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  4. Queensland College of Teachers v SGS - [2017] QCAT 383

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Queensland College of Teachers v SGS[2017] QCAT 383

Queensland College of Teachers v SGS[2017] QCAT 383

CITATION:

Queensland College of Teachers v SGS [2017] QCAT 383

PARTIES:

Queensland College of Teachers

(Applicant)

v

SGS

(Respondent)

APPLICATION NUMBER:

OCR084-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

Member Paratz

Member S MacDonald

DELIVERED ON:

6 November 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. SGS is prohibited from applying for re-registration or permission to teach for the period of 7 years from 13 January 2016.
  2. The register of teachers is to be endorsed with a notation that any application by SGS 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 and which includes the following:
  1. An assessment of the following:
  1. SGS’ suitability to teach and work in a child-related field;
  2. SGS’ ability to differentiate between personal and professional relationships;
  3. SGS’ awareness of the legal obligations of teachers;
  4. SGS’ ability to develop and maintain professional standards when working with young people and ability to implement professional boundaries with students;
  5. SGS’ ability to identify potentially problematic situations and venues and to initiate realistic solutions for avoiding the risk of harm to students;
  6. SGS’ awareness of the extent and nature of the student, colleague, parental and community trust inherently invested in a teacher;
  7. SGS’ awareness and understanding of personal social behaviour that would compromise the professional standing of a teacher and the profession of teaching;
  8. SGS’ awareness and understanding of inappropriate relationships with students.
  9. SGS’ awareness and understanding of the trust and power granted to a teacher;
  10. SGS’ awareness and understanding of the importance of full adherence of the Queensland College of Teachers’ code of ethics.
  1. An indication of whether the practitioner is satisfied that SGS has adequately understood and addressed the matters listed in (a).
  2. Confirmation that the practitioner has been provided with a copy of the Statement of Agreed facts filed in this proceeding, and a copy of these orders and the reasons for decision.
  1. SGS is to pay the costs of the Queensland College of teachers in the amount of $2,500.00 by way of instalments as agreed within 6 months of the date of this order.
  2. Publication is prohibited of the names of any person referred to in the documents filed in this application including that of the teacher known as SGS and also of the names of the schools where he taught and the location of those schools.

CATCHWORDS:

EDUCATION – SCHOOLS – TEACHER’S EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS – where teacher had sexual relationship with student – where thousands of sexually explicit text messages – where teacher continued relationship with student after she left the school system –  where agreed statement of facts – whether ground for disciplinary action – whether teacher should be prohibited from applying for re-registration as a teacher – whether costs order should be made

Education (Queensland College of Teachers) Act 2005 (Qld),  s 3, s 11, s 12, s 49, s 92, s 158, s 161

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

Queensland College of Teachers v GHI [2012] QCAT 182

Qld College of Teachers v Limpus [2011] QCAT 99

Queensland College of Teachers v Metcalf [2015] QCAT 147

Queensland College of Teachers v WAS [2015] QCAT 61

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]
    The Queensland College of Teachers (the College) has made a referral[1] to the Tribunal in regard to the conduct of a teacher, SGS, which it considers is a ground for disciplinary action[2] against him. SGS was first registered as a teacher with provisional registration on 11 November 2011 and following a period of suspension the provisional registration was removed on 13 January 2016 at the end of the provisional registration period. At the time of the hearing SGS was no longer registered as a teacher. The allegation is that SGS had a sexual relationship with Student A who he had met at a school where he was teaching which continued after the student left school.

Legislation

  1. [2]
    Where a referral has been made to the Tribunal the College must inform the Tribunal about the grounds for the disciplinary matter and the facts and circumstances forming the basis for the grounds.[3] The ground for disciplinary action raised against SGS is that he is not suitable to teach.[4] The Tribunal must conduct a hearing[5] and decide whether a ground for disciplinary action against SGS has been established.[6]
  2. [3]
    It is a requirement for a person to be eligible for full or provisional registration as a teacher that they be suitable to teach.[7] In considering whether a person is suitable to teach the Tribunal must have regard to police information[8] and the other considerations set out in s 12 of the E(QCOT) Act. The considerations are broad and anything relevant can be considered.[9]
  3. [4]
    They include whether the person is suitable to work in a child-related field.[10] A person is not suitable to work in a child related field if that person poses an unacceptable risk of harm to children[11] or if a person lacks the requisite qualities to work with children.[12]
  4. [5]
    A person is not suitable to teach if the person:
    1. behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
    2. otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.[13]
  5. [6]
    The ‘standard of behaviour generally expected’ is not defined in the E(QCOT) Act. Determination of whether conduct falls short of the standards expected or is disgraceful/improper such that it shows unfitness to teach, involves consideration of community/professional expectations and standards. As to the former, the Tribunal has previously stated that:

…the standard expected should be the standard ‘reasonably expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[14]

  1. [7]
    The Tribunal has previously determined that ‘the relevant time for determination whether a person is not suitable to teach is at the date of hearing’.[15]
  2. [8]
    As SGS is not currently registered as a teacher the Tribunal may, if satisfied that there is a ground for disciplinary action, decide not to take any further action; make a costs order against SGS; if the tribunal would have made an order cancelling SGS’s registration, make an order prohibiting him from reapplying for registration for a stated period or indefinitely; and make an order that a particular notation or endorsement about him be entered in the register.[16]
  3. [9]
    The Tribunal may take into account positive elements of insight and reform. Equally any adverse matters can be taken into account, such as lack of remorse or insight, or anything that may question the person’s trustworthiness.
  4. [10]
    In this case the parties were asked to advise if they required an oral hearing and neither party requested an oral hearing. The Tribunal has determined to conduct the hearing on the papers in accordance with s 32 of the QCAT Act.
  5. [11]
    The parties have filed a statement of agreed facts, the College filed its submissions on sanction and SGS filed his submissions on sanction in response. In making its decision the Tribunal must amongst the other matters it considers have regard to prior disciplinary decisions of which it is aware.[17]

Statement of agreed facts

  1. [12]
    The parties have filed a statement of agreed facts which in the submission of the College ‘substantially mirror the facts and circumstances’ set out in the amended referral. The Tribunal having considered all of the material is satisfied that the agreed facts meet the relevant standard of proof[18] and makes findings of fact accordingly.
  2. [13]
    The agreed facts are summarised as follows:

When student A was a student

  1. SGS (DOB xx/xx/72) was first registered as teacher with provisional registration on 11 November 2011.
  2. SGS’s provisional registration continued until it was removed on 13 January 2016 and SGS has not made an application for re-registration as a teacher.
  3. SGS was as follows:
    1. Secondary School A as a secondary school teacher, between 20 January 2012 and 19 February 2014;
    2. Secondary School B between 19 February 2014 and 12 December 2014;
    3. College X from 22 January 2015 to 3 March 2015;
    4. Employment suspended for disciplinary reasons on remuneration on 3 March 2015; and
    5. Employment terminated for disciplinary reasons on 21 September 2015.
  4. SGS completed Code of Conduct training and Student Protection Training in 2012.
  5. After transfer to Secondary School B, SGS attended Secondary School A and/or Secondary School A functions in a professional capacity on 29 July 2014 and 29 August 2014.
  6. Student A (DOB xx/xx/97) was a student at Secondary School A between 2010 (year 8) and 2014 (year 12). She left Secondary School A on 10 September 2014.
  7. SGS did not directly teach Student A at Secondary School A, though she was known to him while he was there in his capacity as a teacher.
  8. At all material times SGS had mobile phone number xxxx and Student A had mobile phone number yyyy.
  9. Between 25 February 2014 and 13 July 2014:
    1. SGS and Student A exchanged 6,745 test messages contained in the QCT Investigation Report including about 4,034 text messages from SGS and 2,711 from student A;
    2. SGS made an unknown number of answered calls to Student A and about 154 unanswered telephone calls to Student A; and
    3. SGS and Student A exchanged Facebook communication including images.
  10. The text messages sent by SGS to Student A included messages relating to:
    1. SGS’s sexual fantasies involving Student A;
    2. Requests for sexualised photographs of Student A;
    3. Declarations of love for Student A;
    4. Plans for future relationship with Student A including marriage; and
    5. Commentary of students including the physical attractiveness of a Year 10 student.
  11. On occasions between 25 February 2014 and 13 July 2014, SGS met with Student A in a personal capacity without any valid educational context on the dates set out in the statement of agreed facts, which total 29 occasions in March, April, May, June and July, including on the dates discussed below.
  12. On the occasions that SGS met with Student A:
    1. The meetings were for personal reasons;
    2. There was no valid educational context to the meetings; and
    3. The meetings occurred in circumstances where the parties were engaging in frequent sexualised communications including sexual fantasies relating to the proposed meetings.
  13. On or about 6 June 2014, SGS engaged in sexual intercourse and/or sexual conduct with Student A. He arranged by text to meet with her that evening. He picked her up from a train station and then engaged in sexual intercourse/sexual conduct with her.
  14. On or about 10 June 2014, SGS engaged in sexual conduct with Student A. He arranged by text message to meet with her that afternoon. He then met with her and engaged in sexual conduct.
  15. On or about 19 June 2014, SGS engaged in sexual conduct with Student A. He met with her at a train station and engaged in sexual conduct.
  16. On a date between 29 July 2014 and 9 August 2014, SGS, without valid educational context, permitted Student A to stay at his home in circumstances where there was no consent from a parent or guardian, or approval from his employer. SGS had attended Secondary School A in his capacity as a teacher and Student A disclosed to him she had been sexually abused by a person on or about 12 July 2014. On 30 July 2014, SGS notified a Deputy Principal of Secondary School A of the disclosure made by Student A. On a date between the above dates, Student A telephoned SGS late at night in a distressed state. SGS drove to Student A’s home and collected her and brought her and her dog to his home. SGS permitted Student A to stay at his home overnight. SGS’s wife and children were present on this occasion. SGS slept in the same room as Student A. SGS did not take any steps to notify or seek consent from any parent, guardian, supervisory staff at school or his employer or otherwise reasonable investigate any other alternatives to permitting Student A to stay at his home.
  17. On or about 9 August 2014, SGS without valid educational context, permitted Student A to stay at his home in circumstances without approval from his employer. Student A telephoned SGS and asked if she could stay over at his residence. SGS picked her from a railway station. On this occasion, SGS’s wife was away for part of evening. SGS slept in the same room as Student A. SGS did not take any steps to notify or seek consent from any parent or guardian, supervisory staff at the schools or DET or otherwise reasonably investigate any other alternatives prior to permitting Student A to stay at his home.
  18. On 29 August 2014, SGS, without valid educational context, permitted Student A to stay at his home in circumstances without approval from DET. At the time Student A was a member of Secondary School A’s hospitality class. The hospitality class conducted dinner for teachers and staff on 29 August 2014. Prior to 29 August 2014, SGS contacted the teacher responsible for the hospitality dinner that he and his wife would attend the dinner. On 29 August 2014, SGS and his wife attended the dinner. At the conclusion of the dinner SGS and his wife drove Student A to his home. Student A stayed overnight at SGS’s home on this occasion. SGS slept in the same room as Student A. SGS did not take any steps to notify or seek consent from any parent or guardian, supervisory staff at the schools or DET or otherwise reasonably investigate any other alternatives prior to permitting Student A to stay at his home.
  19. Between 29 July 2014 and 11 September 2014, SGS failed to notify Secondary School A management, Secondary School B management or otherwise his employer that Student A stayed and/or was staying as his family home.
  20. On unknown dates between 1 August 2014 and 10 September 2014, SGS attended at Student A’s home in circumstances where there was no valid educational excuse. During those dates SGS attended Student A’s home and installed floor boards in Student A’s room.
  21. On 6 September 2017, SGS attended a party at Student A’s home and stayed overnight at her home in circumstances where there was no valid educational context. There was a birthday party at Student A’s home for Student A’s brother and mother. Student A’s brother was a student at Secondary School A. SGS and his wife were invited to attend. SGS attended and stayed overnight at Student A’s residence.
  22. Further or in the alternative between 25 February 2014 and 11 September 2014, SGS maintained a sexual relationship with student A.

When student A was a former Student

  1. On or about 18 September 2014, SGS permitted Student A to stay at his home as follows. On 10 September 2014, Student A left Secondary School A and did not enrol in another school. On or about 18 September 2014, SGS permitted student A to stay at his home. SGS’s wife was present on this occasion. SGS slept in his bedroom on this occasion.
  2. On 26 September 2014, SGS sent an inappropriate message by electronic communication to Student A’s mother. At the time SGS was in Thailand with his family. The message sent was with respect to Student A and included the following words: ‘looking forward to coming home and seeing my beautiful xxx, thank you for taking care of the love of my life while I have been away’.
  3. On or about 15 October 2014, SGS attended at Student A’s home and stayed overnight in the same room as Student A and a current year 12 student of Secondary School A. SGS and his wife separated on or about 15 October 2014 and SGS left the matrimonial home at about 10pm. Later that night SGS attended student A’s home. At the time the other student was staying with Student A, SGS stayed overnight in Student A’s bedroom with her and the other student.
  4. On a date unknown between 1 November 2014 and 30 November 2014, SGS and Student A were at a shopping centre. While at the shopping centre SGS held hands with Student A and touched her on her lower back.
  5. On a date unknown between 1 October 2014 and 31 December 2014, SGS travelled with Student A to the coast where he stayed overnight with Student A and another person.
  6. In December 2014, SGS and Student A moved in together and maintained a sexual relationship. The relationship continued until at least 12 July 2015.
  7. Further or in the alternative, between 10 September 2014 and 22 July 2015, SGS maintained a sexual relationship with Student A.
  8. On 20 May 2015, SGS’s registration was suspended by the College in accordance with s 49 of the E(QCOT) Act .
  9. On 21 May 2015, the College referred SGS to the Tribunal for disciplinary action.
  10. On 21 September 2015, SGS’s employment was terminated on the grounds of misconduct.
  11. On 25 January 2015, the College filed an amended disciplinary referral in the Tribunal against SGS.

Is the ground for disciplinary action established?

  1. [14]
    In this case the ground for disciplinary action is that the teacher is not suitable to teach. The College notes that it and SGS have not reached agreement about whether the ground for disciplinary action has been established. SGS has though, in his submissions in reply acknowledged his wrongdoing and accepts the College’s decision to suspend his ability to teach and the conditions to undergo upon re-entry to teaching. SGS did have issue with the length of what he described as his punishment. This would tend to indicate that SGS has accepted that the disciplinary ground has been established. It is for the Tribunal though to make a finding as to whether or not a ground of disciplinary action is established.
  2. [15]
    It is clear from the statement of agreed facts that Student A was known to SGS while he was a teacher at Secondary School A and she was a student there. The College in its submissions confirms that SGS did not teach Student A directly and that he ceased teaching at Secondary School A and was transferred to Secondary School B commencing on 19 February 2014. The College submits that SGS knew Student A in a professional context while he was a teacher at Secondary School A, though there is no cogent evidence of any inappropriate behaviour at the time SGS was teaching at Secondary School A, and that there were two occasions after he left when he engaged with her in a professional capacity, namely at the hospitality dinner on 29 July 2014 and when she called on 9 August 2014 in a distressed state and stayed overnight.
  3. [16]
    The College submits SGS’s conduct is outlined in the statement of agreed facts. That it appeared that Student A experienced some significant personal issues/welfare issues during 2014, which she communicated to SGS (presumably because they were engaged in a sexual relationship). The explicitness of text messages exchanged, and the sheer volume of telephone calls and text messages, specifically 4,034 text messages from SGS to Student A between 25 February 2014 and 12 July 2014, are said by the College to clearly demonstrate an entrenched pattern of professional boundary breach over a significant period of time by SGS. The College submits that the content of the text messages demonstrates that the relationship was clearly personal, highly sexual and lacked valid educational context.
  4. [17]
    The College submits that the meetings between SGS and Student A during which it is agreed by SGS that he either engaged in sexual intercourse or sexual conduct with Student A or had no valid educational context, which are set out above, were clear and unequivocal breaches of SGS’s professional boundaries.
  5. [18]
    The College further submits that the fact that Student A and SGS continue to be in a cohabitative relationship, should not be regarded as a mitigating factor of SGS’s conduct. In QCT v McNamara[19] the Tribunal is said to have held that the focus of the disciplinary proceeding is on the conduct and not the consequences.
  6. [19]
    As mentioned, suitability to teach must be assessed at the time of the hearing. We note that SGS has not taught since he was suspended on 20 May 2015 and that he has not provided any material asserting that he is currently suitable to teach. In the only statement he provided he said he was deeply remorseful for the circumstances in which Student A and he started our relationship and he wished they had met in a different setting. He stated that they had been living together happily for two years and that family and friends knew the truth about how their relationship started and had come to terms with it. He also, as mentioned above, acknowledged his wrong doings. He stated that he posed no threat to children.
  7. [20]
    The Tribunal in Queensland College of Teachers v GHI [2012] QCAT 182 had occasion to consider a teacher involved in a single episode some years ago and whether this could result in a finding of unsuitability to teach. Since that time the teacher had not had any apparent concerns and had undergone appropriate rectification training. The Tribunal was not satisfied that GHI was unsuitable as at the date of the hearing.
  8. [21]
    Has SGS behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher? In this case there is a longstanding sexual relationship which was formed between a teacher, SGS and a student, Student A. The agreed statement of facts discloses that this relationship commenced soon after SGS left Secondary School A where Student A was a student and involved sexualised text messages and Facebook posts and ultimately occasions of sexual conduct and sexual intercourse. The Tribunal notes that at the time the relationship commenced Student A was over the age of 16 years.
  9. [22]
    It is unsurprising that the Tribunal has previously held that a teacher has behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher, where a teacher and student have had sexual intercourse.[20] In particular as the teacher failed to maintain professional boundaries with the student in question because of the sexual nature of the relationship and the lack of disclosure to relevant authorities of sexual abuse or other personal issues of the student. The Tribunal in Queensland College of Teachers v WAS [2015] QCAT 61 stated that ‘The community entrusts teachers with the care of young people for the purpose of education. It is a serious breach of trust for a teacher to take advantage of that role for sexual gratification.’[21]
  10. [23]
    The Tribunal is satisfied that the actions of SGS in pursuing a sexual relationship with Student A, which is exhibited by the text messages which have been obtained through the investigation process and the admissions made by SGS in the statement of agreed facts that he:
    1. met with Student A on many occasions for personal reasons and without an educational context on at least 3 occasions he engaged in sexual intercourse and or sexual conduct with her;
    2. on several other occasions he allowed her to sleep at his home and slept in the same room as her; and
    3. spent the night at her home on two occasions once while she was still a student and slept in her room. It was also greatly disturbing that on one of the occasions he slept at student S’s home another female student slept in the room with SGS and Student A,

prove that SGS has breached student teacher boundaries and the trust that the community reposes in teachers to ensure that the teacher’s relationship with their student is a professional one and all of the contact between a teacher and a student has an educational context and does not in particular become sexualised.

  1. [24]
    The Tribunal confirms that it is the conduct of SGS set out in the statement of agreed facts which is in consideration in regard to this determination. While SGS has advised that he and Student A are in a continuing relationship the purposes of disciplinary action make it clear that they are to act as a general deterrence against similar acts by teachers and specific deterrence against the teacher in question. It is therefore the conduct itself which must be considered. The fact that in one case a relationship formed between a student and teacher was successful is no reason why teachers generally should not be deterred from breaching their professional boundaries and the trust reposed by the community in them.
  2. [25]
    The Tribunal is therefore satisfied that the ground for disciplinary action against SGS is established and that he is not suitable to teach.

What sanction should be imposed?

  1. [26]
    Having found that the ground for disciplinary action is established the Tribunal must determine what sanction is appropriate. As SGS is a former registered teacher then the sanction which may be applied in respect of him are those as mentioned above in s 161 of the E(QCOT) Act.
  2. [27]
    It is well established that the purpose of disciplinary action is not to punish the teacher. It is instead to further the objects of the E(QCOT) Act, which 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.[22] 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.’[23]

  1. [28]
    The College submitted that engaging in sexual intercourse with a student has long been established as serious conduct falling short of the standard of behaviour generally expected of a teacher and attracts a considerable cancellation and/or prohibition period.
  2. [29]
    The College submitted that there are specific aggravating factors in this matter which include:
    1. There is a significant age difference between SGS and Student A, him being 42 and her 17.
    2. SGS had taught for approximately 20 months before he breached his professional boundaries. SGS was of a mature age and experienced in other career areas, such that he ought to have understood the importance of professional boundaries.
    3. SGS had knowledge of Student A’s vulnerabilities, having counselled her about family relationship issues and other allegations of rape disclosed by student A to SGS.
    4. Permitting Student A to stay at his home on numerous occasions without parent, school or employing authority permission in circumstances involving deceit.
    5. Significant social engagement with Student A’s family including attending their home, installing improvements to the home and attending family functions.
    6. SGS’s test messages to Student A were extremely sexual and graphic.
    7. Multiple instances of sexual intercourse and repeated requests to privately meet and meeting with Student A.
    8. SGS expressed a desire to Student A, who had just turned 17 to engage in sexual intercourse whilst under the influence of an illicit drug. The Tribunals notes that SGS denies this and stated that the surrounding texts showed he had no knowledge of the drug reference. This is accepted by the Tribunal upon perusal of the text messages.
    9. SGS engaged in dishonest conduct with his wife, the employing authority, the Queensland Police Service (QPS) and the College, by consistently denying the relationship and allegations. That dishonesty resulted in a not insignificant level of resources being applied in time and necessitating public and teacher funds to be expended on investigation and disciplinary action.
    10. That but for the College obtaining the text messages from the QPS, it’s unlikely that SGS would ever have admitted to engaging in sexual misconduct with Student A while she was a student.
    11. Within approximately three months of Student A leaving Year 12, SGS cohabitated with the student.
    12. SGS has not expressed any remorse with respect to his conduct or acknowledge the wrongfulness of his behaviour. Though in his submissions SGS stated that he was deeply remorseful for the circumstances in which he and Student A started their relationship and wished they had met in different circumstances and that he acknowledged his wrong doings.
    13. The College noted that the full extent of the relationship between SGS and Student A since the time when her mobile phone was seized by the QPS is not known as there is not further record of the text messages between SGS and student. If the Tribunal did draw the inference that the nature of the relationship remained the same after 12 July 2014 as prior to, then it elevates the conduct to a more serious level due to the passage of time.
  3. [30]
    The College acknowledged the following mitigating factors in favour of SGS:
    1. His registration was suspended for approximately eight months before his registration ended and has been suspended since that time.
  4. [31]
    The College submitted that disciplinary action in the nature of a prohibition for 8 years on re-application for registration, from the date of the decision, is appropriate in the current matter given the number of aggravating features and their seriousness, including SGS’s knowledge of the student’s vulnerabilities and the volume and sexually explicit nature of the text messages and the deceptive conduct in permitting the student to stay at his home without parent, school or employing authority permission.
  5. [32]
    The College noted the following comparable decisions to this one:
    1. Queensland College of Teachers v WAS [2015] QCAT 61. In that case the teacher’s registration was cancelled with a six year prohibition, in addition to other orders. There were three instances of sexual intercourse. The College submitted that this decision could be distinguished from SGS because in that case the period of inappropriate communication/professional boundary breach was only three months, the student was not vulnerable, the sexual misconduct was not as frequent and the student did not stay over at WAS’ house. Further WAS mitigated the circumstances by fully co-operating with the investigation and the Tribunal proceeding.
    2. Queensland College of Teachers v Limpus [2011] QCAT 99. In that case the teacher was prohibited for five years for sexual intercourse with a current student on one occasion. The teacher was in her 20’s and it was her first year teaching. The student was younger than Student A (in year 9). However the teacher’s period of professional boundary breach was short and the act of sexual intercourse was spontaneous. The College submitted that in contrast to Limpus, in the current matter SGS, although an inexperienced teacher, was older and had the benefit of a previous career. Student A was vulnerable, the sexual misconduct was intense and frequent over a prolonged period of time, including deceptive sleep overs at SGS’ house. Further, Limpus was determined at the time when the maximum period of prohibition was 5 years.
  6. [33]
    The College submitted that having regard to the aggravating factors in this case this matter is more serious than the comparative cases for the following reasons:
    1. SGS had actual knowledge of the student’s vulnerabilities;
    2. The sheer volume, sexually explicit nature of the text messages and the prolonged timeframe of the engagement (seven months while a student and a further three months while a former student before they cohabitated) places this matter at the most serious end of a professional boundary breach;
    3. The relationship involved multiple instances of sexual intercourse and repeated requests to privately meet and meeting with the student;
    4. SGS permitted student A to stay at his home involving non-disclosure to authorities and deceit; and
    5. SGS has not co-operated in the DET or College investigation nor the Tribunal proceeding, but for the agreed statement of facts.
  7. [34]
    The College also submitted that, as a further protective measure for students and the profession, the register should be endorsed with a notation in accordance with s 161(2)(d), that should SGS re-apply for registration as a teacher after the expiration of the prohibition period, the application for re-registration must be accompanied by a detailed and independent 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 and full adherence to the Queensland College of Teacher Code of Ethics; and
    6. Whether in the opinion of the psychologist the former teacher has adequately understood and addressed those issues.
  8. [35]
    SGS in his short submissions sought to show that he had a successful relationship with Student A that was now accepted by family and friends and that they were expecting a child. As mentioned above he was remorseful for how they met and acknowledged his wrongdoing. SGS submitted that their relationship began in April 2014, which was months before the horrific and unfortunate events that happened to Student A in June 2014, that he had never taken advantage of Student A in her vulnerable state as the College had suggested and in fact helped her through that horrendous time where she was contemplating self-harm and worse.  He stated that he accepted the decision to suspend his ability to teach and the conditions upon re-entry though he felt that eight years was a very harsh punishment as he poses no threat to children.

Discussion

  1. [36]
    The Tribunal may make an order prohibiting SGS from re-applying for registration if it would have made an order cancelling registration if he had currently been an approved teacher. In the circumstances where there has been a sexual relationship between SGS and Student A over at least 5 months while she was a student, with thousands of highly sexualised text messages and elements of deceit, we are satisfied that we would have cancelled SGS’ registration as a teacher if he had been so registered. Therefore we make an order prohibiting him from re-applying for registration for a stated period or indefinitely.
  2. [37]
    While the College has submitted that the period of prohibition should be 8 years, SGS considers that a harsh penalty. He has not though provided any comparative cases or submitted a lesser period of prohibition. SGS sought to deal with several of the aggravating factors raised by the College. That is, he has in his submissions expressed some remorse and acknowledgement of his wrong doing, he had not tried to encourage Student A to take drugs and he had not taken advantage of Student A’s vulnerability. SGS has also stated that the relationship has continued and is now accepted.
  3. [38]
    The Tribunal considers that this attempt to normalise the relationship is an aggravating factor as it tries to show that although there may have been fault in how the relationship started, its outcome should moderate any sanction. Having regard to the purpose of discipline as being supporting the objects of the E(QCOT) Act and deterrence both generally to the profession and specifically to the teacher, the sanction must reflect the conduct and not the fact that in one case a relationship has resulted. It must be made abundantly clear that this conduct is very serious and any teacher who finds themselves attracted to a student must understand the consequences if they pursue that attraction.
  4. [39]
    The Tribunal is satisfied that SGS’ conduct is more serious than that in WAS and Limpus. There was a six year sanction in WAS and the College has submitted the sanction here should be eight years from the date of the hearing. Clearly the length of the relationship and the frequency of sexual conduct and the intensity of the text messages and deceit are greater than in WAS. Also in WAS the teacher was co-operative in the process and the element of co-operation is not present here.  The College submitted that there was no vulnerability in WAS but in fact there was a pre-existing element of sexual abuse in that case. It was the discussions between WAS and the student in regard to sexual abuse which precipitated the relationship. In this case the element of sexual vulnerability occurred during the course of the relationship between SGS and Student A as was acknowledged in the statement of agreed facts. There is of course the general vulnerability of a student having regard to the power imbalance between students and teachers and SGS continued the relationship at a time when Student A was vulnerable.
  5. [40]
    SGS can be distinguished from WAS because of the duration of the relationship, the lack of co-operation and also the fact that SGS pursued a relationship with Student A after he had left high School A and therefore had an opportunity to consider his position and disconnect from her. SGS did not take that opportunity and instead actively pursued the relationship through the use of text messages of a highly sexually charged nature to arrange meetings at which sexual conduct or sexual intercourse took place.
  6. [41]
    The Tribunal is satisfied that the period of prohibition should therefore be greater than that in WAS but is satisfied that a period of prohibition from re-applying for registration of 7 years from the 13 January 2016, which is the date that SGS’ provisional registration lapsed, is appropriate in this case to ensure deterrence to the teaching profession generally and specifically in respect of SGS. The Tribunal also notes that as part of the sanction it will be making a costs order and this with the prohibition on applying for re-registration is the appropriate level of deterrence.
  7. [42]
    SGS has accepted that it is appropriate that there be conditions placed on any application for re-registration as a teacher made by him. This is to ensure as much as possible that at that stage SGS has done the work to necessary to show that he is not a risk to children and that he will be suitable to teach. The College has suggested a form of condition in this regard. The Tribunal has examined the endorsement contained in the WAS decision and considers that it deals more fully with the requirements for the endorsement and that form of words is reflected in the Tribunal’s order.

Costs

  1. [43]
    The Tribunal may award the College costs in respect of any expenses incurred by the College in investigating the matter and also in the proceedings before the Tribunal, as mentioned above. The College has submitted that a costs order of $5,000.00 in respect of the costs of the proceeding is appropriate in this case and has cited the decision of the Tribunal in Queensland College of Teachers v Metcalf [2015] QCAT 147 where a cost order of that amount was made.
  2. [44]
    The College has submitted that it is funded by the registration fees of teachers and the disciplinary referral in cases such as this are mandatory in accordance with s 49 and s 97 of the E(QCOT) Act.
  3. [45]
    The Tribunal notes in that case that the teacher did not reach an agreed statement of facts and the Tribunal considered that resulted in a more costly preparation for hearing. In this case while SGS had limited participation he did sign an agreed statement of facts and the application was heard on the papers.
  4. [46]
    The Tribunal notes that there has not been any specific material provided by the College in regard to costs incurred and that the award of costs in WAS where there was an agreed statement of facts was $2,500.00. SGS has submitted that any cost award will cripple him financially as he is supporting his children and his partner, the now former Student A.
  5. [47]
    The Tribunal is satisfied that SGS should make a contribution towards the costs of the College in bringing the disciplinary referral as part of his sanction. The amount of those, though having regard to SGS cooperating by enabling a statement of agreed facts, should be limited to $2,500 repayable within 6 months as agreed between the College and SGS.

Non-publication

  1. [48]
    The Tribunal may make orders under s 66 of the QCAT Act prohibiting the publication of information which may identify a party or any other person affected by a proceeding for among other reasons the interests of justice. In this case SGS’ family and Student A deserve to have their confidentiality protected so that they are not adversely affected by the matters disclosed in this matter. By necessity that will mean that the identity of SGS and the schools involved will be subject to the non-publication as well.

Footnotes

[1] Education (Queensland College of Teachers) Act 2005 (Qld) (E(QCOT)) Act),
s 97(2)(a).

[2] Ibid, s 92(1).

[3] Ibid, s 97(4)(a).

[4] Ibid, s 92(1)(h).

[5] Ibid, s 97(4)(b).

[6] Ibid, s 158(1).

[7] Ibid, s 8(1)(b) and s 9(1)(b).

[8] Ibid, s 11.

[9] Ibid, s 12(2).

[10] Ibid, s 12(2).

[11] Queensland College of Teachers v Brady [2011] QCAT 464.

[12] Queensland College of Teachers v Kyie [2012] QCAT 335.

[13] Ibid, s 12(3).

[14] Queensland College of Teachers v Armstrong [2010] QCAT 709.

[15] Queensland College of Teachers v GHI [2012] QCAT 182, [9].

[16] Ibid, s 161.

[17] Ibid, s 158(2).

[18] Reasonable satisfaction test from the decision of Dixon J in Briginshaw v Briginshaw (1938) CLR 336.

[19] [2010] QCAT 442.

[20] For example Queensland College of Teachers v WAS [2015] QCAT 61 and Queensland College of Teachers v HMJ [2016] QCAT 447.

[21] Queensland College of teachers v WAS [2015] QCAT 61, [16].

[22] E(QCOT) Act, s 3(1).

[23] Queensland College of Teachers v Brady [2011] 464, [55].

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v SGS

  • Shortened Case Name:

    Queensland College of Teachers v SGS

  • MNC:

    [2017] QCAT 383

  • Court:

    QCAT

  • Judge(s):

    Member Allen, Member Paratz, Member MacDonald

  • Date:

    06 Nov 2017

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
Briginshaw v Briginshaw & Anor (1938) CLR 336
1 citation
Jump To
Cite 1 - (1938) CLR 336
Qld College of Teachers v Limpus [2011] QCAT 99
2 citations
Jump To
Cite 1 - [2011] QCAT 99
Cite 2 - [2011] QCAT 99
Queensland College of Teachers v Armstrong [2010] QCAT 709
1 citation
Jump To
Cite 1 - [2010] QCAT 709
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 GHI [2012] QCAT 182
3 citations
Jump To
Cite 1 - [2012] QCAT 182
Cite 2 - [2012] QCAT 182
Cite 3 - [2012] QCAT 182
Queensland College of Teachers v HMJ [2016] QCAT 447
1 citation
Jump To
Cite 1 - [2016] QCAT 447
Queensland College of Teachers v Kyei [2012] QCAT 335
1 citation
Jump To
Cite 1 - [2012] QCAT 335
Queensland College of Teachers v McNamara [2010] QCAT 442
1 citation
Jump To
Cite 1 - [2010] QCAT 442
Queensland College of Teachers v Metcalf [2015] QCAT 147
2 citations
Jump To
Cite 1 - [2015] QCAT 147
Cite 2 - [2015] QCAT 147
Queensland College of Teachers v WAS [2015] QCAT 61
5 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

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v ATL [2020] QCAT 593 citations
Queensland College of Teachers v CMK [2019] QCAT 2712 citations
Queensland College of Teachers v DGM [2018] QCAT 1942 citations
Queensland College of Teachers v DKA [2024] QCAT 3632 citations
Queensland College of Teachers v DTC [2020] QCAT 953 citations
Queensland College of Teachers v FPD [2023] QCAT 2402 citations
Queensland College of Teachers v GOH [2022] QCAT 222 citations
Queensland College of Teachers v JBO [2020] QCAT 1322 citations
Queensland College of Teachers v JN [2019] QCAT 2412 citations
Queensland College of Teachers v NBL [2019] QCAT 3121 citation
Queensland College of Teachers v PPK [2019] QCAT 592 citations
Queensland College of Teachers v PPK (No 2) [2019] QCAT 2702 citations
Queensland College of Teachers v RGK [2019] QCAT 1802 citations
Queensland College of Teachers v Teacher EKR [2023] QCAT 1362 citations
Queensland College of Teachers v Teacher MUE [2021] QCAT 4012 citations
Queensland College of Teachers v Teacher NMR [2018] QCAT 3102 citations
1

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