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Queensland College of Teachers v HMJ[2016] QCAT 447

Queensland College of Teachers v HMJ[2016] QCAT 447

CITATION:

Queensland College of Teachers v HMJ [2016] QCAT 447

PARTIES:

Queensland College of Teachers

(Applicant)

v

HMJ

(Respondent)

APPLICATION NUMBER:

OCR014-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

Member Guthrie

Member MacDonald

DELIVERED ON:

8 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. HMJ is prohibited from re-applying for registration or permission to teach for the period of six (6) years from 12 December 2014.
  2. The Register of Teacher is to be endorsed with a notation that any application by HMJ for re-registration as a teacher must be accompanied by an independent report by a psychologist or psychiatrist approved by the Queensland College of Teachers which includes the following:
  1. An assessment of the following:
  1. The teacher’s general suitability to teach and work in a child-related field;
  2. The teacher’s awareness of what constitutes appropriate and inappropriate communication and behaviour with children;
  3. The concept of professional boundaries and the importance of maintaining professional boundaries is for the protection of children;
  4. An in depth examination of the extent and nature of the student, parental and community trust invested in a teacher;
  5. Understanding the full adherence to the Queensland College of Teachers Code of Ethics
  1. The practitioner’s opinion as to whether the practitioner is satisfied that HMJ has adequately understood and addressed the matters listed in (a).
  2. Any other consideration relevant to HMJ’s suitability to work in a child-related field and his suitability to teach.
  3. Confirmation that the practitioner has been provided with a copy of the Statement of Agreed facts filed in this proceeding and a copy of both the orders and reasons for decision.
  1. Documents or information referred to in the disciplinary matter that would enable the identification of the respondent are prohibited from publication under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. The names, addresses and schools of the children referred to in the disciplinary matter are prohibited from publication under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

CATCHWORDS:

EDUCATION – SCHOOLS –– TEACHERS EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS – where teacher engaged in sexual intercourse with student – where teacher surrendered registration – where student aged seventeen years at time of sexual relationship – whether ground for disciplinary action established – whether teacher suitable to teach – where ground for disciplinary action established – teacher not suitable to teach – sanction of teacher where ground for disciplinary action established – teacher prohibited from re-applying for registration for six years from the date registration ceased

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – non-publication order – protection of children - where orders already in place - whether non-publication orders should continue

Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1), s 12(1)(b), s 12(3)(a), s 92(1)(h), s 161

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Laragy v Victorian Institute of Teaching (Occupational and Business Regulation) [2009] VCAT 2651

Queensland College of Teachers v A Teacher [2011] QCAT 225

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v Ashton [2010] QCAT 80

Queensland College of Teachers v Brooker [2010] QCAT 320

Queensland College of Teachers v Borchardt [2010] QCAT 432

Queensland College of Teachers v Brady [2011] QCAT 464

Queensland College of Teachers v DRR [2012] QCAT 671

Queensland College of Teachers v Grasso [2011] QCAT 292

Queensland College of Teachers v Harvison [2013] QCAT 684

Queensland College of Teachers v Limpus [2011] QCAT 99

Queensland College of Teachers v Stark [2010] QCAT 592

Queensland College of Teachers v TSV [2015] QCAT 186

Queensland College of Teachers v WAS [2015] QCAT 61

Teacher J v Queensland College of Teachers [2012] QCATA 115

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

Introduction

  1. [1]
    HMJ was registered as a teacher between 22 December 2006 and 12 December 2014, when she handed in her teacher’s registration. HMJ’s employment at a high school was terminated on 8 December 2014 following its investigation into the matters, which form the basis for this referral.
  2. [2]
    The Queensland College of Teachers (‘the College’) referred the matter to the Tribunal for a determination to be made about whether a disciplinary ground exists, namely whether HMJ is not suitable to teach. The Tribunal is a disciplinary body under Chapter 6 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’).
  3. [3]
    The parties have filed a statement of agreed facts. The Tribunal also has both parties written submissions about the orders each says should be made if the ground for disciplinary action is established. HMJ’s submissions were provided by her legal representative, Holding Redlich Solicitors.

Non-publication orders

  1. [4]
    On 23 February 2016, the Tribunal directed that the names, addresses and schools of the children referred to in the disciplinary matter be prohibited from publication under s 66 of the QCAT Act. Further, on 20 April 2016, the Tribunal decided that documents or information referred to in the disciplinary matter that would enable the identification of the respondent be prohibited from publication under s 66 of the QCAT Act. We have decided that those orders should continue to avoid publication of information that would be contrary to the public interest. It is not in the public interest for the child the subject of the allegations to be identified given the extremely personal nature of the allegations.

Statement of Agreed Facts

  1. [5]
    The Tribunal has considered the documentary evidence before it. The agreed facts are consistent with that material and so it makes findings of fact accordingly.
  2. [6]
    HMJ became registered as a teacher on 22 December 2006 and was so registered until 12 December 2014.
  3. [7]
    From 5 February 2007, HMJ was employed as a teacher by the now Department of Education and Training (‘DET’) as follows:
    1. Between 5 February 2007 to 8 December 2014 at a secondary school including as, for a time during semester two of 2014, an acting Senior School Head of Department;
    2. Her employment was terminated on 8 December 2014.
  4. [8]
    The student in question was a student at the high school between January 2010 (year 8) and 21 November 2014 (year 12). The student in question’s birth date is 30 October 1997.
  5. [9]
    During 2014, HMJ taught the student year 12 English and English extension.
  6. [10]
    At all material times, the high school had an academic mentor program, which, amongst other things, included individualised support to students and targeted intervention including emotional support, guidance and encouragement for work/life balance.
  7. [11]
    At no time was HMJ:
    1. Authorised by the secondary school to be an academic mentor in relation to the student;
    2. Otherwise authorised by the secondary school to have electronic communication or engage outside of school hours with the student.
  8. [12]
    During May 2014, HMJ was on leave from the secondary school and overseas.
  9. [13]
    Between 1 May 2014 and 22 May 2014, HMJ and the student exchanged emails between the student’s DET corporate email account and personal email account and the student’s personal email account.
  10. [14]
    Amongst other things, these communications included:
    1. The student’s request for and HMJ agreeing to bring the student a gift from overseas;
    2. The student discussing his girlfriend;
    3. Discussion about English and Legal Studies subjects;
    4. The student’s self-description as one of HMJ’s favourite students.
  11. [15]
    On or about 7 October 2014, the student told HMJ he had consumed a drug during or about the 2014 September school holidays (19 September 2014 – 6 October 2014).
  12. [16]
    The student told HMJ he had suffered an adverse reaction to the drug he consumed. Following this (and for a period of some months), the student repeatedly referred to his assertion of anxiety about the possible effects of the drugs in conversation with HMJ. The only adverse reaction claimed by the student was bouts of anxiety.
  13. [17]
    Between 7 October 2014 and 21 November 2014, HMJ and the student communicated as frequently as daily by email and Facebook on topics including, amongst other things:
    1. The student’s anxiety;
    2. HMJ’s previous experience with a drug including an adverse reaction;
    3. The student’s dream about having sex with HMJ after the school formal;
    4. A game in the nature of guessing and disclosing who the parties had had a sexual relationship with including, with respect to HMJ, a high school faculty member.
  14. [18]
    HMJ did not notify the student’s parents or guardians, did not notify supervisory staff and did not notify DET staff of the disclosures made by the student or his expressions of anxiety.
  15. [19]
    On or about 11 November 2014, HMJ and the student arranged by Facebook to meet outside the school. HMJ picked the student up from his house and drove to a nearby park. The student said he was upset in relation to matters arising from his previous drug use. HMJ and the student discussed these matters (previous drug use) and that he needed to see someone about them.
  16. [20]
    HMJ did not have any approval to privately meet with the student from the student’s parents or guardians, or any approval from supervisory staff at the high school. HMJ did not report the meeting to any person.
  17. [21]
    On or about 19 November 2014, following the school formal, HMJ engaged in sexual conduct and/or sexual intercourse with the student.
  18. [22]
    The high school’s year 12 school formal was held at a hotel in the city on the evening of 19 November 2014 from around 7:30pm to 11:00pm.
  19. [23]
    Some of the high school’s staff, including HMJ had a professional development (‘PD’) program at the same hotel during the day of 19 November 2014. HMJ and another of the high school’s teachers (Ms H) who was attending both the PD program and the school formal booked a room at a named nearby hotel (‘the hotel room’) for the night of 19 November 2014. Ms H told Ms HMJ to the effect that she did not intend to stay overnight at the room, but would use the room to get changed for the formal.
  20. [24]
    On or about 18 November 2014, HMJ, via social media, informed the student to the effect that she may have a hotel room for the night of 19 November 2014.
  21. [25]
    On 19 November 2014, HMJ attended the PD program at the hotel. Between the end of the PD session and the start of the school formal, HMJ purchased a bottle of vodka and took it back to the hotel room.
  22. [26]
    Between about 7:30pm and 11:00pm on 19 November 2014, HMJ and the student attended the school formal. There was no inappropriate conduct by HMJ at the school formal.
  23. [27]
    After the formal, HMJ returned to the hotel room with Ms H and another teacher, Ms T. At some point HMJ and the student exchanged messages during which HMJ told the student to the effect that he should come back to the hotel for a while.
  24. [28]
    At around 11:30pm all three teachers, including HMJ, left the hotel room and walked Ms H to her car. At around the same time, Ms T arranged to be picked up from the drop-off area at the hotel where the formal was held. HMJ and Ms T walked to the hotel where the formal had been held, where Ms T was picked up as arranged.
  25. [29]
    At this time, the student was standing near the hotel.
  26. [30]
    On being queried by Ms T about his travel arrangements, the student said words to the effect that he was waiting for his girlfriend who was almost there. HMJ and Ms T agreed that HMJ would wait with the student until he was picked up.
  27. [31]
    After Ms T left, HMJ and the student returned to the hotel room. The student helped himself to a drink of vodka. The student drank about five or six drinks of vodka over several hours. At no time was the student drunk.
  28. [32]
    At some point HMJ and the student engaged in sexual intercourse. At all material times, HMJ knowingly had a sexually transmitted illness, namely herpes (STI). Prior to engaging in sexual intercourse, HMJ stated to the student ‘this is a bad idea, we shouldn’t do this’.
  29. [33]
    The student responded by saying ‘this is something I have to do’. HMJ then informed the student of being a carrier of the herpes virus. HMJ explained that while she was not symptomatic it was something he could have for the rest of his life.
  30. [34]
    The student responded to the effect of ‘it’s okay I have a condom’. The student produced and put a condom on himself. After the parties had finished sexual activity, the student went to the bathroom. When coming out of the bathroom the student said to HMJ that the condom had split, but he said he thought he may have done it taking it off. The student did not express or show any signs of anxiety about the condom splitting. The following morning, HMJ drove the student home.
  31. [35]
    The student graduated from year 12 on 21 November 2014.
  32. [36]
    On a day between 21 November 2014 and 2 December 2014, HMJ travelled overseas in an official capacity with a school group.
  33. [37]
    On 2 and 3 December 2014, HMJ sent emails to the (now) former student which included:
    1. Her concern that the student may tell someone about their relationship; and
    2. The significant consequences to her if the former student disclosed their relationship.
  34. [38]
    At 1:56 am on 3 December 2014, the former student sent an email to HMJ stating:

This is my fault. You tried to stop me that night. I should have listened to you… None of this would have happened had I not initiated it.

  1. [39]
    At 10:28 am on 3 December 2014, the former student sent an email to HMJ which included:
    1. That the student was not going to tell anyone;
    2. That he was worried that he may have contracted the STI; and
    3. That he had a doctor’s appointment booked.
  2. [40]
    Between 11:01 am and 10:06 pm on 3 December 2014, the former student sent numerous emails to HMJ in which, amongst other things, he outlined his regret at the sexual intercourse with HMJ and his growing concern that he had contracted the STI.
  3. [41]
    At some point the former student became physically ill with anxiety.
  4. [42]
    The former student then disclosed to his girlfriend, and later to his mother, that he had had sexual intercourse with HMJ.
  5. [43]
    At 10:47 pm on 3 December 2014, the former student sent an email to HMJ advising her to the effect that he had disclosed their relationship. Between 12:32 am and 4:47 am on 4 December 2014, HMJ sent emails to the former student which included:
    1. Requesting details of who and what the former student had told;
    2. That she had trusted and protected him as much as she could;
    3. The devastating impact of disclosure on her career and family; and
    4. That she was arranging flights back to Australia that day.
  6. [44]
    At 9:19 am on 4 December 2014 the former student sent HMJ an email which included statements:
    1. That it had also ruined his life; and
    2. That he did not want HMJ to contact him again.
  7. [45]
    The student did not contract the STI.
  8. [46]
    On 8 December 2014, HMJ’s employment was summarily terminated by DET. On 12 December 2014, HMJ voluntarily surrendered her teacher registration.

Further findings of fact

  1. [47]
    The College submits that it is open for the Tribunal, despite there being no agreement as between the parties, to find that sexual intercourse was planned and premeditated on the basis of the following facts:
    1. The student sent HMJ a very explicit email about a dream he had had about having sex with her after the school formal;[1]
    2. HMJ communicated to the student the possible availability of a hotel room;[2]
    3. Once HMJ became aware her colleague was not going to stay the night, HMJ communicated to the student about the hotel room;[3]
    4. After the formal, HMJ again communicated with the student about the hotel room;[4]
    5. HMJ and the student have misled the teacher Ms T about the student’s travel arrangements to return home;[5]
    6. HMJ and the student returned to the hotel room together; and
    7. All the references to ‘I love you’ contained in the email exchanges between HMJ and the student on 3 and 4 December 2014 are suggestive that sexual intercourse on the night of the school formal was not an opportunistic encounter.
  2. [48]
    The College says that if the Tribunal does make a finding that the sexual intercourse was planned and premeditated, then it arguably makes the conduct more serious than if the sexual intercourse occurred spontaneously.
  3. [49]
    In response, HMJ submits that the sexual encounter was not planned, but rather was an opportunistic event that was not premeditated.
  4. [50]
    The Tribunal is reasonably satisfied on the basis of certain of the agreed facts that the sexual intercourse that occurred between the student and HMJ was not an opportunistic encounter, but rather involved some premeditation on the part of HMJ. In the Tribunal’s view, the sexual intercourse was within her contemplation prior to it occurring: The Tribunal relies on facts 13-21([17] to [21] inclusive of these reasons) 24-26([23] and [24] of these reasons); 28([25] of these reasons);32 ([27] of these reasons); and 35-41 ([28] to [32] of these reasons) to draw that inference.
  5. [51]
    The Tribunal is reasonably satisfied that those facts establish that prior to the formal HMJ had developed a close emotional relationship with the student. That relationship was built over a period of time, during which, the student disclosed the dream he had had about having sexual intercourse with HMJ at the formal. In disclosing the dream to HMJ he told her of his sexual attraction to her. Against that background are the facts relating to HMJ’s conduct on the day before the formal and the night of the formal when she knew her colleague would not be staying overnight in the hotel room. In particular, she told the student that she had a hotel room, purchased the vodka, contacted the student and suggested that he come back to the hotel room with her and she deceived Ms T. Ultimately, sexual intercourse in fact occurred on the evening of the formal consistently with the disclosed dream. The Tribunal considers that all of those facts support the Tribunal’s conclusion. In reaching this conclusion, the Tribunal acknowledges that it is agreed that prior to engaging in sexual intercourse HMJ stated to the student “This is a bad idea, we shouldn’t do this”. The Tribunal considers that those words are indicative of HMJ having reservations or second thoughts about having sexual intercourse with the student just prior to the act, rather than establishing a lack of any premeditation. The Tribunal considers that the other facts identified by it in combination are of such weight that the Tribunal is reasonably satisfied of the conclusion reached.
  6. [52]
    The Tribunal accepts that the finding of some premeditation does make the conduct somewhat more serious. However, the Tribunal does not wish to downplay in any way the seriousness of the conduct whether premeditated or not. It is important not to lose sight of the fact that a teacher must maintain appropriate and professional standards of behaviour. The student’s willingness to participate in sexual activity and how it might ultimately occur cannot displace the teacher’s professional obligations and the community’s expectations of the appropriate standard of behaviour of a teacher.
  7. [53]
    The College further submits that although HMJ told the student prior to engaging in sexual intercourse that she was a carrier of the herpes virus she has inherently exposed the student to the risk of physical harm. The Tribunal accepts that submission. The Tribunal also accepts that while the student did not contract herpes, it is clear from the agreed facts that the student suffered significant emotional distress from the fear that he may have contracted the virus, to the point that he became physically ill with anxiety. That finding is also supported by the content of the multiple emails he sent to HMJ on 3 December 2014.
  8. [54]
    The Tribunal accepts the College’s submission that HMJ’s exposure of the student to the herpes virus is an aggravating feature of her conduct.

Issues

  1. [55]
    The issues we must decide are:
    1. Is a ground for disciplinary action established?; and
    2. If so, what disciplinary action should be taken?.

Is a ground for disciplinary action established?

  1. [56]
    A ground for disciplinary action is that a teacher is not suitable to teach.[6] It is relevant to consider whether the person is suitable to work in a child related field.[7] A person who behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher is not suitable to teach.[8]
  2. [57]
    It is undisputed, and we find, that HMJ has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher. HMJ has failed to maintain professional boundaries with the student in question. She has failed to disclose to the student’s parents or guardians, relevant staff at the high school, or DET staff any of the disclosures made by the student regarding his expressions of anxiety, his concerns regarding an adverse reaction with a drug, and that his behaviour was not consistent with a teacher/student relationship. HMJ engaged in a close and intimate relationship with the student in the lead up to having sexual intercourse with the student. She knowingly exposed the student to the risk of harm as she was a carrier of an STI.
  3. [58]
    The community entrusts teachers with the care of young people for the purpose of education. HMJ has committed a serious breach of trust. We find that a ground for disciplinary action against HMJ is established, namely that she is not suitable to teach.

What disciplinary action should be taken?

  1. [59]
    The purpose of disciplinary action is not to punish a teacher. Instead, it is to further the objects of the QCT Act. Those objects 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.[9] 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’.[10]
  2. [60]
    It is undisputed that HMJ’s conduct was serious and that disciplinary action is required. Various sanctions are available under s 161 of the QCT Act. Those include cancelling registration, prohibiting reapplication for registration for a stated period or indefinitely, requiring a notation on the register.

What is the appropriate sanction?

The College’s submissions

  1. [61]
    The College submits that the specific and serious features of this matter include:
    1. HMJ was an experienced teacher at the relevant time, having been registered since 22 December 2006 and held a Head of Department role at the time of the misconduct;
    2. There is significant age disparity between HMJ and the student being 49 years and 17 years respectively at the time;
    3. HMJ had intimate knowledge of the student’s vulnerabilities having counselled him about his at-risk behaviours and his reported anxiety as a result of his drug use;
    4. The secondary school had an academic mentoring program in place which included targeted intervention such as emotional support and guidance, as well as a Head of Department of Student Welfare. At no time was HMJ authorised by the school to be an academic mentor to the student. Notwithstanding, HMJ attempted to counsel the student when she was not authorised to do so, and she failed to notify his parents, guardian or supervisory staff about those welfare concerns. This occurred in the face of HMJ having been directly questioned about the student’s behaviour by his study class teacher, Ms H, who raised concerns about his behaviour;
    5. HMJ engaged in sexualised communications with the student for a period of up to six to seven weeks. This communication arose in the context of previous over-familiarity extending back approximately six months;
    6. HMJ was aware of the student’s dream of having sex with her after the school formal;
    7. HMJ has communicated on multiple occasions the possible availability, and later the actual availability, of a hotel room after the school formal;
    8. HMJ has engaged in deceitful behaviour with her fellow teacher, Ms T, regarding the student’s travel arrangements home after the formal when raised by Ms T in the context of a duty of care;
    9. HMJ has engaged in sexual intercourse with the student on a single occasion; and
    10. HMJ has engaged in sexual intercourse with the student in circumstances where she was, at all material times, a carrier of the herpes virus, a recognised sexually transmitted illness and in so doing has exposed the student to a risk of harm of contracting that virus.
  2. [62]
    The College says that the following are mitigating factors in favour of HMJ:
    1. She does not have any previous disciplinary history;
    2. Once the allegations were disclosed HMJ fully co-operated with the College’s investigators and disciplinary process, including the making of full and frank disclosure and significant admissions;
    3. She voluntarily surrendered her teacher registration;
    4. HMJ has expressed significant remorse with respect to her conduct and has acknowledged the wrongfulness of her behaviour. She has not attempted to lay blame on the student, choosing only to clarify factual matters which she believes were incorrect;
    5. The student appears to have ‘latched on’ to HMJ and been a motivational force behind the relationship;
    6. HMJ has not held registration for almost one year and six months at the time of the disciplinary hearing.
  3. [63]
    The College submits that this matter is unique as it involves multiple aggravating features of actual knowledge of the student’s vulnerabilities and the exposure of risk of harm of the virus. The College submits that the following decisions are comparable:
    1. Queensland College of Teachers v WAS.[11]

In that case, the teacher’s registration was cancelled with a six year prohibition in addition to other orders. The teacher had sexual intercourse with a student on three occasions. It is submitted that the case can be distinguished from the present matter on the basis that the teacher was only of five year standing, the period of inappropriate communication/professional boundary breach was only for three months, the student was not vulnerable and the student was not placed at risk of harm of contracting an STI;

  1. Queensland College of Teachers v Limpus.[12]

In that case, the teacher was prohibited for five years for sexual intercourse with a current student on one occasion. It is comparative in the sense that the sexual intercourse was an isolated event. However, what distinguishes the case from the present matter is that the teacher was a young teacher in her 20s and it was her first year of teaching. The student was younger (in year 9), in that case. However the teacher’s period of professional boundary breach was short. The act of sexual intercourse was spontaneous and the student was not exposed to the risk of harm of contracting an STI.

  1. [64]
    The College submits that this matter is more serious than those comparative cases for the following reasons:
    1. HMJ was an experienced teacher holding a Head of Department role at the time of the misconduct;
    2. HMJ had actual knowledge of the student’s vulnerabilities;
    3. HMJ did not notify the student’s parents or supervisory staff at the high school of the student’s behaviour and welfare issues; and
    4. HMJ placed the student at risk of harm of contracting the STI.
  2. [65]
    The College submits that the appropriate sanction is a prohibition from re-applying for registration for a period of five years from the date of this decision given the aggravating circumstances of her actual knowledge of the student’s vulnerabilities and the risk of the STI.
  3. [66]
    It is further submitted that the register be endorsed with a notation that should HMJ reapply for registration as a teacher after the expiration of the prohibition period that the application for re-registration must be accompanied by a detailed and independent psychologists report addressing the following issues:
    1. The teacher’s general suitability to teach and work in a child-related field;
    2. Awareness of what constitutes appropriate and inappropriate communication and behaviour with children;
    3. The concept of professional boundaries and the importance of maintaining professional boundaries is for the protection of children;
    4. An in-depth examination of the extent and nature of the student, parental and community trust invested in a teacher;
    5. Understanding the full adherence to the Queensland College of Teachers Code of Ethics; and
    6. Whether in the opinion of the psychologist the former teacher has adequately understood and addressed these issues.

HMJ’s submissions

  1. [67]
    In reply, HMJ submits that while it is accepted HMJ’s conduct is very serious, in general, five year prohibition periods have been imposed in cases where there are fewer mitigating factors, where the conduct is more grievous and where the student is under age. HMJ submits that here it is relevant that the student was not under the age of 16 years. HMJ refers to the following cases where five year periods of prohibition have been imposed and states that they can be distinguished on the facts of this case:
    1. Queensland College of Teachers v Borchardt.[13]

In this case the teacher engaged in inappropriate intimate touching of several female students, failed to heed warnings to change his behaviour, groomed the students and established a sexual relationship with one of the girls. The teacher showed no remorse;

  1. Queensland College of Teachers v Brooker.[14]

The teacher was convicted in the Brisbane District Court on five counts of indecent dealing with a girl under 16 years of age;

  1. Queensland College of Teachers v Limpus.[15]

A female teacher had sexual intercourse with a boy in year 9 and failed to appear at the hearing;

  1. Queensland College of Teachers v Armstrong.[16]

A 50 year old experienced teacher established relationships and tested boundaries with three primary school aged children. These were grooming behaviours;

  1. Queensland College of Teachers v Harvison.[17]

The teacher was prohibited from applying for five years after engaging in extensive grooming behaviour over a number of years.

  1. [68]
    It is submitted that none of the circumstances in HMJ’s matter are similar to those cases and so a period of five years would be excessive.
  2. [69]
    In contrast, HMJ relies on the following cases where two or three year cancellations have been imposed, even where the teacher has engaged in sexual activity with a student or a former student, and submits that they are more applicable to her case:
    1. Queensland College of Teachers v A Teacher.[18]

A music teacher performed oral sex on a student five months after the student finished school. She was acquitted of five other charges. The sanction imposed was prohibition from applying for registration for three years;

  1. Teacher J v Queensland College of Teachers.[19]

The Appeal Tribunal found that the appropriate prohibition period should be reduced from three years from the date of his suspension by a essentially a year. The Appeal Tribunal took into account that the student involved was 16 years old at the time of the conduct. Mitigating factors included that the conduct occurred with a pupil over the age of consent, that sexual intercourse did not occur and the teacher fully co-operated with police. The decision on penalty was reached after a consideration of a range of other cases with including Stark, Ashton, Brooker, Borchadt, Limpus, Grasso;

  1. Queensland College of Teachers v Ashton.[20]

That case involved sexual activity between a female teacher and a female student with the relationship continuing for some time. The events in common include that the student was 16 or 17 years, and there were gifts given and inappropriate and sexually explicit communication. The teacher’s registration was cancelled and a prohibition period of two years was imposed;

  1. Queensland College of Teachers v Grasso.[21]

A cancellation period of three years was found to be warranted. The matter included a sexual relationship and a failure to report student harm. It was noted that the teacher was relatively inexperienced; and

  1. Laragy v Victorian Institute of Teaching (Occupational and Business Regulation).[22]

The teacher’s registration was suspended rather than cancelled for a period of two years. The Tribunal was not satisfied that the teacher was unfit to teach, despite the fact that the matter concerned very sexualised behaviour towards a 17 year old student in the course of tutoring her. It was accepted that it was a one off incident. The Tribunal was satisfied that the teacher had learned his lesson and was unlikely to reoffend.

  1. [70]
    It is also submitted by HMJ, relying on the cases of Queensland College of Teachers v Grasso[23] and Queensland College of Teachers v Stark.[24] that the development of insight and remorse is relevant: In those cases the teachers did not show remorse, or it took some time to develop, and four year cancellations were imposed. It is submitted that HMJ has demonstrated remorse and insight which indicates that a period of four years would not be appropriate and would be excessive.
  2. [71]
    At the time of the hearing in Queensland College of Teachers v Ashton,[25] the Tribunal was not satisfied that Ms Ashton showed remorse or insight. Despite that, the other mitigating factors warranted a cancellation period of two years.
  3. [72]
    In Queensland College of Teachers v DRR,[26] the teacher’s registration was cancelled for 30 months from the date of the decisions. A longer period was warranted because the teacher did not demonstrate any significant remorse or insight and his fantasies were of concern. In that matter the teacher did not have sex with the student.
  4. [73]
    In Laragy v Victorian Institute of Teaching (Occupational and Business Regulation),[27] the Tribunal was satisfied that Mr Laragy had learned his lesson and was unlikely to re-offend. His insight and psychology sessions were mitigating factors.
  5. [74]
    HMJ submits that this is a suitable case for the Tribunal to exercise its discretion to backdate the periods of cancellation and prohibition to 12 December 2014, as she surrendered her teacher’s registration voluntarily on that date. HMJ submits that the appropriate penalty is:
    1. Cancellation of teacher registration;
    2. Prohibition against re-application for registration for a period of two years; and
    3. The two year period commences 12 December 2014.

Consideration

  1. [75]
    The Tribunal has made a number of findings of facts including that the sexual intercourse on the night of the school formal was not an opportunistic encounter and that HMJ knowingly placed the student at risk of harm as she was a carrier of an STI and that is an aggravating feature of HMJ’s conduct. The Tribunal also accepts that HMJ became aware very early on in her interactions with the student of concerns regarding his mental health and his having taken a drug. HMJ failed to notify the student’s parents or staff of DET about those concerns.
  2. [76]
    The Tribunal accepts that HMJ, after eight years of practice as a teacher, and as a Head of Department ought to have been well aware of her professional boundaries and obligations.
  3. [77]
    The Tribunal has carefully examined the cases referred to by both parties. The majority of the cases relied upon by HMJ were determined prior to amendments made to the QCT Act in January 2012, removing the maximum five year prohibition period in disciplinary matters so that prohibition of any periods of time were permitted. Prior to the amendments, the maximum prohibition period of five years was reserved by the Tribunal for the most serious matters, or where the teacher was convicted of an offence.[28]
  4. [78]
    Queensland College of Teachers v Harvison[29] was determined post-January 2012. Whilst there was grooming behaviour in that case, there were mitigating factors in that there was no sexual relationship and it was stated that that mitigated against a life ban in the case.[30]
  5. [79]
    In HMJ’s case there has been sexual intercourse with the aggravating feature that she knew she had an STI. In Queensland College of Teachers v TSV,[31] the teacher was effectively excluded from teaching for a period of two years in a situation where there had been no sexual intercourse. The teacher had picked up the 16 year old student after exchanging phone numbers and messages, he had kissed her, and referred to her as ‘Little Pet’. He had taken her home via a long route, putting his hand on her thigh and hugging her. He had essentially made sexual advances which were unwelcome. He had also shown no remorse, but his cancer diagnosis was taken into account and it was accepted that he was stressed. The Tribunal considers that the present case involves more serious conduct than that case.
  6. [80]
    In Laragy,[32] which was not a Queensland case, the teacher had made sexual overtures to the student. Upon review, whilst he had previously lacked insight, he no longer denied his behaviour, he had undergone significant counselling and there was evidence that he was unlikely to re-offend. Essentially, a two year suspension was imposed.
  7. [81]
    In Teacher J,[33] the Appeal Tribunal essentially reduced the prohibition period by a year, the Tribunal having found that the appropriate prohibition period was three years. In so doing, the Appeal Tribunal took into account that the student involved was 16 years old at the time of the conduct noting that the Tribunal had regarded her as under the age of consent. In that case there was no sexual intercourse with the student. Further the maximum period of prohibition at that time was five years.
  8. [82]
    In this case there is no independent report as to the likelihood of HMJ engaging in similar behaviour in the future. The Tribunal considers that the orders sought by HMJ would provide insufficient general and specific deterrence. Further, it is the Tribunal’s view that they do not adequately reflect the seriousness of HMJ’s conduct.
  9. [83]
    The Tribunal considers that Queensland College of Teachers v WAS,[34] is the most comparable case. We agree with what the Tribunal in WAS said[35]:

Ultimately, of course, each case turns on its own facts. There is a range of relevant factors: the age of the teacher, the age of the student, the nature of the conduct, any psychological vulnerability, the level of cooperation in the proceedings, and so on. It is therefore not easy to rank cases in terms of seriousness.

  1. [84]
    In WAS, The teacher was fully co-operative, there had been inappropriate messaging, gifts to the student, sexual intercourse had occurred on three occasions and the student had previously disclosed sexual abuse to the teacher. The Tribunal considered that the teacher ‘took advantage, for his own sexual gratification, of a student whom he knew had been sexually abused’[36]. The student was 16 years old at the time. WAS has similarities with the present case in terms of the establishment of a relationship between the student and the teacher, in which the teacher was aware of vulnerability of the student[37], the age of the student, and the teacher had been fully co-operative. Whilst sexual intercourse occurred more than once in that case, the Tribunal has taken into account that in this case there has been some premeditation as well as the aggravating feature of the STI and the age of HMJ. The Tribunal in WAS also imposed a costs sanction. The Tribunal does not consider that a greater sanction than in WAS is warranted here. Six years is a substantial period. Further, for reasons that follow, HMJ will not automatically gain re-registration at the end of the six year period. Before she can gain re-registration she will have to demonstrate an awareness of the concept of professional boundaries and the importance of maintaining professional boundaries being for the protection of children. As in WAS the Tribunal does ‘not think that a longer period would significantly enhance the deterrent effect or serve any other useful purpose’[38].
  2. [85]
    The Tribunal considers that the appropriate period of prohibition from re-registration is six years. The Tribunal considers it appropriate to commence the period of prohibition from the date that HMJ handed in her teacher’s registration, that is, 12 December 2014. That takes into account that HMJ has not been teaching since that time, and that she has participated and co-operated in the investigation process and shown some insight into her behaviour.
  3. [86]
    The Tribunal also considers, given the nature of the conduct, that the notation as proposed by the College is appropriate in the circumstances. It is an important protective mechanism so that the community can be confident that HMJ, should she re-apply for registration, will be unlikely to engage in such behaviour again and is suitable to teach.

Footnotes

[1] See transcript of record of interview with HMJ dated 15 May 2015, para [36] on p 4.

[2] See transcript of record of interview with student dated 23 March 2015, para [219] on p 19.

[3] Ibid, paras [436]-[441], on pp 30-31.

[4] Ibid, paras [334]-[355], on pp 23-24.

[5] See statement of Ms T dated 17 July 2016, para [11] on p 2.

[6] QCT Act s 92(1)(h) as worded at the time of the referral of this matter to the Tribunal. The QCT Act has since been amended to remove this ground. Section 92(1)(h) now reads: ‘the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher’.

[7] QCT Act s 12(1)(b).

[8] QCT Act s 12(3)(a).

[9] QCT Act s 3(1).

[10] Queensland College of Teachers v Brady [2011] QCAT 464, at para [55].

[11] [2015] QCAT 61.

[12] [2011] QCAT 99.

[13] [2010] QCAT 432.

[14] [2010] QCAT 320.

[15] [2011] QCAT 99.

[16] [2010] QCAT 709.

[17] [2013] QCAT 684.

[18] [2011] QCAT 225.

[19] [2012] QCATA 115.

[20] [2010] QCAT 80.

[21] [2011] QCAT 292.

[22] [2009] VCAT 2651.

[23] [2011] QCAT 292.

[24] [2010] QCAT 592.

[25] [2010] QCAT 80.

[26] [2012] QCAT 671.

[27] [2009] VCAT 2651.

[28] Queensland College of Teachers v Borchardt [2010] QCAT 432, at para [11]; Queensland College of Teachers v Limpus [2011] QCAT 99, at para [23]; Queensland College of Teachers v Harvison [2013] QCAT 684, at para [80]; Teacher J v Queensland College of Teachers [2012] QCATA 115, at para [46] when considering the case of Queensland College of Teachers v Brooker [2010] QCAT 320 as a comparison.

[29] [2013] QCAT 684.

[30] Ibid, at para [83].

[31] [2015] QCAT 186.

[32] Laragy v Victorian Institute of Teaching (Occupational and Business Regulation) [2009] VCAT 2651.

[33] Teacher J v Queensland College of Teachers [2012] QCATA 115.

[34] [2015] QCAT 61.

[35] Ibid at [38].

[36] Queensland College of Teachers v WAS [2015] QCAT 61 at [38].

[37] Contrary to the submission of the College as set out at [63] above.

[38] College of Teachers v WAS [2015] QCAT 61 at [41].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v HMJ

  • Shortened Case Name:

    Queensland College of Teachers v HMJ

  • MNC:

    [2016] QCAT 447

  • Court:

    QCAT

  • Judge(s):

    Senior Member O'Callaghan, Member Guthrie, Member MacDonald

  • Date:

    08 Nov 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Laragy v Victorian Institute of Teaching (Occupational and Business Regulation) [2009] VCAT 2651
4 citations
Jump To
Cite 1 - [2009] VCAT 2651
Cite 2 - [2009] VCAT 2651
Cite 3 - [2009] VCAT 2651
Cite 4 - [2009] VCAT 2651
Qld College of Teachers v Limpus [2011] QCAT 99
4 citations
Jump To
Cite 1 - [2011] QCAT 99
Cite 2 - [2011] QCAT 99
Cite 3 - [2011] QCAT 99
Cite 4 - [2011] QCAT 99
Queensland College of Teachers v A Teacher [2011] QCAT 225
2 citations
Jump To
Cite 1 - [2011] QCAT 225
Cite 2 - [2011] QCAT 225
Queensland College of Teachers v Armstrong [2010] QCAT 709
2 citations
Jump To
Cite 1 - [2010] QCAT 709
Cite 2 - [2010] QCAT 709
Queensland College of Teachers v Ashton [2010] QCAT 80
3 citations
Jump To
Cite 1 - [2010] QCAT 80
Cite 2 - [2010] QCAT 80
Cite 3 - [2010] QCAT 80
Queensland College of Teachers v Borchardt [2010] QCAT 432
3 citations
Jump To
Cite 1 - [2010] QCAT 432
Cite 2 - [2010] QCAT 432
Cite 3 - [2010] QCAT 432
Queensland College of Teachers v Brady [2011] QCAT 464
2 citations
Jump To
Cite 1 - [2011] QCAT 464
Cite 2 - [2011] QCAT 464
Queensland College of Teachers v Brooker [2010] QCAT 320
3 citations
Jump To
Cite 1 - [2010] QCAT 320
Cite 2 - [2010] QCAT 320
Cite 3 - [2010] QCAT 320
Queensland College of Teachers v DRR [2012] QCAT 671
2 citations
Jump To
Cite 1 - [2012] QCAT 671
Cite 2 - [2012] QCAT 671
Queensland College of Teachers v Grasso [2011] QCAT 292
3 citations
Jump To
Cite 1 - [2011] QCAT 292
Cite 2 - [2011] QCAT 292
Cite 3 - [2011] QCAT 292
Queensland College of Teachers v Harvison [2013] QCAT 684
5 citations
Jump To
Cite 1 - [2013] QCAT 684
Cite 2 - [2013] QCAT 684
Cite 3 - [2013] QCAT 684
Cite 4 - [2013] QCAT 684
Cite 5 - [2013] QCAT 684
Queensland College of Teachers v Stark [2010] QCAT 592
2 citations
Jump To
Cite 1 - [2010] QCAT 592
Cite 2 - [2010] QCAT 592
Queensland College of Teachers v TSV [2015] QCAT 186
2 citations
Jump To
Cite 1 - [2015] QCAT 186
Cite 2 - [2015] QCAT 186
Queensland College of Teachers v WAS [2015] QCAT 61
6 citations
Jump To
Cite 1 - [2015] QCAT 61
Cite 2 - [2015] QCAT 61
Cite 3 - [2015] QCAT 61
Cite 4 - [2015] QCAT 61
Cite 5 - [2015] QCAT 61
Cite 6 - [2015] QCAT 61
Teacher J v Queensland College of Teachers [2012] QCATA 115
4 citations
Jump To
Cite 1 - [2012] QCATA 115
Cite 2 - [2012] QCATA 115
Cite 3 - [2012] QCATA 115
Cite 4 - [2012] QCATA 115

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v DKA [2024] QCAT 3633 citations
Queensland College of Teachers v GOH [2022] QCAT 222 citations
Queensland College of Teachers v JN [2019] QCAT 2413 citations
Queensland College of Teachers v NBL [2019] QCAT 3121 citation
Queensland College of Teachers v RGK [2019] QCAT 1801 citation
Queensland College of Teachers v SGS [2017] QCAT 3831 citation
Queensland College of Teachers v Teacher ELP [2025] QCAT 612 citations
1

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