Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Khattab v Chief Executive Officer, Public Safety Business Agency

 

[2016] QCAT 274

CITATION:

Khattab v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 274

PARTIES:

Ziddane Khattab

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML061-16

MATTER TYPE:

Childrens matters

HEARING DATE:

21 July 2016

HEARD AT:

Maroochydore

DECISION OF:

Member Clifford

DELIVERED ON:

11 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 2 February 2016, to issue a negative notice to Ziddane Khattab, is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BLUE CARD - where negative notice issued – where serious offence – where applicant young adult – where victim a young person  - where history of other offences - where last offence just over two years – whether exceptional case - where protective factors insufficient - where satisfied exceptional case not established. 

Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492

Carr v Chief Executive Officer, PSBA [2016]

QCAT 106

Green v Chief Executive Officer,

PSBA [2015] QCAT 299

Jennifer Mountford v Chief Executive Officer,

PSBA [2014] QCAT 485

Commissioner for Children and Young People

and Child Guardian v Ram [2014]  QACTA 27

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

APPEARANCES and/or REPRESENTATIVES:

APPLICANT:

Dr Michael Fitzgerald, from Dr Martine Marich and Associates, Melbourne

RESPONDENT:

John Thompson of Counsel, representing the Chief Executive Officer, Public Safety Business Agency.

REASONS FOR DECISION

Background

  1. [1]
    Zaddine Khattab is a 22 year-old man who lives with his mother on the Sunshine Coast. Prior to mid-2012 Mr Khattab resided in Victoria with his father and brother.
  2. [2]
    Mr Khattab has a criminal history in Victoria and Queensland that includes the ‘serious offence’ of robbery. The offence was committed in Victoria on 15 April 2012. Mr Khattab pleaded guilty to the offence in the Melbourne County Court on 29 January 2014 and was convicted and fined $2,000.00.
  3. [3]
    Mr Khattab has been also been charged with other offences, which include driving and vehicle offences, and theft from a motor vehicle in Victoria in early 2013, and the unauthorised dealing with shop goods and stealing in Queensland in August and December 2013 respectively. Mr Khattab was fined and no conviction recorded for these matters. Mr Khattab was also charged in Queensland with unlawful possession of weapon Category M, (pick axe) on 5 April 2014 for which he received a fine, with no conviction recorded.
  4. [4]
    In 2015 Mr Khattab applied for a Blue Card so that he could undertake the practical placement elements of the Primary Education degree in which he was enrolled at the University of the Sunshine Coast.  On the 2 February 2016 the Respondent issued Mr Khattab a ‘negative notice’. Mr Khattab sought review of this decision with the Tribunal.

Legal framework

  1. [5]
    The Working with Children Act 2000 prescribes what decisions of the Chief Executive Officer, Public Safety Business Agency are reviewable, which persons may apply for review and what the Tribunal may or may not do in relation to the review.[1] The Queensland Civil and Administrative Tribunal (QCAT) Act provides that when the Tribunal considers a review application, it hears the matters afresh and decides the matter on its merits. The purpose of the review is to produce the correct and preferable decision. The QCAT Act provides that Tribunal may either confirm the decision of the Chief Executive Officer, or set it aside, and substitute it with its own decision, or return it to the Chief Executive Officer with appropriate directions.[2]
  2. [6]
    When undertaking a review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. The principles for administering this law are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[3]
  3. [7]
    The Working with Children Act in essence establishes a management and screening process whereby a person wishing to work with children must obtain a ‘positive notice’ or as it is commonly referred a ‘Blue Card’ to do so. Police records are obtained and assessed. The applicant has an opportunity to reply to any police record. The law provides that Applicants with non-serious convictions or charges are to be issued with a positive notice unless the Chief Executive Officer is satisfied that an exceptional case is made, in which it would not be in the best interest of children to issue a positive notice. However ‘disqualifying offences’ disqualify a person from applying for a Blue Card, and ‘serious offences’ require the Chief Executive Officer to issue a negative notice unless an exceptional case is made out, in that it would not harm the interest of children to issue a positive notice. Mr Khattab’s application is captured by this provision.[4]
  4. [8]
    The Working with Children Act does not define what an exceptional case is, however, the Queensland Court of Appeal in the matter of Maher & Anor,[5] provided some guidance when stating it is one that takes the case outside the normal rule and thus makes it an exceptional case.  The Court also applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case-by-case basis and having regard to the statutory considerations.[6]

Evidence and material considered

  1. [9]
    In considering this matter the Tribunal relied upon Mr Khattab’s oral testimony and submissions, his application, supporting documents and references to the Agency; his application, supporting documents and references to the Tribunal, and a Psychological Report prepared by Amber-Lee Johnstone, Psychologist. The Tribunal also relied upon the Respondent Reasons for Decision and supporting documents, original application and supporting documents, and oral submissions.
  2. [10]
    The Tribunal also considered the oral testimony of Ms Johnstone and Mrs Khattab, the Applicant’s mother.
  3. [11]
    Mr Khattab’s representative also tendered ‘Sentencing comments’ dated 29 January 2014 (Exhibit 1) and ‘Prosecution Summary’ dated 29 January 2014 (Exhibit 2). The Tribunal also gave consideration to these documents in deciding the matter.

Issue – Is Mr Khattab’s an exceptional case, whereby the issuing of a positive notice would not harm the welfare and best interest of children?

  1. [12]
    Firstly, in relation to the statutory considerations.  It is undisputed that Mr Khattab was convicted with a serious offence (robbery) as defined by the Working with Children Act.[8] The Respondent was therefore required, unless an exceptional case was made out, to issue a negative notice. The serious offence occurred in April 2012 and Mr Khattab pleaded guilty to the offence in January 2014. The victim was 16 years old and so the offence is directly relevant to employment that may involve children.  Mr Khattab was fined $2,000.00. His Honour Maidment J, in sentencing remarks stated: Yes, but for your plea of guilty to this matter, I would have sentenced you to imprisonment for 18 months, with a non-parole period of 12 months. You need not worry too much about that, it is just that I have to declare that as the sentence you would have received if you pleased not guilty.[8]
  2. [13]
    Furthermore, Mr Khattab has a number of other offences that are not classified as disqualifying or serious offences, but which the Tribunal has considered relevant to the assessment of Mr Khattab.[9] These include vehicle offences, stealing, unauthorised dealing with shop goods and unlawful possession of a weapon. These offences go to Mr Khattab’s maturity, general attitude towards the law and to his honesty and level of insight.
  3. [14]
    The Tribunal received no information or reports in relation to Mr Preradovic as described under section 226 (2) (b) (c) or (d) of the Working with Children Act.

Circumstances of the serious offence

  1. [15]
    Mr Khattab provided two written submissions and a Life History. Mr Khattab also gave oral testimony. Mr Khattab was 18 years of age at the time of the robbery offence. Mr Khattab testified that he and others had been to a party and around 2 or 3 in the morning, (15 April 2012) he and 3 others were travelling in a car along a road when one of the passengers, Hugh, (a 17 year old youth who Mr Khattab described as a ‘violent’ and  ‘sick person’ and who did not care about the public, only himself) asked for the car to pull over so that he could go to the bathroom. Mr Khattab testified that he then saw Hugh with a wheel brace in his hand and was walking towards a person named Adam, yelling. Mr Khattab testified that the wheel brace is ordinarily in the car, and that he was unaware Hugh had taken it when he got out of the car. Mr Khattab testified that he jumped out of the car to stop Hugh doing anything and told him ‘don’t hit him”. Mr Khattab testified Hugh had already taken Adam’s phone by that time. Mr Khattab further testified that Hugh left the phone in the house where they were staying and that he returned the phone the following day, via a friend, as he had recognised Adam as the younger brother of an acquaintance’s sister’s boyfriend. Mr Khattab testified that he then went to the Police to report the incident, as he wanted Hugh punished. Mr Khattab testified that he didn’t think he had done anything wrong and was ‘very surprised’ when he was charged. Mr Khattab confirmed he pleaded guilty to the offence of robbery (29 January 2014) and that he had the advice of legal representation.
  2. [16]
    The Prosecution Summary for the Plea, in essence repeats Mr Khattab’s version of events, however expands in relation to post-offence events, whereby others with whom Mr Khattab met up with later gave statements that they were not happy about the phone being taken and that they wanted it given back. One person also referred to Mr Khattab and the co-accused bragging to friends the morning that they had stolen the phone. The Prosecution Summary further notes Mr Khattab assisted in having the phone returned, undamaged but missing the SIM card the following evening, and that Mr Khattab went to the Police at 11.30 pm on 19 April 2012 to tell them of his involvement in the offence.[10]
  3. [17]
    The Prosecution Summary for the Plea, also notes that Hugh, the 17 year-old co-accused was charged with and pleaded guilty to armed robbery in the Melbourne’s Children Court on 15 April 2013. He received an adjourned undertaking to be of good behaviour for a period of 8 months without conviction in the amount of $450.00.[11]
  4. [18]
    In the Sentencing Comments Maidment J, noted It seems to me, plain enough that although you played a role in this offence, and have properly pleaded guilty to it, that your co-offender who was dealt with in the Children’s Court, played the more significant role in the offending conduct and indeed, pleaded guilty to the offence of armed robbery, as distinct from robbery simplicita to which you have pleaded guilty.[12] His Honour further noted Mr Khattab’s good family support and good prospects of rehabilitation and settling down to a productive working life. Although His Honour also noted it was ‘disturbing’, that despite the ‘warning shot’ that being apprehended and charged with serious offences, Mr Khattab had committed further offences since he moved to Queensland. [13]

Other offences

  1. [19]
    As noted above Mr Khattab has other offences that took place in Victoria prior to the serious offence of April 2012. These relate mostly to vehicle offences for which Mr Khattab was fined without conviction.
  2. [20]
    Mr Khattab testified that ‘within a couple of weeks’, of the serious offence taking place, he moved to Queensland to live with his mother ‘before something worse’ could happen. This was around mid-2012.
  3. [21]
    On 30 September 2013 at Maroochydore Magistrates Court and 21 January 2014 at Noosa Magistrates Court, Mr Khattab was fined, with no convictions recorded for stealing offences that took place on 7 August 2013 and 18 December 2013 respectively.  Mr Khattab testified that the earlier offence related to stealing two bottles of alcohol when he was with ‘University friends’, and the second offence was ‘bad decision-making’. These offences were noted by to Maidment J, in the Sentencing Comments at the time of the sentencing for the serious offence on 29 January 2014.
  4. [22]
    On 8 May 2014 at the Maroochydore Magistrates Court Mr Khattab was fined, with no conviction recorded for the Unlawful Possession of Weapons Category A, B or M on 5 April 2014. In relation to this offence Mr Khattab testified that early one morning he was walking along the road with two others to go crabbing when Police stopped them. Mr Khattab testified that he had an around 30 cm ‘tommy-hawke’ tucked into his shorts, as he had no pockets. Mr Khattab testified that when he disclosed the tommy-hawke to the Police he told them that he had found it. Mr Khattab testified he said that because he was ‘scared’ and didn’t think the Police would believe him that he used it for crabbing, and also because he ‘knew shouldn’t have had it’. Mr Khattab testified however that he had had the tommy hawke for a while. Mr Khattab had no other crabbing gear with him.
  5. [23]
    The Queensland Police Court Brief[14] in relation to this matter outlines that during a mobile patrol at 04.25 a.m. on 5 April 2014 male persons were observed walking down a road and appeared to move away quickly when observed by Police. The Court Brief records all appeared nervous and could not provide a clear story about what they were doing. All consented to a voluntary search. Prior to the search all answered ‘No’ when asked if they had anything to declare. During the search of the defendant (Mr Khattab) declared ‘oh I actually have this’ and lifted his shirt up and exposed, and proceeded to pull a pick-axe from out of his trousers.  The Court Brief further notes Mr Khattab was taken to the Police Station where he stated he had earlier found the item while he had been walking, and knew he should not have had it and therefore tried to hide it from the Police.  The Court Brief further notes Mr Khattab declined to be formally interviewed and was subsequently issued a notice to appear.

Mr Khattab’s current circumstances, risk and protective factors

  1. [24]
    The Tribunal has taken the approach of considering relative risks and protective factors when deciding whether a particular case is an exceptional case. The Court of Appeal in Maher and Anor accepted this approach as one way of deciding whether an exceptional case is made out.
  2. [25]
    Mr Khattab is currently 22 years old and testified that he is working long hours as a brick and block layer.  He lives with his mother on the Sunshine Coast. Mr Khattab states that he ‘feels ashamed’ of what he has done and that the incidences have ‘taught me a lesson’ and ‘definitely changed me.’ Mr Khattab states that he keeps himself busy with work and sport, and is not thinking of any ‘deviant activity’. Mr Khattab states he has changed his social group and he testified that he does not take drugs and only drinks occasionally.  Mr Khattab advised that he has deferred his enrolment from the Primary Education degree he was undertaking when he applied for the Blue Card.
  3. [26]
    In his Life History and at hearing, Mr Khattab stated that the offences took place when he had big changes in his life, such as moving from a multicultural city school to a regional school where he was the only ethnic minority and where, he opined, the teachers weren’t as committed.
  4. [27]
    Mr Khattab stated that he got caught up with the wrong group and that he just started hanging around, wasting life, doing nothing positive, smoking cigarettes, going to parties, driving around and occasional drinking. Furthermore Mr Khattab advised that around the same time he was also diagnosed with ADHD[15] and depression and anxiety[16].
  5. [28]
    Mr Khattab’s reflections on the impact of the serious offence and tommy-hawke incidents were that, firstly, Adam would have been scared for his life and safety and that the incident would have been traumatic on him. Mr Khattab further opined that if he took the tommy-hawke to school, children might be scared by it, or they could hurt each other or themselves with it.
  6. [29]
    Mrs Umi Khattab provided two reference/statements and appeared at the hearing of review. Mrs Khattab outlined Mr Khattab’s early life, being born in Malaysia, migrating to Australia, schooling in Australia, regular travel to and from Australia and Malaysia during the long periods of time she was based there working, whilst Mr Khattab remained with his father and brother in Victoria. Mrs Khattab described encouraging Mr Khattab in a variety of sports to deal with his early child hyperactivity. Mrs Khattab advised Mr Khattab was very close to her and more candid with her than he is with his father. Mrs Khattab opined Mr Khattab was emotionally affected when she was away for work. Mrs Khattab stated that she and her husband always encouraged their sons to undertake tertiary education, but later reflected on the effect of parental pressure. Mrs Khattab described the period of criminal activity undertaken by her son as ‘nightmarish’ and testified that such events ‘had never happened’ in their family. Mrs Khattab opined her son seemed troubled, with low self-esteem, felt resentment and competitive towards his high achieving brother, and had a difficult relationship with his father.  Mrs Khattab opined a confluence of negative factors, such as moving schools, and that peers were a major influence when he made poor decisions.
  7. [30]
    Mrs Khattab testified that Mr Khattab, who has lived with her in Queensland for the last 5 years, has ‘changed dramatically in the last 2 years’, that he has one good friend, that he works hard leaving the house early and sometimes working on weekends. Mrs Khattab advised Mr Khattab is involved in many outdoor activities including, kickboxing, gym, crabbing and fishing. Mrs Khattab stated that at times she and Mr Khattab argue, and that is usually because she has checked his room. Mrs Khattab indicated she is always very concerned about drugs and alcohol. Mrs Khattab testified that she has never seen her son drunk.
  8. [31]
    Mrs Khattab stated Mr Khattab has apologised many times for his past behaviour and stated that he is generous, helpful and a caring person towards his friends. Mrs Khattab testified that she was surprised and delighted when Mr Khattab indicated he wanted to work with children and undertake tertiary studies. Mrs Khattab stated Mr Khattab was good with children and played with friends’ children when they visited. Mrs Khattab indicated that they were aware Mr Khattab would need a Blue Card when he enrolled in his course. Mrs Khattab testified he was ‘very very devastated’ when he received a negative notice.
  9. [32]
    Mrs Khattab testified that she was very surprised about the weapons offence, and that Mr Khattab did not tell her about it until 2 days before the Court date. Mrs Khattab testified Mr Khattab was afraid of the Police, but testified she was not sure why he should be, except that he was aware Police had gone to their home in Victoria looking for him when he wasn’t living there and had been disrespectful towards her husband.
  10. [33]
    Amber-lee Johnstone, Psychologist, assessed Mr Khattab for the purpose of the review and provided a Report dated 10 May 2016. Ms Johnstone attended the hearing for examination by telephone. Ms Johnstone’s 17-page report outlined her qualifications, sources of information and the background to the matter. Ms Johnstone also outlined family, personal, educational and employment history along with clinical observations, medical, physical, substance use and forensic history. Ms Johnstone undertook a number of psychometric assessments and outlined reliability and results in detail.    At hearing Ms Johnstone clarified the information and basis of the psychometric assessment and some results.
  11. [34]
    Ms Johnstone opined in her report that ‘It appears since being charged with robbery and weapons offences, Mr Khattab has made significant strides in regard to shifting his life into a positive direction. He has eliminated pro-criminal peers, as well as engaged in study, employment and organised recreational activities. He does not appear to possess underlying anti-social attitudes or violence facilitating cognitive scripts and seems emotionally stable, with no underlying psychopathology noted at present.’
  12. [35]
    In conclusion Ms Johnstone noted, that ‘Mr Khattab has a reasonable level of insight into his offending behaviour. While he does have a tendency to focus on influence of his peer relationships, …he was able to also identify general lifestyle factors, the need for social interaction/acceptance and a lack of consequential thinking as factors that contributed to his offences. That being said Mr Khattab does tend to minimise the offences and his responsibility. He is aware of and can describe the impact of his behaviour on others, although does not display any degree of emotionality in relation to this. …
  13. [36]
    Ms Johnstone further concluded that in relation to risk assessment perspective, ‘the only two factors that are present are his criminal history and minimisation of his offences’; however overall concludes Mr Khattab displays minimal risk factors for general re-offending and his risk of engaging in future offences has been assessed as very low. In regards to triggers, it appears the most notable are anti-social peers, mood dysregulation, social isolation and significant ‘unstructured time’….

Submissions

  1. [37]
    In oral submissions the Applicant’s representative submits in summary that Mr Khattab’s case is an exceptional case with a constellation of circumstances. The Applicant submitted that Mr Khattab’s youthfulness should be given much consideration as he was only 18 - 20 years during the offending period, a period that included upheaval, difficulty in fitting in, periods away from home, mother away working, not studying, diminished interest in sport, under employed and associating with a group of risk-takers with anti-social behaviour. The Applicant submits these circumstances are now absent, and the Applicant has matured and settled in life in a very short period.
  2. [38]
    The Applicant submits the weapons offence was for possession only, and that there was no evidence he intended to use in any unlawful way.  In relation to the serious offence, the Applicant submits that the offence was for Robbery in company, not armed, and the sentencing remarks indicate he was a secondary participant and the offence was less grave. The Applicant submits that whilst the victim was a 16 year old child, the co-offenders were 17 and 18 years of age, an the Applicant was sentenced as a young offender.
  3. [39]
    The Applicant relies on Ms Johnstone’s report that Mr Khattab has matured and accepted responsibility and that he is very low risk of re-offending.
  4. [40]
    The Applicant submits that a number of ‘Robbery in company’ cases have been found to be exceptional cases and that the offences involved actual violence[17] and that in another serious offence case[18] that included aggravation elements, use of a weapon and injury to the victim. Whilst noting distinguishing factors, the Applicant submits that Mr Khattab’s is an exceptional case.
  5. [41]
    The Respondent submits that the question for the Tribunal is whether this is an exceptional case, and relies on the appeal case of Ram[19], whilst noting it is not directly comparable, but shows that the presumption to be overcome has to be out of the ordinary, and not that which is reasonably expected to occur.  The Respondent submits the cases referred to by the Applicant are distinguishable because of the extended gap between the application and offending, being 14, 20 and 20 years earlier, and that the offences in the matter of Green occurred when the Applicant was a 13 year-old child.
  6. [42]
    The Respondent submits that it does not take issue with Ms Johnstone’s report and opinion that risk factors are now not present or minimised, and notes that Mr Khattab has support of a loving and engaged parent, that he is in full-time work and his leisure time is productively occupied. The Respondent submits however that the protective factors do not outweigh the risk factors to make this an exceptional case.  The Respondent submits the Applicant has been convicted of a serious offence, the offence occurred relatively recently, and notwithstanding the close ages of those involved, the victim was a 16 year-old child. The respondent also submits the Applicant has a criminal history of anti-social behaviour of various types and has demonstrated poor decision-making. The Respondent submits that whilst Mr Khattab has come a long way he minimises personal responsibility, and submits his evidence in relation to the weapons offence was less than compelling. The Respondent submits Ms Johnstone’s report suggests Mr Khattab is the author of his own misfortune. The Respondent submits Mr Khattab has not demonstrated his case is an exceptional case whereby it would not harm the best interest of children for the Applicant to be issued with a positive notice.
  7. [43]
    Furthermore the Respondent submits that if the Tribunal is of the view Mr Khattab has an exceptional case, then the Tribunal’s jurisdiction is limited to overturning the Respondent’s decision and that it does not have the authority to make an Order that a positive notice/Blue Card is issued, in accordance with the Working with Children Act.[20]  The Applicant had no submission on this point.

Consideration and conclusion

  1. [44]
    The principles of the Working with Children Act are that the welfare and best interests of a child are paramount; and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. Mr Khattab’s circumstances are captured by provisions that provide that given he has been charged with a serious offence, he should be issued with a negative notice unless the Tribunal is satisfied an exceptional case in which it would not harm the best interest of children for Mr Khattab to be issued with a positive notice.
  2. [45]
    Furthermore, when a positive notice/ Blue Card is issued, it is unconditional and transferable to enter into any field of child related occupation. It is not just issued for the purpose for which it was initially sought.
  3. [46]
    Mr Khattab is a young man of 22 years. Mr Khattab was born in Malaysia and moved to Australia during early childhood. The family settled in Melbourne but out of necessity Mrs Khattab lived apart from the family, working for long periods in Malaysia. Mrs Khattab visited regularly. Both parents are well educated, and Mr Khattab’s brother is also tertiary educated. During this period Mr Khattab and his father and brother moved to regional Victoria. This necessitated a change of school for Mr Khattab. Later Mrs Khattab returned to work in Australia but was situated in Queensland. The rest of the family remained in Victoria.
  4. [47]
    It is fair to say Mr Khattab has had a relatively disrupted family life. It was also said Mr Khattab was hyperactive as a young child and later, in early adulthood was diagnosed and treated for a short period for ADHD. It was between 2012 and 2014 Mr Khattab fell foul of the law, with vehicle, stealing, robbery and weapons offences in both Victoria and Queensland. Mr Khattab in essence claims that many of these offences occurred because he had gotten in with the wrong crowd, and that he was not sufficiently occupied, having lost interest in sport and was under employed.
  5. [48]
    Mr Khattab moved to live with his mother in Queensland in mid-2012 after he had been involved in a robbery and for which he ultimately pleaded guilty to in January 2014. This is a serious offence, and the victim was a minor, of 16 years. Under the law this event in itself causes a negative notice to be issued, unless Mr Khattab’s case is an exceptional case whereby it would not harm the best interest of children to issue him with a positive notice. This is a big hurdle for Mr Khattab as the appeal case of Ram, found that the fact that a person is now functioning in the community at a level expected of a person of his stage and age in life does not necessarily take a person outside of the ordinary course and establish an exceptional case.
  6. [49]
    The Tribunal was not convinced Mr Khattab’s recent path demonstrates an exceptional case. Whilst Mr Khattab has had no further charges or convictions for just over two years, the Tribunal is concerned a period of just over two years is a very limited period for a 22 year-old man to demonstrate an exceptional case. Mr Khattab, Mrs Khattab and Ms Johnstone state that Mr Khattab has matured in these two years. Whilst this may be true, there was no evidence that the level of maturation is over what would be reasonably expected for a young man between the ages of 20 - 22 years. Mrs Khattab, a very strong advocate for her son, testified that she continues to search Mr Khattab’s room, an issue over which they have arguments. This is not a demonstration that Mr Khattab’s very supportive mother believes that Mr Khattab’s level of maturity, is anything other than the ordinary. It suggests full trust to do the right thing has not been established between Mr Khattab and his mother. Whilst some may opine that that level of scrutiny may be considered the actions of an overly vigilant mother, Mr Khattab did not present to the Tribunal as a highly matured person, on the contrary he presented as a young man with little to say without prompting, and who responded to questions with little detail and clarity and who at times yawned and appeared disinterested in a proceeding that concerned his future plans.
  7. [50]
    Mr Khattab pleaded guilty to a robbery charge in January 2014. The Sentencing Remarks and the Prosecution Summary indicate that Mr Khattab was not the main protagonist in the offence. In sentencing Maidment J, noted all of Mr Khattab’s criminal history in both Victoria and Queensland, and ultimately sentenced Mr Khattab based on his plea, good prospects of rehabilitation and strong family support, with a fine and no record of conviction. However, His Honour found it ‘disturbing’ Mr Khattab had offended in Queensland after the robbery offence had taken place. But for the plea, His Honour noted he would have sentenced Mr Khattab to imprisonment for 18 months, with a non-parole period of 12 months. Clearly Mr Khattab avoided a much more serious sentence, however, notwithstanding this ‘warning shot’ less than a year later Mr Khattab was charged with the unlawful possession of a weapon. Mr Khattab lied to the Police about the weapon, he declined to be formally interviewed, and so was issued with a notice to appear. Mr Khattab informed his mother of this event two days prior to the Court proceeding. Mr Khattab was fined with no conviction recorded on 8 May 2014.  Mr Khattab testified that he was ‘scared’ of the Police and didn’t think the Police would believe him. Mr Khattab testified that Police still make him nervous, and stated a few are not friendly and that they had been disrespectful at times. Whilst the Tribunal acknowledges Mr Khattab may have felt nervous in the presence of the Police, particularly given his criminal record and at the time current circumstances, the Tribunal does not accept this as a reasonable excuse to not tell the truth when under pressure, and particularly if as described by Mr Khattab, that he was going crabbing may have proffered a lawful reason for him to carry the tommy-hawke.
  8. [51]
    The Tribunal acknowledges Mr Khattab has some protective factors in place. Mr Khattab is working as a brick and block layer, he is playing regular sports and has one main friend, who Mrs Khattab describes as a ‘good boy’ who comes to the house often. Mr Khattab testified that all the negative influences are in the past, and that he is more positive in general, and that he thinks calmly before acting. Mr Khattab has significant support from his very caring mother.
  9. [52]
    The Applicant relies on Ms Johnstone’s report. The Tribunal accepts the report and Ms Johnstone’s overall conclusion that Mr Khattab displays minimal risk for reoffending and his risk of future offences is assessed at very low. Ms Johnstone also concludes from a risk assessment perspective, the only two factors that are present are Mr Khattab’s criminal history and minimisation of his offences.
  10. [53]
    Ms Johnstone however describes Mr Khattab’s insight into his offending behaviour as at a ‘reasonable’ level. At hearing the Tribunal found Mr Khattab demonstrate bare insight into the impact his offending behaviour may have on children, morally, emotionally or physically, noting only that the victim in the robbery offence would have been scared for his life and safety, and it would have been traumatic. He didn’t offer any further insight for example, into the victim’s future issues of welfare, well-being or trust. And whilst Mr Khattab may be demonstrating insight at a level commensurate with his age and experience, he did not demonstrate any thing out of the ordinary course, and he did not exhibit exceptional insight that may have assisted his case.
  11. [54]
    The Applicant cited other cases where a ‘robbery in company’ offence was in play, and another case where a more serious offence took place, where the Tribunal found an exceptional case was made out, and submitted that given Mr Khattab’s circumstances were less serious, and he had changed, his case too could be decided as exceptional. Whilst the Tribunal accepts the circumstances in the cited cases involved more serious and violent offences, the statutory scheme does not itself distinguish levels of serious offences. It is the circumstances of individual cases that are considered in assessing whether an exceptional case has been made out. And whilst time alone, does not make a case exceptional, in the cases cited there was significant time between the offences and the Blue card applications spanning 14 – 20 years. What these delayed periods afforded Applicants in those cases was a greater opportunity, unlike in Mr Khattab’s case of a period of a little over 2 years since his last offence, to demonstrate that changes in their life and personal circumstances have not been ordinary, but were indeed exceptional, in that it would not harm the welfare and best interest of children for them to be issued with a positive notice. Mr Khattab’s circumstances, due in part to the relatively recent nature of his last offence and serious offence, and his current personal circumstances, has not persuaded the Tribunal that his is an exceptional case.
  12. [55]
    Overall, the Tribunal is satisfied that notwithstanding some protective factors Mr Khattab has in place, these factors do not at this time sufficiently take his case outside the ordinary and expected course of events to the exceptional case whereby it would not harm the welfare and best interest of children by issuing Mr Khattab a positive notice.
  13. [56]
    The decision of the Respondent of 2 February 2016 to issue Ziddane Khattab a negative notice is confirmed. The Tribunal orders accordingly.
  14. [57]
    In relation to the Respondent’s oral submissions concerning the Tribunal’s jurisdiction in these matters, given the Tribunal’s conclusion that this is not an exceptional case, the Tribunal has not made any decision on this point. Moreover, in light of the import of such a point the Tribunal would ordinarily have sought more detailed and written submissions before deciding this jurisdictional issue.

Order

  1. [58]
    The decision of the Chief Executive Officer, Public Safety Business Agency dated 2 February 2016, to issue a negative notice to Ziddane Khattab, is confirmed.

Footnotes

[1]  Working with Children (Risk Management and Screening) Act 2000 (Qld), sections 352 and 354.

[2]  Queensland Civil and Administrative Tribunal Act 2009 (Qld), sections 17 - 24.

[3]  Op.cit, Working with Children Act, sections 6 and 360.

[4]  Op.Cit; Working with Children Act, section 221.

[5]  Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[6]  Op.cit, Working with Children Act section 226 (2).

[7]  Op.Cit; Working with Children Act, section 167, Schedule 2.

[8]  Exhibit 1, last para, last page.

[9]  Op.Cit, Working with Children Act, section 226(2)(e).

[10]  Exhibit 2 paras 12-15, page3/5.

[11]  Exhibit 2 para 26, page 5/5.

[12]  Exhibit 1para 2 page 2.

[13]  Exhibit 1, pages 3 and 4.

[14]  Respondent Reasons for Decision pages PBSA 007-009.

[15]  Letters of Dr Wikitoria Puriri, Psychiatrist, (Qld) dated 1 May 2013 and 11 November     2015 confirms diagnosis and treatment for ADHD.  The letters were prepared for the     Heidelberg Magistrates Court, and the Blue Card application respectively.

[16]  Letter of Graham Hall, Psychologist, (Qld) dated 21 June 2012, notes diagnosis of Major Depressive Disorder, and Social Anxiety made on single assessment on 8 June 2012. The Letter further notes Mr Khattab failed to attend on follow-up appointment on 18 June, but that he rescheduled for 10 July 2012. The letter was prepared for court proceedings.

[17] Carr v Chief Executive Officer, PSBA [2016] QCAT 106; Green v Chief Executive Officer, PSBA [2015] QCAT 299.

[18] Jennifer Mountford v Chief Executive Officer, PSBA [2014] QCAT 485.

[19] Commissioner for Children and Young People and Child Guardian v Ram [2014] QACTA 27 para 47.

[20] Op. Cit; Working with Children Act sections 353 and 354.

Close

Editorial Notes

  • Published Case Name:

    Khattab v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Khattab v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 274

  • Court:

    QCAT

  • Judge(s):

    Member Clifford

  • Date:

    11 Aug 2016

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.