BEFORE THE NEW ZEALAND TEACHERS DISCIPLINARY TRIBUNAL. UNDER the Education Act of disciplinary proceedings pursuant to Part 10A of the said Act

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1 NZTDT 2014/42 BEFORE THE NEW ZEALAND TEACHERS DISCIPLINARY TRIBUNAL UNDER the Education Act 1989 IN THE MATTER BETWEEN of disciplinary proceedings pursuant to Part 10A of the said Act THE COMPLAINTS ASSESSMENT COMMITTEE Complainant AND NEALE HOWE (Registration No. XXXXXXXX), of XXXXXXXXXX, Auckland, Teacher (DOB XXXXXXXXXXXXXXX) Respondent DECISION OF NEW ZEALAND TEACHERS DISCIPLINARY TRIBUNAL Tribunal: Hearing: John Hannan (Chair) Stuart King Sally Ormandy On the papers Decision: 27 June 2014 Counsel: Respondent: Adam Lewis - for Complainant In person _1

2 Introduction [1] By a Notice of Charge dated 9 April 2014, the Complainant, the Complaints Assessment Committee (CAC) charged the respondent pursuant to section 139AT of the Education Act 1989 with serious misconduct, based on a mandatory report received from XXXXXXX Intermediate School. The allegation of serious misconduct was that: (i) At all material times Mr Howe was employed as a teacher at XXXXXX Intermediate School. In that capacity he taught students aged between years, including student XXXXXXXXXXXX. At all material times XXXXXXXXXXXXX was aged approximately 13 years. (ii) In October 2013 Mr Howe was arrested for making an objectionable publication under the Films Videos & Publications Classifications Act 1993 (the Act). On XXXXXXXXXXXX, he was convicted under section 123(1)(a) of the Act which carries a maximum penalty of a $10,000 fine. (iii) The circumstances of the offending are set out in the summary of facts as follows: On XXXXXXXXX the Defendant made contact with a woman on the dating website nzdating.com. The woman s user name on the website was XXXXXX XXXXXXXX was trying to organise an event where her and her partner would meet with other like-minded couples for group sex. Using the user name XXXXXXXX, the Defendant engaged in a conversation with XXXXXXXX expressing an interest in being involved in the group sex event. The conversation was recorded by typing messages into a chat log on the dating website. XXXXXXXX suggested the Defendant bring a female partner to the event. The _1

3 Defendant stated that he would like to bring a young female who he claimed to be having a sexual relationship with. The Defendant confessed to having a sexual interest in young girls and stated the girl he was currently having sex with was a 15 year old girl named XXXX. He claimed to have only fucked her 3 times she loves it. The Defendant continued writing sexually explicit messages to XXXXXXXX, describing how he wanted to bring XXXXX to the group sex event and watch her being sexually violated by others at the event. Messages by the Defendant that were recorded on the chat log and sent to XXXXXXXXX included examples of sexually graphic and objectionable dialogue. In one conversation the Defendant described himself and XXXXXXXX being naked in bed together with XXXXX and getting lots of cock rape her cunt and ass and cum all over her. The Defendant also described how they could lube her ass and cunt and let everyone have a go at a young girl. The defendant began providing his personal details to XXXXXXXX. This included his name, details of his home address, his mobile phone number and the school he taught at. The Defendant ed XXXXXXX a photo of the young girl named XXXXX. She appeared to be about 12 years old in the photo. The Defendant also forwarded school photos of the class he was teaching. The students in the school photos appeared to be approximately 12 years old. The Defendant continued his conversation with XXXXXXX on the chat log. He encouraged her to look at the school photos and try to pick which young girl he wanted to have sex with next. The conversations between the Defendant and XXXXXXXX continued intermittently over several days. XXXXXXXX began trying to take the focus away from underage girls but the Defendant continued to make comments about his desire to include XXXX in a _1

4 group sex situation with XXXXXXX and her partner. During a chat log conversation on XXXXXXX, the Defendant stated Just been relooking at XXXX. I think I need some young pussy. On XXXXXX he sent a message to XXXXXXX stating should u and see if u can select which one turns me on (of my class hehehehe). The woman known as XXXXXXX made a complaint to Police. The subsequent Policy enquiry identified the Defendant and the school he was teaching at. Further enquiries at the school confirmed that the girl in the photo referred to as XXXX was a student in the Defendant s class in She is currently 13 years old. The other school photos sent to XXXXXXX were also confirmed to be the Defendants class photos. XXXX was subsequently interviewed by Child Young and Family. She confirmed she had received unwanted facebook messages from the Defendant. She also said the Defendant had sent her his mobile phone number and encouraged her to start text messaging him. XXXX did not disclose any messages of a sexual nature or any contact offending by the Defendant. She described the Defendant as being a bit weird and someone she did not like. Defendant comments The Defendant was interviewed by police. He admitted to making sexually explicit comments about XXXX and other underage girls on a chat log on the NZ dating website. In explanation the Defendant stated it was just a fantasy and he had no sexual interest in XXXX or any of his other female students. (iv) Mr Howe s school and home computer were seized by police. A computer search discovered folders which contained images of XXXXXXXXX and other girls identified as students of Mr Howe. The images stored on his computer included class photos, images taken from school activities, and from student s facebook websites _1

5 [2] The Complainant alleged that this conduct either separately or cumulatively amounted to serious misconduct, or misconduct pursuant to section 139AB of the Education Act 1989 and Rule 9(1)(o) of the New Zealand Teachers' Council (Making Reports and Complaints) Rules [3] A minute of a directions conference 27 May 2014 indicates that the Chair of the Tribunal was advised that the Respondent indicated he had no ongoing interest in teaching and was expecting to have his registration cancelled. A consent memorandum was discussed. Mr Lewis was to take instructions and assuming there were no difficulties was to prepare a draft consent memorandum. [4] A consent memorandum dated 30 May 2014 has now been received, signed by the respondent. By the consent memorandum the respondent accepts that the particulars contained in the notice of charge are correct and that the conduct alleged amounts to serious misconduct under section 139AB of the Education Act 1989 and Rule 9(1)(o) of the Rules. [5] The respondent further agrees that the appropriate penalty to be imposed is a censure and cancellation of his registration. [6] The CAC has applied for an order under Rule 33 to publish the Respondent's name. The costs of the CAC investigation and prosecution will be determined by the Tribunal when the Rule 33 application is being decided. [7] The Tribunal has considered the circumstances as disclosed in the Notice of Charge and the consent memorandum, and makes orders accordingly: (i) The respondent is censured; (ii) The respondent's registration is cancelled _1

6 [8] This decision has been issued prior to the coming into force of the New Zealand Teachers' Council (Conduct) Amendment Rules 2014, so the current default position as to publication of decisions under the New Zealand Teachers' Council (Conduct) Rules 2014, Rule 32, applies. The CAC's application for publication will be determined as soon as possible. Pending that, no publication of names of the respondent, of the school or of any other person involved in the matter may be made. [9] The CAC submissions in support of the application for publication were signed 23 June They record that the respondent opposes publication, but the Tribunal has received nothing from him regarding such opposition. It is not clear when the application, the supporting affidavits and the submissions in support were served on the respondent, but it cannot have been earlier than 23 June. He must be given an opportunity to reply. The Tribunal directs that the hearings co-ordinator advise him that he has until Wednesday 9 July 2014 to lodge any submission or affidavits or other material in opposition to the application for publication. If no opposition material (or request for further time to prepare such material) is received on or before that date the Tribunal will proceed to make a decision on the application. Date: 27 June JGH Hannan Alternative Chairperson NOTICE _1

7 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 Any appeal must be made within 28 days of receipt of written notice of 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 _1