Justice Mathew Downs, at the High Court in Auckland, cleared a sex offender’s criminal record after he argued he should be able to work in a rest home. A former teacher convicted of sex crimes against a 12-year-old boy over 30 years ago has won the right to have his criminal record cleared, in a precedent-setting case. The man, who has not been convicted of any other offences since, fought for his name to be cleared in an effort to gain employment as an older people’s carer. The Criminal Records Act, otherwise known as the Clean Slate Act, allows people to conceal convictions dating back seven years or more – providing they aren’t serious offences and didn’t result in jail time. In 2014, a decade since the Bill was passed, more than 100,000 people have had their convictions wiped. However, no case declined in the District Court has ever been successfully appealed to the High Court. The offending in the man’s case dated back to 1986, when he volunteered at a children’s camp where he met the young boy. During that time, the man repeatedly abused the child, which involved forcing him to touch his genitals. He told the boy what they were doing was “entirely natural” and they were “not doing anything wrong”. He was convicted for that offending 10 years later after details of the abuse was reported to police. When spoken to by police, the man admitted he had formed a relationship with the victim but said it was limited to kissing only. He further admitted a fascination with “man-boy” love relationships. He pleaded guilty to the abuse and was given a 18-month prison sentence, suspended for two years, and a term of community service. A suspended service means a person is only sent to prison if they offend again or break certain conditions. The man did not reoffend and after a career in another field, he decided he wanted to work in the elderly care sector. This led him to apply for his conviction to be disregarded last year in the District Court. During that hearing, a psychiatrist told the court the man posed a “low risk of re-offending” and work in a rest home would be a “low-risk environment”. That application was declined – with the District Court judge ruling “low risk is not no risk” and said potential employers should know about his past convictions when deciding to employ him. The man appealed the decision in the High Court. Justice Mathew Downs received affidavits from four different elderly care facilities who said they would not employ someone like the man due to his criminal convictions, irrespective of expert opinion. “It is highly likely [the man] will not be able to work in the aged care sector unless his criminal record is concealed,” Justice Downs stated. “[The man] appears otherwise suitable for this type of work.” The New Zealand police asked the judge to pay attention to the fact the man had travelled to Thailand twice – a country known for sex tourism. The judge noted that the obvious risk to allowing the man to do rest home work was him being exposed young children visiting relatives. In his judgement, Justice Downs said he had to balance the likelihood of reoffending against the hardship being faced by the applicant. The judge said the man was “fortunate” to not have been sentenced to prison at the time, which would have ruled him out of applying for a clean slate. “The case is on the cusp,” Justice Downs judgement read. “… It is highly likely [the man] will not be able to work in the aged care sector unless his criminal record is concealed. “Contact in that sector is likely to be limited, and even more likely to be in the company of others. “Offence opportunity is therefore low.” Justice Downs ruled the man’s convictions should be disregarded and his convictions were wiped from his record.
