PEREIRA v POLICE [2019] NZHC 2130

PEREIRA v POLICE [2019] NZHC 2130 [28 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000292[2019] NZHC 2130BETWEEN JOENELLE PEREIRAAppellantAND NEW ZEALAND POLICERespondentHearing: 20 and 27 August 2019Counsel: AP Comeskey for AppellantD Becker for RespondentJudgment: 28 August 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 28 August 2019 at 3.30 pm.Registrar/Deputy RegistrarSolicitors/Counsel:AP Comeskey, Auckland.Crown Solicitor, Auckland.A difficult case[1] Ms Joenelle Pereira slapped her nine-year-old daughter to the face. The assaultleft no injury but unsurprisingly, upset the victim. She was distressed at school thenext day. This is how the offence was detected.[2] Ms Pereira is 34, and a first offender. She pleaded guilty promptly andcompleted courses and counselling. Further offending is unlikely. Ms Pereira is akindergarten teacher. If she remains convicted of assaulting a child, the TeachingCouncil must cancel her registration. If this happens, Ms Pereira would lose her job.Her future as a teacher would also be in jeopardy.Background[3] The offence occurred 9 August 2018. Ms Pereira was exercising with thevictim and her two other children. Ms Pereira told the victim to go for a run. Thevictim struggled to do so because of back pain. Ms Pereira told her to repeat the run.The victim became upset, which led to an argument. Ms Pereira then slapped thevictim. The latter told a teacher or teachers about the offence the next day.1 Ms Pereiraadmitted the offence to Police. She said she momentarily lost control.[4] The victim was removed from Ms Pereira's care. She has since been returned.[5] The charge was laid 24 September 2018. On 8 November, Ms Pereira said shewould plead guilty but contest entry of a conviction. Sentencing was adjourned soMs Pereira could complete courses and counselling. Ms Pereira completed a 10-weekanger management programme, a parenting course, family counselling, and familytherapy.[6] Ms Pereira filed an affidavit before sentencing. She said the victim was beingdisruptive and misbehaving. Ms Pereira also said she was sleep-deprived because heryoungest child (who was 12 months) was not sleeping well.1 The summary of facts refers to disclosure of "domestic violence issues ... within her home"; andto "recent and historic incidents of alleged physical abuse". However, Police laid only one charge.The charge was not framed as representative. By her plea, Ms Pereira acknowledged a singleincident of violence. I proceed on this basis.[7] On 14 June 2019, Judge E M Thomas sentenced Ms Pereira.[8] The Judge found Ms Pereira "genuinely remorseful".2 He considered she haddone everything she could to mitigate the seriousness of the offending. The Judgeheld the gravity of the offence was "somewhere between low and moderate".3 TheJudge was not satisfied of a real and appreciable risk Ms Pereira would lose herteaching job at the kindergarten. The Judge held the consequences of a convictionwould not be out of all proportion to the gravity of the offending. For this reason, theJudge declined to discharge Ms Pereira without conviction.Subsequent events[9] On 17 June 2019—and so three days after sentencing—the Teaching Councilrequired Ms Pereira to undertake she would not teach until determination of thisappeal. On 25 June, the kindergarten suspended Ms Pereira, without pay. On 26 June,the kindergarten confirmed that if the appeal were dismissed, she would lose her jobbecause of the effect of Children's Act 2014. The kindergarten said it did not wantthis to happen because it regards Ms Pereira as a "very passionate, caring andexceptional teacher".[10] Given these developments, everyone agreed I should approach the decisionafresh.4The Children's Act 2014[11] The Children's Act was enacted to require Executive government to adopt,publish, and review a strategy for improving the well-being of children; and ensuregovernmental agencies "worked together to improve the well-being of particulargroups of children".52 Police v Pereira [2019] NZDC 11304 at [7].3 At [7].4 The Police responsibly abandoned their opposition to the reception of fresh evidence. It would beartificial to consider matters other than by reference to what has happened since sentencing.5 Children's Act 2014, s 4(b).[12] The Act requires specified organisations complete safety checks of those whowork with children. Section 28 precludes a specified organisation from employing orengaging someone who works in this capacity if that person has a conviction for aspecified offence. A specified offence is defined as an offence within Schedule 2.6Assault on a child is in Schedule 2, hence a specified offence.[13] The Teaching Council must cancel a teacher's registration if a teacher isconvicted of a specified offence, unless the teacher obtains an exemption under theAct.7 An exemption may be granted only if the Chief Executive of the Ministry ofSocial Development "is satisfied that the person would not pose an undue risk to thesafety of children if employed or engaged" as a teacher.8 More about exemptions soon.[14] All this means Ms Pereira may not work as a teacher unless the conviction isquashed, or Ms Pereira obtains an exemption under the Act.Discharge without conviction[15] A Court may discharge a defendant without conviction if satisfied the directand indirect consequences of a conviction would be out of all proportion to the gravityof the offence.9 The Court first assesses the gravity of the offending, which includesboth aggravating and mitigating factors. The Court then assesses the direct andindirect consequences of conviction. It next asks whether those would be out of allproportion to the gravity of the offending. If so, the Court has a residual discretionwhether to discharge the defendant without conviction.AnalysisGravity of the offending[16] Ms Pereira applied force to the head of a vulnerable victim. The offenceinvolved a breach of trust. It caused obvious distress, still operative the next day. Itis reasonable to assume the victim felt humiliated.6 Children's Act, s 23(1).7 Education Act 1989, s 353(e).8 Children's Act, s 35(2).9 Sentencing Act 2002, s 107. Drake v R [2019] NZCA 56 provides a recent example of a successfulapplication for a discharge (on appeal to the Court of Appeal).[17] The offence involved a momentary loss of control, possibly exacerbated byinadequate sleep and frustration. It left no physical injury. Ms Pereira pleaded guiltypromptly. She is remorseful, and of otherwise good character. Ms Pereira has doneeverything practicable to mitigate the seriousness of the offence.[18] This mix places the gravity of the offending between low and moderate. Aswill be recalled, this was Judge Thomas' conclusion too.Direct and indirect consequences of conviction[19] Ms Pereira will lose her kindergarten teaching job through conviction. Asobserved, the offence of assaulting a child is a specified offence incompatible withregistration as a teacher, and the kindergarten will not hold open Ms Pereira's positionwhile she seeks an exemption. Police acknowledge as much; they do not argueotherwise.[20] Ms Pereira contends her teaching career will be in jeopardy unless the appealis allowed. She cannot know whether the Chief Executive will grant an exemption.That process will take approximately three months, perhaps longer. If theChief Executive grants an exemption, Ms Pereira would then need to find a newteaching job; a prospect likely affected by the stigma of a conviction for a specifiedoffence. Ms Pereira is relying on her husband's income to meet their expenditure,including an Auckland mortgage. Ms Pereira believes her future is "very uncertain".[21] Police argue the outlook is not this bleak. Since 1 July 2015, there have been85 valid applications for an exemption.10 Forty-five of these have been grantedwithout conditions; a further 16 with conditions. So, approximately 72 percent ofexemption applications have succeeded (albeit, some with conditions). Police contendit is likely Ms Pereira will receive an exemption because there is little reason to believeshe poses an undue danger to the safety of children. Police also contend there is agood prospect Ms Pereira would find further work as a teacher, as she has excellentreferences and is otherwise of good character. And, teachers are in short supply.10 I adjourned the appeal, without opposition, on the basis I would be assisted by evidence about theexemption process. Ms Pereira promptly obtained this information from the Ministry of SocialDevelopment. It was helpful. I thank her for it.[22] I accept Ms Pereira will lose her job if the appeal is not allowed. Thekindergarten has made that clear. Ms Pereira would likely suffer some financialhardship until she finds other employment.[23] I accept there is a risk a conviction may end Ms Pereira's teaching career.Absent an exemption; it must. It is not for me to decide whether an exemption shouldbe granted; this is for the Chief Executive. I am, however, required to assess theconsequences of conviction, which in turn requires some assessment of the likelihoodof an exemption. The process is not a hollow ritual. Most applicants succeed.Ms Pereira is a first offender who has done everything practicable to mitigate theoffence. A conclusion she does not pose an undue risk to the safety of children appearsavailable, and a not unlikely outcome. If Ms Pereira were not granted an exemption,she may appeal to the High Court against this decision. So, a safety valve exists at theend of the process.[24] None of this means Ms Pereira would necessarily get another job as a teacher.Potential employers may place weight on a conviction for a specified offence despitean exemption by the Chief Executive. Some may treat the fact of conviction as adecisive black mark. Some employers beyond those in the field of education mayreact the same way too.[25] It follows I regard the consequences for Ms Pereira's teaching career as lyingbetween the positions advanced by the parties, albeit closer to the Police position. Theposition is not as bleak as Ms Pereira contends, but nor is it quite that advanced by thePolice. I conclude Ms Pereira is likely to obtain an exemption, but there is a real riskconviction may compromise her ability to obtain a teaching role, at least one attractiveto her. A conviction may also compromise Ms Pereira's ability to obtain otheremployment, again of an attractive nature. And of course, Ms Pereira will lose herkindergarten job, with financial repercussion.[26] This implies direct and indirect consequences of a conviction are moderatelyserious.Proportionality[27] The gravity of the offending is between low and moderately serious. Theconsequences of conviction are moderately serious. So, there is some dissonancebetween offence gravity and the consequences of a conviction, but the latter is not outof all proportion to the former.[28] Two other considerations buttress this conclusion. First, conviction of aspecified offence attracts a predictable statutory outcome for those who work withchildren, especially teachers. Indulgent discharges without conviction couldcompromise the efficacy of the regime—hence protection—afforded by the Children'sAct. Approached the other way, a Court may only discharge an offender withoutconviction when the consequences of conviction would be out of all proportion to thegravity of the offence.11 That standard is not met.[29] Second, in Wilson v Police, Grice J declined to discharge a teacher who twiceassaulted his stepson.12 The first offence involved Mr Wilson putting his hand overthe victim's mouth to prevent screaming. The second offence was less serious;Mr Wilson dragged or pulled the victim by his arm back to the table. Notably, theJudge said if only the second had occurred, she might have discharged Mr Wilsonwithout conviction. Mr Wilson did not plead guilty. He appears to have beenunremorseful. But, Ms Pereira's assault is more serious than Mr Wilson's second one.She struck her daughter to the face.[30] This aspect makes explicit something that has greatly influenced my thinking.If Ms Pereira had slapped her daughter on the arm, leg or bottom, I would havedischarged her without conviction. I would also have discharged Ms Pereira if shehad pushed or pulled her daughter in a manner akin to Mr Wilson. But, that is notwhat she did, which is why this is a difficult case.11 Sentencing Act, s 107.12 Wilson v Police [2019] NZHC 1252.Result[31] The appeal is dismissed...Downs J