Teacher J v Queensland College of Teachers
[2012] QCATA 115
•27 June 2012
| CITATION: | Teacher J v Queensland College of Teachers [2012] QCATA 115 |
| PARTIES: | Teacher J (Applicant/Appellant) |
| v | |
| Queensland College of Teachers (Respondent) |
| APPLICATION NUMBER: | APL446-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Dr J R Forbes, Member |
| DELIVERED ON: | 27 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal is granted; 2. Allow the appeal against the order prohibiting the Applicant from applying for registration or permission to teach for a period of 3 years; 3. Set aside that order and in lieu thereof order that the Appellant be prohibited from applying for registration or permission to teach until 18 February 2013; 4. Other orders of the primary tribunal to stand; 5. Publication of any information which may lead to identification of the Appellant is prohibited. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – DISCIPLINARY PROCEEDINGS – TEACHER – ERROR IN FACT – DISCIPLINARY SANCTION – NON-PUBLICATION ORDER – where the appellant was found to have had an improper association with a pupil – where the Tribunal ordered that the appellant’s teaching registration be cancelled and that he be prohibited from making a reapplication for three years from the date of the suspension – whether the Tribunal erred in fact – whether the Tribunal failed to give due weight to mitigating factors – whether the Tribunal failed to pay due regard to the appellant’s insight into his misconduct – whether the Tribunal imposed a excessive sanction – whether the matter warrants the grant of a non-publication order Criminal Code Act 1899, s 215 Adamsonv Queensland Law Society Inc [1990] 1 Qd R 498 Drew v Bundaberg Regional Council [2011] QCA 359 CUR24 v Director of Public Prosecutions [2012] NSWCA 65 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 R v BJW (2000) 112 A Crim R 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
PRESIDENT
I have had the advantage of reading the draft Reasons prepared by Dr Forbes. I agree with them, and with the orders he proposes.
MEMBER DR J R FORBES
In 2010 the Appellant was a teacher at a school for girls in a Queensland provincial town. In February 2011 his registration was suspended by the Applicant/Respondent (“the College”) on the ground that he “pos[ed] an imminent risk of harm to children”[1].
[1]Education (Queensland College of Teachers) Act 2005 (the EQCT Act), s 49 (enacted in 2005, not 2003, as stated at [1] of the decision under appeal).
On 3 November 2011, this Tribunal found that the Appellant was not a person suitable to teach[2], in view of his improper association with a pupil, to whom I shall apply the pseudonym “Jane”. The Appellant did not contest the issue of guilt, but submitted that deregistration for 12 to 18 months would be an appropriate sanction.[3] The College, perhaps by way of ambit claim, argued for the maximum of 5 years.
[2] EQCT Act, s 12.
[3] Appellant’s submissions, filed 27 September 2011.
Materially, the Act provides that, by way of disciplinary sanction, the Tribunal may cancel a teacher’s registration[4], and prohibit him or her from reapplying for registration for up to 5 years from the day when the order is made[5]. In this case it was ordered, inter alia, that the Appellant’s registration be cancelled and that he be prohibited from making a “reapplication for three years from the date of [his] suspension”, namely 17 February 2011.
[4] EQCT Act, s 160(2)(d).
[5]EQCT Act, s 160(2)(j). Erroneously, albeit benignly, the present order is backdated to the date of suspension by the College.
From that decision the teacher seeks leave to appeal, on the ground that the sanction is excessive.
The Association Begins
The material facts are not in dispute. Towards the end of the first term in 2010 some members of staff, including the School Counsellor, considered that Jane’s home environment was such that she should receive special guidance. Her father was suffering depression.
For some reason that has not been explained, that task was not assigned to the official counsellor or to any other female teacher, but to the Appellant. He had no qualifications as a counsellor, whatever those attributes may be. He said so to staff members who asked him to assist Jane, but no alternative arrangements were made. The rationale for the appointment, it seems, was that the Appellant’s wife, in common with Jane’s father, suffered from depression.
The Association Develops
As the 2010 school year wore on, Jane became more dependent on the Appellant, and sought his company to a degree that became increasingly noticeable to his colleagues. A witness who accompanied the Appellant and a group of students on a study tour to the United States sensed that the relationship between him and Jane was becoming unduly close. The same witness, sensing that the Appellant was unfairly exposed to unfavourable comment, ventured to warn him that a male teacher at a girls’ school must take extraordinary care to avoid compromising situations.
The Association Intensifies
According to Jane the relationship was close by the end of the school year. However, there is no evidence of any verbal or physical impropriety before the last week of the 2010-2011 school holidays[6], when the Appellant met Jane at a shopping centre on or about 25 January 2011 and gave her “a quick kiss on the lips and that was that”[7]. A few days later, when school resumed, they met privately and by arrangement in a “media room”. They kissed again and “yeah it was more passionate then… but nothing you know, really really serious”[8]. Shortly afterwards there was a similar secret meeting at the school, and on at least one of those two occasions the Appellant fondled Jane’s thighs, buttocks and back.[9] “Like I was happy for him to do it ... Like he didn’t force himself upon me or anything”[10]. A description of Jane as a complainant would be a legal formality rather than a depiction of real life. To her considerable credit she did not seek to play the innocent abroad: “I don’t want him to lose his job”[11].
[6] Jane, transcript of interview, dated 31 January 2011 at [41]-[44], [91]-[92].
[7] Ibid, at [123].
[8] Ibid, at [165]-[167].
[9] Appellant, transcript of interview dated 31 January 2011 at [89]-[90].
[10] Jane, transcript of interview, dated 31 January 2011 at [149]-[151].
[11] Jane, transcript of interview, dated 31 January 2011 at [207].
“Around Christmas”[12] Jane and the Appellant began “texting” each other. Between that time and 30 January 2011 they “texted” intensively – there were, perhaps, as many as 1,000 communications by that means.[13] For obvious reasons most of the messages were deleted by the end of January; indeed, the only surviving text messages between Jane and the appellant – about 100 in all – were exchanged on 29 and 30 January 2011. No images were involved.
[12] Jane, transcript of interview, dated 31 January 2011 at [185].
[13] Appellant, transcript of interview, dated 31 January 2011 at [49]-[52].
Some of those messages are unexceptionable, dealing with such subjects as school work, babysitting arrangements and even Test cricket. On the other hand, there are several exchanges late on Sunday night 30 January, which need not be detailed here, that are unmistakeably and mutually erotic. However, both parties claim that intercourse never occurred[14], and the primary tribunal so found.
[14]Jane, transcript of interview, dated 31 January 2011 at [169] and [171]; Appellant, transcript of interview, dated 31 January 2011 at [93]-[94].
The Association is Discovered
On Saturday night 29 January 2011 Jane was at a “dance rave” that “wore [her] out”[15]. She “drank a little but not enough to send me over haha”[16]. At the party she told two school friends that she was in love with the Appellant, and that they were “having a relationship”[17]. It was, perhaps, as much an infatuated adolescent’s boast as a confidential confession. Jane also volunteered that there were messages from the Appellant on her mobile phone. Her friends asked to see them and she complied.
[15] Text message Jane to Appellant, 9.31am, 30 January 2011.
[16] Text message Jane to Appellant, 9.38am, 30 January 2011.
[17] Statement to College Investigator, dated 14 February 2011.
Events then moved rapidly. On the following Monday, 31 January, Jane’s friends reported the “relationship” to the school principal. On the same day Jane and the Appellant freely acknowledged it to police. On the following day, 1 February, the Appellant admitted it to the principal, who told him he would be summarily dismissed, and then notified the College. After an internal investigation, the College suspended the Appellant on 17 February 2011.
Grounds of Appeal
The grounds of appeal, in substance, contend that the primary tribunal erred in:
1)Finding that Jane was aged 15 years at the time of the offences and in relying on that error in determining the sanction;
2)Failing to give due weight to mitigating factors;
3)Failing to pay due regard to the Appellant’s insight into his misconduct;
4)Failing to impose a sanction consistent with comparable cases; and,
5)Failing to give due weight to the facts that the Appellant was not a qualified counsellor, as the school authorities well knew.
Mistake as to Age
It is common ground that Jane’s age is mis-stated in the primary decision. In an early paragraph the Tribunal observes:
“[The Appellant] taught a female student who at that time was aged 14 or 15 years”[18]
and in the next paragraph:
“Towards the end of the 2010 year in which the student turned 15 years of age the teacher and the student exchanged text messages with sexualised ... content.”[19]
[18] At [4] of the decision under appeal.
[19] At [5] of the decision under appeal.
However, it is an undisputed fact that, Jane celebrated her 16th birthday on 16 October 2010. The misconduct in question began some two months later.
The College submits that this mistake of fact had no significant effect upon the primary decision. It is true that the Tribunal made no explicit reference to provisions of the Criminal Code Act 1899[20], which would have been relevant if, at material times, Jane was only 15. It is also true that misconduct of the present kind does not cease to be a breach of discipline the moment that a child turns sixteen.
[20] Criminal Code Act 1899, s 215: carnal knowledge with or of children under 16 .
Nevertheless, the mere mention of a child under 16 in connection with sexual misconduct tends to flash a red alert. Despite the contemporary relaxation of social mores, and the resultant, overt sexual precocity of some teenagers, the community’s abhorrence of paedophilia and sexual activity between mature adults[21] and children “under age” remains strong and strident[22], especially when the offender is in a position of trust[23]. Indeed, such offences may now be taken even more seriously than in the not-so-distant past.[24] I do not think that it would be safe to dismiss the real possibility, if not probability, that these considerations disproportionately influenced the sanction that was imposed.
[21] The Appellant was 38 years of age in December-January 2010-2011.
[22]CUR24 v Director of Public Prosecutions [2012] NSWCA 65 at [56] per Basten JA, with whom Whealy and Meagher JJA agreed.
[23] R v BJW (2000) 112 A Crim R 1 at [20] per Sheller JA.
[24] R v MJR (2002) 54 NSWLR 368 at [57] per Mason P.
Leave to Appeal?
An appeal to this tribunal on a question of fact, or mixed fact and law, is by leave only.[25] An applicant for leave must show that the decision in question is affected, arguably at least, by an appellable error, resulting in a substantial injustice.[26] Findings of fact will not usually be disturbed if they have rational support in the evidence.[27] That cannot be said of the error as to Jane’s age. On that basis alone, in my opinion, this is a proper case for leave.
[25] Queensland Civil and Administrative Tribunal Act 2009, ss 142(1) and 142(3)(b).
[26]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v Bundaberg Regional Council [2011] QCA 359 at [19] per Muir JA.
[27] Fox v Percy (2003) 214 CLR 118.
Furthermore, a period of prohibition must run from the date of the order[28], not from some earlier date, although it is proper to take “time already served”[29] into account.
[28] EQCT Act, s 160(2)(j).
[29] As in Queensland College of Teachers v Grasso [2011] QCAT 292 at [24].
Merits of the Appeal
I have already indicated that, while sexual misconduct by a teacher with an “under age” child certainly warrants a significant disciplinary sanction, a somewhat less severe sanction may be warranted when the same conduct occurs with a pupil over the “age of consent”, who is readily, even eagerly consenting.[30] While Jane was troubled by her father’s state of health, the current and sometimes tendentious term “vulnerable”[31] should not be used in too facile a manner. It appears that she was socially active among her peer group, and some of her text messages to the Appellant betoken a lively, effervescent teenager. When Jane and the Appellant became confidants, the latter’s own home life was less blissful than it might have been.
[30]“I was happy for him to do it”; “He didn’t force himself upon me or anything”: Jane, transcript of interview, dated 31 January 2011 at [149] and [151]. “You never know how far we’ll get”: text to Appellant, 9.28pm, 30 January 2011.
[31] At [13] of the decision under appeal.
The primary decision-makers state that they “considered aggravating and mitigating factors”[32]. However, they mistakenly assumed that Jane was “under age”, and the mitigating factors, including several excellent references, are treated in a few brief paragraphs of a decision which (formal parts and a relatively long statutory quotation aside) occupies rather less than four pages. With due respect to the learned Members, I am not satisfied that the sanctioning discretion, in a matter of grave importance to the teacher, the pupil and the community, was sufficiently exercised.
[32] Ibid, at [20].
I shall not over-emphasise the fact that the relationship did not extend to sexual intercourse:
“You haven’t had sex with her?
- NoOkay. So you’ve suggested you should do it when she’s ready?
– We’ve, we’ve flirted and talked about that in text messages, yes.”[33]“In these text messages have there ever been discussions ... about plans to eventually have intercourse?
– Yes ...And who initiated those?
– Both of us.”[34][33] Appellant, transcript of interview, dated 31 January 2011 at [93]-[96].
[34] Jane, transcript of interview, dated 31 January 2011 at [217]-[218], [221]-[222].
In the light (or heat) of their texting late on Sunday night 30 January 2011, it is a fair inference that, but for the prompt reporting of Jane’s “dance rave” confidences by her friends, intercourse would have occurred sooner rather than later. Nevertheless, the thought is not the deed.
But, as against the obvious breach of trust and serious misconduct, there are points in favour of the Appellant that deserve greater consideration.
Mitigation
Invidious position: I have already noted that the school authorities delegated the counselling of Jane to the Appellant when a female member of staff (if not the school counsellor or pastoral care officer) could well have been given the task. Requiring a popular male teacher to pay special attention to a supposedly unhappy girl paid scant regard to the interests of the teacher. So soon as he was asked to undertake this duty, he protested his lack of proper qualifications. In the words of the school’s pastoral care officer, he was in a “vulnerable position”[35]. Significantly, the school counsellor, when asked by the Appellant to give a statement to College investigators, refused to do so.[36]
[35] Statement to College investigator, dated 14 February 2011.
[36]Emails: College to Appellant dated 10 March 2011, and Counsellor to College 21 March 2011.
Response to Investigation: Police officers interviewed the Appellant within hours of the initial report to the school principal. He attempted neither concealment nor evasion; he made frank admissions well beyond the incontrovertible evidence of the surviving text messages. He did not try to blame Jane in any way. He volunteered:
“I don’t really know how it escalated. Probably it has to do with me abusing my privilege or my, my position of authority at the school.”[37]
[37] Appellant, transcript of interview, dated 31 January 2011 at [102].
This is not the late, ritual remorse sometimes professed with an eye on subsection 9(4)(i) of the Penalties and Sentences Act 1992. On 1 February 2011 – the day after his police interview – the Appellant voluntarily commenced counselling sessions with a professional psychologist.
The Appellant’s guilty plea was not made at or beyond the door of the court. On the contrary, Jane, her family, and student and staff witnesses were quickly assured that they would not face the anxiety and embarrassment of a contested, oral hearing. All in all, it would be very difficult to find a more cooperative and immediately penitent accused.
Character Evidence: There is no suggestion of any previous misconduct. The Appellant tendered six testimonials of good character, some in glowing terms. Only a few lines of the primary decision are devoted to them.
A mother of two daughters who were taught by the Appellant at the school in question states in part:
“[The Appellant] was an innovative teacher who had a positive rapport with students ... he was truly dedicated to his position at [the school]... a very well liked and respected teacher ... who held a very high standard in his personal appearance, professional attitude, planning and preparation ... [W]e trusted him wholly to teach our children ...”
Another referee, a professional colleague of the Appellant for nine years, submits:
”He is both a team player and demonstrates leadership, a professional who wins the respect of others through his integrity and unwavering desire to bring out the best in his students. While [he] has demonstrated an error of judgment on this occasion, I am able to confidently recommend him for any teaching position in future.”
A former headmaster of a co-educational school that employed the Appellant for four years writes:
“I am not aware of any complaint from any staff member, parent or student that there were any concerns ... in relation to [the Appellant’s] relationships with students during my time as Principal of the College.”
According to the school principal[38]:
“[H]e’s a very affable, personable man. He was well liked by staff and he was very well liked by students. Up to this stage there had never been anything brought to me about him acting inappropriately. ... There is grieving happening among students and staff because he was ... a good man.”
[38] Statement to College investigator, dated 14 February 2011 at [86].
A parent and teacher in close professional contact with the Appellant for several years, and the mother of two of his former pupils observes:
“His attitude was one of much care and consideration of each individual student, while maintaining a high standard of professionalism. Both my son and daughter have moved from the student/teacher relationship to now being friends in their adult years.
Whilst studying at [a tertiary level] my daughter would occasionally baby-sit for [the Appellant and his wife]. I had no reservations about ... this as I had the utmost respect for [his] integrity and loyalty to his family.”
Most remarkable is a compassionate reference from Jane’s mother. She frankly admits:
“With regard to the relationship that developed between [the Appellant] and our daughter, we were aware that [she] seemed to have an infatuation with [him]. There were however no signs in her demeanour that suggested to us that this had progressed beyond what we thought was a harmless schoolgirl infatuation, and at the time we did not feel that there was any need to intervene.”
Jane’s mother goes on:
“Whilst I certainly do not in any way condone [his] behaviour, I understand he is now receiving psychological counselling to deal with personal issues that may have contributed to the ... inappropriate relationship with our daughter. I know that [he] was a well respected teacher by his colleagues, parents and certainly his students, both at [Jane’s school] and previously at [another] College.
... [I]t is my hope that [the Appellant] will be able to in time resume his teaching career, albeit with supervision and ongoing counselling. I do not believe that [he] intentionally set out to lure [Jane] into a relationship.
I would like to think that all those involved in the events of earlier this year can heal and move on. I believe [the Appellant] being able to resume teaching will be part of that process, particularly for him personally, but also for his family, and to some extent our family as well. Sadly, at times good people do regrettable things, but they should be given the opportunity to get their life back in order and I hope in due course that [the Appellant] will be afforded the chance to rebuild his teaching career.”
I may add that the tone and sentiments of this reference suggest that any ill-effects of this affair upon Jane will be minimised by wise parental guidance.
Publicity: As the subject events occurred in a provincial town they inevitably attracted more publicity than in a metropolis. This case was the subject of a prominent article in the local press, from which it spread to kindred newspapers in Brisbane and in at least one other provincial centre. Obviously that degree of unwelcome public attention, however useful it may be as a deterrent to the Appellant and others, exacerbated the distress caused to him and his family by his dismissal and subsequent disqualification. The publicity in itself was a significant punishment.
Other Cases
In Queensland College of Teachers v Grasso[39] a female teacher was disqualified for 3 years from the date of the order. Not only were there “inappropriate communications”[40] with a female student; the parties shared a bed, roomed together during a netball tour and there were sexual relations “over a period of time”[41]. Furthermore, when the complainant showed a propensity to self-harm, the respondent failed to inform the proper authorities. Relative inexperience and a psychologist’s evidence of remorse notwithstanding, I consider Grasso to be a decidedly more serious case than this one.
[39] [2011] QCAT 292.
[40] Ibid, at [3].
[41] Ibid, at [9]
A disqualification of 2 years was imposed in Queensland College of Teachers v Ashton[42], which also involved a female teacher and a female student. Once again, there were features of the case that place it in a more serious category than this one. The complainant was 16 to 17 years of age, and the respondent was in her early 30s. The offending conduct included exchanges of gifts, exposure of the student to a video recording with sexually explicit content while the parties “huddled beneath [a] blanket”[43], embraces at school music rehearsals, and lying down together in the respondent’s office. The matter was taken to a contested hearing.
[42] [2010] QCAT 80.
[43] Ibid, at [8].
The respondent in Queensland College of Teachers v McNamara[44] was a male aged 48. He took a female student “from a particularly difficult background”[45] to the beach after school, then took her home, joined her in a spa and invited her to “skinny dip”[46]. The girl returned home displaying actions that were “extreme”[47] and appearing “greatly upset by the events that had occurred”[48]. There was an oral hearing at which each party was legally represented. McNamara was disqualified for 2 years.
[44] [2010] QCAT 442.
[45] Ibid, at [17].
[46] Ibid, at [9].
[47] Ibid, at [20].
[48] Ibid, at [20]
Mr Stark, aged 44, was excluded for 4 years.[49] He acted “inappropriately”[50] towards several students. He kissed and groomed a 12 year old student. Some time elapsed before he was prepared to concede that what he did might be regarded as misconduct. In marked contrast to the present Appellant, he was evasive with investigators, and before the Tribunal, did not appear to understand the seriousness of his actions.
[49] Queensland College of Teachers v Stark [2010] QCAT 592.
[50] Ibid, at [4].
In Queensland College of Teachers v A Teacher[51] a female teacher aged 38 showed pornography to several male students, and when the others left she engaged in oral sex with the complainant, a few months after his leaving school. Five other such events were alleged but not established. A criminal prosecution for unlawful carnal knowledge ended in acquittal. The teacher was on notice that the complainant was a vulnerable child. She was disqualified for 3 years.
[51] [2011] QCAT 225.
A longer period of 4 years was imposed in Queensland College of Teachers v Borchardt[52], but once again a clear distinction is apparent. There were intimate and improper touching of several female students. Despite three warnings and an unsuccessful prosecution, Borchardt persisted in his misconduct. He “groomed” the complainant at school, and established a sexual relationship with her shortly afterwards. There was no evidence of remorse, early or belated. The respondent was of no assistance to the Tribunal.
[52] [2010] QCAT 432.
The maximum disqualification of 5 years was imposed in Queensland College of Teachers v Brooker[53], but that is hardly surprising. Brooker was convicted in the Brisbane District Court on five (5) counts of indecent dealing with a girl under 16 years of age. The same may be said of Queensland College of Teachers v Limpus[54] where a female teacher had sexual intercourse with a boy in Year 9 and failed to appear at the hearing.
[53] [2010] QCAT 320.
[54] [2011] QCAT 99.
The above selection of comparable and contrasting cases may suffice. Recognising, as I do, that the determination of disciplinary sanctions is not an exact science, I consider that this case, which I have tried to set out in some detail, presents exceptionally persuasive mitigating factors. Less meritorious cases have resulted in disqualification for 2 or 3 years. I do not overlook the fact that the period of disqualification in this case, if correctly calculated from the date of the order, amounted to approximately 2 years and 8 months. Nevertheless, I consider that justice will be done if the Appellant’s disqualification ends on 18 February 2013 instead of 18 February 2014, and I propose an order to that effect. The Appellant’s return to teaching will be difficult enough, without debarring him from attempting to do so until 2014. I am satisfied that, when the personal, social and financial consequences to this Appellant are taken into account, a shorter period of disqualification will meet the protective[55] objects of a disciplinary sanction.
[55]NSW Bar Association (NSW) v Evatt (1968) 117 CLR 177; Police Service Board v Morris (1985) 156 CLR 397 at [411]-[412] per Brennan J; Adamsonv Queensland Law Society Inc [1990] 1 Qd R 498 at 504 per Thomas J; R v NG [2006] QCA 218 at [71] per Keane JA.
There are 4 orders appended to the decision under appeal. The Appellant challenges only one of them, namely order number [2], prohibiting an application for registration before 18 February 2014.
Non-publication Order
The Appellant seeks, and the College does not oppose, an order that publication of any information identifying him be prohibited.[56] In my view, the time is ripe for such an order, so as to advance the healing process to which Jane’s mother refers.
[56] Queensland Civil and Administrative Tribunal Act 2009, s 66.
All others involved are already protected by such an order, which should be continued.
I propose these orders:
1.Leave to appeal granted;
2.Appeal against the order prohibiting the Applicant from applying for registration or permission to teach for a period of 3 years allowed;
3.The said order is set aside and in lieu thereof order that the Appellant be prohibited from applying for registration or permission to teach until 18 February 2013;
4.Other orders of the primary tribunal to stand;
5.Publication of any information which may lead to identification of the Appellant is prohibited.
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