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Home / New Zealand

Haunted by historical charges: Conviction quashed for childcare worker who had threesome with minor

Hazel Osborne
By Hazel Osborne
Open Justice multimedia journalist, Wellington ·NZ Herald·
10 Apr, 2022 05:00 PM5 mins to read

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A former childcare worker has had her historical conviction for sex with a minor quashed in an extremely rare move after it was found to have had significant consequences on her life.

The case is believed to be just one of a small handful in which a person has seen their historical conviction quashed decades after being sentenced.

The woman, referred to only as Ms C as she has permanent name suppression, pleaded guilty in 1996 to being a party to unlawful sexual intercourse with a girl aged 12-16 years. She and her partner at the time, referred to as Mr H, had a threesome with a 15-year-old co-worker after a night of drinking.

Ms C, now in her early 40s, was convicted and served a six-month suspended prison sentence and six-months of supervision for her role in the offending.

Now, 26 years later, Justice Rebecca Ellis has granted the woman's appeal against her sentence, where she sought a discharge without conviction.

The woman lost a job in early childhood education after the Vulnerable Children Act 2014, came into effect. While her employer knew of her conviction the legislation states that a care worker convicted of a specified offence cannot be employed unless they apply for an exemption.

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Ms C's employer advised her that, while she was entitled to go through the exemption process, they would not re-register her given their internal policies.

She has applied for more than 40 jobs in other areas since 2016 but has been unsuccessful each time.

The inability to get a new job, which comes after she was refused travel to Australia several years earlier, spurred her to take action against a conviction that may never have needed to be on her record in the first place.

Court documents reveal there was contention around whether Ms C had received sufficient legal advice at the time, and that a discharge without conviction, given her circumstances, may have been available to her.

At the time of sentencing, Ms C said she was told by Mr H and his lawyer that they were getting a 'good deal', but later findings throughout the appeal process suggest she may have been eligible for a discharge without conviction.

In 2016 she started the process to challenge her conviction but first had to get an extension of time as she was 25 years past the normal period in which a person can appeal against their sentence.

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In December Justice Cheryl Gwyn granted Ms C leave to apply for the appeal of her conviction. In a minute issued at the time, she agreed with evidence before her that showed Mr H and Ms C's interests were different and if they had been separately represented at the time, Ms C may have been able to be discharged without conviction.

During that hearing the court heard that both Ms C and Mr H told police at the time of the offending that they believed the girl was a willing party to the sexual activity, and that it would not have happened if that wasn't the case.

Ms C said she believed the victim to be 18 years old. She was also a reluctant participant in the threesome and a victim of Mr H as their relationship was violent and threatening.

She had had a troubled childhood, the first five years of her life were spent with her biological mother who was physically and mentally abusive. She was raped by her brother before becoming a ward of the state where she suffered further sexual abuse while in foster care.

Subsequently, Ms C was accepted by the ACC Sensitive Claim Unit as having an impairment (mental injury) as a result of that abuse.

Justice Ellis said at a hearing in the High Court at Wellington on Wednesday that it could be inferred from the summary of facts, and Ms C's vulnerability at the time of the offending, that Mr H was the instigator.

The couple had been together since she was just 16 years and they had children together but the relationship ended several years after they were convicted. She later married another man.

The court heard how numerous barriers stood in the way of Ms C in fighting for an appeal of her conviction earlier, including a custody battle that spanned nearly a decade for the children she shared with Mr H.

In 2004 Ms C was also diagnosed with depression, PTSD, anxiety and OCD and in 2008 her foster mother died.

Her personal situation worsened and she referred in court documents to threatening and psychological abuse by her husband which led to a protection order.

Seeking shelter at a women's refuge, her conviction meant the request for emergency housing in a time of crisis was declined. Work and Income also advised her that she couldn't be placed in housing with families and children.

Now, as a result of this month's hearing Ms C will has been granted a discharge without conviction.

Refus Hancock, acting on behalf of the police, noted that the length of the delay in Ms C applying for her conviction to be appealed was rare.

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He referred to three cases that involved delays of 21, 20 and 29 years. Of those three, leave to appeal their conviction was granted. It is not clear what the outcome was of that case.

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