HPCA);

(c) Did not fully consider the other consequences of a conviction on

Ms Franks; and

(d) Failed to properly consider the Police position.

[3] The last ground I deal with briefly at this stage. The Police prosecutor filed a memorandum for the sentencing hearing advising that there was no opposition to the application. The Judge recorded at the outset of her decision that the Police did not oppose the application. However, an addendum noted that this was wrong and that the Police did, in fact, oppose. I am satisfied that this ground cannot warrant any interference in the decision. The decision was delivered orally as part of the sentencing process. It is therefore evident that the Judge made her decision on the basis that the Police were not opposing. The addendum, whilst erroneous, had no effect. In any event, the attitude of the Police would not affect the assessment that the Judge would have to make.

Principles relevant to a discharge without conviction

[4] Under s 106 of the Sentencing Act 2002 the Court may discharge an offender without conviction subject to s 107 which provides that:

The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction will be out of all proportion to the gravity of the offence.

[5] The correct approach requires the Court to consider first, the gravity of the offence (taking into account all the aggravating and mitigating factors relating to the offending and the offender), secondly, identify the direct and indirect consequences of a conviction and, thirdly, determine whether those consequences would be out of

all proportion to the gravity of the offence.¹ It is settled that “satisfied” means that

the Court is simply required to make up its mind on reasonable grounds.

The gravity of the offending

[6] Judge Sinclair identified the three-step process required in determining an application under s 106 and approached the application accordingly.

[7] In terms of the gravity of the offence, the Judge adopted Miller J’s characterisation in Linterman v Police of driving with excess blood alcohol as offending that was “serious almost by definition” but the appellant’s offending (driving with 142 milligrams of alcohol per 100 millilitres of blood) as “not a bad

offence of its kind”.²

[8] The Judge considered that:

[7] The only aggravating factor was the alcohol level which was well over the limit at 653 and that is an important aspect I must take into account. I note that there were no other aggravating features in relation to your driving and it appears that you were cooperative.

[8] However, it did lack “the unusual mitigating factors” seen in other cases in which discharges without conviction have been granted, for example, Waight v Police³ and Wood v Police⁴ where the offenders had taken precautions to ensure that they were under the limit. One had taken a breath test himself prior to driving and the other had stayed the night at a friend’s house.

[9] Although the Judge did not specifically record a finding as to the gravity of the offending it is evident that she regarded it as moderate.

¹ _{Z v R [2012] NZCA 599 at [28].}

² _{Linterman v Police [2013] NZHC 891.}

³ _{Waight v Police [2007] BCL 639.}

⁴ Wood v Police HC Wellington CRI-2009-485-000006, 30 April 2009.

[10] Ms Thode, for Ms Franks, submitted that there were several factors that the Judge did not take into account in assessing the gravity of the offending, given that all of the circumstances were relevant. In particular, she identified the guilty plea, Ms Franks’ taking responsibility for her offending, the low risk of re-offending, her previous good character (supported by letters of reference) and the negative publicity that the case had already attracted. I accept that the Judge did not specifically refer to these matters at this stage of her assessment. They were noted later when the Judge considered the general consequences of conviction; at [12] the Judge referred to Ms Franks’ character, contribution to society and the character evidence placed before the Court. This included a reference from Ms Franks’ supervisor at the Phuket International Kindergarten and School, personal references from family friends, a reference from a family whose special needs son Ms Franks cared for while they were overseas. However, these were matters that were properly taken into account at the earlier stage and I proceed on the basis that the lack of any reference to them means that they were not taken into account in the assessment of the gravity of the offending.

[11] Ms Thode also submitted that the Judge wrongly failed to take into account the lack of any driver error. This, in fact, is not correct; the Judge refers to this factor at [7].

[12] Thirdly, Ms Thode submitted that the Judge took into account and placed undue weight on an irrelevant factor, namely Ms Franks’ failure to take “the unusual mitigating factors” seen in other cases. Ms Thode argued that this approach elevated the absence of a specific mitigating feature (and unusual ones at that) to an aggravating feature. I agree with that submission. The absence of a mitigating feature does not in itself become a factor that can be viewed as increasing the gravity of the offending. The kind of mitigating features evident in the cases cited by the Judge were irrelevant.

[13] Given these conclusions, I consider that the Judge did make an error in her assessment of the gravity of the offending and I turn to consider what the gravity of the offending is when all the relevant factors are taken into account. I respectfully agree with Miller J’s observations in Linterman regarding the general seriousness

with which offending of this kind is to be viewed.⁵ Society as a whole is concerned about such offending and regards it as inherently serious. Further, the breath alcohol level in this case was well over the limit. These factors are offset somewhat by the fact that there was no bad driving involved, that the offending was out of character and that Ms Franks has acknowledged responsibility for her actions. But even taking all of these factors into account, I nevertheless consider the gravity of the offending to be regarded as moderate.

The consequences of conviction

[14] The Judge identified three consequences raised by Ms Franks, namely the effect on her employment, constraints on her ability to travel and more general consequences of a personal nature. Before I consider Ms Thode’s submissions, I note the importance of identifying the consequence contended for. In Iosefa v Police, Randerson J said:

... It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.

However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory test can be satisfied.

Effect on employment

[15] In relation to the consequences on Ms Franks’ employment prospects, Ms Thode identified two consequences; upon conviction Ms Franks will be subject to the process under the HPCA and, secondly, that a conviction will inevitably affect the prospects of her securing satisfactory employment. This is important because, in order to retain her practising certificate, Ms Franks must secure at least 350 hours of work per year.

[16] Under s 67 a court registrar who knows that a person convicted is a health practitioner must send a notice of the conviction to the responsible authority if the

_{conviction is, amongst other things, for an offence punishable by imprisonment for a}

⁵ Linterman v NZ Police [2013] NZHC 891.

term of three months or longer. Ms Franks was convicted under s 56(1) of the Land Transport Act 1998. The maximum penalty for a first or second offence under that section is a term of imprisonment not exceeding three months or a fine not exceeding

$4,500. It follows that the Registrar will be obliged to refer the matter to the Nursing Council. Under s 68, when the relevant authority receives a s 67 notice it must refer the notice to a professional conduct committee. If the responsible authority considers that the information raises one or more questions about the appropriateness of the conduct or safety of the practise of a health practitioner, it may refer those questions to a professional conduct committee.

[17] The Judge said of this aspect:

[15] I understand from your counsel that the main concern you have is the issue of your employment. You say that in order to practise as a nurse your are required to hold a current New Zealand practising certificate. A practising certificate is issued yearly by the Health Practitioners Competence Assurance Act and the purpose of the Act is to ensure that health practitioners are competent and fit to practise their professions.

[16] One of the factors that the Nurses’ Council looks at in relation to fitness is whether an applicant has been convicted of any offence punishable by imprisonment for a term of three months or longer. The Act gives a power to the Tribunal to impose further penalty where a conviction has been entered that could reflect adversely on his or her ability or fitness to practise. Amongst other remedies, the Tribunal may cancel or suspend registration of a practitioner. So in short, if you are convicted there is a risk that the Tribunal may cancel or suspend registration. If a discharge is granted the investigatory powers are not exercised under the Act.

[17] I consider the Nursing Council should not be denied the opportunity to undertake its own investigatory powers and similarly for prospective employers to undertake their own enquiries when someone has a conviction of this nature. I do not think it is appropriate for the courts to usurp the role of the Tribunal deciding whether a person with a conviction of this type should continue to practise in nursing.

[18] Ms Thode submitted that the Judge had failed to recognise that it was the notification and investigation process itself that was triggered by conviction that was a consequence, not only the outcome of any investigation by the Nurses’ Council. I accept that this is a legitimate approach and that the mere commencement of the process, regardless of the outcome, is a consequence.

[19] Ms Thode also argued that the Judge’s approach of viewing a discharge

without conviction as usurping the role of the Nurses’ Council was wrong and

fettered the discretion conferred by s 106. She relied on the Court of Appeal’s

decision in Police v Roberts⁶ and the decision of this Court in Kuang v NZ Police.⁷

[20] Whilst both decisions confirm that it would be wrong to fetter the discretion under s 106 by effectively setting guidelines as to which kind of cases could be the subject of a discharge without conviction, it is perfectly clear that the existence of a regulatory body with the power to conduct an investigation into the circumstances that gave rise to the offending is a relevant factor. In other decisions, this Court has viewed the possibility of subsequent investigation by a regulatory body as relevant. In Fowlie v Ministry of Social Development, for example, the unsuccessful appellant, who had been convicted on dishonesty charges, faced the prospect of disciplinary

action by the New Zealand Health Practitioners Disciplinary Tribunal.⁸ Likewise, in

Craig v Police, Priestley J did not regard the prospect of further disciplinary action under the Nurses Act as justifying a discharge without conviction.⁹

[21] The significance of this issue falls to be considered at the third stage, in determining whether that consequence is out of all proportion to the offending. At the present stage, the identification of the consequence, it is enough to note that a conviction will trigger the process under s 68 and that is a real consequence for Ms Franks.

[22] This leaves the more general concern that Ms Franks has about her employment prospects. She has deposed to her recent efforts at obtaining employment. Upon disclosing her pending court case she was “grilled” about alcohol and drug addiction which she fears would give some indication as to how she would be treated in future interviews. She asserted that a conviction would have a negative impact on her career. Given the sensitivity of the public to alcohol-related offending and the nature of Ms Franks’ occupation, I readily accept that a conviction

_{of this kind will affect her employment prospects.}

⁶ _{Police v Roberts [1991] 1 NZLR 205.}

⁷ _{Kuang v NZ Police HC Auckland CRI-2012-404-000317, 11 December 2012.}

⁸ _{Fowlie v Ministry of Social Development HC Auckland CRI-2001-404-64, 27 July 2001.}

⁹ Craig v Police HC Rotorua CRI-2004-470-11, 3 June 2004.

Other consequences

[23] The second consequence identified by Ms Thode is restriction on travel that may result. Ms Franks has two particular concerns. First, she is keen to return overseas to work in voluntary capacities with the organisation Medecins Sans Frontieres (Doctors Without Borders) and Red Cross. In addition, she has an American boyfriend and has been planning to travel to the US later this year to meet his family. In neither case, however, was any evidence put before the District Court Judge or before me to show that this conviction would, in fact, have an adverse effect on her ability to travel.

[24] Ms Thode submitted that, because it could not yet be known where exactly Ms Franks’ voluntary work might take her, it was impossible to provide information about the probable response of particular countries to allowing Ms Franks to travel with a conviction. I do not necessarily accept that.

[25] Ms Franks specifically identified Rwanda as a destination that she had planned to go to. Even if there were other possible destinations, information about that country could have been provided. Nor was there any information provided regarding the response of the US immigration authorities to an application for a visa by a person with a conviction of this kind. In the absence of any such evidence it is impossible to conclude that there is a real risk of consequences for Ms Franks. This was the conclusion that the Judge came to at [13] and there can be no criticism of it.

[26] The third consequence was the general effect of embarrassment and loss of self-esteem. The Judge said:

... It is clear and it is not challenged that you are an upstanding, law abiding and exemplary citizen. When I read your affidavits and also the glowing references, it is clear you have already made a significant input into the community. It appears you also wish to do further in terms of your nursing and teaching career. This offending seems to be out of character and it appears you made a foolish error. Whilst I appreciate a conviction of this type would cause some embarrassment, I consider that that is a natural [consequence] for this type of offending conviction ...

[27] I accept that there are likely to be consequences of the kind that Ms Franks fears. But I cannot see any error in the Judge’s approach. Ms Franks is a relatively young woman with exceptional personal attributes, who has contributed significantly

to this and other communities. That does not mean that she is immune from the consequences of her mistakes and those consequences are not out of the ordinary.

Are these consequences out of proportion to the gravity of the offending?

[28] In relation to the final step of the process the Judge said:

[18] When I view this consequence at the proportionality stage, I consider it is an appreciable risk that the Tribunal may cancel or suspend registration of your certificate. However I do not consider that that is a fait accompli. When the Tribunal hears of your work in the community, and the work as a nurse they can view your application in its entirety. I do not consider when this consequence is pitched against this type of offending that it outweighs the gravity of the offending.

...

[22] So whilst I fully acknowledge your contribution to society at this point and your worthy intentions for the future and I have no doubt you are a good person who made a foolish mistake, I am not satisfied that the direct and indirect consequences outweigh the gravity of this particular offending. To obtain a discharge without conviction there needs to be exceptional circumstances for this particular type of offending and I have not found those

...

[29] Ms Thode submitted that the Judge’s statement that exceptional circumstances were required to obtain a discharge without conviction for this particular type of offending did not reflect the law, relying on the Court of Appeal’s decision in Police v Roberts:¹⁰

It has been said that the discretion should be exercised sparingly and only in exceptional cases but even those expressions tend to fetter the wide discretion ... obviously each case must be considered on its own merits and there would not be a proper exercise of discretion if cases were treated one way or another depending on their category, such as shoplifting cases or indiscretions by university students or cases in which a conviction would be relevant to the consideration of an independent statutory body or give rise to some absolute statutory prohibition ... It is a proper exercise of the Court’s discretion “if the direct and indirect consequences if the conviction are in the Court’s judgment, out of all proportion to the gravity of the offence.”

[30] I agree that the Judge conveyed that breath alcohol offending was a type of offending to be treated differently and more seriously in terms of a discharge under s 106. That is not the case, the test is simply as it is stated in s 107, whether the consequences are out of all proportion to the gravity of the offending. However,

_{when that test is applied I am satisfied that the outcome is the same.}

¹⁰ Police v Roberts (1990) 7 CRNZ 197.

[31] There will, I accept, be consequences to Ms Franks of a conviction. There must be a risk of sanction by the Nurses’ Council. However, it is far from certain that, ultimately, there will be any long-term effect on Ms Franks’ career. She is a first offender with a substantial body of work behind her and extremely good references that support both her character and her professional abilities. It seems unlikely that the consequences would be severe.

[32] In addition, Ms Franks will, inevitably, have to disclose the conviction to prospective employers. However, given Ms Franks’ undoubted qualifications and personal attributes, there is no reason to think that she will be shut out of her profession solely as a result of this conviction. If that were the case, then I would agree that the consequences would be out of all proportion to the gravity of the offence. But on the evidence that is not the case.

[33] On the other side of the ledger, of course, is the fact that Ms Franks works in a profession where there is public concern and sensitivity to this type of offending. The offending was moderately serious. The consequences of a conviction are not out of all proportion to the seriousness of that offending.

Result

_{[34] The appeal is dismissed.}

P Courtney J