Queensland College of Teachers v Stark
[2010] QCAT 592
•22 November 2010
| CITATION: | Queensland College of Teachers v Stark [2010] QCAT 592 | |
| PARTIES: | Queensland College of Teachers | |
| v | ||
| Mr Gregory Stark | ||
| APPLICATION NUMBER: | OCR050-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe (presiding) Julie Cowdroy Stuart MacDonald |
| DELIVERED ON: | 22 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent’s application for a non-publication order is dismissed. 2. The respondent’s registration is cancelled and he is prohibited from applying for registration or permission to teach for a period of 4 years from the date of hearing. 3. Within 12 months of applying for registration, the respondent obtain referral for treatment to a registered psychologist and that he participate in therapy, such therapy to include the following: (a) differentiating between personal and professional relationships; (b) development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students. (c) Risk assessment and early issue identification of potentially problematic situations and venues, as well as initiating realistic solutions for avoiding risk of harm to students. (d) An in-depth examination of the extent and nature of the student to colleague, parent and community trust inherently invested in a teacher; (e) Personal and social behaviour that will compromise the professional standing of a teacher and the profession of teaching. (f) What constitutes mixed messages and inappropriate communication. (g) The legal obligation of teachers and tutors. (h) Understanding the effect of inappropriate relationships with students. (i) The awareness of trust and power granted to a teacher. (j) Developing insight into the circumstances in which the teacher’s own emotional needs have influenced the nature of the relationship with a student. (k) How to deal with personal issues and develop a strong support structure. (l) Understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics. 4. At the conclusion of the therapy, the timing to be determined by the psychologist, but no later than 12 months from the commencement of treatment, a psychologist’s report should be obtained by the respondent and provided to the applicant, such report to include an indication by the psychologist as to whether the psychologist is satisfied that the respondent has adequately understood and addressed each of the points in paragraph 3 of this order. |
| CATCHWORDS : | TEACHER – fitness to teach – where teacher gave gifts to student – where teacher contacted student out of hours – where teacher texted student – where teacher made contact with student’s avatar on virtual reality websites – where teacher hugged and kissed student – where teacher told student he loved her and missed her Education (Queensland College of Teachers) Act 2005 ss 12(3)(a), 92(1)(h), 115(1)(b), 158, 160 NON-PUBLICATION – where teacher sought non-publication order – where teacher entertaining suicidal thoughts – where teacher’s wife under treatment – where teacher’s children friends of complainant - whether order necessary to avoid endangering the physical or mental health or safety of a person – whether in public interest Queensland Civil and Administrative Tribunal Act 2009 s66(2) R v Quick [2006] QCA 477 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with s32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
The teacher in these proceedings is Mr Gregory Stark an approved teacher whose registration certificate expires on 31 December 2010.
He was first registered to teach in Queensland on 24 October 1988 and at the time of this hearing he was 44 years old.
In October 2009, the Queensland College of Teachers (“QCT”) received information from the Director, Workforce Standards and Performance Unit, Department of Education, Training and the Arts notifying QCT about an investigation.
QCT authorised an investigation into a disciplinary matter and on 29 September 2010 the Professional Practice and Conduct Committee referred the matter to QCAT under s115(1)(b) of the Education (Queensland College of Teachers) Act 2005. The particulars of the application are that, Mr Stark, whilst a teacher:
a)Inappropriate conduct:
i) Inappropriately conducted himself with students.
ii) Gave presents to a female student.
iii) Gave mobile phone credits to the female student.
b)Inappropriate communication:
i) Inappropriately communicated with students.
ii) Sent inappropriate text messages to the female student.
iii) Interacted with the female student on internet websites.
c)Breached policies of the employing authority and the QCT as the professional registration authority for teachers in Queensland that are aimed to protect the welfare and best interests of children and to uphold the standards of the teaching profession.
The Evidence
Mr Stark concedes that, even on his version of events, it is open to the tribunal to find that he is not suitable to teach. His position is that although he did not, at the time, see it as wrong to engage in the behaviour with the student, and although he maintains that he viewed the student as a daughter-figure and friend, he understands that his relationship with her was inappropriate.
The tribunal is satisfied that, pursuant to s12(3)(a) of the Education (Queensland College of Teachers) Act 2005, Mr Stark has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. In particular, the tribunal finds that Mr Stark:
a)Gave presents of mobile phone credit, CDs and poems to a female student.
b)Sent inappropriate text messages to the female student. Texts include “I love you so much it hurts…I miss you so much. You don’t know how much I want to be with you every day. I really love you.”
c)Hugged and kissed the female student inappropriately.
d)Interacted with the female student on internet websites. Mr Stark encouraged the student to use webcam when she was on line with him and created an avatar on two virtual reality websites so that he could interact with the female student’s avatar on those sites.
The student gave evidence that Mr Stark’s avatar engaged in sexualised behaviour with her avatar. When questioned about this, Mr Stark was evasive; he consistently claimed that he “did not know” whether his avatar was capable of such behaviour. Although the tribunal is required to apply a very high standard of proof in disciplinary matters,[1] we are reasonably satisfied that Mr Stark’s behaviour, through his avatar, was not of a standard generally expected of a teacher.
[1] Briginshaw v Briginshaw [1938] HCA 34
The tribunal is also satisfied that Mr Stark:
Induced the student not to tell others of their relationship on the grounds that he might suffer some consequences.
Encouraged the student to delete messages and on-line communication.
Did not observe appropriate boundaries with the student. He told her that he was lonely at home, his wife did not love him and of his personal problems generally.
The tribunal is satisfied that, prima facie, Mr Stark is “not suitable to teach” within the meaning of s92(1)(h) of the Act and that grounds for disciplinary action pursuant to s160 of the Act exist within the meaning of s158(1) of the Act.
Penalty
10. QCT submitted the appropriate penalty is that Mr Stark’s registration be cancelled and he be prohibited from reapplying for a period of four years on these grounds:
a)The student was twelve years old that the time of Mr Stark’s activities.
b)Mr Stark has been involved in a course of conduct which represents a campaign of grooming.
c)Mr Stark used avatars to engage in sexualised behaviour with the student. This is a virtual enactment of his desires for the student, introducing increasingly sexualised concepts while still remaining at arms length.
d)Mr Stark has admitted to comments such as “I feel like kissing you right now” but asserts that he was merely being supportive in keeping communication lines open.
e)Mr Stark did not inform his wife or school colleagues about his communications with the student because he reasoned that they would tell him he was doing the wrong thing. He persisted with the conduct even when he knew that others would view it as wrong.
f)He did not stop the conduct or try to discourage the student from communicating with him. Instead, he actively encouraged the student to continue communication with him.
11. QCT referred the tribunal to:
a)Bailey[2] Mr Bailey was a 26 year old teacher who engaged in inappropriate on-line chats with a student. It was found that the communication was for the purpose of sexual gratification. Mr Bailey’s registration was cancelled and he was prohibited from reapplying for a period of three years. QCT says that Mr Stark’s behaviour is similar to Bailey in that it was for the purpose of sexual gratification, as evidenced by the instruction that the student use her webcam when on line. QCT says that Mr Stark’s behaviour was more serious because he also gave the student gifts, was alone with the student in a car and engaged in inappropriately sexualised conduct through the avatar.
b)Mann[3] This case involved inappropriate electronic communication over a longer period although less of it was sexualised. There was a similar incremental progression into over-familiarity. Mr Mann provided the student with money to obtain a mobile phone, so that he could facilitate more personal access. QCT notes that Mr Stark, likewise, provided credit for the student’s phone. Mann cooperated with QCT by providing copies of emails to QCT which would otherwise not have been discovered. His registration was cancelled and he was prohibited from reapplying for a period of three years.
[2] TDC 26 June 2009
[3] TDC 14 October 2009
12. QCT is concerned about Mr Stark’s lack of insight. Even in his submissions to this tribunal, Mr Stark maintains that there was an innocent explanation for his behaviour and that he did not really consider he did anything wrong.
13. Mr Stark submitted the appropriate penalty is that his registration be cancelled and he be prohibited from reapplying for a period of 18 months. He relies upon a comparison with F[4]. Mr Stark says that the teacher in F wrote several sexually explicit notes to the student and attended the student’s home on several occasions. Mr Stark says that his behaviour is not as serious as this.
[4] TDC 21 October 2009
14. The tribunal considers that the behaviour of Mr Stark is very serious:
a)He has admitted that he wanted his relationship with the student to continue after she left school.[5]
b)He contacted the student during school holidays, wanting to meet with her.
c)He accessed school records to obtain her home telephone number and address and visited the student at home during the holidays.
d)He did not inform his wife or school colleagues about his communications with the student because he reasoned that they would tell him he was doing the wrong thing.
e)He persisted in the conduct.
f)He discouraged the student from telling others of his conduct because he knew that it was inappropriate.
[5] Transcript 12 October 2009 at paragraph 747
15. The tribunal is also concerned that Mr Stark still does not understand fully the inappropriate nature of his conduct. Throughout the investigation and submissions to the tribunal, Mr Stark has minimised the nature and effect of his behaviour. His answers to investigators were evasive and his assertion that sexualised conversations or communications were made as a friend or mate lack credibility. The fact that Mr Stark continued this behaviour knowing that others would deem it unacceptable demonstrates that he lacked insight.
16. A penalty of eighteen months, as suggested by Mr Stark, is insufficient. The tribunal considers that his behaviour is more serious than that displayed by Bailey or Mann. Indeed, the tribunal is of the view that Mr Stark’s behaviour approaches that of Cooke[6] or Ross[7].
[6]
[7]
17. The tribunal acknowledges that Mr Stark suffers psychologically as a result of these proceedings. That is not an uncommon occurrence. There is no suggestion that Mr Stark was suffering from any pre-existing mental condition that may have affected his judgment so as to constitute a mitigating factor.
Non-publication
18. Mr Stark urges the tribunal to prohibit the publication of documents, evidence and information, including this decision, which would enable Mr Stark to be identified.
19. Section 66(2) of the QCAT Act allows the tribunal to prohibit publication only if it considers it necessary:
(b)to avoid endangering the physical or mental health or safety of a person;
(e) for any other reason in the interests of justice.
20. Mr Stark says that he lives in a small, close-knit community and has done so for the past eighteen years. He says that the effect of publication in these circumstances will be greater than if he was a teacher in a larger city. There may be cases where the size of the community in which the teacher lives does justify a non-publication order but the primary motivation for such non-publication is the protection of the complainant. The area in question is not so small a community and, as the Chief Justice pointed out in R v Quick[8]” the primary considerations …are general deterrence and, in plain terms, community denunciation”. Justice Chesterman, in the same case, observed that “public embarrassment and humiliation are usual consequences which commonly flow from the discovery and prosecution of [sexual offences].”[9]
[8] [2006] QCA 477 at [14]
[9] Supra at paragraph [37]
21. Mr Stark also says that his wife is a school teacher who will be readily identified by the publication of his name and that she is already receiving treatment related to her emotional reaction to these proceedings. The tribunal agrees with the QCT that the evidence as to Mrs Stark’s condition is not sufficient to justify a non-publication order.
22. Similarly, the tribunal is not convinced by a general, unsupported, allegation that Mr Stark’s sons attend school with friends of the complainant. Without elaboration, the connection between the parties and the potential harm is tenuous.
23. Finally, Mr Stark points to his current medical condition. He has provided medical reports that state he is suffering from a major depressive episode that relates directly to the stress related to the current proceedings; at times he has suicidal thoughts and that publication of the tribunal decision and the subsequent adverse publicity are likely to worsen his depressive episodes and escalate the risks to his safety. In a report dated 16 June 2010, Susanna Blom states that:
Mr Stark does not have the mental capacity at present to deal with the public humiliation or scorn from the community if publicly named. He is still mourning over the possible loss of a teaching career that he clearly valued and left passionate about. In my opinion, it can increase his current suicide risk from moderate to high.
24. The tribunal adopts the comments of Justice Chesterman referred to above. It also notes that the Chief Justice addressed a similar situation in R v Quick:
“I respectfully consider the sentencing Judge dwelt unduly on the effect of these events on the respondent, and insufficiently on the effect on the complainant…the remorse experienced by the respondent seems more directed to his own plight.”[10]
[10] Supra at paragraph [13]
25. The tribunal has already commented on Mr Stark’s lack of insight and attempts to minimise his behaviour. In truth, the application for a non-publication order is just another of Mr Stark’s attempts to avoid the consequences of his behaviour.
26. The application for non-publication of this decision is dismissed.
27. The tribunal orders that:
a)Mr Stark’s registration is cancelled and he is prohibited from applying for registration or permission to teach for a period of 4 years from the date of hearing.
b)Within 12 months of applying for registration, Mr Stark obtain referral for treatment to a registered psychologist and that he participate in therapy, such therapy to include the following:
i) differentiating between personal and professional relationships;
ii) development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students.
iii) Risk assessment and early issue identification of potentially problematic situations and venues, as well as initiating realistic solutions for avoiding risk of harm to students.
iv) An in-depth examination of the extent and nature of the student to colleague, parent and community trust inherently invested in a teacher;
v) Personal and social behaviour that will compromise the professional standing of a teacher and the profession of teaching.
vi) What constitutes mixed messages and inappropriate communication.
vii) The legal obligation of teachers and tutors.
viii)Understanding the effect of inappropriate relationships with students.
ix) The awareness of trust and power granted to a teacher.
x) Developing insight into the circumstances in which the teacher’s own emotional needs have influenced the nature of the relationship with a student.
xi) How to deal with personal issues and develop a strong support structure.
xii) Understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics.
c)At the conclusion of the therapy, the timing to be determined by the psychologist, but no later than 12 months from the commencement of treatment, a psychologist’s report should be obtained by the respondent and provided to the applicant, such report to include an indication by the psychologist as to whether the psychologist is satisfied that the respondent has adequately understood and addressed each of the points in paragraph b) above.
10