Sargent v NSW Education Standards Authority [2024] NSWCATAD 270 | Case summary

Material before the Tribunal and Mr Sargent's evidence

The material facts in this case are not in dispute.
The facts relating to the offences of which Mr Sargent was charged and convicted is set out in fact sheets presented to the court. Mr Sargent does not dispute those fact sheets.
According to the fact sheet from NSW Police dated 25 August 2023, Mr Sargent was charged with driving with a middle range PCA. This is recorded as his first offence. It is noted in the fact sheet that Mr Sargent has only one prior charge but has a "lengthy" traffic record. The details of this traffic record are not disclosed. Mr Sargent was reportedly very compliant with police throughout the interaction. It is recorded that around 11:15pm on 22 August 2023 police approached Mr Sargent while he was sitting in his car in the driver's seat, having stopped on the road after driving out of a nearby hotel car park. A roadside breath test was administered which returned a positive result. Mr Sargent was then subjected to a breath analysis which returned a reading of 0.096 grammes of alcohol, in the middle range. Mr Sargent was also issued with a notice of suspension of his driver's licence and the physical copy of his licence was surrendered to police.
The respondent provided a second fact sheet dated 1 September 2023. It is recorded that Mr Sargent was again charged with driving in the middle range PCA and with a second charge of driving a motor vehicle while his licence was suspended. It is reported that on 1 September 2023 Mr Sargent was observed driving his car on the road and, after activating warning devices, his vehicle was stopped a short time later in a car park for the purposes of roadside testing. It is reported that police asked Mr Sargent to produce his licence and he stated, "I don't have it with me". It is further reported that police inquired whether Mr Sargent currently held a licence, to which he stated, "yeah". The police then conducted breath testing which produced a roadside reading of 0.119. Subsequent police check revealed that Mr Sargent's licence was suspended.
All matters came before the court on 15 November 2023. Mr Sargent was convicted with two offences of driving with middle range PCA and a third offence of driving a motor vehicle while his licence was suspended. He was directed to enter into a Community Correction Order for 12 months, which was to commence on 15 November 2023. He was also subject to additional conditions, namely supervision by a community corrections officer for the period of the Community Correction Order, a requirement to perform 50 hours community service work and a direction to report to the Community Corrections within seven days.
According to a report from Road Sensor Australia dated 2 January 2024, Mr Sargent has completed the Traffic Offender Intervention Program, which comprised 10 modules. Mr Sargent also provided an offender supervision suspension declaration which was signed by both him and his community corrections officer on 17 January 2024. Under the declaration, Mr Sargent agreed to follow the standard conditions and requirements set out in the declaration until his order expired and to disclose to his community correction officer as soon as possible if there was any change in circumstances. The effect of the suspension declaration was that Mr Sargent is no longer required to personally report to the correction officer for the balance of the term of his Community Correction Order.
Mr Sargent provided four references, two of which were additional to the references provided to the respondent. Relevantly, the updated references provided included observations about Mr Sargent's offending.
Dr Adam Hendry, Assistant Principal at the Parramatta Marist High School, provided a letter dated 4 March 2024. Dr Hendry noted that Mr Sargent was employed as a full-time permanent teacher at Parramatta Marist High from 2010 until the end of term 1, 2014. Dr Hendry states that Mr Sargent was a highly organised, professional and collegial teacher who had a deep knowledge of discipline and understanding of pedagogical practice. Dr Hendry stated that he would not hesitate in recommending him to any prospective employer and would gladly re-employ him at Parramatta Marist High. There is no reference in this letter to Mr Sargent's criminal offending.
Mr Sargent provided the Tribunal with a letter dated 7 June 2024 from Peter Stephens, the Assistant Principal (Wellbeing and Growth) at Parramatta Marist High School. Mr Stephens had previously provided a reference dated 10 April 2024, but this reference was updated to include a reference to Mr Sargent's criminal offending. After setting out Mr Sargent's history at the school Mr Stephens stated that he could confidently attest to Mr Sargent's exceptional intelligence, strong rapport with the children and dedication to his work. He noted that one of Mr Sargent's notable strengths was his ability to connect with teenagers and that he possessed a natural charisma and empathy that enables him to build trust and rapport with young people effortlessly. In his previous role, Mr Sargent was responsible for overseeing the welfare of one hundred and eighty 14- to 15-year-old students. Mr Stephens further states as follows: He embodies the values of hard work, compassion, and integrity in all aspects of his life, serving as a positive role model for others. That being said, I am aware that Brett is not perfect. Like all of us he is made mistakes including one charge of driving under the influence. This came at a time of extreme personal turmoil. Whilst no excuse and regrettable, it has not changed his fundamental character.
The third reference is from Dr Gavin Hayes, Principal, Marian Catholic College, dated 6 May 2024. Dr Hayes states that he has had the opportunity to witness Mr Sargent's professional demeanour and notes that his contributions to the educational community of the school were significant. Dr Hayes also states that, despite the unfortunate incident of his conviction for drink driving, he can attest to Mr Sargent's unwavering commitment to his role as a teacher. He notes Mr Sargent's remarkable ability to build strong relationships with his students and that he was instrumental in driving pedagogical changes within the school. Dr Hayes also notes that Mr Sargent's role as a year coordinator showcased his leadership abilities, positive attitude, efficiency and unwavering commitment to quality learning outcomes for all students. Dr Hayes further states that Mr Sargent's skill set encompasses a wide range of qualities that make him a valuable asset to any organisation and that once he obtained accreditation, this would allow him to obtain full time employment available at Marian Catholic College.
The fourth reference is from Jeff Phillips, Head of School, Santa Sophia Catholic College. Mr. Phillips worked with Mr Sargent at Parramatta Marist High. According to Mr. Phillips, Mr Sargent was a highly impactful teacher who had a significant impact on student achievement. He fostered the growth and wellbeing of students in his role as year coordinator and was extremely effective in ensuring his year group aligned to the school goals and objectives. He was a very effective communicator.
Mr Sargent provided a written statement in support of his application and gave evidence at the hearing.
Mr Sargent states that he completed a Bachelor of Teaching and a Bachelor of Arts degree at the Australian Catholic University and began teaching at Parramatta Marist High in 2008 on a casual basis. He was offered a full-time role as a secondary teacher and in the following year was offered a year coordinator position. He remained in this role until 2014, when he left teaching to begin a family business. He operated this business for ten years but had to close the business because of a drop in trade. This is why he decided to return to teaching and lodged his application for a provisional reaccreditation in March 2024.
Mr Sargent states that he believes the decision made by the respondent is unfair. He acknowledges that he was convicted of drink driving and was sentenced to a 12-month Community Correction Order, with a direction to complete 50 hours of community service, which he states he has now completed. This was his only instance of breaking the law. He is 43 years old, and this was his first and only conviction. Mr Sargent takes issue with the decision of the respondent in so far is it is noted that Mr Sargent's referees do not provide any acknowledgment of his criminal conviction and the resulting Community Correction Order currently in place. He notes that in an email provided by an officer of the respondent, he was advised that if he notified the referees about his Community Correction Order, it would not impact the decision or the internal review of that decision. Mr Sargent submits that this was a "severe and detrimental contradiction" as it was clear that this did have an impact on the review. He therefore believes that review process was carried out unfairly and it is for this reason that he provided two updated references where the referees acknowledged Mr Sargent's convictions and, despite this, expressed a willingness to provide employment.
Mr Sargent states that teaching is his only qualification, and he believes he would be an asset to the profession. He is a committed teacher.
Mr Sargent statement also includes submissions about why he says the respondent's decision should be set aside.
Mr Sargent states that, while he completely agrees that drink driving can have a serious impact on individuals, others and society, in this instance he did not injure others and he was detected in a roadside test. The most serious impact has been to him, his wife and his family. He notes that this is the only occasion that he has been arrested, charged and convicted with a criminal offence and he believes this should count in his favour. On the question of the recency of the offending, Mr Sargent states that his conviction and sentence was, at the time he made his application, 8 months old. The events leading to his conviction are now 12 months old.
Mr Sargent also gave oral evidence at the hearing and was cross-examined. He said that after his conviction, he was required to report to the Windsor office of Corrections and was assigned an officer. He had to see the officer every week for six weeks. He said that she subsequently formed a view that he no longer needed to have personal supervision and, after signing a declaration on 17 January 2024 that he would abide by the conditions of his Community Correction Order, he was released from this regular personal supervision.
Mr Sargent said that he had an offer of employment to work with the Marian Catholic College. This offer of employment is recorded in the letter from Dr Gavin Hayes. Mr Sargent said that the offer to work at Marian Catholic College was still open and if he obtained employment, it would initially be casual. Mr Sargent was eventually hoping to obtain a permanent full-time position as a teacher at Marian Catholic College. He was hopeful that this position would still be available in November 2024 after his Community Correction Order had expired. He had discussed this issue with Dr Hayes about two or three weeks ago and Dr Hayes said he would wait for the outcome of today's hearing.
Mr Sargent said that since his business had closed, he was having financial difficulties in earning sufficient money to support his family. He said that he was working in a factory at Castle Hill 38 hours a week, but the work was intermittent and casual. He said that he and his wife had recently separated, and they had two children, who were eight and nine years old. The strain of the business and the impact of the convictions had put pressure on his marriage. This also made it very difficult financially, which is why he wanted to be able to return to teaching, and full-time employment, as soon as possible. He is currently living with his brother but needs to find alternative accommodation and could not do so until he was able to obtain stable employment.
Mr Sargent said they understood why the respondent had made the decision and, as he was previously the year 10 coordinator at Parramatta Marist High, he understands the importance of modelling good behaviour. However, he also believes there should be some discretion in this regard - he has paid a very heavy price for a first-time offence.
Mr Sargent was questioned on his view about whether it was reasonable to delay the decision on suitability until after he had served his 12-month order. Mr Sargent said that he did not agree this was reasonable in the circumstances. There were mitigating circumstances at the time of the offences, he was a good teacher and he needed to have accreditation at this time so that he could move forward in his teaching career. He said that he could wait for a further 10 weeks for the order to expire but there is no guarantee he would be accredited at this time. He also said that there may be a disadvantage because this would be at the end of term 4 and it may be more difficult to obtain casual employment at this time. As such, there is a possibility that he would not be able to commence teaching until the beginning of next year.
Mr Sargent said that he had experienced hardship and remorse as a result of his offending, and he had done everything that he could to address the issues. He had completed they traffic offender intervention program within months and had completed his community service orders by March 2024. His corrections officer had agreed to suspend his supervision.
Mr Sargent was cross examined about some inconsistencies in his application. For instance, when he made the application, Mr Sargent knew that he had been convicted of three offences, but he only referred to his criminal offending as one offence. Mr Sargent said that this was not an intentional omission as he saw drink driving as one offence. The respondent and the Tribunal knew the nature and extent of these convictions based on the fact sheets and conviction orders provided to the Tribunal and there was no intent to mislead.
Mr Sargent was referred to the references provided by Dr Hayes and Mr Stephens. Both refer to a drink driving offence as opposed to three offences, including one offence relating to driving while his licence was suspended. Mr Sargent questioned about whether he had advised both referees about these offences. He said that he had not. Mr Sargent acknowledged that when he drove on the second occasion, he knew that he that his licence had been suspended. He did not agree that this was dishonest but rather that it was very stupid. Mr Sargent said that the second time that he was driving the car was to see a customer. He realised the seriousness of his breaches when he was sentenced and after he had undertaken the traffic offender intervention program. Mr Sargent acknowledged that in teaching teenage boys it was important to be a role model, but he did not believe that they would think less of him because of his convictions.

Consideration

Mr Sargent submits that the process undertaken by the respondent was unfair and if he had known about the importance of his referees disclosing knowledge of his convictions, he would have obtained further references. Mr Sargent contends that the fact his referees did not refer to his convictions was clearly a material issue because the internal reviewer commented on this in the reasons.
I accept that Mr Sargent feels aggrieved by this. I also accept that the statement made in the email from an officer of the respondent may have influenced the more limited information that he provided to the internal reviewer. However, there can be no such issue in relation to this review because at the time of the hearing, Mr Sargent was on notice that this was a material matter.
In my view, detailed character references about a person's suitability to teach where the referees have personal knowledge of an applicant and his or her work as a teacher, would be relevant for the purposes of making an assessment of suitability to teach under the Teacher Accreditation Act. Whether those referees understand the nature and extent of any criminal offending, would also be a relevant consideration. This is particularly so when one of the reasons for refusal is concern about community expectations where Mr Sargent is still serving an unexpired sentence. The views of senior teachers and school principals about such a matter may provide important insight into community expectations of teachers and the reputational risk that may be faced by a school employing a teacher who is still subject to Court sanctioned orders.
As such, while Mr Sargent's submission that it was unfair he was not advised about this has merit, the fact that there may have been some unfairness in the original process does not impact this review. This is because the role of the Tribunal is to make the correct and preferable decision on the basis of the material currently before it. It is not my role to review the decision of the original decision-maker or the internal reviewer to ascertain whether they erred in law or in making factual findings or whether their process was unfair. Any unfairness, or perceived injustice can be corrected by the process conducted by the Tribunal.
In this case, I have reviewed all updated information provided by Mr Sargent, including the updated references. These references acknowledge Mr Sargent's previous criminal offending but nonetheless reveal, consistent with Mr Sargent's evidence at the hearing, that he was not completely frank with these referees.
While all references are strongly supportive of Mr Sargent as a teacher, revealing that he was extremely successful as an innovative teacher and as the year coordinator of teenage boys. However, the references also underlie the importance of teachers as role models. The references emphasise the fact that Mr Sargent had an important and influential role with teenage boys at his school and may continue to have such a role, given his approach to teaching. As such, and this is the contention of the respondent, Mr Sargent's role as a teacher maybe more closely scrutinised while he is still subject to the Community Correction Order. This submission is considered in more detail later in my reasons. However, I accept the submission of the respondent that, insofar as these references do not fully outline the extent of Mr Sargent's criminal offending, their weight is diminished.
I am satisfied from Mr Sargent's evidence that he has been negatively impacted as a result of the convictions and the consequential impact on his record and career. Mr Sargent has made submissions about proportionality and what he says is the unduly harsh outcome in refusing his accreditation. In making these submissions, Mr Sargent has sought to minimise the seriousness of the convictions. I accept that this is advocacy by Mr Sargent on his own behalf rather than an expression of a lack of contrition or remorse. Mr Sargent impressed as a genuine witness who was both remorseful and had significant insight into the seriousness of his previous offending. He not only regrets the negative impact of the criminal offending but appears to accept that he may have to wait until his Community Correction Order expires before his reaccreditation can be considered. While it is true that Mr Sargent's concession about this was somewhat reluctant, he nonetheless acknowledges this possibility as being reasonable in circumstances where he is in a very difficult financial position. This counts in his favour.
Mr Sargent's evidence is that when he made his application for review, he referred to one conviction because this is how he thought about the drink driving convictions. However, he did not intend to mislead and knew that it was clear from the material provided by the respondent that he had been convicted on three occasions. This was in the information provided by the respondent. I accept this submission.
Despite this, there is a difficulty because Mr Sargent's referees do not appear to have been given a full and complete description of the nature of his offending. This is not only apparent from the references but from Mr Sargent's evidence about this at the hearing. As already noted, this has the impact of lessening the impact of these references and raises concerns about Mr Sargent's candour and, thereby, character.
The respondents submits that it is open to the Tribunal to make a decision on an alternative ground, namely that Mr Sargent is not a "fit and proper person" under s 38A(1)(c)(i) of the Teacher Accreditation Act. In this regard, the respondent relies on Mr Sargent's submitted lack of candour. While I accept that it may be open to the Tribunal to make a finding on a different ground, it should exercise caution in so doing in circumstances where, as in this case, the issue was not raised by the respondent in the original or review decisions and was only raised by the respondent in the written submissions lodged just prior to the hearing. Mr Sargent is representing himself and he may not have appreciated the significance of this new ground alleged, being prepared to prosecute his claim on the basis of s 38A(1)(a) and his previous criminal conviction.
Whether it is appropriate for the Tribunal to make a decision on a new ground will depend on the circumstances of the case, whether there is power to do so, whether a party has been properly apprised of the new issue being raised and whether that party has been given an appropriate opportunity to respond. This is an important principle of procedural fairness. I do not consider that it would be fair to make a finding on this ground in the circumstances of this case without first giving Mr Sargent the opportunity to give evidence and make specific submissions about this ground.
Ultimately, I am not satisfied that this is a determinative issue. This is because I am not comfortably satisfied, on the basis of the information before me, that Mr Sargent is not a "fit and proper person".
As outlined in the Tribunal decision of Lavers v NSW Education Standards Authority [2023] NSWCATAD 170 at [21] - [26], fitness and propriety are questions of fact to be determined objectively. Whether a person is fit and proper, or conversely not fit and proper, will depend on the legislative context and the nature of the particular profession, trade or occupation in question. As observed by Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 at [36]: 36. The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Accordingly, determining question of whether Mr Sargent is not a fit and proper person for the purposes of section 38A(1)(c) not only involves questions about the nature of his improper conduct, the impact of this on the activities Mr Sargent is likely to be engaging in and whether the general community will have confidence about how he will perform those duties given this conduct. It is also relevant to take into consideration Mr Sargent's ability to undertake the role as a teacher.
I am not satisfied that Mr Sargent intentionally misled the Tribunal in his application. Nor am I satisfied that Mr Sargent's description of his offences to his referees was dishonest. I accept that Mr Sargent may have disclosed his offending as drink driving offences, which they were, and he may have described them as "a conviction" because all offences were dealt with on one day. He was convicted of three offences with a single sentencing outcome. It is therefore possible that Mr Sargent genuinely formed the view that these three convictions, which were related, could be properly described as a drink driving conviction. While this is possible, I am not persuaded about Mr Sargent's evidence in this regard and consider it more likely that he was seeking to minimise the nature of the offending, possibly because he was embarrassed. This does not reflect well, but I would not characterise this as dishonesty.
However, I accept that failing to disclose the offence of driving while his licence was suspended is a more serious omission. At best, Mr Sargent was seeking to minimise the nature of the offending. For the reasons previously outlined, the failure to disclose this issue to his referees diminishes their weight but I would not characterise this conduct as dishonesty. Mr Sargent was not truthful in his response to law enforcement offices when he told them he did not have his licence on him and that he had a licence. It was true that Mr Sargent had a licence, but he did not disclose it was suspended. In this respect, Mr Sargent responses to police were misleading but also thoughtless because it should have been obvious to Mr Sargent that the police would be able to check their records and it would disclose the truth of the matter. While Mr Sargent did not explain why he did this in his evidence to the Tribunal, I accept that it is possible, indeed likely, that Mr Sargent panicked when confronted by police with an obviously serious second offence. In other respects, the fact sheets show that Mr Sargent cooperated in all his interactions with police.
Accordingly, I am not satisfied that there is sufficient material before me to make a finding that Mr Sargent is not suitable for teaching on the basis that he is not a "fit and proper person" to teach. Relevantly, there is significant evidence before me to the effect that Mr Sargent, while he was undertaking his role as a teacher previously, was highly regarded, skilful and respected. These are matters that are also relevant to the question of whether a teacher is fit and proper.
This leaves for consideration the ground pursuant to which the original refusal and review decisions were made, namely, whether the correct and preferable decision is that Mr Sargent is not suitable for teaching, having regard to his criminal and disciplinary history.
The Teacher Accreditation Manual provides guidance about the matters to be considered when assessing teacher suitability. Those matters include the nature, seriousness, frequency and recency of the conduct or behaviour. I accept that the criminal offending by Mr Sargent was infrequent and possibly out of character and that it is misconduct at the lower end of the range of criminality. However, I also accept that a breach of drink driving laws, the second offence occurring within 10 days of the first, raises significant concerns about Mr Sargent's conduct. The fact that Mr Sargent's licence was suspended yet he continued to drive was irresponsible. This is not the conduct that one would expect of a teacher. Moreover, the seriousness of this breach is exacerbated by the undisputed evidence that Mr Sargent was not truthful with police.
There is evidence from Mr Sargent that he was under pressure at the time because of business pressures but this does not excuse drink driving or driving while his licence was suspended. Considering the seriousness of the matter, the Court imposed a 12-month Community Correction Order with 50 hours of community services and additional supervision. As such, there is merit in the respondent's submission that this conduct was less than 12 months ago, and the Tribunal should have regard to the fact that Mr Sargent has not yet served his sentence.
The respondent submits that the Tribunal should have regard to the principles set out in s 13.1 of the Manual, namely that teachers in NSW must maintain integrity and good professional standing in their conduct and reflect the standards the community expects of teachers as representatives of the profession. It is submitted that the community would expect Mr Sargent to observe a significant period of blameless conduct which can be measured, at the least, by reference to the 12-month Community Corrections Order imposed by the Court.
This raises an interesting question about whether a teacher's suitability to teach is a matter that is circumscribed by the person's characteristics or whether suitability can and should be influenced by community expectations about an individual's suitability in particular circumstances.
Section 38A(1)(a) gives to the respondent, after carrying out an assessment of suitability and considering the person's criminal and disciplinary history, extensive power to make a decision that an individual is not suitable for teaching. This power is not unfettered, and any decision-maker must act reasonably, having regard to the objectives in Section 4 and the guidance provided in the Manual.
The respondent submits that where a person has been convicted of criminal offences or misconduct, it would be expected that the person should have a sufficient period of blameless conduct before they could be considered suitable to teach and to meet community expectations. In Mr Sargent's case, the sentencing court has nominated 12 months. It is also submitted that the community would not expect Mr Sargent to be reaccredited until he had served his sentence. It is further submitted that this is consistent with the objectives in Section 4 and the guidance provided in the Manual.
These submissions are persuasive. I further note that if Mr Sargent returns to teaching before this period expires, it may be more difficult for him to justify his position as a positive role model. Mr Sargent does not believe that teenage boys would think less of him if he returned to teaching while he was still serving time under his Community Corrections Order. Mr Sargent has no basis for this conclusion and his view may be explained by a naïve optimism which reflects the imperatives of his current needs. While I have sympathy for Mr Sargent's position, the personal impact on Mr Sargent and his family of the refusal to provisionally reaccredit him as a teacher is not a material consideration. The legislation is clear, it is the safety, welfare and wellbeing of children and young people that is paramount. Teenagers may be influenced by charismatic teachers, and indeed there is evidence that Mr Sargent previously had such influence. Some teenagers may possibly be negatively influenced by the notion that a person can break the law but nonetheless work as a teacher without completing the sentencing regime imposed by the courts. The respondent's contention about community expectation about the standing of a teacher is consistent with the principles and guidance provided in the Manual.
Accordingly, I have decided that the correct and preferable decision in the circumstances of this case is to affirm the decision under review. Mr Sargent is not precluded from reapplying for reaccreditation in the future and while he has reservations about delays and whether he will be accredited, there is nothing to suggest that there will be inordinate delay. Notably, the respondent's submissions are to the effect that Mr Sargent's position may be more favourably considered after his Community Correction Order expires on 14 November 2024.

Sargent v NSW Education Standards Authority

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (3)