Pereira v Police
[2019] NZHC 2130
•28 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000292
[2019] NZHC 2130
BETWEEN JOENELLE PEREIRA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 and 27 August 2019 Counsel:
AP Comeskey for Appellant D Becker for Respondent
Judgment:
28 August 2019
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 28 August 2019 at 3.30 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
AP Comeskey, Auckland. Crown Solicitor, Auckland.
PEREIRA v POLICE [2019] NZHC 2130 [28 August 2019]
A difficult case
[1] Ms Joenelle Pereira slapped her nine-year-old daughter to the face. The assault left no injury but unsurprisingly, upset the victim. She was distressed at school the next day. This is how the offence was detected.
[2] Ms Pereira is 34, and a first offender. She pleaded guilty promptly and completed courses and counselling. Further offending is unlikely. Ms Pereira is a kindergarten teacher. If she remains convicted of assaulting a child, the Teaching Council 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 the victim and her two other children. Ms Pereira told the victim to go for a run. The victim 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 the victim. The latter told a teacher or teachers about the offence the next day.1 Ms Pereira admitted 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 she would plead guilty but contest entry of a conviction. Sentencing was adjourned so Ms Pereira could complete courses and counselling. Ms Pereira completed a 10-week anger management programme, a parenting course, family counselling, and family therapy.
[6] Ms Pereira filed an affidavit before sentencing. She said the victim was being disruptive and misbehaving. Ms Pereira also said she was sleep-deprived because her youngest child (who was 12 months) was not sleeping well.
1 The summary of facts refers to disclosure of “domestic violence issues ... within her home”; and to “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 single incident 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 had done everything she could to mitigate the seriousness of the offending. The Judge held the gravity of the offence was “somewhere between low and moderate”.3 The Judge was not satisfied of a real and appreciable risk Ms Pereira would lose her teaching job at the kindergarten. The Judge held the consequences of a conviction would not be out of all proportion to the gravity of the offending. For this reason, the Judge declined to discharge Ms Pereira without conviction.
Subsequent events
[9] On 17 June 2019—and so three days after sentencing—the Teaching Council required Ms Pereira to undertake she would not teach until determination of this appeal. 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 job because of the effect of Children’s Act 2014. The kindergarten said it did not want this to happen because it regards Ms Pereira as a “very passionate, caring and exceptional teacher”.
[10] Given these developments, everyone agreed I should approach the decision afresh.4
The 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 ensure governmental agencies “worked together to improve the well-being of particular groups of children”.5
2 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 be artificial 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 who work with children. Section 28 precludes a specified organisation from employing or engaging someone who works in this capacity if that person has a conviction for a specified offence. A specified offence is defined as an offence within Schedule 2.6 Assault on a child is in Schedule 2, hence a specified offence.
[13] The Teaching Council must cancel a teacher’s registration if a teacher is convicted of a specified offence, unless the teacher obtains an exemption under the Act.7 An exemption may be granted only if the Chief Executive of the Ministry of Social Development “is satisfied that the person would not pose an undue risk to the safety 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 is quashed, or Ms Pereira obtains an exemption under the Act.
Discharge without conviction
[15] A Court may discharge a defendant without conviction if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.9 The Court first assesses the gravity of the offending, which includes both aggravating and mitigating factors. The Court then assesses the direct and indirect consequences of conviction. It next asks whether those would be out of all proportion to the gravity of the offending. If so, the Court has a residual discretion whether to discharge the defendant without conviction.
Analysis
Gravity of the offending
[16] Ms Pereira applied force to the head of a vulnerable victim. The offence involved a breach of trust. It caused obvious distress, still operative the next day. It is 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 successful application for a discharge (on appeal to the Court of Appeal).
[17] The offence involved a momentary loss of control, possibly exacerbated by inadequate sleep and frustration. It left no physical injury. Ms Pereira pleaded guilty promptly. She is remorseful, and of otherwise good character. Ms Pereira has done everything practicable to mitigate the seriousness of the offence.
[18] This mix places the gravity of the offending between low and moderate. As will 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. As observed, the offence of assaulting a child is a specified offence incompatible with registration as a teacher, and the kindergarten will not hold open Ms Pereira’s position while she seeks an exemption. Police acknowledge as much; they do not argue otherwise.
[20] Ms Pereira contends her teaching career will be in jeopardy unless the appeal is allowed. She cannot know whether the Chief Executive will grant an exemption. That process will take approximately three months, perhaps longer. If the Chief Executive grants an exemption, Ms Pereira would then need to find a new teaching job; a prospect likely affected by the stigma of a conviction for a specified offence. 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 been 85 valid applications for an exemption.10 Forty-five of these have been granted without conditions; a further 16 with conditions. So, approximately 72 percent of exemption applications have succeeded (albeit, some with conditions). Police contend it is likely Ms Pereira will receive an exemption because there is little reason to believe she poses an undue danger to the safety of children. Police also contend there is a good prospect Ms Pereira would find further work as a teacher, as she has excellent references 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 the exemption process. Ms Pereira promptly obtained this information from the Ministry of Social Development. It was helpful. I thank her for it.
[22] I accept Ms Pereira will lose her job if the appeal is not allowed. The kindergarten has made that clear. Ms Pereira would likely suffer some financial hardship 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 should be granted; this is for the Chief Executive. I am, however, required to assess the consequences of conviction, which in turn requires some assessment of the likelihood of 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 the offence. A conclusion she does not pose an undue risk to the safety of children appears available, 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 the end 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 despite an exemption by the Chief Executive. Some may treat the fact of conviction as a decisive black mark. Some employers beyond those in the field of education may react the same way too.
[25] It follows I regard the consequences for Ms Pereira’s teaching career as lying between the positions advanced by the parties, albeit closer to the Police position. The position is not as bleak as Ms Pereira contends, but nor is it quite that advanced by the Police. I conclude Ms Pereira is likely to obtain an exemption, but there is a real risk conviction may compromise her ability to obtain a teaching role, at least one attractive to her. A conviction may also compromise Ms Pereira’s ability to obtain other employment, again of an attractive nature. And of course, Ms Pereira will lose her kindergarten job, with financial repercussion.
[26] This implies direct and indirect consequences of a conviction are moderately serious.
Proportionality
[27] The gravity of the offending is between low and moderately serious. The consequences of conviction are moderately serious. So, there is some dissonance between offence gravity and the consequences of a conviction, but the latter is not out of all proportion to the former.
[28] Two other considerations buttress this conclusion. First, conviction of a specified offence attracts a predictable statutory outcome for those who work with children, especially teachers. Indulgent discharges without conviction could compromise the efficacy of the regime—hence protection—afforded by the Children’s Act. Approached the other way, a Court may only discharge an offender without conviction when the consequences of conviction would be out of all proportion to the gravity of the offence.11 That standard is not met.
[29] Second, in Wilson v Police, Grice J declined to discharge a teacher who twice assaulted his stepson.12 The first offence involved Mr Wilson putting his hand over the 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, the Judge said if only the second had occurred, she might have discharged Mr Wilson without conviction. Mr Wilson did not plead guilty. He appears to have been unremorseful. 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 have discharged her without conviction. I would also have discharged Ms Pereira if she had pushed or pulled her daughter in a manner akin to Mr Wilson. But, that is not what 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