Bizarre loophole saves Port Stephens sports teacher from jail despite having sex with student
ATTORNEY-GENERAL Mark Speakman is scrambling to close a bizarre legal loophole that allowed a teacher to escape jail after engaging in a sexual relationship with a 17-year-old student because she wasn’t in his class or directly under his supervision.
NSW
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A TEACHER who had sex with a 17-year-old student three times did not break the law because the girl was not in his class at the time.
That is the controversial ruling of the state’s highest court, which upheld a decision in the teacher’s favour at an earlier court hearing.
The Daily Telegraph can today reveal Attorney-General Mark Speakman is now scrambling to close the bizarre legal loophole that allowed the teacher to escape up to four years in jail.
In the first case of its kind in the country, the Court of Criminal Appeal upheld a decision to permanently stay a prosecution against the 49-year-old Port Stephens sports teacher because the teenager was not legally under his care at the time, given that he was not her teacher when they began their sexual relationship.
The teacher — who can only be identified as PJ — was originally charged with three counts of having sex with a person between 17-18 under his “special care”.
Under NSW law, the age of consent is 16. However, it is an offence to have sex with someone between 17-18 if you are in a supervisory or guardian role.
She gave him her phone number and shortly afterwards the respondent texted the complainant to arrange a meeting at his home
This charge carries a penalty of up to four years in jail. The Crown case was that the girl had sex with the sports teacher twice at his home and once on a bed in the back of his van in September and October 2015.
The girl had been taught by the sports teacher between 2011-13, however he was not her teacher in 2014 or 2015, when the sexual relationship occurred.
The court judgment stated that in 2015, when the girl was in Year 12, the pair would speak in the playground.
“In September of that year, the respondent told the complainant that he was sexually attracted to her,” the judgement reads.
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“She gave him her phone number and shortly afterwards the respondent texted the complainant to arrange a meeting at his home.
“Sexual intercourse constituting the first two counts occurred on that occasion.”
The pair met up again the next month at a park near the girl’s home.
“The respondent tried to initiate sexual activity but the complainant resisted and left,” the judgement states.
The teacher texted the girl again in late October asking if they could meet because, “he needed someone to talk to”.
“The respondent arrived in a van containing a bed. Sexual intercourse took place in the respondent’s van.”
The teacher’s case in the District Court argued that the Crown had failed to prove there was a “temporal connection” between the pair when they began their sexual relationship. The Crown argued that the personal relationship between the pair had arisen in the man’s role as her teacher two years earlier and even if she was not in his class at the time, “it continued to bring the complainant under his special care”.
District Court Judge Tanya Bright ruled in favour of the defence, agreeing the girl needed to be under the “sporting instruction” of the teacher at the time for a crime to have occurred.
The CCA judgment summarised Judge Bright’s conclusions as “the complainant took no such instruction from the respondent at the time of the alleged offences and had not done so for a number of years. An essential ingredient of the charge was therefore lacking in proof.”
The CCA upheld Judge Bright’s ruling stating that, “criminal liability does not arise unless sexual intercourse takes place while that position of authority is being exercised by way of the provision of instruction.”
Mr Speakman last night said he was “aware of the case” and was “considering proposals for legislative change to better protect students at school”.
An Education Department spokesman said the teacher was no longer working in education. “While this is subject to assessment and possible investigation this person won’t be returning to any school.”