VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No Z65/2022	
CATCHWORDS	
Review and Regulation List – Education and Training Reform Act 2006 (Vic), section 2.6.9(2) – application for review of a decision to refuse provisional registration as a teacher  - 171 charges of obtaining property  by deception – one charge proven and conviction imposed – whether the applicant had produced evidence that he was suitable to teach – whether the applicant’s character was such that it was in the public interest for him to teach. 	

APPLICANT	Steven Gailunas	
RESPONDENT	Victorian Institute of Teaching 	
WHERE HELD	Melbourne	
HEARING TYPE	Videoconference hearing 	
BEFORE	A. Dea, Senior Member 
P Gysslink, Member	
DATE OF HEARING	31 March 2023	
FINAL DATE FOR SUBMISSIONS	8 May 2023	
DATE OF ORDER and reasons 	29 June 2023	
CITATION	Gailunas v Victorian Institute of Teaching (Review and Regulation) [2023] VCAT 720	

Orders
1	Under section 51(2(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’), VCAT affirms the respondent’s 5 December 2021 decision to refuse the applicant’s application for provisional registration as a teacher
2	Under s 146(4)(b) of the VCAT Act, VCAT directs that no person other than a party to the proceeding or their legal representatives may inspect VCAT file.

A Dea
Senior Member and Presiding Member		P Gysslink 
Member	

APPEARANCES:		
For Applicant	In person	
For Respondent	Mr J Stoller, counsel	

Reasons
Background 
1	On 5 December 2021, the Victorian Institute of Teaching (‘VIT’) decided to refuse an application Steven Gailunas (‘Gailunas’) had made for provisional registration as a teacher.  VIT’s decision was made under the Education and Training Reform Act 2006 (Vic) (‘ETR Act’). 
2	VIT’s reasons explained that it was not satisfied that Gailunas had produced evidence which satisfied it of his suitability to teach (relying on section 2.6.9(2) of the ETR Act). 
3	In large part, VIT was concerned about Gailunas’ criminal record and the degree to which he had demonstrated he had insight into and remorse for the events that led to the criminal finding and the relationship between those and the role and responsibilities held by registered teachers. 
4	Before referring to that criminal record, we make plain that the VIT held no concerns about children being safe with Gailunas or as to his ability to work as a registered teacher.  The concerns were entirely based on the criminal matters and how they may be relevant to him working as a teacher.
5	On 29 May 2015, Gailunas was charged with obtaining property by deception on 171 occasions.  The Magistrate’s Court records of 11 May 2016, showed that Gailunas refused to enter a plea.  It seemed that, following discussions, all but one charge of obtaining property by deception were ‘struckout/withdrawn’.  
6	For the purposes of the ETR Act, obtaining property by deception is a category C offence as it is an indictable offence and liable to imprisonment with a 10 year maximum.
7	Gailunas was convicted of the remaining one charge and was sentenced to a Community Correction Order (‘CCO’) for 12 months.  The CCO required him to undertake 100 hours of unpaid community work.  He was also ordered to pay $9,405 in compensation.  As we understood it, as at the time of the hearing that payment had not been made. 
8	At all times, including at the hearing before us, Gailunas maintained he was innocent of the charges and that, had it not been for the fact that he had failed to retain records for his work as a driving instructor, he would have been able to prove that was the case, not only to the Magistrate’s Court but also to the VIT.
9	The 171 criminal charges arose from claims Gailunas made as a driving instructor participating in a program known as ‘Keys to Drive’ (‘the Program’).  
10	The Program was administered by the Australian Automobile Association (‘the AAA’).  Gailunas had entered into an agreement with the AAA to provide one free driving lesson to the holders of learner permits.  Under the terms of that agreement, he was entitled to make a claim on the Program for $55 per lesson and, over the period 11 April 2012 to 16 July 2012, his claims totalled $9,405.  
11	Under the Program, payments were made to driving instructors by use of a unique code which had been emailed to the student’s email address (‘the Code’).  Only a person  who held a learner’s permit issued by VicRoads could register for the Program and obtain a Code.
12	Once the students had the Code, they could book a driving lesson with an instructor of their choice.  At the end of the driving lesson, the student supplied the Code to the instructor who in turn lodged the Code, along with the student’s details (including the learner permit number), on the Program website.  
13	When the AAA conducted a routine survey of driving students registered with the Program was conducted, a number of emails bounced back or were undeliverable to the nominated email addresses.  That prompted an investigation and then an independent audit.  What followed was a police investigation and the laying of charges against Gailunas.  
14	In short, the police alleged that 171 learner driver profiles had been created and submitted to the Program in the period 11 April 2012 to 16 July 2012.  Police discovered that 171 false email accounts were created, mostly using Gmail and Hotmail accounts.  Fictitious names and learner permit numbers were said to have be created and entered on the Program website linked to those false email accounts.  
15	The criminal charges and conviction were based on Gailunas having applied for and received payment for driving lessons he had not given.  He was not charged with any offences relating to the creation of the email addresses, fictitious names and learner permit numbers. 
16	Subsequent to the Magistrate’s Court orders made on 11 May 2016, Gailunas returned to that Court on 27 April 2018 as he had been charged with contravening the CCO and failing to answer bail.  The first of those charges was found proven and Gailunas was convicted of the second.  The CCO was set aside and a fine of $3,000 was imposed.  Gailunas explained to the VIT and us at the hearing that he had been unable to comply with aspects of the CCO due to a back injury and his role in caring for and transporting his parents at that time, however we understood the requirements had been partly met.  He indicated he was not aware of the basis for the failure to answer bail charge.   As Gailunas expressed it at the hearing, he understood that he had applied to ‘buy his way out’ of the CCO.  VIT’s counsel indicated that the fine had been imposed by way of re-sentencing for that part of the CCO which had not been complied with.  As we understood it, that fine had not been paid as at the hearing date.
17	After Gailunas was advised of the VIT’s refusal decision, he exercised his right to seek review by this Tribunal.  The parties exchanged materials and prepared a joint Tribunal Book.  A hearing was held by Zoom and Gailunas gave evidence and was cross-examined.  Gailunas also called his former wife to give evidence.  We then heard submissions from the parties.
18	Having:
•	heard evidence from Gailunas and his former wife;
•	considered all of the material contained in the parties’ joint Tribunal Book, including the police brief; and 
•	considered the submissions from the parties,
we have decided to affirm the VIT’s decision to refuse to grant Gailunas registration. 
19	It is convenient to record now that we have made an order under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) directing that no person other than a party to the proceeding or their legal representatives may inspect VCAT file.  We have made that order because the Tribunal file contains summonsed documents which include the names and other details of driving students.  As none of them gave evidence or participated in this proceeding in any way, we considered it appropriate to limit access to their details to the parties only.
The Tribunal’s task and the ETR Act 
20	Our task is to stand in the shoes of the original decision maker (the VIT) and make a fresh decision taking into account all of the available evidence and material.  We are required to consider all relevant circumstances and make the correct or preferable decision.
21	When exercising its powers to make a fresh decision, the Tribunal has the same functions as the VIT and they include:
•	recognising and regulating members of the teaching profession; and 
•	granting registration or permission to teach in Victorian schools. 
22	Relevant to our task is section 2.6.3(1A) of the ETR Act which provides that, when performing any regulatory function under subsection (1), the VIT (and so the Tribunal on review) must consider the wellbeing and safety of children, including by taking into account community expectations.
23	Relevant to registration decisions, section 2.6.9(1) of the ETR Act says:
The [VIT] may register an applicant as a teacher if – 
(a)  	the applicant is qualified for registration under section 2.6.8; and
(b) 	there are no grounds under subsection (1A) or (2) under which the [VIT] must or may refuse to grant registration to the applicant; and
(c) 	the applicant has satisfied the requirements of section 2.6.7.
24	Section 2.6.9(2) says relevantly:
The [VIT] may refuse to grant registration to an applicant on any one or more of the following grounds – 
(a) 	that the character of the applicant is such that it would not be in the public interest to allow the applicant to teach in a school;
. . . 
(c) 	that the applicant has engaged in category C conduct and – 
(i) 	the ability of the applicant to teach in a school is likely to be affected because of the conduct engaged in; or
(ii)  	it is not in the public interest to allow the applicant to teach in a school because of the conduct engaged in;
….
(f) 	that the applicant has not produced evidence which satisfies the [VIT] of his or her suitability to teach.
25	Given the Tribunal’s task is to make a fresh decision, it is not confined to considering the basis on  which the VIT made its decision (being section 2.6.9(2)(f)).  We can also consider the other aspects of the provision, including (a) and (c) above. 
26	The Tribunal, in considering Gailunas’ application for review, has the power to:
•	affirm the VIT’s refusal decision;
•	set aside the VIT’s refusal decision, and order it to grant Gailunas unconditional registration; or 
•	set aside the VIT’s refusal decision, and order it to grant Gailunas registration with the imposition of conditions (under section 2.6.9(3) of the ETR Act).
Background to the application for provisional registration
27	Gailunas applied for registration as a teacher on 11 February 2021.  
28	As part of its assessment of his application, the VIT conducted a Nationally Coordinated Criminal History Check (NCCHC).  The NCCHC revealed a criminal history which included the category C conduct of obtaining property by deception conviction.
29	Gailunas was invited to provide information to the VIT about the criminal offending and he was also told he could provide a ‘reflective statement’.  He provided the latter in around mid-April 2021 and it included the following:
I was accused of conducting lessons and receiving payments for lessons that did not exist, or take place.  I strenuously and vehemently deny this accusations
In late 2010 I applied to Corrections Victoria for a position as a Prison Officer at the [Metropolitan Remand Centre (MRC)].  I was accepted, and commenced training on 4 April 2011 to 25 May 2011.  As I was returning to work within the prison system, I wound down my work as a driving instructor to concentrate on my new position at the prison.  Whilst I was still accepting new learner drivers, I would take them on their ‘session’ through [the Program], but would refer them to a more full time driving instructor in their residential area.
As I was fully engrossed in my work as a Prison Officer, I [mistakenly] found it unnecessary to keep my financial and administrative records from my period as a driving instructor.  All of my records were disposed of, and / or deleted.  By mid 2012, I had totally stopped working as a driving instructor to fully devote my time and energy on the prison system.
Whilst I was asked to audit my books by [the Program] administration, I had no books to audit.  I was fully entrenched at the prison and didn’t give [the Program] a second thought.  In early 2013, I was visited and questioned by Moorabbin Police regarding the sessions I had given, and the payments I had received.  I gave them a statement no different to the one I have just written about.  They asserted a different course of events, in which I totally denied.  They went on to confiscate my ICT devices for a short period of time, in which they found no evidence to support their claims.  Whilst they did ask a lot of questions, I didn’t have the physical administrative paperwork to support my claims.  The Police went on to charge me, in which I went to court and was convicted, fined, and given 100 community service hours. Furthermore, I believed I was charged with the incorrect offence, and I’m in the process of seeking legal advice to have the conviction stricken from my record.
I believe that had my administrative records not been disposed of, I would’ve been cleared of all charges.
As these events happened approximately 10 years ago, only myself and one other person know about this situation. Furthermore, when discussing these episodes recently –  she’d forgotten about the whole thing.  I am not in position to submit written character references as I haven’t publicised the events that occurred as they had no bearing on my teaching capabilities.  I had no issue obtaining a WWCC and I’ve been able to use the skills I had learned as a Driving Instructor during my practicum placements.
30	We pause to note that the convictions have not been set aside and that we understood that the person Gailunas was referring to in the above passage was his former wife. 
31	On 26 August 2021, the VIT wrote to Gailunas giving formal notice that it proposed to refuse his application under s 2.6.9.2(f) of the ETR Act on the basis that he had not produced evidence that satisfied it of his suitability to teach.  Gailunas was informed he had a right to make submissions.  
32	On 30 August 2021, Gailunas wrote to the VIT saying (in effect) that he did not wish to make any submissions.
33	On 3 September 2021, VIT replied, explaining that no decision had yet been made and reiterating Gailunas’ had the right to make a submission.
34	On 7 September 2021 Gailunas replied, and (in effect and among other things) asked if the VIT could specifically tell him what further information it needed from him.  The VIT replied on 10 September 2021 and Gailunas then responded on 16 September 2021.  We set out that correspondence later in these Reasons. 
35	The VIT proceeded to make its refusal decision. 
The available evidence about the Program and the conviction 
36	As mentioned earlier, the Tribunal Book included the police brief and the material relied on for the charges.
37	To assist Gailunas and us, we asked the VIT’s counsel to take us through the material.  That was done and the above summary of the Program came from that process.  In his evidence, Gailunas confirmed that his understanding of the registration process for the Program was ‘not too far off’ what had been summarised.
38	As to the evidence relied on by police to support the 171 charges (one of which was found to be proven by the Magistrate’s Court), VIT’s counsel referred us to the following:
•	As referred to earlier, a survey was undertaken and that brought to light concerns about the email addresses provided for students said to have received a lesson from Gailunas and for which he was paid under the Program;
•	The survey showed that less than 4% of all emails sent to students for whom Gailunas had been a claim were opened or responded to;
•	Those results led to an external auditor being appointed and the later referral to police;
•	Efforts were made to contact the students whose emails bounced back by telephone with ‘nil success’;
•	Police conducted IP address checks on a number of randomly selected email accounts (from a list of 667 students supplied by AAA).  It found that a ‘small number’ of lessons had been provided by Gailunas
•	Police compared the information entered into the Program portal with information on the VicRoads’ database; 
•	In respect of 171 payments, police found that none of the names and learner’s permit numbers submitted by Gailunas matched VicRoad’s records;
•	In particular:
o	171 learner driver profiles had been created and submitted to the Program in the around three month period between 11 April 2012 and 16 July 2012;
o	41 of the names Gailunas claimed on did not appear in any form on the VicRoads’ database;
o	Nine of the learner’s permit number entered into the Program portal for students Gailunas said he provided lessons to belonged to other people or organisations.  All of the individuals were fully licensed at the time the lessons under learner permits were said to have been provided.  The organisations included what appeared to be a motor car trader business and a school; and
o	The remaining names were on the VicRoads’ database but the submitted learner’s permit numbers did not match the names.
39	The police alleged that Gailunas had created fake Hotmail email accounts, added them to the Program portal and then used the Code which was issued to that email address so claim payments for lessons never provided.  
40	The police also alleged that Gailunas had, at times, created false learner’s permit entries linked to the fake email accounts. The police alleged that, while there were a small number of real driver’s licence or learner’s permit numbers used, they did not match the name of the person who Gailunas claimed he had given a lesson to under the Program. 
41	The preliminary brief said:
It is impossible for the accused to have conducted lessons for the people who do not appear on the [VicRoads’] database with the details submitted by the accused.
Each lesson was paid at the rate of $55.00 and the total value of payment received by GAILUNAS for the 171 fraudulently claimed lessons was $9,405.00.
42	The police confirmed that the only person who could have benefitted financially was Gailunas.
43	In a box headed ‘Statement made by accused’, it said Gailunas denied all allegations put to him.
Gailunas’ evidence 
Employment and personal history 
44	Gailunas started by giving evidence before us about his employment and personal history.
45	In the period 2005 to around 2008, Gailunas worked in corrections at Thomas Embling Hospital, a high security forensic mental health hospital.  He was appointed as the relief operations manager.  Gailunas then moved to Tasmania and continued his work in corrections in an operational role.
46	In late 2008, he moved back to Victoria and his then wife suggested he become a driving instructor.  He completed a certificate IV course and in the period 2009 to 2012 he worked as a driving instructor on a part-time basis.  The criminal charges referred to Gailunas’ actions towards the end of that period. 
47	In around 2010 to 2011, while continuing to provide driving lessons, Gailunas returned to corrections work at the MRC.  He ceased giving driving lessons in around mid-2012.
48	In August 2013, Gailunas suffered a back injury at the MRC.  When he later returned to work, he re-injured his back and required 12 months off work.  During that time he could not sit or stand for any length of time.
49	At the end of 2015, Gailunas commenced teacher training.  At the hearing before us he described himself as giving it a ‘100% effort’.  As described later, it was apparent from the materials before us that was so and that Gailunas was rated highly for all of his placements.
50	In around October 2022, Gailunas moved to Queensland and was registered as a teacher there.  He explained he was seeking registration in Victoria so he could move back and have more time with his child.
51	At the time of the hearing Gailunas was working as a physical education teacher in a Queensland secondary school.  In fact, he attended the scheduled hearing from his school office.
52	We understood that Gailunas had been registered to teach in Queensland after that state’s regulator was aware of the same criminal conviction.  As we are unaware of what additional information, if any, was sought or provided about those conviction, we have given limited weight to that fact alone. 
Responses to VIT about the criminal conviction
53	As described earlier, prior to making a decision about Gailunas’ registration application, the VIT wrote to him inviting him to make a submission if he so wished.  When asked if it could explain to him what was needed, the VIT told Gailunas:
We are seeking to understand your level of insight into your offending and its relevance to the teaching profession.
Alternatively, we are seeking documentation that supports your assertion that you were not guilty of either offence.
54	In reply, on 16 September 2021, Gailunas said:
the ‘offending’ in question has no relevance to my teaching profession…  If anything, the industry I was in as a Driving Instructor enhanced my teaching as it enable me to have an understanding into formal teaching and assessment.  The charges that were laid against me were from a financial perspective and poor record keeping brought on the offence and subsequent conviction.
As I have previously mentioned . . . there is no further documentation that I can provide you with asserting my innocence of the offence.  If I did have this documentation I would’ve provided it to the Police and Courts and have my conviction quashed and overturned.
Statement to the Tribunal 
55	The Tribunal Book contained a statement Gailunas prepared for the hearing.  Relevantly, it said:
1. 	I will not be providing any witnesses to assist in my Claim, as I have previously stated to the VIT no individual was aware of my listed criminal offence during my practicum placements.  It would be unfair and inaccurate to all parties concerned to have witnesses speak now, as I still vehemently deny all charges that I had been charged with.
2. 	When it comes to the remorse aspect of these ‘charges’ – as I have mentioned verbatim during the application process, further interviews, and particulars stated to the VIT and VCAT, the remorse I have is that I was irresponsible in not keeping my financial records for the appropriate period of time in the event of an audit by either the [AAA] or the Australian Tax Office.   In the event I had kept these records, I would been able to prove that I am innocent of the charges, and my registration would’ve been immediate with the VIT.  In the event of being in a similar situation moving forward, I will endeavour to keep all financial and administrative records in the appropriate timeframe.
3. 	The impact that VIT’s decision not to register my application has been bordering on catastrophic.   I’ve been unable to work in my educated profession for two years, which has placed me in severe financial hardship.  The Courts have punished me financially throughout this process, and I feel I’m being punished again.  Where does it end?  This has placed a significant strain on all of my family and friends relationships, as well as created a lack of self worth, stress and anxiety, for a crime I did not commit.  I feel I was an excellent student during my undergraduate studies, and proved that I will be an excellent teacher with my background and experiences in my work life and life in general.  As a mature age student I had the capacity not to panic and provide the guidance that students of all abilities needed.  The VIT assert that I am a liability to children’s education, they’re wrong, but I assert that my experiences outweigh the VIT assertions.
4. 	In reference to the ‘breach of bail’ and ‘non conformance of attending Community Correction Hours’ – these two issues are linked.  During my tenure whilst working at the [MRC], I sustained a significant back injury .  . .  Due to this injury, I was required to take a year off work as I couldn’t stand or sit for long periods of time.  I made the Department of Justice aware of this injury, and at the time of organising the Community Hours I was meant to do, I was impacted by this injury and couldn’t fulfil this obligation.  I have a doctors certificate regarding this.  The VIT weren’t interested in this document and still refused my application.  On a return visit to Court, the Magistrate changed my 100 hrs of Community Work to a fine of approximately $3000.
5. 	I feel that the VIT are specifically targeting my application, for a reason I’m unsure.  It was reported in the Herald Sun on 2 September 2022 that 1843 teachers had committed a Category B and/or C offence, and yet two years after completing my course, and several conversations with the VIT, I’m still unable to work. At the age of 49, I don’t have a lot of working life left, hence my additional claim for compensation.   As we are all aware there is a significant teacher shortage in Victoria, I’m ready and willing to enter the educational workforce, and the VIT are judging me by what they’ve read, instead of interviewing me personally to gain an insight into my persona and individual standing.
Evidence concerning suitability to teach 
56	We mentioned earlier Gailunas’ teacher training placements and the positive reports he received.  Those reports were uniformly glowing.  He received the rating of ‘Above Expectations’ for a number of categories including professional knowledge, practice and engagement.  Gailunas’ supervisors referred to him as ‘extremely well prepared’ and his implementation of course content was said to be ‘very good’.  Other comments included the following:
Stephen’s relationship with students and fellow teachers was very professional and his ability to communicate with all at school was outstanding
And
Overall, an outstanding teaching round which highlighted the professionalism and dedication that Stephen has to the teaching industry.
And
Stephen has completed an outstanding teaching round at [school].  In every class, Stephen was well prepared and his . . . lesson plans allowed for all students to be involved and all ability levels were challenged.
Stephen’s classroom discipline and demeanour was outstanding and his professional relationships with the staff was outstanding.
An excellent start to his secondary teaching career.
57	As indicated by his responses to the VIT and the Tribunal and as confirmed at the hearing, Gailunas did not accept there was a connection between the criminal conviction and his suitability to teach, particularly where he ‘vehemently’ denied the charges and maintained that, had he had his diary records, he would have been proven innocent. 
58	In his evidence before us, Gailunas stated that he did not have ‘the time or inclination’ to create false email addresses or false learner’s permit numbers.  He explained he was extremely busy at the time (relating to the fact he was also working at the MRC) and was winding back the driving instructor work.  He later gave evidence he worked at the MRC on a casual basis and often worked five days a week.  He described the working hours which indicated there were eight hour shifts starting at 7am or 12 noon and he gave driving lessons after the day shift finished at 3pm.
59	He stated he had a diary at the time in which he recorded the student’s details including their name, address, licence number and voucher details.  He stated that, when he stopped giving driving lessons in around mid-2012, he ‘ditched’ the paper diary.  He confirmed he had no other records of the lessons he says he provided.
60	In his evidence-in-chief, Gailunas agreed that a teacher was required to lead by example and act as a role model.  He considered the conduct underpinning the criminal matters had no connection with him being able to teach, including teaching physical education.  While he said he accepted the process, he also stated he was ‘still astounded’ he had not been registered.  He reiterated his view that the VIT had a vendetta against him and further that it had blown ‘this one’ out of proportion.
61	In cross-examination, Gailunas was asked about the court processes in May 2016.  He explained his lawyer had advised him to refuse to enter a plea.  He was asked why he did not plead guilty if he vehemently denied he was guilty.  Gailunas said that was because he did not have evidence to back him up and so was advised not to enter a plea.
62	Gailunas was asked how he said the diary records would have helped prove he did give the lessons given VicRoads’ records showed some of the students did not exist (as we understood it, in the sense VicRoads’ database did not include them and/or their learner’s permit numbers).  Gailunas said he could not explain that.
63	As to the lessons themselves, Gailunas stated that the prospective students contacted him direct by telephone to arrange a lesson.  The lessons lasted for around 45 minutes and he said he gave around five to 15 a week.  
64	It was put to Gailunas that it beggared belief that each of the 171 students independently and coincidentally entered false data into the Program portal and then had lessons with him.  Gailunas was asked whether he could offer another explanation other than him having fabricated the data.  Gailunas maintained he did not do so and otherwise could not recall the details because he did not have the diary records and was exceptionally  busy at the time.  
65	We asked Gailunas to describe the process for how the lessons were provided under the Program.  His evidence was that, when the lesson commenced with a new student, he would physically take the learner’s permit from them and write the details into his diary.  If the student was attending a repeat lesson, he would do the same, provided they had not already used their voucher.  He told us he checked the learner’s permit because he wanted to check they were okay to drive.  He stated he saw every one of the students.
66	We asked about his earlier reference to the ATO.  Gailunas explained that he had originally worked for driving schools but then went out on his own.  He could not recall if he had a business tax file number or whether he had paid tax on his income.  He did not know if he had claimed expenses or depreciation for his Driving Instructor work.
67	Gailunas confirmed the CCO had largely been complied with but his back injury meant he could not meet all requirements.  As to the failure to answer bail charge, it was suggested that he failed to attend a police station in January 2018.  Gailunas said he could not remember. 
Written references 
68	At the conclusion of the hearing on 31 March 2023, there was a discussion about whether Gailunas wished to provide written references for us to consider.  He did and so orders were made allowing him until 24 April 2023 to do so and the VIT was given the option to make submissions in reply.  At Gailunas’ request, the time for him to provide any written references was extended to 8 May 2023.  As no written references were provided by that date, on 26 May 2023  the parties were advised that we would make our decision on the available material (which included the Tribunal Book and the evidence and submissions at the hearing). 
Angelique Mandilas’ evidence 
69	Angelique Mandilas (‘Mandilas’) is Gailunas’ former wife.  They have known each other since 2007 and separated in around 2015.  They have one child together.  Mandilas described their relationship as very amicable and she said she was very comfortable about saying what she knew.
70	Mandilas explained that she and Gailunas were living together at the time of the relevant events.  She believed he gave the driving lessons after he finished work at the MRC on various days.  She stated she saw how busy Gailunas was working at the MRC and then giving driving lessons.  
71	In her evidence in cross-examination, Mandilas confirmed that, at the time of the relevant events, she was looking after her young child, was not involved in the driving lessons arrangements and did not see Gailunas giving the lessons. 
72	Mandilas stated that she did not believe Gailunas had engaged in the criminal conduct.  She ‘categorically’ denied he had done the things of which he was accused and convicted.  Mandilas referred to computers being seized by police but being returned with no indication they showed the falsification of any documents.  Mandilas said she could not recall details about the criminal charges or conviction and could not recall if she attended the Magistrate’s Court.
73	Mandilas confirmed Gailunas had disposed of the records relating to the driving lessons in around mid-2012 because they were no longer needed. 
74	She described him as a kind and loving person who is well liked in the community and is amazing with children who all adore him.
75	Mandilas confirmed her former husband had denied committing the offences and she confirmed she understood it was the lack of documents which led to the conviction.  
Approach to the criminal matters
76	Our task is to make a fresh decision on the application for provisional registration and not to interfere with the findings of the Magistrate’s Court.
77	The VIT referred us to  the case of Secretary to the Department of Justice and Regulation v LLF (‘LFF’).  That was a case concerning how criminal convictions may be relevant to applications for review in the context of the Working with Children Act 2005 (Vic) (WSA).  The Supreme Court of Victoria, Court of Appeal said:
The parties were agreed as to the applicable legal principles.  The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not.  In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself.  In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
78	While this proceeding concerns the ETR Act rather than the WSA, the principles above are still relevant and meant that we considered it was for Gailunas to produce compelling evidence that the facts underlying the finding of guilt and conviction were open to challenge such that the decision as to his registration could be made with less emphasis on the criminal conviction.
Findings of fact 
79	We have not given particular attention to the charges concerning the breach of the CCO and the failure to attend in January 2018 as they appear to be connected with Gailunas’ back injury and his inability to comply with the CCO.
80	We have accepted that Mandilas is well placed to provide evidence about her former husband and we accept her characterisation of him in connection with children.  While we accept she does not believe her former husband committed the criminal conduct, it seemed she was not closely involved in the steps which led to the conviction and based her belief on Gailunas’ denials rather than her own consideration of the police evidence.  As a result, we cannot give any real weight to her beliefs, no matter how honestly they are held.
81	Having considered the evidence from the police brief and that given by Gailunas, we reject entirely Gailunas’ denial of the criminal charges and his claim that he was only found guilty because he could not produce records to show the lessons were given.
82	As is apparent from our description of the mechanics of the Program and the results of the police investigation, the entries relied on by Gailunas for payment were uniformly false.  Either the people named were not in the VicRoads database or they were not the holders of learner’s permits or the learner’s permit numbers were false.  As noted, some of the names attached to real permits were of organisations rather than individuals – self-evidently, a driving lesson cannot be given to a school.
83	In light of the police material, Gailunas’ own evidence that he took each learner’s permit from the student and checked it to ensure they were okay to drive must be false.  The permit details he said he recorded (along with names and addresses) for the students he claimed were in his vehicle being given a driving lesson either did not match or did not exist. 
84	As set out earlier, while the police investigation found that Gailunas gave a small number of lessons for which he was appropriately paid under the Program, police concluded that it was ‘impossible’ for him to have given the other 171 lessons.
85	We agree with the VIT’s submission that any diary records Gailunas might have held could not explain how 171 different people could have independently produced to him a learner’s permit which did not match their name (which he says he recorded) or was false.  
86	All a student could obtain through the Program was one free driving lesson.  While it could be imagined one or two people could decide to defraud the Program to obtain more than one free lesson, we agreed that it beggared belief that 171 people would take those steps and have lessons with Gailunas in the around a three month period.
87	Gailunas has not produced any evidence which demonstrates we should give lesser weight to the Magistrate’s Court’s findings of fact and the conviction it imposed.  The evidence before us confirms that the conviction was soundly based on the evidence presented.
88	We reject Gailunas evidence to the effect the charges were only proven because of a lack of records and that he was innocent.  We further find that his evidence before us about those matters was dishonest.
Has Gailunas produced evidence which satisfies us that he is suitable to teach?
Ability to teach 
89	As mentioned earlier, while we have noted Gailunas is registered in Queensland, we have no information about the considerations applied at the time and so have regarded that as a slightly positive factor in Gailunas’ failure. 
90	Having regard to the available evidence, we make plain that we had no concerns about Gailunas’ ability to teach.  As described his teacher training placement reports were exemplary and we accept he is currently employed to teach in Queensland with no indication of any issues there. 
91	We do have significant concerns, though, about Gailunas’ character, his past criminal conduct and the way he now views that conduct.
The applicable law 
92	The phrase ‘suitability to teach’ appears in section 2.6.9(2)(f) of the ETR Act  and, in respect of a person means:
(a) whether the person is fit to teach; and
(b) whether the person is physically or mentally able to teach;
93	The concept of fitness to teach in respect of a person is defined to mean:
whether the character, reputation and conduct of a person are such that the person should be allowed to teach in a school or in an early childhood service;
94	When considering whether a person is fit, in terms of character, reputation and past conduct, the concept of ‘fit and proper’ is of assistance.  The following come from Australian Broadcasting Tribunal Bond (‘Bond’), and Sobey v The Commercial Private Agents Board (‘Sobey’) respectively:
The expression ‘fit and proper person’ standing alone carries no precise meaning.  It takes its meaning from the context, from the activities in which the person is or will be engaged and the ends to be served those activities.  The concept of ‘fit and proper’ cannot entirely be divorced from the conduct of what person who is or will be engaging in those activities.  However, depending on the nature of the activities, the question may be whether the improper conduct has occurred, whether it is likely to occur, or 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 the character because it provides an indication of the likely future conduct or reputation, because it provides an indication of the perception as to likely future conduct, maybe sufficient to ground a finding is not a ‘fit and proper’ person to undertake the activities in question.
And 
I think all I need say is that in my opinion what is meant by the expression is that an applicant must show not only that he is possessed of the required knowledge and duties of a responsibilities devolved upon him as the holder of a particular licence under the Act and also that he possesses sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public without further enquiry as a person entrusted with the sort of work which the licence entails.
95	We have adopted the same approach to our task as was described in Salter v Victorian Institute of Teaching (‘Salter’).  In that case the Tribunal carefully considered the relevant criminal charges which were not connected with teaching and the steps the teacher had taken to rehabilitate herself.  The Tribunal was satisfied that the teacher had demonstrated a sufficient change in character, accompanied by remorse and insight into her past offending and the circumstances which led to that offending and directed that she be registered.  
96	We consider the concept of fit and proper as discussed in Bond and Sobey above is to be applied to our consideration of section 2.6.9(2) of the ETR Act including when considering Gailunas’ suitability to teach.  That assessment is to be made within the context of the teaching profession.  It is well understood that the assessment may be made having regard to matters outside teaching if they go to the question of character and suitability for the particular profession.
97	The concept of ‘good character’ has been described as follows: 
‘good character’ is not a summation of acts alone but relates to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situation accompanying that behaviour.
98	The VIT referred us to the NSW Court of Appeal’s decision in McBride v Walton  (‘McBride’) which involved the assessment of a medical practitioner’s character where that practitioner had been involved in research/academic dishonesty.  That Court approved the following as factors relevant to the assessment of a person’s character (adapted below to take account of the fact that Gailunas is seeking to be registered as a teacher):
(a)	Whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
(b)	The intrinsic seriousness of the misconduct and its relevance to teaching;
(c)	Whether the misconduct should be viewed as an isolated episode or whether it is characteristic of the practitioner;
(d)	Any motivation which may have given rise to the proven episode of misconduct;
(e)	Underlined qualities of character shown by other acts of misconduct; and
(f)	Whether the practitioner’s conduct after the proven episode of misconduct demonstrates that the public and professional confidence may be reposed in him to uphold and observe the high standards required of a teacher.
Submissions 
99	We record that, in the course of the hearing before us, Gailunas confirmed that he agreed honesty, integrity and compliance and respect for the law were important requirements for teachers.  We further record that, as at the time of the hearing, there had been no other criminal charges or findings against Gailunas and there was nothing before us to suggest he had otherwise breached the law whether in connection with the teaching profession or elsewhere.
100	Gailunas relied on the evidence he had given to say he ought to be granted registration.  In his closing remarks, he stated that he ‘steadfastly’ denied the criminal charges.  He maintained the VIT had some sort of vendetta against him.
101	The VIT submitted we ought to consider the McBride factors in the following way.
102	First, it submitted that the questions posed by paragraphs (a) and (c) are whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character, and/or should be viewed as an isolated episode or whether it is characteristic of Gailunas.  It contended that, having regard to the length of time over which the offending conduct occurred, the Tribunal might consider the offending conduct demonstrative of a defect of character, rather than an error of judgment or isolated episode.
103	Second, it submitted that the question posed by paragraph (b) relates to the intrinsic seriousness of the misconduct and its relevance to practising as a teacher.  It contended that honesty and integrity are intrinsic requirements for registration as a teacher and that the offending conduct demonstrates an absence of those qualities.
104	Third, related to paragraphs (a) and (b), it submitted that paragraph (d) relates to any motivation which may have given rise to the proven episode of misconduct.  It contended that Gailunas had given no explanation as to the motivation for his misconduct which was either credible or consistent with the objective evidence.
105	Fourth, it submitted that paragraph (e) relates to the underlying qualities of character shown by other acts of misconduct.  The VIT submitted that, if the Tribunal was satisfied that Gailunas had not been forthright in his responses to the Institute and/or the Tribunal in respect of the offending conduct, that might be considered further misconduct evidencing a lack of honesty and integrity.
106	Fifth, it submitted that paragraph (f) directs consideration to whether the practitioner’s conduct after the proven episode of misconduct demonstrated that the public and professional confidence may be reposed in him to uphold and observe the high standards required of a teacher. The VIT contended that the matter set out concerning paragraph (d) above were equally relevant to that factor.
107	The VIT also submitted that Gailunas had not met the heavy burden referred to in LLF in respect of the criminal convictions.  While he disputed the police material relied on for the conviction being imposed, he did not produce any material or propose any persuasive basis on which his records could explain how he had innocently claimed payment for 171 separate students’ driving lessons in a three month period when their details were either inconsistent with the VicRoads’ records or did not exist. 
108	The VIT submitted that the Tribunal ought to proceed on the basis of Gailunas’ criminal conviction and find that he had not reclaimed his character in the way described in Salter.  Further it submitted that he had misled the VIT and this Tribunal by continuing to deny the conduct.
109	While the VIT conceded that there was not a direct link between the criminal conviction and the wellbeing and safety of children, it contended Gailunas had not demonstrated the honesty and integrity which was said to be critical to a teacher’s fitness and suitability to be registered.
Decision
110	We agree with the VIT’s submissions.
111	Given Gailunas appears to have engaged in the offending conduct 171 times, it cannot be seen as a one of error of judgment or as isolated conduct.  We consider the criminal conduct demonstrated a defect of character in that it constituted dishonesty and a fraudulent abuse of public funds.  It also demonstrated a failure to respect and adhere to the law which indicates a lack of integrity at that time.  As discussed, there are no possible explanations for the conduct except that Gailunas deliberately took steps to obtain property (each $55 payment) by deception to benefit himself. 
112	We were surprised that it appeared Gailunas had not made the compensation payment or paid the $3,000 fine.  If correct, that conduct also suggests a disrespect for the law.
113	Gailunas submitted that the criminal conviction was not relevant to or connected with teaching.  We disagree.
114	The Victorian Teaching Profession’s Code of Conduct (‘Code of Conduct’) and the Victorian Teaching Profession’s Code of Ethics (‘Code of Ethics’) describe the expected values and provide a set of behaviours that affirm the public accountability of the teaching profession and promote public confidence in the teaching profession.  
115	The Code of Conduct makes it plain that the personal conduct of a teacher will have an impact on the professional standing of that teacher and on the profession as a whole.  It states that teachers are expected to respect the rule of law. 
116	The Code of Ethics focus on the values which underpin the profession: integrity, responsibility and respect.  Integrity includes behaving in ways that respect and advance the profession.
117	It is understood that teaching is a profession of trust and that teachers occupy a position of power over their students.
118	These are not high concepts unconnected with day to day teaching.  
119	Teachers are often called upon to properly manage school property, school programs and activities.  They may be required to hold student belongings while they undertake sport or other activities.  They may have control over school funds.  It is essential that the students, their parents and the school community are confident those responsibilities will be discharged with honesty.
120	Secondary teachers have particular responsibilities to respond appropriately to the challenges their students might face within and outside the school grounds.  They can be the repository of extremely sensitive information about a student or their family or other circumstances.  They must be able to be trusted with maintaining the integrity of that information, with dealing with it sensitively and using it appropriately at all times.   
121	There are many legal obligations for teachers to comply with: occupational health and safety requirements and mandatory reporting obligations are examples.  Respect for and compliance with the law are necessary and essential to the proper discharge of the trust placed in teachers and their position of power.  
122	The criminal conviction cannot be regarded as a  distant or purely historical event when it comes to the grant of registration.  While it appears that no students were directly impacted (given they did not actually receive driving lessons from Gailunas), he used his experience and training in a branch of teaching to execute the criminal conduct.  Contrary to his submissions and given all that occurred, we do not accept that Gailunas’ experience in that field assists him in this matter.
123	We have already stated that we rejected Gailunas evidence before us as to the offending and have concluded that evidence was dishonest.  A lack of candour in respect of a past criminal conviction is deeply concerning and does not indicate a character which warrants the privilege of registration by a regulator.  Self-evidently, Gailunas has not demonstrated insight or remorse for his conduct other than to regret not retaining his records. 
124	We were concerned that Gailunas referred to the criminal charges of which he was convicted by use of quotation marks as if to suggest they were not real.   
125	We were also concerned that, despite his background in corrections, he did not take seriously the fact that the Magistrate’s Court had found on the evidence before it that the offence had been proven beyond reasonable doubt (the criminal standard). 
126	There was no foundation for Gailunas’ assertions that the VIT had a vendetta against him.  In light of the material before us, we considered his position to be misguided and another form of denial.  It was his actions which led to the VIT’s decision, not some conspiracy.
127	We found Gailunas’ acts and motives in connection with the Program to have been dishonest.  Given his continued denials, we found he did not have a character which is founded on honesty and integrity and so was not a fit and proper person. 
128	For those reasons, we have found Gailunas has not produced evidence which satisfies us of his suitability to teach. 
Is Gailunas’ character such that it would not be in the public interest for him to teach in a school? 
129	As set out earlier, under the ETR Act, registration may be refused if the character of the relevant applicant is such that it would not be in the public interest to allow the applicant to teach in a school, including because of category C conduct (sections 2.6.9(2)(a) and (c)(ii) of the ETR Act). 
130	For the reasons given above, we do not consider Gailunas’ character is such that he should be registered as a teacher.  
131	The primary public interest when considering registration decisions is the wellbeing and safety of children.  While we have no concerns about children’s wellbeing and safety, we do not consider registration would be consistent with community expectations.  That is because we do not consider the community would be satisfied that a teacher who has engaged in serious criminal offending and who continues to deny the offending will have the requisite respect for the law.
132	It is clear that there is a significant personal and public interest in allowing people to undertake work in a profession in which they are qualified and have a demonstrated capacity to undertake.   
133	In this case, while Gailunas clearly has the ability to offer a great deal to schools and students, for the reasons given above, the balancing of that aspect of the public interest does not fall in Gailunas’ favour on character grounds.
134	Accordingly, we were satisfied it would not be in the public interest for Gailunas to be allowed to teach at this time.
135	We say ‘at this time’ because Gailunas may in future seriously reflect further on the matters discussed in these Reasons and be able to demonstrate he is suitable to teach.  That is a matter entirely for him.

A Dea
Senior Member and Presiding Member		P Gysslink 
Member