Kevin Gonzales, 34, appeared before the Dunedin District Court this week where he was discharged without conviction after admitting a charge of indecent assault.
Judge Hermann Retzlaff said it was "low-level" offending and had the defendant — who had come to New Zealand in 2021 — been convicted, he would have likely struggled to obtain a permanent residency visa.
Counsel Alex Bligh said, after a stand-down period Gonzales had been allowed to continue his employment at Dunedin Hospital because he was "such a good worker".
He had been stationed in a different department to the victim and there had been no further incidents, she said.
The Otago Daily Times sought comment from Health New Zealand Te Whatu Ora regarding the decision to allow Gonzales to keep working given the vulnerable people with whom he came into contact.
"We are unable to comment on matters relating to current or former employees," a spokesman said.
On August 12, the victim had asked Gonzales to assist her with a medical procedure on an unconscious patient as she was not qualified to perform it alone.
When she turned away, the defendant "stopped what he was doing and placed his right hand on her inner thigh, moving it upwards and squeezed her bottom".
The molestation stopped when the woman moved away.
Court documents said the victim was "shocked and did not know what to do" at the time, but later reported the incident to her manager before police became involved.
The court heard the pair had engaged in flirtatious text messages in the past but more recently, the woman had distanced herself from Gonzales and told him she was no longer interested in him.
The defendant gave a somewhat curious explanation to police, which Judge Retzlaff said downplayed the seriousness of the sexual assault.
"[He] stated he accidentally slapped her bottom, then was looking for a split in the complainant’s crotch with his fingers and then squeezed her buttocks during a moment of poor judgement," a police summary recorded.
Gonzales accepted his actions were "not professional".
The court heard the victim had sought counselling as a result of the ordeal and experienced ongoing anxiety in the aftermath.
Ms Bligh said a conviction may create trouble for Gonzales with the Nursing Council but stressed the crux of her application lay with the potential consequences to his immigration status.
A spokesperson for the council said only if a practitioner was convicted would a referral be made to a professional conduct committee, which could then assess fitness to practice.
Police did not oppose the discharge and Judge Retzlaff said a blemish on the defendant’s criminal record could ultimately leave him liable for deportation.
There had been cases of more serious crimes, overseen by the higher courts, which had also resulted in a discharge without conviction, he said.
Gonzales was ordered to pay the victim $2500.
The New Zealand Nurses Organisation refused to be drawn on the situation, deferring to HNZ.
The Nursing Council said it had no comment to make on Gonzales’ work status as it was "an employment decision".
