NZDT 2011/05
BEFORE THE NEW ZEALAND TEACHERS DISCIPLINARY TRIBUNAL
UNDER
the Education Act 1989
IN THE MATTER
of disciplinary proceedings pursuant to Part 10A of the said Act
BETWEEN
THE COMPLAINTS ASSESSMENT COMMITTEE
Complainant
AND
XXXXXXXXX
Respondent
DECISION OF TRIBUNAL
Tribunal:
Hearing:
Decision:
Counsel:
Kenneth Johnston (Chairman), Judith Catton, Graeme Gilbert, Kevin Knight
and Lorraine Skiffington
On the papers
06 April 2011
Gaeline Phipps for the Complainant
Respondent in person
Introduction:
In this case the Complainant refers to the Tribunal pursuant to s139AB(3) of the Education Act 1989 the
Respondent’s convictions in the High Court on …, on four counts involving sexual offences.
The Notice of Referral dated 19 November 2010, records the reasons for referral in these terms:
“1 On … was convicted, having pleaded not guilty, of the following four offences:
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unlawful sexual connection with a male under the age of 16 (section 128(1)(b) and (5)(b) of the Crimes
Act 1961);
unlawful sexual connection with a male between the age of 12 and 16 (section 128(1)(b) and (5)(b)
Crimes Act 1961);
indecent act on a boy aged between 12 and 16 (section 141 of the Crimes Act 1961);
indecent assault by man on boy aged under 16 (section 141 of the Crimes Act 1961)
The teacher was sentenced on … by ... in the High Court in ... to the following:
On the … conviction for sexual violation by oral connection, to 2 years and 11 months imprisonment;
On the … conviction for indecent assault, a concurrent sentence of 1 year;
Cumulative to the longer sentence, for the … conviction for sexual violation by oral connection, to a term
of 5 years and 5 months, with a sentence of 1 year’s imprisonment on the … indecent assault conviction
to be served concurrently with the longer sentence for the more serious … conviction.”
At an early stage the Tribunal and the Complainant were notified that the Respondent did not propose to take any
active steps in this disciplinary proceeding, and the matter was set down to be heard on the papers.
Evidence
The Complainant adduced evidence in the form of an affidavit made by Neil Kevin Mallon, one of its Case
Coordinators.
Mr Mallon deposed as to his familiarity with the case, the receipt by the New Zealand Teachers Council (the
Council) of a report on 5 March 2010, and the steps which the Council then took in relation to the matter. Mr
Mallon’s affidavit recorded the fact that at the request of the Complainant, the Respondent voluntarily agreed not
to teach pending the outcome of the criminal proceedings against him. He then deposed as to the Complainant’s
receipt of advice on 11 August 2010, of the Respondent’s convictions and produced a certified copy of the
relevant entry in the criminal record, and a copy of the High Court Judge’s sentencing notes. Finally, Mr Mallon
produced copies of letters from the Respondent to the school at which he formerly taught, and to the
Complainant.
Submissions
For the Complainant, Ms Phipps made relatively brief submissions. She began by outlining the Respondent’s
convictions and referring to the evidence as to these. She then referred us to two previous decisions of this
Tribunal (NZTDT 2010/20 and NZTDT 2010/19) which she submitted, and which the Tribunal accepts, are
broadly comparable to this case, and in which, the Tribunal made an order for deregistration. Finally, Ms Phipps
made submissions referring us to the key aspects of the High Court Judge’s sentencing notes. In the end, her
submission was that the Tribunal should order the Respondent’s deregistration.
The Respondent did not himself make any submissions but we record that his elder brother was good enough to
write to the Convenor of the Complaints Assessment Committee following advice from that Committee that it
proposed to refer his convictions to the Tribunal, and we set out the terms of this letter below:
“In response to your letter to [the Respondent] dated 19 November 2010, as his older brother, that letter has
been forwarded to me with his instructions to respond to you.
I have been advised by [the Respondent] that he is unable to participate in a telephone conference call as
requested. The Prison offers limited access to standard telephone calls let alone a request for a telephone
conference call.
[The Respondent] also declines to complete a checklist as requested.
[The Respondent] accepts that given the serious nature of his convictions, there is limited hope to argue his case
and will accept whatever decision the Committee (sic) will make.
You can contact me at the above address or email ...”
Discussion
The evidence establishes beyond doubt that, following a trial before a Judge and jury in the High Court, the
Respondent was convicted of the serious offences particularised in the Notice of Referral. Although the
Respondent has maintained his innocence throughout, and has continued to do so following his conviction, it
almost goes without saying that the Tribunal is not in a position to look behind the convictions. It must accept the
convictions and deal with the matter on that basis. We are sure that the Respondent appreciates that.
The convictions were for very serious sexual offences involving school age children, and occurred in a school
environment.
Although the Tribunal must consider all options available to it (in terms of s139AW) before determining what, if
any, penalty to impose, and has of course done so in this case as it does in all cases, it would be unrealistic to
pretend that the Tribunal has any real option in this case, having regard to its responsibilities to the public, the
teaching profession and school age students, but to censure the Respondent for his actions and to order his
deregistration. That is the order which follows.
This being a referral of convictions, no questions as to costs arise.
Order
The Tribunal’s formal order is therefore as follows:
(a) Pursuant to s139AW(1)(b) of the Education Act 1989, the Tribunal formally censures the Respondent;
(b) Pursuant to s139AW1(1)(g), the Tribunal orders the Respondent’s deregistration.
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Kenneth Johnston
Chairman
NOTICE
1. A person who is dissatisfied with all or any part of a decision of the Disciplinary Tribunal under sections 139AU
(2) or 139AW of the Education Act 1989 may appeal to a District Court.
2. An appeal must be made within 28 days of receipt of written notice of the decision, or within such further time
as the District Court allows.
3. Subsections (3) – (7) of section 126 apply to every appeal as if it were an appeal under subsection (1) of
section 126.