Queensland College of Teachers v TSV
[2015] QCAT 186
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- Unreported Judgment
- Queensland College of Teachers v TSV[2015] QCAT 186
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Queensland College of Teachers v TSV[2015] QCAT 186
Queensland College of Teachers v TSV[2015] QCAT 186
CITATION: | Queensland College of Teachers v TSV [2015] QCAT 186 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
TSV (Respondent) |
APPLICATION NUMBER: | OCR171-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 13 May 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski Acting Senior Member Endicott Member MacDonald |
DELIVERED ON: | 28 May 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Teacher not suitable to teach – sexual advances made by a teacher to a 16 year old former student Education (Queensland College of Teachers) Act 2005 (Qld) ss 66(2)(b), 92(1)(h) Briginshaw v Briginshaw [1938] HCA 336 Queensland College of Teachers v McNamara [2010] QCAT 442 Queensland College of Teachers v WAS [2015] QCAT 61 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
REASONS FOR DECISION
Introduction
- [1]This is a disciplinary proceeding against Mr TSV, a registered teacher. The Queensland College of Teachers contends that Mr TSV is not suitable to teach because of his behaviour towards a female former student (the complainant). The College alleges that Mr TSV made unwelcome sexual advances toward the complainant on 4 September 2013. At that time, Mr TSV was 58 years of age. The complainant had turned 16 a few weeks earlier.
- [2]QCAT is a disciplinary body under Chapter 6 of the Education (Queensland College of Teachers) Act 2005 (Qld) (the EQCT Act). The College submits that we should exclude Mr TSV from the teaching profession for a lengthy period.
Issues
- [3]The issues we must decide are:
- What did Mr TSV do?
- Is a ground for disciplinary action established?
- If so, what disciplinary action should be taken?
- Should the teacher’s name be suppressed?
What did Mr TSV do?
- [4]The following matters are undisputed. Mr TSV taught at a primary school in Brisbane for over 12 years until taking extended sick leave from mid-2013. He was a physical education teacher and a sports coach. He taught and coached the complainant when she was a student at the school for years 5 to 7 in 2007 to 2009. The complainant and Mr TSV saw each other occasionally over the following years because the complainant’s younger sibling was still attending the school.
- [5]In 2013 the complainant was in year 11. She was studying via distance education. In July to August 2013 the newsletter of Mr TSV’s school publicised the fact that Mr TSV had been diagnosed with cancer and was on leave receiving treatment. This came to the complainant’s attention as her younger sibling was still attending the school. In late August she sent a letter to Mr TSV, via the school. In the letter the complainant expressed her deep sorrow about the diagnosis, and discussed the ways in which Mr TSV had positively influenced her during her primary school years. The complainant encouraged Mr TSV to persevere in his battle with cancer. She said he should not hesitate to contact her if he had time. She concluded:
… my thoughts and prayers are with you.
I would love to see you again, or visit you.
Lots of love,
…
- [6]It is also undisputed that a few days later Mr TSV rang the home of the complainant, where she lived with her parents and younger sibling. He had obtained the phone number from school records. He spoke with the complainant. They arranged to meet for coffee at a shopping centre in the vicinity of the school and the complainant’s home on 4 September. They exchanged mobile numbers. On 3 September Mr TSV texted the complainant to suggest they have coffee instead at the café at Mount Coot-tha, and that he would pick her up from the shopping centre. The complainant agreed.
- [7]On 4 September Mr TSV picked the complainant up at the shopping centre and drove her to Mt Coot-tha. They spent some time at Mt Coot-tha and then Mr TSV drove the complainant home.
- [8]The complainant gave her version of what happened during the outing in an interview with investigators from the College. The complainant’s account may be summarised as follows. When she got into the car Mr TSV lent over and hugged her. She did not think anything of this because he was an affectionate person by nature. On the way to Mt Coot-tha he made comments to the effect that she looked beautiful and that she had grown into a mature young lady. They had coffee at the café and then went to look at the view. Mr TSV told her that he conducted personal training sessions for groups of young people. He said that he could train her on a one-to-one basis and that she could be his ‘little pet’. He put his arm around the complainant but she moved away. A little later he put his hand on her hand and told her: “You control this relationship, you tell me how far you want to go”. He kissed the complainant on the lips. She responded by saying that she needed to get home. Mr TSV said he would drive her home. They returned to the car. However, instead of taking the direct route back to the Western Freeway, Mr TSV took the much longer ‘scenic route’ that goes past the television towers and through bushland.
- [9]Further, according to the complainant, Mr TSV pulled over into a secluded gravel side-out on Mt Coot-tha. Mr TSV asked the complainant to play some music on her phone. He centrally locked the doors of the car. Mr TSV told her she had stood out to him even when she was younger. He kissed her on the lips and placed his hand on her leg. He moved his hand up the inside of her thigh. The complainant said that she had to get home to log in for a class. Mr TSV then desisted and drove her home. When they arrived at the house, Mr TSV said he would not let her out of the car unless she kissed him and agreed to see him again. She went along with this and then got out of the car. Mr TSV drove away.
- [10]According to the complainant, she had no idea that Mr TSV had sexual intentions until they were looking at the view from the Mount Coot-tha lookout. Further, according to the complainant, she found the incident in the car very frightening. She feared it might end in rape and even murder. She found the whole episode very distressing. She says that after Mr TSV drove away from her home, she went to speak to a neighbour who urged her to contact her parents. She contacted her parents, and went with her mother to the primary school the same day to report the incident. The complainant’s father rang Mr TSV and told him he was not to contact the complainant again. The complainant reported the matter to the police some days later but chose not to make a formal complaint.
- [11]The College has presented evidence from the neighbour and the parents confirming the steps taken after the incident. The police confirmed to the school principal that the complainant reported the matter.
- [12]Mr TSV was not interviewed by the College. He has not provided a formal statement setting out his version of events. His solicitors say he is “experiencing significant and potentially terminal illness and is not in a position to defend the allegations made against him.” According to Mr TSV’s psychiatrist, participation by him in the disciplinary proceeding would be ‘severely detrimental’ to his mental health. However, Mr TSV’s solicitors have not asked for a postponement of the proceeding. Rather, they have advised that Mr TSV has instructed them that he wants the proceeding resolved.
- [13]We do have before us numerous emails written by Mr TSV to his solicitors and others in which he makes some comments about the events in question. It appears that he thinks there was a misunderstanding. He does not admit any wrongdoing but in an email dated 24 March 2015 he does refer to having made a “bad mistake of judgment”. It is not clear what the mistake of judgment involved, though it seems it may have been “selecting a very poor choice of Coffee Venue”.
- [14]The College submits that the complainant’s evidence is credible: she promptly reported the matter to a neighbour, her parents, and the Deputy Principal of the school. She was observed to be upset, in contrast to the respect and admiration for Mr TSV that she had demonstrated prior to the meeting.
- [15]Mr TSV’s solicitors in their submissions have not commented on what occurred at Mt Coot-tha other than to say “there is absolutely no evidence of sexual intent” and “no evidence of sexual touching or conduct, only evidence that the complainant feared such conduct”. We disagree. If the complainant’s evidence is accepted, there is clear evidence of sexual intent, and of sexual conduct consisting of kissing, touching on the upper leg, and suggestive comments.
- [16]Mr TSV or his solicitors have provided a letter from a teacher who says she had a meeting with Mr TSV on 4 September 2013 immediately after his meeting with the complainant. The witness says that she did not notice anything unusual about Mr TSV’s demeanour. He “arrived for our meeting in his usual positive and upbeat demeanour”. He was “very happy at the prospect of coaching some new athletes, including the girl he had just met with”.
- [17]The standard of proof in this proceeding is the civil standard: on the balance of probabilities, sometimes referred to as reasonable satisfaction. As Dixon J noted in Briginshaw v Briginshaw:[1]
… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
- [18]The allegations against Mr TSV are serious, and the consequences flowing from adverse findings are grave. Nonetheless, we are satisfied that the allegations made by the complainant are true. The stark change in her demeanour was noted by witnesses soon after the event. She gave a convincing account of events to the investigators. There is no apparent reason why she would fabricate a story against Mr TSV. There is no detailed account by Mr TSV describing what he says occurred. While the upbeat demeanour observed in Mr TSV soon after the event might suggest that nothing untoward had happened, it might alternatively be that he was putting on a brave face, or that he was simply oblivious to the impact of his behaviour on the complainant.
- [19]We accept the complainant’s version of events.
- [20]For the sake of completeness, we should note that the complainant says that when she graduated from primary school in 2009 Mr TSV posed for a photograph with his arm around her. Further, on occasions over the years leading up to September 2013 Mr TSV hugged her and kissed her on the cheek. Clearly, at the time of those incidents they did not come across as intimidating or inappropriate. The complainant viewed them as expressions of innocent affection. On balance, we regard them in the same way, rather than as evidence of a long-term plan on the part of Mr TSV to seduce the complainant.
Is a ground for disciplinary action established?
- [21]Mr TSV taught for almost 40 years. He has provided many character references from people he has taught or coached, and from the parents of such people. They are to the effect that he has been a well-regarded teacher and coach who has not acted inappropriately. We accept that Mr TSV has been a well-regarded teacher and coach with a long and otherwise unblemished record.
- [22]We have found, however, that on 4 September 2013 Mr TSV made unwelcome sexual advances to the complainant in the circumstances she has described. That behaviour was unbecoming of a teacher. In her letter the complainant had expressed admiration for Mr TSV as her former teacher and sports coach. Mr TSV took advantage of the warmth expressed by the complainant in her letter when she heard of his cancer diagnosis. She had only just turned 16 and she remained a school student, albeit not at Mr TSV’s school. There was a very significant age difference between the teacher and the complainant. He was an experienced teacher, and she was a trusting young former student. He arranged to meet with the complainant in a location best suited to his purpose of attempting to draw her into a sexual relationship. It was away from the eyes of people who might know them. It was a place with secluded areas to park a car. We do not accept the submission made by Mr TSV’s solicitors that the decision to meet at Mt Coot-tha was made “impulsively, without thinking”. The change of location was something Mr TSV arranged the day before the meeting, with a sexual purpose in mind. In locking the car doors at a secluded spot Mr TSV caused the complainant alarm and apprehension. The whole incident was a serious betrayal of the trust of a former student. It was behaviour falling well short of the standard of behaviour expected of a teacher.[2]
- [23]Mr TSV has not demonstrated insight or remorse.
- [24]Despite Mr TSV’s otherwise good record, we find that he is not suitable to teach. This is a ground for disciplinary action.[3]
What disciplinary action should be taken?
- [25]The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[4] It is essential that persons registered as teachers do not pose a risk of harm to children.[5] Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”.[6]
- [26]Various sanctions are available.[7]
- [27]The College submits that we should cancel Mr TSV’s registration and prohibit him from applying for re-registration for eight years. The College also submits that any application for re-registration should be accompanied by a detailed psychological report.
- [28]Mr TSV’s solicitors submit that the appropriate prohibition period would be one to two years from 31 July 2014, the date on which Mr TSV’s registration was suspended. They submit that there are mitigating factors including the long period that had passed since Mr TSV taught the student; that there was no grooming; and that Mr TSV had been on leave from teaching for some months as at September 2013. He “may not have made the same decisions if not for the stress of the cancer and treatment he was receiving for the pain he was suffering”. The conduct was out of character, the solicitors submit.
- [29]There is no evidence that Mr TSV’s judgment was impaired by his illness or the treatment. However, we do appreciate that Mr TSV was in stressful circumstances because of his cancer diagnosis. Faced with his own mortality, he appears to have thrown caution and propriety to the wind. We regard his behaviour as opportunistic. It was an instance of very poor judgment in unusual circumstances, not necessarily indicative of general predatory behaviour.
- [30]Mr TSV’s emails discuss his declining health, and indicate that he plans to retire shortly. Nonetheless, it is appropriate that we consider a sanction that extends into the future in case Mr TSV’s health improves and he decides to return to teaching. It is apparent from the emails that the disciplinary process has been very humiliating for Mr TSV. We consider it unlikely that he would engage in further inappropriate conduct because of the risk of similar consequences.
- [31]The parties have cited a number of cases where periods of prohibition have ranged between two and six years. It is illustrative to consider cases at the ends of the range.
- [32]At the lower end, Queensland College of Teachers v McNamara[8] involved an experienced male teacher and a female former student who had recently turned 17. The teacher knew that the student had a troubled background. She trusted and confided in the teacher. Soon after the student had finished year 12 at the teacher’s school, he took her on a surfing outing and then back to his home. There, at the teacher’s suggestion, she used the spa. He joined her in the spa and suggested that she could skinny dip if she wished. She was greatly distressed by the incident. She was described as being heart-broken because she had trusted the teacher. The teacher was remorseful and had attended 10 sessions with a psychologist prior to the QCAT hearing. QCAT cancelled the teacher’s registration and prohibited him from applying for re-registration for two years. His registration had been suspended for approximately four months by the time of the decision, so effectively he was excluded from the profession for two years and four months.
- [33]At the higher end, Queensland College of Teachers v WAS[9] involved a male teacher who formed a sexual relationship with a 16 year old female student who was attending the teacher’s school. She was a vulnerable student because of past sexual abuse. This was known to the teacher. He gave her gifts and exchanged many messages with her on social media using a false name. He had sexual intercourse with her on several occasions at her home. He offered to help her with school work, including by obtaining old assignments for her. He had inappropriate discussions with her about staff and students. The sexual relationship lasted for a few months and ended only when the teacher’s wife discovered what was going on. QCAT cancelled the teacher’s registration and prohibited him from applying for re-registration for six years from the date on which his registration had been suspended.
- [34]We consider the facts in Mr TSV’s case to be much more comparable to those in McNamara rather than those in WAS. There are differences between the present case and McNamara, of course. Mr TSV has not demonstrated insight and remorse. On the other hand, he was facing unusually stressful circumstances unlike the teacher in McNamara. Overall, we consider the circumstances in the two cases to be roughly equivalent. We consider that a sanction similar to that imposed in McNamara is appropriate in the present case. We are mindful that McNamara was decided when the period of exclusion was capped at five years under the EQCT Act. That cap no longer applies. Nonetheless, it is not apparent that a longer period of exclusion would have been imposed in McNamara if no cap had applied.
- [35]The appropriate sanction is to cancel Mr TSV’s registration and to prohibit him from applying for re-registration until 31 December 2016. As Mr TSV’s registration has been suspended since 31 July 2014, this is effectively a period of exclusion from the profession of two years and five months. We accept the submission from the College that any application for re-registration by Mr TSV should be accompanied by a psychological report addressing relevant matters.
Should the teacher’s name be suppressed?
- [36]An order was made on 18 August 2014 under section 66 of the QCAT Act prohibiting publication of the name, address, school and former schools of the complainant and other children referred to in the disciplinary matter. That order remains in force.
- [37]Mr TSV has applied for an order prohibiting the publication of his name. There is unchallenged written evidence from his psychiatrist that “publication of Mr TSV’s name would cause exceptional levels of distress and given Mr TSV’s history, he would be at high risk of suicide”. A non-publication order may be made if it is necessary to avoid endangering the physical or mental health or safety of a person.[10] In light of the psychiatrist’s evidence, we consider that an order prohibiting the publication of Mr TSV’s name is warranted. Accordingly, these reasons will be published, other than to the parties, with the teacher referred to as Mr TSV.
Conclusion
- [38]Mr TSV behaved in a most inappropriate way towards the complainant, to the extent that we have found him not suitable to teach. However, there is a low risk of such behaviour being repeated. Further, we have imposed a requirement for a satisfactory psychological report before any re-registration. In these circumstances, we consider that students are adequately protected and the other objects of the Act are met by excluding Mr TSV from the profession for a limited time only.
Footnotes
[1] [1938] HCA 34.
[2] Education (Queensland College of Teachers) Act 2005 (Qld) s 12(3)(a).
[3] Ibid s 92(1)(h).
[4] Ibid s 3(1).
[5] Queensland College of Teachers v Genge [2011] QCAT 163 at [12].
[6] Queensland College of Teachers v Brady [2011] QCAT 464 at [55].
[7] Education (Queensland College of Teachers) Act 2005 (Qld) s 160(2).
[8] [2010] QCAT 442.
[9] [2015] QCAT 61.
[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2)(b).