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Queensland College of Teachers v Ku[2015] QCAT 130

Queensland College of Teachers v Ku[2015] QCAT 130

CITATION:

Queensland College of Teachers v Ku [2015] QCAT 130

PARTIES:

Queensland College of Teachers

(Applicant)

 

v

 

Michael Ku

(Respondent)

APPLICATION NUMBER:

OCR246-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

Member MacDonald

Member Paratz

DELIVERED ON:

21 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Michael Ku’s teacher registration is suspended for twelve (12) months from the date of these orders. That sanction is to be suspended immediately, provided that Michael Ku complies with the following:
  1. The conditions in Order 2; and
  2. Michael Ku is not subject to any disciplinary proceedings under the Education (Queensland College of Teachers) Act 2005, for a period of 18 months from the date of these orders.
  1. Michael Ku’s teacher registration is subject to the following conditions for a period of 18 months from the date of these orders:
  1. Within 12 months from the date of these orders, Michael Ku must complete a Code of Conduct and an Ethics course approved by the Queensland College of Teachers;
  2. Michael Ku must within six (6) months from the date of these orders, provide in writing to the Queensland College of Teachers for approval, a nomination of the Code of Conduct and Ethics courses he wishes to complete to satisfy Condition (a) above. In the event that the Queensland College of Teachers does not approve the nominated courses, Michael Ku will complete Code of Conduct and Ethics courses nominated by the Queensland College of Teachers;
  3. Within 12 months, Michael Ku must provide to the Queensland College of Teachers to its satisfaction evidence of completion of the approved Code of Conduct and an Ethics course;
  4. All costs and expenses related to the Code of Conduct and Ethics courses will be paid by Michael Ku.

CATCHWORDS:

OCCUPATIONAL REGULATION – GROUNDS FOR DISCIPLINARY ACTION – where offences of fraud outside the teaching role – appropriateness of disciplinary action

Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 11, s 12, s 92, s 97, s 123, s 160, Schedule 3

Queensland College of Teachers v Brady [2011] QCAT 464; cited

Queensland College of Teachers v Osborne [2013] QCAT 471; cited

Queensland College of Teachers v Segger [2013] QCAT 690; cited

Pharmacy Board of Australia v Thomas [2011] QCAT 637; cited

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    Michael Ku works as a language specialist teacher. He has held registration as a teacher since 4 December 2008.
  2. [2]
    On 5 March 2014, Mr Ku pleaded guilty to two offences of fraud. The offences were committed between January 2011 and July 2011 and involved providing forged documents to obtain three loans to the value of $316,000.[1]
  3. [3]
    For the first offence a term of imprisonment of 3 years to be suspended for 4 years was imposed. For the second offence a term of imprisonment for 18 months to be suspended for 4 years was imposed. Mr Ku has made full restitution for all of the money borrowed. He gained no personal benefit from the offending behaviour.
  4. [4]
    The indictable offences that led to a conviction are not ‘serious offences’[2] but do provide grounds for disciplinary action under s 92(1)(b) of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’). Mr Ku accepts that there is a ground for disciplinary action and that this arises because he was convicted of two indictable offences. The Queensland College of Teachers (the QCT) and Mr Ku agree that there is a further ground for disciplinary action because Mr Ku, at the time of the offending behaviour, was not ‘suitable to teach’ under s 92(1)(h) of the Act.
  5. [5]
    Mr Ku and the QCT have prepared and filed an agreed statement of facts and circumstances and submissions about the appropriate disciplinary action to be imposed.[3] The Tribunal must decide whether there are grounds for taking disciplinary action and if so, what disciplinary action should be taken.

Do grounds exist for taking disciplinary action?

  1. [6]
    Mr Ku pleaded guilty in the Brisbane District Court to two offences of fraud. The first offence occurred between January 2011 and February 2011 at Brisbane and Mr Ku admitted to dishonestly obtaining credit from the Suncorp Bank. He submitted an online application via Suncorp Bank’s website to obtain a personal loan of $20,000.
  2. [7]
    In the application Mr Ku falsely stated that he was the manager of a business however he had never been employed by the business. Mr Ku also falsely stated that he was earning $100,000 per year and sent a number of documents to Suncorp Bank in support of his application that included forged payslips and false referee details.
  3. [8]
    Mr Ku’s application was approved by the Suncorp Bank and Mr Ku withdraw $20,000 from his saving account to give to a friend (Mr Tran). He also made periodic payments towards the payment of the personal loan and paid a total of $13,000 to Suncorp Bank for the $20,000 personal loan.[4]
  4. [9]
    In relation to the second offence, Mr Ku pleaded guilty to dishonestly obtaining credit from the Suncorp Bank to the value of $30,000. Mr Ku applied to the bank for a loan to refinance his current mortgage and to consolidate other loans. He again submitted an application to the bank together with fraudulent documents to support the loan. The total loan application amount was $297,000.[5]
  5. [10]
    Mr Ku did not meet his obligations under the loan and on 28 March 2013 the property was sold and the proceeds were used to pay the loan. After the proceeds from the sale of Mr Ku’s house were paid to the bank there was a shortfall owing in the amount of $16,000. Mr Ku entered into a payment plan with the bank to pay the balance of the amount and has since paid the total amount in full.[6]
  6. [11]
    The transcript of proceedings in relation to the sentencing of the criminal offences show that Mr Ku pleaded guilty and made full admissions to police.[7] His Honour Judge Dearden in sentencing Mr Ku said that almost all of the money owing to the bank had been paid. He also said that the offending was ‘serious’ and ‘blatant’ and involved a ‘significant degree of criminality’ because there was forgery of documents and money taken and given to Mr Ku’s friend (Mr Tran). Dearden DCJ said:

Now, for reasons which I still don’t fully understand, you assisted Mr Tran [your friend] – who is to be dealt with, it seems, in some months time, firstly, to obtain in your name, the $20,000 loan which is the matter relating to count 1 in which false documentation attributed to you a different employment to your true employment and a different earning capacity – a much higher earning capacity, I suspect – that your true earning capacity and, of course, it seems Mr Tran [your friend] filed all that with appropriately forged documentation to get the loan. That loan fell into default and, to your credit at least, it was eventually paid off by a $10,000 final payment in full discharge but by my calculations, that would have seen, given that there was about $3,000 paid, some reasonable amount outstanding, although, obviously written off by Suncorp.

Then we have the second count. That stated and Mr Fraser, your barrister submits that this is significant and important, it started with a $40,000 loan obtained by Mr Tran [your friend] in your name but without your knowledge and then, having done that, it seems that he proceeds to con both you and Suncorp and, again, involves you in a much more large scale fraud; this time, a fraud to reconsolidate your mortgage and that loan. Ultimately, the figures involved in respect of count 2 were a loan of $297,000 to refinance the mortgage on your house and to repay the $40,000 which, itself, of course, was a fraudulently obtained loan by Mr Tran [your friend]. The loan went into arrears as a result of default and the shortfall after the house was sold was $16,355.91. That has been steadily repaid, I’m told. At the sum of $243 per week and although the schedule of facts indicate that as of September 2013 there was $14,893.29 outstanding I’m told today, and the Crown accepts this, that the amount outstanding is as of 3 March 2014 a total of $420.[8]

… there is no doubt that restitution, as in this case, almost complete restitution, is a very significant factor in how the sentence is actually structured. The ultimate view I take of it is this: ... It seems to me that the head sentence must reflect all of the serious aspects of your offending. There is no stepping away from those. This is serious offending. It was blatant. It involved a significant degree of criminality. It involved forgery of documents and, although all of that might have been done in a practical sense by Mr Tran [your friend], you cooperated with and facilitated all of that including all that was necessary to actually get your hands on the money even if that money, effectively, went to Mr Tran [your friend].[9]

  1. [12]
    We are satisfied that grounds exist for taking disciplinary action. Mr Ku has been convicted of indictable offences. We are also satisfied that at the time of the offending behaviour Mr Ku was clearly not suitable to teach because he behaved in a way that was ‘disgraceful or improper’.[10]

What disciplinary action should be taken?

  1. [13]
    Mr Ku is now 30 years of age. He has worked for the past three years as a language specialist teacher. He has a full load of teaching duties involving five language classes across years 8 to 11 and responsibilities for a pastoral care class. Mr Ku is supported by the principal at the school where he presently teaches and is said by the principal to be ‘well liked and respected [by] staff member[s]’.[11]
  2. [14]
    In determining the appropriateness of disciplinary action to be imposed under s 160 of the Act we have considered the following factors:
    1. Mr Ku cooperated with the police and has made full restitution.
    2. Mr Ku’s ongoing work as a teacher is supported by the principal of the school.
    3. The offences of fraud involved preparing and submitting false information and forms to the Suncorp Bank in order to obtain a loan.
    4. Mr Ku has obtained ‘no financial benefit and considerable financial detriment[12] from the offending behaviour.
  3. [15]
    We have also considered the various comparable authorities referred to in the QCT submissions. In Queensland College of Teachers v Osborne,[13] the relevant teacher’s registration was suspended for a period of 6 months provided that a course approved by the QCT was completed. In Osborne’s case the teacher pleaded guilty to offences of dishonesty and a term of imprisonment of 12 months was imposed with immediate release under a recognisance to be of good behaviour for 3 years. The offending behaviour involved obtaining Centrelink benefits to the amount of $29,423.00.
  4. [16]
    In Queensland College of Teachers v Segger,[14] the registered teacher was reprimanded for committing offences of fraud in the course of his employment. The registered teacher was found to have a psychological condition at the time of the offence and had not been ‘thinking rationally’ and successfully sought rehabilitation.
  5. [17]
    In Segger’s case, the Tribunal said disciplinary proceedings are ‘intended to protect the community not to punish the professional for their misconduct’.[15] The Tribunal also said in Queensland College of Teachers v Brady[16] that the approach to sanction must be to deter other members of the profession from engaging in conduct that is ‘irresponsible’.[17] The Tribunal said:

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 further irresponsible conduct by the teacher in question.[18]

  1. [18]
    In this case Mr Ku’s conduct is more serious than the registered teacher’s conduct in Osborne and Segger’s case. The mitigating factors such as Mr Ku’s early entry of a plea, cooperating with the police and restitution must be considered in the context of the seriousness of the offending behaviour. Mr Ku has gained no personal benefit as a result of the behaviour and is a relatively young teacher. He is valued as a language specialist teacher and is supported by the principal of the school where he is responsible for five language classes.
  2. [19]
    We are satisfied that the proposed sanction is appropriate. We have considered all of the submissions and material filed by the QCT that is also accepted by Mr Ku. Mr Ku has demonstrated his willingness to accept responsibility for his actions. We are satisfied that the completion of the Code of Conduct and Ethics courses proposed by the QCT are appropriate and the disciplinary action is a suitable deterrent to other teachers engaging in similar conduct.
  3. [20]
    We make the orders proposed by the QCT and Mr Ku.

Footnotes

[1] Statement of Agreed Matters filed 15 January 2015, [9].

[2] Education (Queensland College of Teachers) Act 2005, s 92 and Schedule 3 defines ‘serious offence’ under s 167 of the Commissioner’s Act (as defined).

[3] QCT Submissions filed 27 February 2015 and Statement of Agreed Matters filed 15 January 2015.

[4] QCT Submissions filed 27 February 2015.

[5] Ibid.

[6] Ibid.

[7] Transcript of proceedings, District Court of Queensland before Dearden DCJ, 5 March 2014, material filed by the QCT, p 23.

[8] Ibid p 23, line 17 – 40.

[9] Ibid p 24, line 40 to p 25, line 2.

[10] QCT Act s 12(3)(b).

[11] Material filed by QCT, 47.

[12] Transcript of proceedings, material filed by the QCT, p 17, line 15 to 17.

[13] [2013] QCAT 471.

[14] [2013] QCAT 690.

[15] Ibid [33] see Pharmacy Board of Australia v Thomas [2011] QCAT 637 at [27].

[16] [2011] QCAT 464.

[17] Ibid [55].

[18] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Michael Ku

  • Shortened Case Name:

    Queensland College of Teachers v Ku

  • MNC:

    [2015] QCAT 130

  • Court:

    QCAT

  • Judge(s):

    Member Browne, Member MacDonald, Member Paratz

  • Date:

    21 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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