R v Middleton CA393/00 [2000] NZCA 438 (28 November 2000)

Last Updated: 25 April 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA393/00

THE QUEEN

V

JAMES WILLIAM MIDDLETON

Hearing:	28 November 2000
Coram:	Thomas J Heron J Anderson J
Appearances:	L D Stevens for Appellant S P France for Crown
Judgment:	28 November 2000

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] On 3 August this year the appellant was found guilty on his trial before a District Court Judge and jury in respect of one count of assaulting a child under the age of 14 years, contrary to s 194(a) of the Crimes Act 1961. The jury acquitted him on three other counts relating to different children. Following trial appellant’s counsel made a formal application to the District Court for an order pursuant to s 19 of the Criminal Justice Act 1985 discharging the appellant without conviction. In a reserved decision the Judge declined that application, and when subsequently sentencing the appellant on 13 October the Judge convicted the appellant and discharged him. The present appeal is against that decision not to discharge without conviction. The appeal is brought as a matter of form as an appeal against conviction but is in substance an appeal against the discretion exercised pursuant to s 19 of the Criminal Justice Act.

Circumstances of the case

[2] The appellant was a full time teacher at Prospect College, a Christian school which made provision for students who had special needs. He had sound professional qualifications both academically and in practical teaching experience. Many defence witnesses testified to his qualities as a teacher including patience, teaching ability, and general good character. He had been teaching for over 30 years and had no previous convictions.
[3] The complainant, R, was a physically small boy aged 10 at the time of the incident. He had psychological problems which had been exacerbated by the death of his father in the previous year. The bereavement was the catalyst for an emotional breakdown leading to his being hospitalised. He was subsequently cared for and counselled in a residential centre. Because he was unable to cope with ordinary schooling facilities, it was thought by the Special Education Services psychologists that Prospect College would be a suitable school. An SES psychologist, Ms O’Shea, met the school’s Principal, Mrs Chapman, and R’s proposed teacher, the appellant. There were a number of meetings directed to the care requirements of the boy. Ms O’Shea explained that R was highly prone to panic, that his manner was challenging, and that he was not to be touched because this upset him so greatly. Wherever possible, if he became difficult to manage, he needed to be taken to a less stressful situation.
[4] The appellant’s class, comprising only a few boys, contained R and at least one other child somewhat older and very disruptive in his manner. The appellant considered it inappropriate that R should be left vulnerable to this older boy’s influence. During R’s first term an incident occurred when he, the older boy, and a third pupil were the only ones being taught at the particular time in the classroom. R began to disrupt the lesson by constantly chanting the fictional name of an Indian tribe he had invented for the purpose of his social studies. The appellant arranged for the third boy, who was of a more manageable nature, to leave the classroom and study elsewhere. He then attempted to deal with R by verbal management. When this tactic proved unsuccessful he decided that R should be taken to the Principal to answer for his behaviour. He achieved this object by clutching the boy’s hair, thereby causing him to rise out of his seat and go with the appellant to the Principal’s classroom. The appellant’s evidence was to the effect that the duration of the trip to the Principal was not more than one minute. This conflicted with the evidence of the complainant who testified to going into different rooms as he was dragged by his hair and that the whole episode lasted many minutes. The version of events as described by the appellant must be accepted having regard to the information given by the jury to the Judge, at the Judge’s request, that the charge was proved on the basis of the appellant’s concessions and on no wider basis. The circumstances then, in summary, were that in order to take to the school Principal a 10 year old psychologically affected pupil who was disturbing the lesson, a middle aged male teacher induced compliance by the child by grasping his hair and holding it until the child was brought to the Principal’s presence. The appellant acknowledged in evidence that R might have been caught by the different speeds at which they moved. Also, that R might have tried to pull away as they went out the door, down the stairs, through the hall, and across the paved area to the science laboratory where the Principal was teaching.
[5] Appellant’s counsel supported the formal application for discharge pursuant to s 19 of the Criminal Justice Act 1985 with written submissions. These emphasised that s 19 provides a wide and unfettered discretion to the Court, one that requires consideration of all of the circumstances of the offender and the offending. It was submitted in particular that the overriding consideration is whether the direct and indirect consequences are, in the Court’s judgment, out of all proportion to the gravity of the offence. Counsel relied on Fisheries Inspector v Turner [1978] 2 NZLR 233 and Police v Roberts [1991] 1 NZLR 205 at 210. It was accepted that the case involved an assault on a child but, it was submitted, the appellant was ultimately found guilty of an offence which in the circumstances amounted to a mere technical assault. The gravity of the offending was said to be at the lower end of the scale and the direct and indirect consequences would be extreme and out of all proportion to the true gravity of the incident. Counsel apprehended the risk of de-registration of the appellant as a teacher with consequential prohibition of continuance of his teaching career. Counsel also expressed concern on the part of the appellant that the conviction might preclude or hinder avenues of employment other than teaching. Emphasis was placed on the appellant’s good character and successful teaching career over 30 years.
[6] In dealing with the application, the trial Judge accepted the significance of the jury’s indication that the conviction was based on the appellant’s own concessions but he observed that there was an undisputed context to the events and such was no less relevant in the case. The context included the complainant’s young age, only 10, and that he was small and highly vulnerable. He noted the boy’s recent bereavement and the serious effects on him. Reference was made to the meetings involving the SES psychologist as well as the appellant. The Judge set out parts of the evidence of the appellant himself including a concession that there was a “small element” of hurting the boy in what he was doing. The appellant said he was not attempting intentionally to cause pain but he did want the message he was giving to be clear.
[7] In assessing the gravity of the offence the Judge rejected the submission that the assault was at most technical. He emphasised the high responsibility teachers have for pupils in their charge and noted the provisions of s 139A of the Education Act 1989 which prohibits teachers from using force “by way of correction or punishment” towards any student or child enrolled at or attending the school unless that person is a guardian of the student or child. He found that by taking hold of the boy’s hair as he did, the appellant infringed the spirit and the letter of the statutory prohibition against the use of force by teachers towards their pupils. Aggravating this breach was that however challenging and disruptive the boy was, he was very vulnerable and it had been agreed, for good reason, that the boy was not to be touched, let alone restrained. The Judge was further of the view that the appellant’s predicament was not as intractable as he testified. He could have asked the boy next door to fetch another teacher or sat the class out “barren though that prospect must have seemed”, but instead “Mr Middleton became frustrated, his control lapsed briefly, and he took the shortest path.” Nor was the Judge prepared to exclude the possibility that for the relatively brief time involved the appellant was also intent on correcting or disciplining the child. Just by taking hold of the boy’s hair to exert control, the teacher could easily have humiliated the child and very likely did. Just by applying even a slight degree of force, the teacher could easily have caused the boy pain and very likely did. He adverted to the evidence of a girl pupil who said the boy was crying when, being held by his hair, he was brought into the room where the Principal was. The Judge therefore considered that this was not a technical assault and even though the effect on the boy appeared, fortunately, not to have been severe or lasting, as it might conceivably have been, the offence did warrant the entry of a conviction.
[8] Nor was the Judge prepared to consider the entry of a conviction out of all proportion to the gravity of the offence, when the consequences for the appellant were taken into account. He accepted that normally, even in testing contexts, the appellant is a very capable, patient, and calm teacher; that the offence was an aberration; and that he was unlikely ever to offend again. He was, however, of the view that such matters went to penalty, not conviction. Concerning the implications for the Teacher Registration Board, the Judge held that was not something for him to take into account. Rather, the Board, in exercising its power of decision, would have to decide what weight to give the conviction. The application was therefore declined.
[9] When subsequently dealing with the issue of sentence, the Judge reiterated that the offence appeared not to have had any lasting impact on the child. He was mindful of the impact, however, of the trial on the appellant and ultimately decided that to impose any penalty in addition to the conviction would seem distracting to the Teacher Registration Board and, in connection with that Board’s function, disproportionate to the offence.
[10] We have set out in some detail the nature of the submissions made on behalf of the appellant to the learned District Court Judge because they are largely replicated in counsel’s submissions on this appeal. At this stage, however, it is known that the Teacher Registration Board decision was that the appellant be not de-registered. Accordingly concern at the possibility of a qualification barrier to the pursuit by the appellant of his profession has dissipated. Now, however, counsel submits that the Board’s decision not to de-register is an indication for allowing the appeal on the grounds that the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending as perceived by that Board.
[11] Leave was sought on behalf of the appellant to file an affidavit by the appellant confirming the Teacher Registration Board’s decision and expressing the subjective belief of the appellant that despite the renewal of his registration, the fact of conviction will prevent him from obtaining employment as a teacher and substantially limit future avenues of employment both within New Zealand and overseas. He deposes that since May this year he has been working part time for a news information service company and as a telemarketer and he expresses the belief that if the conviction stays he would be forced to reduce his future employment status to that level of employment which would be an extreme hardship financially and intellectually. Leave was also sought to file an affidavit sworn by Mr P W H Barlow, a very experienced educationist and a former director of the Teacher Registration Board. He deposes to the approach taken by the Board and the power of the Board to cancel registration or refuse to renew a practising certificate or registration in respect of a teacher convicted of an offence that carries a penalty of 12 months imprisonment or more. We remark at this stage that the particular offence carries a maximum penalty of two years imprisonment. Mr Barlow deposes to the difficulties likely to be experienced by a teacher having a conviction for an offence of assault on a child. In his view the appellant would be highly unlikely to obtain employment regardless of his registration status.
[12] Counsel appearing for the Crown does not object to the admission of this affidavit evidence and it is therefore admitted.
[13] Mr France acknowledges on behalf of the Crown that the conviction presents a hurdle to another teaching job but submits that it will be a one time hurdle which would not remain an obstruction after a new teaching job is obtained. Counsel submits that the sentencing Judge carefully explored the relevant facts and principles and reached a conclusion that was plainly open to him. He submitted that the arguments for the entry of conviction are at least as cogent as those for discharging without conviction. Future School Board employers charged with the care of children are, in counsel’s submission, entitled to know of the incident which involved an assault, not fleeting but lasting the time it took to get the boy to the Principal’s presence, and plainly caused pain in the process. Counsel for the Crown does not depreciate the difficulties faced by the appellant in the particular circumstances. The Court took an approach which followed that established by the authorities, considered relevant principles, and reached a conclusion well open on the facts. Counsel submitted the factual conclusion was that the incident was not merely technical either contextually or intrinsically. Nor was it in any sense fleeting in time or effect. In summary, counsel acknowledged that there could be some sympathy for the appellant but submitted that there was no principled basis for this Court to allow the appeal.

Judgment

[14] Although in form an appeal, the proceeding in reality seeks a review of a judicial discretion. It is insufficient for a person seeking to review the exercise of a discretion to demonstrate that another Judge might well have decided the other way. What the appellant is constrained to demonstrate is that the exercise of the discretion was plainly wrong. The obligation to exercise the discretion accorded by s 19 rests on the Judge of first instance and may not be exercised by this Court as if it were determining the matter originally. In a case where the discretion might have been exercised just as convincingly and correctly one way or the other, it would be wrong for an appellate Court to substitute any view it might have without error being shown on the part of the Judge appealed from. Despite her very careful and helpful submissions, both in writing and orally before the Court, counsel for the appellant has not satisfied us that there has been any reviewable error by the trial Judge in the exercise of the discretion.
[15] This is not to say, however, that this Court if dealing with the matter as an original application would necessarily have exercised the discretion in favour of discharge without conviction. The consequences of the offence are likely to be more serious for a teacher than for someone who does not have a professional obligation of care to children. But the potential seriousness of consequences is a product of the essentially high standard of responsibility expected of persons in the position of the appellant. Understandable though the appellant’s sense of frustration at the child’s conduct is, we take the view that this physical treatment of a small, young pupil, emotionally and otherwise psychologically suffering and known to be so, cannot be dismissed as insignificant. A discharge without conviction might suggest otherwise. The appeal is accordingly dismissed.

Solicitors:
Keesing McLeod, Wellington, for Appellant
Crown Law Office, Wellington