Totorewa v Ministry of Education

[2012] NZHC 2937

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-85 [2012] NZHC 2937

JACKIE TOTOREWA

Appellant

v

MINISTRY OF EDUCATION

Respondent

Hearing:         6 November 2012

Counsel:         Appellant in person

R Annandale for Respondent

Judgment:      8 November 2012

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 8 November 2012, at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

JACKIE TOTOREWA V MINISTRY OF EDUCATION HC HAM CRI-2011-419-85 [8 November 2012]

[1]      The Ministry of Education (“the Ministry”) laid three informations against Ms Totorewa alleging offences against s 24 of the Education Act 1989 (“the Act”). The  informations  alleged  that  Ms  Totorewa  had  failed  to  ensure  that  her  three children were enrolled in a registered school.

[2]      After a defended hearing lasting two days, Judge Connell found each of the charges proved.[1]    On the same date, he convicted Ms Totorewa and fined her $150 on each charge.  He also ordered her to pay Court costs of $132.89, and solicitors’ costs of $113.

[1] Ministry of Education v Totorewa DC Hamilton CRI-2010-019-4187, 28 October 2011.

[3]      Ms Totorewa appeals to this Court against both conviction and sentence.

Background

[4]      The informations alleged that the offending occurred in each case between

10 December 2009 and 30 April 2010.  At that time her three children were aged approximately 15 and a half years, 13 years and 9 years of age respectively.

[5]      Up until July 2009, the three children were enrolled as students at the New Zealand Correspondence School (“the Correspondence School”).  They were entitled to attend that school because Ms Totorewa’s job as a homoeopathist required her to travel a great deal.  As a result, the Correspondence School accepted that her family circumstances met the itinerancy requirements that are a prerequisite for enrolment at the school.   The itinerancy requirements were that the family had to change location at least once a term, thereby requiring a change of school for children in the family.

[6]      In July 2009, the Correspondence School concluded that Ms Totorewa and her family were living on a permanent basis at a residential address in Bader Street, Hamilton.    It  therefore  concluded  that  the  family no  longer  met  the  itinerancy

requirements and, as a consequence, were no longer entitled to remain enrolled at

that school.  The school then removed the three children from its roll.  This meant that they were required to enrol at, and begin attending, another registered school.

[7]      The Correspondence School notified the Ministry of Education on 11 August

2009 that the children had been removed from its roll.  It did so via a national system known as the Non-Enrolled Truancy System (“NETS”).   The service provider of NETS assists the Ministry to manage its caseload.   Once children are within the system, the Ministry makes contact with the child’s family in order to work with them to ensure that the child is enrolled in a registered school as quickly as possible.

[8]      In August 2009, Rachel Fox, a team leader at the Ministry of Education in Hamilton, contacted Ms Totorewa.  She told Ms Totorewa that she would not be able to re-enrol the children  in the  Correspondence School  unless they first met the criteria for enrolment.  She also told Ms Totorewa that, if the children did not meet the itinerancy criteria, they would need to be enrolled in a mainstream registered school in the area in which they lived.

[9]      Ms Totorewa has never accepted the Correspondence School’s conclusion that her circumstances did not satisfy its itinerancy requirements. As a consequence, she has been engaged in a long-running dispute with both the Ministry of Education and the Correspondence School regarding this issue.   Importantly for present purposes, however, Ms Totorewa did not enrol her children at another registered school.  Instead, she persisted with her efforts to establish that her children remained entitled to be enrolled in the Correspondence School.

[10]     During the hearing before me Ms Tototwera explained that after July 2009 she assumed responsibility for educating her three children herself.   This state of affairs lasted in respect of her 15 and a half year old son until he turned 16, and began an educational course at a tertiary institute.  She continued to educate her 14 year old son until May 2011, when he began attending a local high school.   She continued to educate her 9 year old daughter until February 2012, when she was enrolled at a local primary school.

The legislation

[11] Section 20 of the Act requires all children, with very limited exemptions,[2] to be enrolled at a registered school between the ages of 6 and 16 years. Section 24 of the Act prescribes the penalty to be imposed on parents who fail to ensure their children comply with this requirement. It provides:

[2] Contained in ss 21 to 23.

24     Penalty for failure to enrol

(1)     Where the parent of a person required by this Act to be enrolled at a registered school fails or refuses to ensure that the person is enrolled at a registered school, the parent commits an offence, and is liable on summary conviction to a fine not exceeding $3,000.

(2)     The payment of a fine in respect of a conviction for an offence against subsection (1) of this section is not a bar to proceedings for a further such offence.

The hearing in the District Court

[12]     Ms Totorewa did not dispute that she was the parent of each of the three children, and that each child was aged between 6 and 16 years at the date of the alleged offending.  She also accepted that she was the person responsible for making decisions regarding the children’s education.  She also acknowledged that, after the children ceased to the enrolled at the Correspondence School, she did not enrol any of the children at another registered school.

[13]     Given those concessions, it is scarcely surprising that the Judge found each of the elements of the charge proved beyond reasonable doubt.

Grounds of appeal

[14]     Ms Totorewa advanced succinct grounds in support of her appeal.   For the most part, they amounted to a challenge to the decision of the Correspondence School regarding her entitlement to enrol her children at the school.  She is of the view that, had the Correspondence School reached the correct decision regarding her

family’s itinerancy, the children would have remained at the school throughout, and

none of the problems that have beset her family since that time would have arisen. She  explained  that  she  did  not  see  any  need  to  enrol  her  children  in  another registered school when, on her view of the facts, they retained their entitlement to remain enrolled at the Correspondence School.

[15]     Ms   Totorewa   also   advanced   an   argument   based   on   the   failure   of representatives of the Ministry to assist her to resolve the impasse that arose as a result of the decision made by the Correspondence School.

Decision

[16]     As I explained to Ms Totorewa during the hearing, the Court’s function in the context of the prosecution was not to determine whether the Correspondence School had correctly decided that her children were no longer eligible to attend that school. The evidence makes it clear that, as a matter of fact, the Correspondence School removed the children from its roll on 3 July 2009. Thereafter, regardless of any steps that she might take to challenge the Correspondence School decision, she was responsible for ensuring that her children were enrolled at a registered school.  Her failure to take that step during the period alleged in the informations meant that she committed an offence under s 24.

[17]     The evidence also demonstrates that the Ministry has never regarded itself as being under an obligation to involve itself in the dispute between Ms Totorewa and the Correspondence School.  Rather, it has sought to assist Ms Totorewa to ensure that her children were enrolled in a registered school once they were removed from the roll of the Correspondence School.  I consider the Ministry was correct in this regard.   Ms Totorewa had the primary obligation of ensuring her children were enrolled in another registered school and the Ministry’s only obligation was to assist her in that undertaking.

Result

[18]     For these reasons neither of the grounds on which Ms Totorewa relied can succeed. The appeal against conviction must be dismissed.

Appeal against sentence

[19]     Ms  Totorewa  did  not  address  submissions  to  me  regarding  the  issue  of sentence.   It is clear, however, that the Judge imposed what he considered to be a nominal sentence in relation to each charge.  He did so because he was aware that Ms Totorewa was not in a strong financial position.  I do not consider the fines that the Judge imposed could be described as manifestly excessive, particularly having regard to the fact that Ms Totorewa’s children were not enrolled in a registered school for a reasonably lengthy period.

[20]     The appeal against sentence is accordingly dismissed as well.

Lang J

Solicitors:

Crown Solicitor, Hamilton

Copy to: Appellant