Pereira v Police - [2019] NZHC 2130

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2130
Decision Date: 28 August 2019

CaseChat Overview and Summary

The case of Pereira v Police involved an appeal by Joenelle Pereira against her conviction for assaulting her nine-year-old daughter. The incident, which occurred in August 2018, resulted in Pereira slapping her daughter in the face, an act that was reported by the victim to a teacher the next day. Pereira pleaded guilty to the offence, which was described by the sentencing Judge as being of low to moderate gravity due to the remorse shown by Pereira and the mitigating factors present in the case. However, the conviction had significant consequences for Pereira’s career as a kindergarten teacher, potentially leading to the loss of her job and registration with the Teaching Council. This outcome was due to the legal requirements under the Children’s Act 2014, which precludes specified organisations from employing individuals convicted of specified offences, such as assaulting a child. The High Court was tasked with determining whether the consequences of conviction were so disproportionate to the gravity of the offence as to warrant a discharge without conviction.

The Court considered the nature and gravity of the offence, acknowledging that while the physical harm caused was minimal, the breach of trust and the emotional impact on the victim were significant. The Court also examined the direct and indirect consequences of the conviction, which included the likely loss of Pereira’s job and potential difficulties in finding future employment in the teaching profession. Despite the Police’s argument that the likelihood of obtaining an exemption from the Teaching Council was high, the Court found that the consequences of conviction were moderately serious. The Court concluded that while the consequences were not entirely disproportionate to the gravity of the offence, the unique circumstances of the case warranted careful consideration. Ultimately, the Court decided that the consequences of conviction, though serious, were not so disproportionate to the gravity of the offence as to warrant a discharge without conviction.

The Court's reasoning highlighted the importance of balancing the need to protect children with the potential collateral consequences of a conviction on an offender's career and life. The decision underscored the Court's cautious approach to discharging offenders without conviction, particularly in cases involving specified offences under the Children’s Act. The appeal was dismissed, leaving Pereira with the conviction that could have significant repercussions for her career as a teacher.

Orders