Queensland College of Teachers v Kyei - [2012] QCAT 335

CITATION:

Queensland College of Teachers v Kyei [2012] QCAT 335

PARTIES:	Queensland College of Teachers (Applicant)
v
Daniel Kyei (Respondent)

APPLICATION NUMBER:

OCR206-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 May 2012

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member
M Howard, Member
Robyn Oliver, Member

DELIVERED ON:

27 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Daniel Kyei is prohibited from applying for registration or permission to teach for a period of three years from the date of this order.

2. The following notation be included in the register of approved teachers: Should after the expiry of the prohibition period Daniel Kyei reapply for registration as a teacher, such application must include a psychological report addressing the following:

a) Awareness of appropriate boundaries with students;

b) Awareness of power imbalances inherent in the teacher – student relationship including how that power imbalance can influence relationships with students;

c) Awareness of power and trust granted to a teacher;

d) An in depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;

e) Awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching; and

f) Understanding and full adherence to the Queensland College of Teachers Code of Ethics.

3. The psychological report must include a statement that the report writer had been provided with copies of the statement of agreed matters filed in the tribunal and of these reasons for decision.

CATCHWORDS:

OCCUPATIONAL REGULATION – TEACHER – disciplinary matter – whether suitable to teach – where teacher engaged in inappropriate personal conduct with a student

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Daniel Kyei, at age 21, was first registered as a teacher in Queensland on 28 November 2008. He was employed as a secondary school teacher at a school in Brisbane from January 2009 to August 2011. In that time he taught Student X in year 9 in 2009 and in year 10 in 2010. Mr Kyei also coached Student X as a member of a girls soccer team in 2009, 2010 and 2011.
Mr Kyei had occasional contact with Student X through Church activities.
In 2009 Mr Kyei provided all the members of the girls soccer team with his email address and mobile phone number and he gave all members of the team an open invitation to contact him.
On 19 October 2010 Student X contacted Mr Kyei by text message and together they had a conversation by texting. Discussed in that conversation was a disclosure by Student X that she liked Mr Kyei and that she had feelings for him. Mr Kyei advised Student X that it was inappropriate given the teacher/student relationship. Nevertheless within a few days Mr Kyei had informed Student X that he also had feelings for her.
After this time, Mr Kyei and Student X regularly exchanged text messages, often at night when Student X went to bed. The communications included personal and sexualised discussions.
On about 25 November 2010, after a meeting to discuss a piece of assessment, Mr Kyei hugged Student X and kissed her. In December 2010 Mr Kyei gave Student X a gift for her 16^th birthday.
Either between 10 December 2010 and 19 December 2010 or between 11 January 2011 and 24 January 2011 an arrangement was made for Student X to attend at Mr Kyei’s residence when they engaged in sexual activity. On another occasion, they engaged in sexual activity in a park near Mr Kyei’s residence. On dates unknown but prior to March 2011 Mr Kyei and Student X engaged in sexualised behaviour via a webcam over the internet. Between 24 January 2011 and March 2011 Mr Kyei and Student X engaged in sexual activity at the school, during school hours. They did not have sexual intercourse.
In March 2011 the parents of Student X became aware of text messages being sent between Mr Kyei and their daughter. Student X’s mother had a meeting with Mr Kyei during which he admitted to having an emotional connection with Student X but he did not disclose that he had a sexual relationship with her. Mr Kyei agreed that his private contact with Student X would cease.
Mr Kyei abided with this agreement until May 2011 when he and Student X met up again at church and they agreed to resume talking to each other. Mr Kyei and Student X resumed texting to each other communications with a sexual content. In those communications they disclosed that they had had oral sex, discussed improvements in sexual techniques and they discussed what other sexual activity they would like to engage in with each other.
Two or three weeks later, sexual activity resumed with oral sex and digital penetration by Mr Kyei. This sexual activity occurred on the school premises during school hours and on average once per week over several months. The last occasion of physical contact between Mr Kyei and Student X took place on 25 July 2011. Mr Kyei was then 24 years of age and Student X was 16 years of age.
Student X’s parents became aware of the existence of a sexual relationship between Mr Kyei and their daughter on 6 August 2011 and they made a complaint to the school. Mr Kyei’s employment was terminated on 19 August 2011.
Mr Kyei has admitted to the facts set out in paragraphs 1 to 11. Mr Kyei’s registration as a teacher was suspended on 16 September 2011 and was no longer current at the date of the hearing resulting in Mr Kyei being a former approved teacher in terms of the Education (Queensland College of Teachers) Act 2005.
Acting on a belief that there were grounds for taking disciplinary action against Mr Kyei, the Queensland College of Teachers under section 97(1) of the Education (Queensland College of Teachers) Act 2005 referred the disciplinary proceedings to QCAT. The College has informed the tribunal that the facts and circumstances set out in paragraphs 1 to 11 form the basis for belief that Mr Kyei is not suitable to teach in terms of section 92(1)(h) of that Act.
Based on the evidence provided by the College and on the admissions made by Mr Kyei, the tribunal finds that the facts relied on by the College are proved. Mr Kyei conceded that the facts, admitted and now proved, could establish that there is a ground for disciplinary action, namely that he is not suitable to teach.
The phrase “suitable to teach” is not defined in the dictionary in schedule 3 of the Act. The phrase is given meaning to some extent in sections 11, 12 and 12A of the Act and the tribunal has had regard, where relevant, to those sections. The College submitted that the provisions in sections 11 and 12(1)(a) are not relevant in this case and that submission is accepted by the tribunal.
In considering whether a person is suitable to teach, section 12(1)(b) provides that regard should be given to whether a person is suitable to work in a child-related field. Suitability to work with children requires a person having a high level of trustworthiness, personal integrity, an appreciation of the rights of a child to be protected from risks of harm and an appreciation of the boundaries that should exist between a child and their teacher.
An examination of the conduct of Mr Kyei with Student X over an extended period from October 2010 to July 2011 should reveal whether Mr Kyei has demonstrated the qualities necessary to work in a child-related field. Student X was an adolescent child of 15 years of age when Mr Kyei commenced a personal relationship with her. The evidence indicates that he was aware of the inappropriate nature of that relationship as he was her teacher. Despite that awareness, he continued with behaviour that clearly crossed teacher-student boundaries and then shortly after Student X’s 16^th birthday, Mr Kyei started to engage in physical sexual conduct, although not sexual intercourse, with Student X. Mr Kyei did not of his own volition cease his sexual relationship with Student X, rather the relationship ceased when his behaviour was found out and his employment was terminated.
The tribunal is satisfied that the actions of Mr Kyei, when a registered teacher, in conducting a personal relationship with a 15 year old student and then moving that relationship onto a sexual basis when the student was 16 years of age demonstrates that he is not suitable to work in a child-related field. He abused his position of trust as a teacher and his conduct placed Student X at a clear risk of harm. The evidence leads the tribunal to conclude that Mr Kyei demonstrated either a lack of understanding of the boundaries inherent in a teacher-student relationship or worse that he deliberately chose to ignore those boundaries.
It is less than 12 months since Mr Kyei’s conduct was found out and his employment as a teacher was terminated. In submissions to QCAT he has stated that he understands the error of his actions and he has used the experience as a learning tool to help develop his character. However, Mr Kyei has not provided any evidence that in that time that he has actively sought to improve his understanding of the gravamen of his conduct or into establishing an awareness of appropriate boundary issues.
He has not expressed in his submissions to QCAT any remorse for the impact that his conduct may have had on Student X or any regret over his conduct. However, in the course of interviews during the investigation which followed the complaint by the student’s parents, he acknowledged that his actions are ‘inexcusable’. He has also co-operated during the investigation and in the tribunal proceedings, and does not deny the allegations. This leads the Tribunal to draw the inference that he has gained, some, although limited insight into the inappropriateness and seriousness of the conduct.
The tribunal is satisfied that the grounds for disciplinary action have been established in that Mr Kyei is not suitable to teach. Although it may not be strictly necessary in view of that finding, the tribunal does want to mention that it also considered the factors in section 12(3) when making its determination about Mr Kyei’s suitability to teach. The tribunal considers that the general community as well as members of the teaching profession would readily regard Mr Kyei’s conduct as involving a serious and substantial departure from the standards expected of a teacher.
Having been satisfied that there are grounds for disciplinary action, consideration must be given to the nature and extent of sanction to be imposed on Mr Kyei.
The Education (Queensland College of Teachers) Act 2005 provides QCAT with a range of sanctions that can be applied once grounds for disciplinary action have been established. Mr Kyei is a former approved teacher. The provisions as to sanction in section 161 of the Act apply to him.
By way of sanction, the College seeks an order prohibiting Mr Kyei from applying for registration as a teacher for five years. Mr Kyei does not contest that the sanction should prohibit him from being registered as a teacher for that period of time.
The decision as to sanction is a decision for the tribunal to make. The tribunal was referred by the College to authorities which suggest that a prohibition from applying for registration for a period of between three to five years would be appropriate.
Sanctions imposed by the tribunal after a finding is made that a person is not suitable to teach are not imposed as a punishment for the conduct that was found to warrant disciplinary action. A sanction in a disciplinary matter is imposed in the interests of the protection of children and of the community. Nevertheless the outcome of the disciplinary action must be commensurate with the conduct.
The sanction to be imposed must be responsive to the particular circumstances of each case as well as providing some general deterrence to teachers. The correct approach of a sanction must seek to give both a general deterrence to the members of the teaching profession and a specific deterrence to the teacher in question.
The tribunal has taken several factors into account when determining the appropriate sanction. Those factors include the protracted nature of the conduct from October 2010 to July 2011, Mr Kyei’s knowledge in October 2010 that a personal relationship with a student was inappropriate, the development of a more overtly sexual relationship shortly after Student X turned 16 and resuming a sexual relationship with Student X after telling her parents that his personal relationship with their daughter would cease. These factors would warrant a strong deterrence by way of sanction.
Mitigating features were present. These include Mr Kyei’s youth and inexperience as a teacher combined with an apparent lack of practical support and ethical training provided to him, and his co-operation with the College and the tribunal in this disciplinary action including a preparedness to make admissions. It is not clear whether Mr Kyei intends to apply for registration as a teacher in the future but it is possible given his disclosed intention of studying for a Masters degree in Sports Coaching.
Taking the authorities into account, his conduct is considered more serious than the actions of the teacher in QCT v Derbyshire[1] because of the protracted nature of the relationship with the student, notwithstanding that in Mr Kyei’s case, it fell short of sexual intercourse.
[1] [2011] QCAT 536.
The tribunal considers that both general and specific deterrence would be achieved by an order prohibiting Mr Kyei from applying for registration as a teacher for a significant period of time. However before registration is restored, Mr Kyei should provide to the College a psychological report as to his awareness of boundaries and power imbalances between teachers and students, his awareness of the position of power and trust held by teachers, his awareness of the community expectations of the standard of behaviour of teachers and his comprehension of the ethical expectations of his profession and of his professional regulator.
The tribunal will impose a prohibition from applying for registration for three years from the date of this order. As Mr Kyei’s registration was suspended from 16 September 2011, effectively this sanction equates to a minimum of some four years out of the teaching profession before he can apply for re-registration.
Prohibition made on 4 October 2011 of the publication of the name, address and school of the student stands.