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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
O’Malley v Department of Justice and Attorney-General  QCAT 25
Shyanne Kathleen O’Malley
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
31 January 2020
26 July 2019
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – review of negative notice – review of a decision to issue a negative notice and cancel a blue card – where Applicant has a criminal history without any serious or disqualifying offences – where the charged offences involved trafficking in dangerous drugs – where the charge was reduced from trafficking to the supply of dangerous drugs – where the Applicant was employed in an adult shop and was instructed to sell synthetic drugs – where the Applicant received assurances from her employer that the sale of drugs was legal – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20
Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 167, s 221, s 226
Commissioner for Children and Young People and Child Guardian v Maher & Anor (2004) QCA 492
WJ v Chief Executive Officer, Public Safety Business Agency  QCATA 190
A Bryant, In-house Government Legal Officer of the Director-General, Department of Justice and Attorney-General
REASONS FOR DECISION
- Ms Shyanne Kathleen O’Malley (‘the Applicant’) applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’).
- The Director-General, Department of Justice and Attorney-General (‘the Respondent’), through Blue Card Services (‘BCS’), issued a negative notice under the WWC Act. That is, on 30 October 2018, the Respondent denied the Applicant her request for a blue card.
- The Queensland Civil and Administrative Tribunal (‘the Tribunal’) reviews the decision of the Respondent in these proceedings. The Tribunal does so in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The purpose of the review is to produce the correct and preferable decision.
- The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland and BCS does that through a scheme requiring the screening of persons employed in particular employment or carrying on particular businesses. That object has been extended to ‘… screen persons who work, or wish to work with children, to ensure that they are suitable persons to do so’. The Applicant does wish to work with children, and it was on that basis that she requested a blue card.
- The Respondent refused to issue a blue card because the Applicant had been involved in criminal activity. The Respondent conceded that, by reference to the WWC Act, the offending for which the Applicant was convicted does not constitute a ‘serious offence’, as defined in the WWC Act, and therefore the presumption is to find that the application is not exceptional. It was common ground that the Tribunal must find the case is exceptional to have the effect of denying the Applicant a blue card.
Charges and court history
- In accordance with disclosure obligations under the WWC Act, the Office of the Director of Public Prosecutions (‘the ODPP’) produced a letter dated 7 February 2019 addressed to BCS that provides a statement of the charges and court history associated with the alleged offending by the Applicant. It is produced below:
I am able to provide the following information relating to the defendant Shyanne Kathleen O'MALLEY:
On 23 May 2017 in the Brisbane District Court, the Crown presented Indictment 1130/17, charging the defendant with the following counts of offending:
Count 1: Trafficking in dangerous drugs, on dates unknown between 28 February 2014 and 15 January 2015, at Bundaberg and elsewhere in the State of Queensland;
Count 2: Possessing dangerous drugs, on 14 January 2015, at Bundaberg in the State of Queensland.
Discontinuance and Replacement
On 31 August 2017 in the Brisbane District Court, the Crown entered a nolle prosequi in relation to Indictment 1130/17 and presented replacement Indictment 1985/17, charging the defendant with one count of trafficking in dangerous drugs, between 28 February 2014 and 15 January 2015, at Bundaberg in the State of Queensland (count 1).
This occurred after the Crown sought to join a co-defendant from the same police operation on one indictment.
Further Discontinuance and Replacement
On 26 February 2018 in the Brisbane District Court, the Crown entered a nolle prosequi in relation to count 1 on replacement Indictment 1985/17 and presented a further replacement Indictment 356/18, charging the defendant with the following counts of offending:
Count 1: Supplying a dangerous drug, on 17 October 2014, at Bundaberg in the State of Queensland;
Count 2: Possessing a dangerous drug, on 17 October 2014, at Bundaberg in the State of Queensland;
Count 3: Possessing a dangerous drug, on 14 January 2015, at Bundaberg in the State of Queensland.
This occurred after the Crown received a defence submission to resolve the matter on one count of possessing a dangerous drug, rather than trafficking in dangerous drugs. After carefully considering the relevant and admissible evidence, the Crown determined that there were limited prospects of securing a conviction on a count of trafficking at trial. The Crown therefore determined that it would accept the defence submission. However, the Crown also indicted two further charges to adequately reflect the criminality of the offending: a further count of possessing a dangerous drug to include the day that the police executed the search warrant and a count of supplying a dangerous drug relating to the defendant supplying the drug to an LEP.
On 27 April 2018 in the Brisbane District Court, the defendant pleaded guilty to all counts on Indictment 356/18 and was sentenced.
I trust that this information is of some assistance to you. Should you have any further queries about this matter, please do not hesitate to contact me.
Yours faithfully (name withheld)
- Those charges arose out of an investigation by Queensland Police Service (‘QPS’) between August 2014 and January 2015. QPS investigated the suspected sale of synthetic drugs from the adult novelty store chain, Love Heart Adult Stores. During the relevant period, the Applicant worked in the Bundaberg store.
- As stated by the ODPP, the Respondent pleaded guilty to one count of supply and two counts of possession of a Schedule 2 dangerous drug. The drug in question was synthetic cannabis which was sold from the Love Heart Adult Store.
- The circumstances in which the supply offence and associated possession offences occurred were set out in an agreed schedule of facts (‘the Agreed Statement of Facts’) which was tendered to the Court during the sentencing process. The Agreed Statement of Facts was an agreed statement between prosecution and defence as to the nature and extent of the Applicant’s criminality. It is produced below:
Statement of Facts
R v Shyanne Kathleen O'Malley
Supplying a dangerous drug
Maximum Penalty: 20 years imprisonment
Possessing a dangerous drug
s 9(1)(d) & 4 Drugs Misuse Act
Maximum Penalty: 15 years imprisonment
- Between August 2014 and February 2016, Queensland police conducted Operation Mike Augment to investigate the suspected sale of synthetic drugs from the adult novelty store chain Love Heart Adult Shops.
- The Love Heart business was owned by David Piccinato and the Operations Manager for the business in Queensland was Ross McGlone. Together they operated five stores throughout Queensland, including one in Bundaberg. The defendant was employed as a sales assistant at the Bundaberg store.
- The synthetic drugs were sold from each Love Heart store under the guise of being tea. The drugs were made by McGlone at his house, who sprayed the synthetic chemicals on pre-purchased green leafy material. The drugs were mixed with actual tea to 'water down' the strength of the drugs and then packaged and distributed to the stores. The packets could be sold in amounts of 1, 3 or 10 packets for the following amounts:
- 1 x 1g bag: $20 - $30;
- 3 x 1g bag: $60 - $70; and
- 10 x 1g bag: $110 - $120.
- The tea products contained two types of synthetic cannabinoids, namely Naphthalen-1-yl 1-pentyl-indazole-3-carboxylate (SDB-005) and N-(1-Carbamoy1-2-methylpropy1)-1-(cyclohexylmethyl)-indazole-3-carboxaminde (AB-CHMINACA). SDB-005 is substantially similar to the Schedule 2 drug JWH-018. AB-CHMINACA is substantially similar to the Schedule 2 drug cannabis.
- In the defendant's capacity as a sales assistant, she sold all of the items available at the store. On 17 October 2014 an undercover police officer entered the Bundaberg store when the defendant was working and told her that he had purchased The Godfather product the day before, but found it really strong and wanted to try some Purple Haze. The defendant stated that it was good to receive customer feedback and that she had been instructed to warn people about the strength of The Godfather. She advised that Godfather could be smoked in a pipe. She then opened a drawer beneath the counter and removed a Purple Haze package. She said that it was $70 for the pack of Purple Haze, or $120 for two packets. LEP 41 purchased one packet, which was analysed as containing SDB-005 (count 1).
- Whilst working at the store on this day, the defendant had knowledge and control of a number of packets of drug (count 2). The exact number of bags present in the front counter drawer at the time of the offence is unclear, but the store usually had anywhere from 100 to 300 packets of tea product in the drawer at one time. The Crown proceeds on the basis that the defendant possessed these drugs for a commercial purpose. That is, she possessed the drugs for sale to customers as part of her employment as a sales assistant.
- On 14 February 2015 police shut down the operation due to the ill-effects that consumers of the drugs were suffering, including; vomiting, rashes, bleeding in the stomach and seizures. They executed a search warrant at the Bundaberg store and the defendant was working alone in the store at the time. Police seized 268 packets of Full Moon and one packet of Purple Haze, which contained SDB-005 and AB-CHMINACA (count 3). The Crown proceeds on the basis that the defendant possessed these drugs for a commercial purpose.
- During the search, the defendant spoke with police and agreed to participate in an interview. She was transported to Bundaberg Police Station where she completed an interview and at the conclusion she was released. During the interview, the defendant said that she knew the tea was synthetic cannabis and that people would smoke it. She told police that the tea was the store's best-selling item.
- On 28 January 2016, police attended the Crime and Corruption Commission where they took up with the defendant. She declined to participate in an interview and was arrested and transported to the Brisbane watch house, where she was charged and received bail.
Defendant's knowledge and complaints by customers
- Whilst working at the store, customers told the defendant that they had taken the Godfather and it caused them to have convulsions. She was also told the product would make them feel overwhelmingly depressed and one customer stated that his friend had become very paranoid and had a bad reaction to it. When the defendant told Piccinato that she had received some concerning feedback from customers about the Godfather, Piccinato told her that it was the 'competition' spreading rumours about the product and that it was not true.
- On one occasion, the defendant was told by a customer that the tea products were banned and shouldn't be sold. The defendant contacted the police who confirmed that the sale of the drugs was illegal, though she did not give any details about where she worked. The defendant stopped selling the tea for 1-2 weeks and told customers that the store was out of the tea when asked for it. However, her work hours were reduced and so she asked McGlone for a document saying that it was legal so she could resume selling it. McGlone provided the defendant with a fake document that had a stamp on it and related to the ingredients in the tea. O'Malley knew that this document was 'dodgy' but used this to justify her continued selling of the tea.
The sentence hearing
- On 27 April 2018, Judge Burnett sentenced the Applicant in the District Court of Queensland at Brisbane to be released upon entering into a recognisance in the sum of $1,000.00 on the condition that she be of good behaviour and appear for conviction and sentence if called upon within the next 15 months, with no conviction being recorded.
- In sentencing, his Honour said to the Applicant, in part:
It seems initially, you were given some instructions about the product because of complaints made about the strength of the Godfather product. But ultimately you came to realise that the product itself was, indeed, a synthetic drug. It was not some benign substance which was just another product to be sold in the store.
An undercover police officer purchased some of it an early stage, which relates to the supply… Ultimately, because of the danger that the drugs were presenting to the community, a police operation commenced to close the shop down. And on the occasion of the closure of 14 January, which is the third count, you were, again, in possession of those drugs.
The drugs obviously had a deleterious effect on the customers of the store. You had an appreciation of that and, to some extent, you turned a blind eye to what you came to appreciate was an unlawful substance. I note that at one stage you confronted your employer and asked whether or not the substance was unlawful and you were threatened that you either sell the product or your hours will be reduced and then were subsequently presented with a document which purported to say the drug was lawful. But, having said that, that document proved to be a fake and you acknowledged to police that you knew the document was dodgy but used it to justify your continued selling of the tea.
So you turned a blind eye to what you, I think appreciated was the patently obvious. And that was that what was being sold was a drug. You are at the very bottom of the supply chain. You were a shop assistant. You did not derive any particular personal financial gain from the sale of this drug. You are simply employed in the store, selling that along with other products. But ultimately you were a party by your selling of this particular drug. You contributed to the distribution of this narcotic substance.
- His Honour considered imposing a probation order, but when considering issues of parity and the Applicant’s personal circumstances decided to impose the lesser order of a reconnaissance. In that regard his Honour said:
I think having regard to the extended period of time that you have had since committing this offence and the fact that you have not committed any offences on bail, the fact that you have pursued your education, the fact that you have pursued employment and you have otherwise been a constructive member of the community, the references that speak highly of you, both as a human being and in terms of your efforts and, of course, your engagement with counselling and undertaking counselling in accordance with their direction that probably nothing is to be achieved by having you on probation except, of course, to burden the probation officers, who are already overburdened, with another potential candidate. Not to say that that factor is a relevant factor. It is just I am mindful of the resources available to the probation office. It is better that they be directed to those who really need to require the intervention of such agencies. I think in your circumstances that is not necessary.
- At the Tribunal hearing, there was no evidence presented to suggest that the Applicant had breached her reconnaissance.
Matters to which the Tribunal must have regard
- Where a person has been charged with, or convicted of, an offence, the Tribunal must have regard to considerations prescribed by section 226 of the WWC Act in determining whether an exceptional case exists. This section is not an exhaustive list of considerations, but does prescribe certain matters that the Tribunal must consider in deciding an application. The welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
- The issue is whether children are to be protected from an identified risk. The Applicant was convicted for an offence other than a ‘serious offence’, as defined in the WWC Act. Unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so, the Tribunal must issue a positive notice. If the Tribunal is satisfied that it is an exceptional case in which it is not in the best interests of children for a positive notice to be issued, the Tribunal must issue a negative notice.
- The Tribunal must consider charges that did not result in convictions, as is the case with the trafficking charge in this matter. The Tribunal does not need to be satisfied that the charged events occurred. The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it is not in the best interests of children for a positive notice to be issued. Each case must be dealt with on its own facts. The issue for the Tribunal is one that must be considered within the context of the individual circumstances of the Applicant, the circumstances of the offending behaviour and ultimately one that requires the Tribunal to exercise a discretion, bearing in mind the requirement to determine whether there is a real and appreciable risk to the safety of children as a result of its decision.
- The Applicant’s offending of concern occurred over a protracted period of approximately eleven (11) months. The Applicant did have concerns. She made enquiries to the police. She raised her concerns with her employer, who provided a false letter of comfort.
- The Respondent urges the Tribunal to find that the conviction for supply and possession of dangerous drugs, coupled with the original charge of trafficking, are serious matters, even though they are not ‘serious offences’. The Respondent also acknowledged a degree of remorse by the Applicant but suggested that she lacked insight into her offending behaviour. It was common ground that the Applicant has not committed any criminal offences since 2015, but the Respondent says that the Applicant was subject to bail and supervision, under the reconnaissance order, and therefore her ability to abstain from committing criminal offences without supervision remains untested.
- The Applicant produced a number of references. While the Respondent conceded that the references are evidence of protective factors, they are not such as to mitigate the risk factors. The Respondent urged the Tribunal to find that the Applicant has not yet developed appropriate insight, has not addressed triggers that may cause her to re-engage in offending behaviours and that ultimately allowing the Applicant to have a blue card would have negative impact on children.
- The Applicant urged the Tribunal to find that she does have insight, that she has made substantial changes to her lifestyle and that her personal circumstances have changed. The Applicant said that she is now a stepmother and, at the date of hearing, was 7.5 months pregnant. The Applicant said that she does need a blue card to complete her nursing studies although conceded that the matters for which she was investigated and charged are serious matters. The Applicant said that she trusted her employer. Given that the employer provided ‘proof’ when challenged, she believed, for a time, that the product was legal.
The Respondent’s statement as to risk
- In response to a direction by the Tribunal, the Respondent outlined the basis upon which it regards the Applicant as a risk to children in these terms:
The Respondent has concerns regarding the Applicant's risk to children, and therefore the necessity to confirm whether any child protection concerns have been raised and investigated, as:
- the Applicant pleaded guilty and was convicted of supplying dangerous drugs and two counts of possessing dangerous drugs on 27 April 2018. At sentencing, the Court found that the Applicant was aware that she was selling a synthetic drug and that she had an appreciation of the deleterious effect on the customers on the store but that she continued to take part in the sale of the synthetic drug;
- two men died in separate incidents following the consumption of synthetic drugs with a similar chemical compound to one of the brands of synthetic drugs sold by the Applicant;
- it is unclear whether the Applicant sold the synthetic drug to anyone under the age of 18;
- in October 2014, during a discussion with an undercover police officer, the Applicant gave advice on how the synthetic drug could be ingested. The Applicant advised the undercover police officer that she had been told to warn people that one of the brands of synthetic drugs being sold was strong. The Applicant stated to the undercover police officer that she had tried smoking the "tea" a couple of times but had not liked it. The synthetic drug that the Applicant sold, was sold under the guise of being tea;
- it is unknown where the Applicant smoked the synthetic drug including whether it was in a domestic setting;
- the Applicant is now the step-mother to her partner's daughter;
- it is unknown whether the Applicant has used or continues to use illicit drugs including synthetic drugs since her admission to the undercover police officer in October 2014; and
- the Applicant's actions demonstrates a wilful and dangerous disregard for the wellbeing of others.
The life story of the Applicant
- The Applicant provided a version of her life story (‘the Applicant’s Life Story’), dated 18 January 2018, to the Tribunal. It is produced below:
Life History of Shyanne O'Malley
My full name is Shyanne Kathleen O'Malley.
I was born in Rockhampton, Queensland on 28 January 1990 to David and Danielle O'Malley (formerly Danielle Ingram).
As far as I am aware, I had a normal birth with no complications.
I have one younger sibling, Jayden O'Malley. Jayden was born on 12 October 1994 in Nambour, Queensland.
I experienced an enjoyable and trauma free upbringing. My family have always been and remain a very close and loving family. We have always had open communication amongst ourselves and my parents have always been there for both myself and Jayden. My parents remain approachable and I am confident to confide in them with any issues we have or to approach them for advice when I need it.
My parents are still together and as far as I am aware love each other very much. My parent's relationship is one I look up to and I have sought the same kind of love and commitment in my own romantic relationships.
My parents have always been in paid employment. My mother was a stay at home mother when my brother and I were small children and later returned to university studies when I was 8 years of age. I recall that my mother studied Business/Human Resources. My understanding was that this was to better herself and increase her earning potential. As far as I am aware, my mother gave birth to me when she was twenty years of age and her career was put on hold to raise myself and my brother until we were old enough for her to return to work.
I am aware my mother later gained other qualifications and has worked predominantly as a trainer and assessor for the health sector in more recent years.
My father gained a trade qualification when he was a teenager and throughout my life, I have seen him engaged in employment. I have watched him grow and learn and professionally develop himself throughout my life. My father now works in management for global company, Bechtel.
My parents both come from low-socioeconomic backgrounds in Western Sydney. I am aware, from what they have told me, that they did not have many opportunities presented to them growing up. My parents have told me they made the choice to move away from their homes in Sydney, to Queensland, in pursuit of a better lifestyle and in which to raise children.
I have great admiration for both of my parents for the hard work and sacrifices they have made to ensure my brother and I have 'good' lives and better economic, employment and educational opportunities than they did.
In my home, an emphasis was also always placed on learning and development. My parents always promoted the attitude that it was "cool" to be intelligent and to get good grades. In our household, we were rewarded on merit.
When I was growing up, my family engaged in many activities together. My mother usually cooked dinner for the family and we ate together most evenings. Our parents would regularly help us with our homework and took an interest in our educational pursuits.
I recall that throughout our childhood, my dad would take us all fishing regularly and we had a family rule that "whoever caught the first fish got an ice cream on the way home". However, I recall everyone in the family would also receive an ice cream too. We often went on outings together as a family, after school, on weekends and on school holidays. The places we visited included the beach, the park, family holidays, the cinema and to visit friends.
My parents owned a property in Agnes Water for many years when I was young. They built a small shack on that property. Throughout my childhood we made many trips to their property and stayed in the shack where we would have campfires and do bushwalks to observe the wildlife, plants and small flowing creeks scattered through the property. I have many wonderful memories spending time with my family growing up.
As a child I played many sports and had the opportunity to try many new extra-curricular activities. I undertook dancing at a local studio for many years which included Jazz, Tap and Ballet. I loved my dancing and my family would always attend my annual concerts and cheer me on. I also raced 'go-karts' for a period while my brother raced motorbikes, at our local speedway.
As a child, I was very crafty and creative and my parents always encouraged my creativity, buying me art and craft supplies, taking me to classes and buying me a sewing machine. My brother also pursued sporting pursuits including soccer and football.
I have always, throughout my childhood and now as an adult maintained a close relationship with my family. We talk openly, confide in one another and support each other through good and trying times.
My brother is in a committed relationship with a woman named Jade Forster. They have been together for a period of five years and Jade is considered a member of our family.
My family lived on the Sunshine Coast until I was seven years of age. In 1997, we relocated to Bundaberg, where my family is still based.
I recall that growing up, much of our extended family lived interstate or many hours travel away from us. Due to the distance, we would only see extended family occasionally when we went on trips to New South Wales or when they visited us.
I have never experienced the loss of family members who are very close to me.
I have lost both of my great grandparents on my father's side, Robert and Dorothy Johnson. My great grandmother passed in 2007 when I was 17 years of age and my great grandfather in 2015, when I was 25 years of age. They both lived full lives and died in old age under normal circumstances. I was very upset over their passing as I loved them dearly. However, I cannot say the experience affected me in any kind of traumatic way as I knew they had experienced a great deal in their lives, and they did not pass away in painful circumstances. I did adore visiting them and I loved hearing their stories. My great grandfather was a war veteran and my great grandmother was a vivacious and progressive woman for her time. My brother and I enjoyed visiting them and picking vegetables from their extensive vegetable patch and feeding their fish. I have very fond memories every time I remember my great grandparents.
When I was an adolescent I could not wait to start working and earning some money for myself. I was interviewed and hired for my first job a month before I even turned 14 and 9 months old and could legally work. This was at in 2004 at IGA supermarket. worked there through school for a couple of years. I left school early in grade 11, as my heart wasn't in it 100% anymore and I naively thought it would be a better idea to start work.
I left high school when I was offered a casual position at Target in 2006. That position became a permanent position soon after I commenced employment. I worked for Target between 2006-2008. In 2008, I applied for and was offered a permanent position at the Bargara Beach Hotel. At that time, Target and the Bargara Beach Hotel were owned by Coles group. I had become aware of the position at the Hotel through my employment at Target. The position at the Bargara Beach Hotel was better pay and I obtained my Responsible Service of Alcohol Qualifications and commenced a career in hospitality.
I later relocated to Broadbeach in the Gold Coast in 2009 and obtained a transfer through the Coles group to another Coles-owned hotel in Runaway Bay. I then worked both at the Runaway Bay Tavern and the Wallaby Hotel in Mudgeeraba until the end of 2009 when I commenced at the Hog's Breath Café. I worked at the Hog's Breath until mid 2010 when I made the decision to relocate to Brisbane.
Initially when I relocated to the Gold Coast, I lived with a high school friend. However, in mid 2009, my friend, Rhiana Booth, started a relationship and moved to Lismore to live with her partner who had employment there. I made the decision to relocate to Brisbane to live with another high school friend called Skye Packman. Skye was studying at University. When I relocated to Brisbane, I had intentions of applying for and studying at University. Whilst at the Gold Coast, I had spent time investigating my options with a view to completing my Grade 11 and 12 Certificate through TAFE. I also enquired about a bridging course offered by the Bond University. The Bond University course cost approximately $30,000.00 for the one year course and Grade 11 and 12 at TAFE was going to take approximately twelve months of full time study. Both of those options were not options that I was able to financial afford at the time. As I was living independently, it was my intention to ask my parents to meet my living costs for me whilst I studied.
As such, when I relocated to Brisbane, I transferred to Hog's Breath Café at the Barracks. At the time of my transfer, I was given a wonderful recommendation by my employers at the Gold Coast. There were only a limited number of hours available to me at the Hog's Breath Café at the Barracks and to supplement my income, I applied for a position at the Breakfast Creek Hotel in Albion. That hotel was also closer to my home in New Farm. I worked in the Spanish Garden which was the table service restaurant section of the hotel for a few months before I worked at a function for the Anglican Church Grammar School Alumni. At this function, where I was waitressing, I met a man who offered me a job at the Peasant Restaurant. I did not know at the time that I initially met him, but he was a well-known restauranteur who owned several establishments in Brisbane. I commenced working at the Peasant Restaurant and also continued my work at the Breaky Creek Hotel. The hours however clashed, as I was required on weekends and evenings at both positions. I loved working at the Peasant Restaurant. It was a very high-class establishment and the staff and chefs were extremely knowledgeable, talented and passionate about food, wine and hospitality. I learnt a great deal in that position about hospitality and food service. The Breakfast Creek Hotel underwent renovations in approximately 2011. This resulted in a reduction in staff hours for all staff. Because of this, I left my position at the Breakfast Creek Hotel and went to work at the Peasant Restaurant full time.
When I first relocated to Brisbane in 2010 at the age of 20, I reconnected with many old school friends, all of whom were at university. I had always aspired to attend University and obtain an education. Working in entry-level jobs and hospitality to support myself had made me realise I wanted more. Hindsight made me regret my earlier decision to leave school before graduating. Reacquainting myself with all of my old friends, who were studying, only made the desire to study greater. I saw how they all enjoyed university and how much knowledge they had gained. I was very inspired, and my sense of ambition definitely grew being around a bunch of ambitious people. I obtained some information from QTAC regarding alternative entry into University. I discovered that I could gain entry into University without the need to complete a bridging course or undertake senior high school. In the latter part of 2010, I attended several workshops held by QTAC to prepare me to sit a STAT test (a literacy/numeracy competency test) and write a PCA (Personal Competencies Assessment). At the time, alternative entry was gained by satisfying 2 of 3 requirements. This was either the STAT test, PCA or using work history. I passed the STAT test and my personal competencies assessment included various reasons why I was confident in my ability to successfully study at a tertiary level. I was also given a 'rank' which is the alternative to an OP.
At the end of 2010 I was offered a position in a Bachelor of Creative Industries degree at QUT, however it was at the lower-ranked Caboolture campus. I had missed out on getting a spot at the Kelvin Grove campus by 2 points. I was ecstatic, my dreams were coming true, even if I had to drive from New Farm to Caboolture and back 3 times each week for classes. I also had to adjust work and cut back a little bit to manage studying full time as well. I struggled to make ends meet, but I did. I had chosen the Creative Industries degree because of the lowered entry requirements. I knew that if I studied for a semester or a year and got good grades, I would have the option to study almost anything, and I'd also 'clear the cobwebs' as I hadn't studied in years,
After one year of Creative Industries, I was given a much higher rank and offered a spot in a Bachelor of International Studies (International Relations and Spanish majors) at UQ for 2012. It was an interdisciplinary degree involving politics, anthropology, sociology, theology and language. I absolutely loved my new degree, and all the conscious (sic) and passionate people I was meeting in classes. I was learning so much.
I continued through my International Studies degree full-time, whilst still working at the Peasant Restaurant for all of 2012.
In 2012, my living situation changed. My housemate, Skye, had graduated from University and made the decision to move away from Brisbane. As a result, I moved into share house accommodation.
In 2013, I left the Peasant Restaurant as I was offered a position at Customs House, which was owned by my University. It was a position that had higher pay and gave me the opportunity to oversee larger functions and gain more skills in my hospitality work. Hospitality was a way for me to support myself throughout University, but I also wanted to achieve at whatever employment I undertook. I wanted to work at the nicest establishments, with the best chefs and run the most exclusive functions and I say I was very ambitious in that regard.
I continued through my degree and working at Customs house until the end of 2013. Around that time there was a breakdown in my shared accommodation. I was in exam block at University and was unable to meet the cost of my accommodation on my own. I stayed with friends until the end of the semester and then came back to Bundaberg where my family was.
I had initially planned to stay at my parent's house for only the Christmas break from University and then return to Brisbane in early 2014 and source a new share house and accommodation in Brisbane. However, I felt I was experiencing a bit of burnout from the workload at University, unstable accommodation and a lack of family support around me in Brisbane. When I returned to Bundaberg for Christmas 2013, I felt so happy to be around my family again which was the first time I had lived with them in approximately 5 years other than short, scattered visits.
As a result, I decided to defer University and stay at home in Bundaberg for a while, to rest, regroup and save money for my return to Brisbane to finish my degree. I started looking for work in Bundaberg. I worked initially at the Club Hotel, however I was only rostered for a handful of hours each week. I often worked from 7pm on weekend evenings. I was later offered a position at a new hotel called The Spotted Dog. I worked there for a few months but found it difficult to spend time with my family owing to my being required to work evenings and weekends. I also found working at pubs in Bundaberg as quite a shock after the establishments and standards I had become accustomed to working in/under in Brisbane. I felt that there was a level of sexual harassment that female staff were expected to accept. This was in addition to long and inconvenient hours and I started looking for day jobs around Bundaberg.
The economic climate at Bundaberg in 2014 meant that there was not a lot of opportunity for day jobs in Bundaberg. My only real experience had been in hospitality and this meant that my options for employment were limited. I saw an advertisement for Love Heart Adult Store on seek.com.au. I applied for it because at the time I thought I was "open minded". I wholeheartedly regret that decision, more than any other I have ever made. In hindsight, I realise I was not open minded. I was in fact naïve and stupid. My mother begged me not to take the job when it was offered to me. I did not tell my father initially that I had accepted the position as I knew he would be disapproving. In my application to the Queensland Civil and Administrative Tribunal to review a decision, I have included a substantial amount of information about my employment at the Love Heart Adult Store. I repeat and rely on the evidence contained in Annexure SKO-2 referred to the Application to review a decision filed by myself.
My position at the Love Heart Adult Store resulted in a nightmare for me that lasted over 3 years. During that time, I had the unwavering support of my parents and brother. My parents and brother have been privy to every aspect of the criminal charges and supported me throughout the proceedings and have continued to support me since.
I met a man named Colin Hounsell when I first commenced employment at the Love Heart Adult Store. I did not meet Colin through the Adult Shop. I say that I loved Colin dearly. We later shared a house together and we had future plans to share our lives together. Colin was kind man and came from a good and hard-working family. Colin was a trade qualified boilermaker and employed full time. Colin also worked weekends and evenings with his parents in their commercial cleaning business. Colin and his family supported me through the legal proceedings. However, the legal proceedings did test our relationship and ultimately our relationship did not survive the ups and downs that came with the stresses of the criminal proceedings. Colin and I separated in early 2017. At that time, I made the decision to return to live in my parent's home. It is the case that my parents had always opened their home to my brother and I if needed.
When I commenced my employment at the Love Heart Adult Store, I trusted my employer implicitly. I am not sure if it is called naivety, but it did not occur to me that my employer would deceive me into performing any illegal activity. I had never been in that position before, that I was placed in when I was employed at the Adult Love Heart Store. At the commencement of my employment, I had no idea that the products I was selling was illegal. It was only one day, when a customer saw the products and told me that the products were illegal, did I even question the legality of those products. After being informed that the products were illegal, I undertook some Internet research and I contacted the police station at Bundaberg. I gathered some evidence that I was being deceived by my boss and I approached my boss. My boss told me that the information was wrong and provided me with a document, which I later realised was false, stating that the illegal products were legal for sale. When I queried the Manager about the legalities of the sale, that was when Ross McGlone gave me the document which purported to be a Certificate showing that the products were legal for sale. There was a period of about two weeks where I was reluctant to sell the product, However, I was also told that I would lose my job if I did not sell the products. In hindsight, I realised that choosing to continue to sell the products was the worst mistake I have ever made. At the time I knew that something was wrong, but I had no idea just bad the situation was. I never in my wildest dreams thought there was a chance that anyone could get hurt or die. I accept that I was just so stupid and naive.
In the past I had experimented with marijuana and smoked the products sold by the shop a couple of times. I credit those decisions to naivety and being dumb also. I was simply too young and stupid to truly grasp or understand the potential that involvement with any kind of drug had to ruin lives. I have not touched or been involved with or around any drugs since the commencement of the Love Heart legal proceedings. It came as a great shock or “wake-up call" and drugs now frighten me. I now understand and have insight into their potential to harm people and destroy their lives or even take them completely.
My involvement with Love Heart Adult Store is my life's greatest regret. I was utterly devastated and remorseful when I discovered that people had died as a result of using the products sold to them by the staff at the Mackay Love Heart store. I was told of the customer's deaths after the Bundaberg store was raided on 14 January 2015. On that day, I was informed of a lot of things by the police. I completely cooperated with Police throughout the matter and participated in a full Record of Interview. I have never once spoken to my employers or any other Love Heart staff member again. After my cooperation with the Police on 14 January 2015, my employers attempted to contact me, however I did not respond. I found out on 14 January 2015 not only that people had died as a result of the products sold by the Love Heart store, but that my employers were also manufacturing and packaging the products with full knowledge it was illegal. I found out that I had been lied to and deceived for many months while I worked at the store. I was very saddened by the deaths of the people who had brought products from the Mackay store and incredibly remorseful for any action that I had taken that may have contributed to people becoming unwell or dying. I was also incredibly afraid of what was going to happen to me. I was not initially charged but understood the gravity of the offences being investigated. I also have spent many years struggling with the notion of being associated with such bad people. I struggled that my employers not only broke the law but that they coerced a number of people to unknowingly break the law for their own personal gain. I have also struggled emotionally with being associated with the death of two people. I have felt personally responsible, sick and depressed as a result. As a result of the information I had received about the death of the two people, I suffered with depression and did not want to do anything for a while in 2015. I constantly felt ashamed, guilty and sad. I had previously always boasted positive self-esteem and confidence, but they were gone. I felt that no matter what, being a good person came before an important person or successes. I felt that I was a bad person and I felt that everyone else also viewed me as a bad person. I limited my social activities as I was so ashamed of my involvement with the Love Heart Adult Store and the death of the two people. At that time, in 2015, I had not been charged with any offences but had sought legal advice and expected that I would be. Basically, throughout 2015, I waited for the Police to come and arrest me.
I was also terrified of applying for any other jobs and felt that I had ruined my reputation in a small town. I began employment with my partner, Colin's (sic) father, Neville. As stated, he owned a small commercial cleaning business. I worked for him throughout most of 2015. This assisted me to gain some normality and confidence. By the end of 2015, I had obtained a job at the Across the Waves Sports Bar. I worked both jobs from October 2015 and into 2016. In 2016, I decreased my cleaning workload but continued to work on a casual basis, for Colin's parents, when required.
In January 2016 I had been working for Across the Waves for approximately three months. In January, I won the staff member of the month award and was offered more hours. I felt at that time I had really settled into my new role. I also felt that some normality had returned to my life although I did constantly think what had occurred at the Love Heart Adult Store and the death of the two customers. In January 2016, the Police arrived at my work one afternoon to issue me with a Notice to Appear at a Hearing in Brisbane. At that time, I was not at work. I received a phone call from another staff member to advise me that the Police were looking for me to serve some documents on me. I immediately felt shame. I went to the local Police Station and was told that I had to travel to Brisbane the following week to attend a Hearing on 28 January 2016 which was the date of my 26th birthday. I was compelled to attend the Hearing.
Immediately after leaving the Hearing in Brisbane, I was charged with two counts of Drug Trafficking and two counts of Drug Possession. I was inconsolable. On that day, my 26th birthday, I was taken to the Brisbane Watch House and held in a holding cell for a number of hours before I was released on Bail and permitted to return to Bundaberg.
When I was charged, I felt that my life was over. The guilt of my involvement returned, and I was now facing serious consequences for the criminal charges. Being charged confirmed to me that I was in fact a bad person. I had lived my whole life thinking I was a good person but now the law, society and everybody including myself knew that I was in fact a bad person. I spent a significant period of time repeating in my head "two people died" and I felt that I deserved the outcome. I also felt responsible and afraid of what my future now meant. I really struggled emotionally to adjust to what was happening. Throughout this time, my parents continued to provide their unwavering support.
As a result, I made an appointment to see my doctor and explained everything to her and how I was feeling. My doctor prepared a Mental Health Care Plan for me and referred me to a psychologist by the name of Royce at her practice. I continued to see Royce during 2015 and again returned to see her on a number of occasions in 2016. I found that talking things through with someone did help me quite a bit. I was never prescribed medication but was referred to counselling. In 2017, I felt that it was appropriate for me to seek out a different counsellor. I then sought out and saw Graham Killoran a number of times throughout 2017. I self-referred to him whenever I was struggling with aspects of the legal proceedings or my own guilt. Otherwise, I have never experienced any other health concerns other than mild asthma, for which I have a preventative inhaler.
The only other health incident that I can recall, throughout my childhood, is that I spilt some instant noodles on myself when I was 8 years of age, resulting in a hospital trip and first-degree burns. I have otherwise been a very healthy person, both psychologically and mentally through my life.
As a result of being charged, I had to report for bail to the local police in Bundaberg three times each week for seven months. The reporting on my bail condition was later reduced to reporting once per week. I was subject to bail and reporting conditions for almost two and a half years. Each time I attended the Police Station to report, it was a reminder of my involvement in a very serious matter. It was also a reminder to me that I was a "bad person". A number of times, Officers at the Police Station would ask me, "What is someone like you doing on bail". I was very private about what I had been charged with. But it was a reminder to me that I used to be someone with potential and a bright future. It cemented for me that in the eyes of many, I was a criminal, a member of a drug ring, a person associated with toxic drugs and that I had been implicated in the death of two people. As a result of my being on bail for a long period of time, I had a lot of time to think about the consequences of my choices. I have faced a number of personal consequences as a result of being charged and pleading Guilty to the offences. The personal ramifications for me are that almost four years later, I am facing the prospect of being unable to complete my nursing diploma.
I have also had a significant amount of time to reflect a lot on the effect that my involvement in the commission of the crime had on the community. The death of the two people continues to weigh very heavily on me. I also have reflected on all of the people that potentially could have died or become very sick, I used to imagine how I would feel if I had actually been the person to physically hand something to someone that would kill them. I felt responsible already and I also felt compassion towards the staff of the Mackay store. I did not know, but I imagined, that they were unaware of exactly the product they were selling. I imagine they would feel even more guilt than I did, and I felt so full of regret that any of it happened to any of us.
In the beginning of the legal proceedings, the lawyer I had employed said to me "These things tend to come in waves" and that is exactly how it happened. I would have good times and bad times. There were times that I felt more or less guilty and shameful about it all. I managed to find my own coping mechanisms to get through it.
This included exercise and I found it extremely therapeutic to go for long walks or jogs alone. Not only has it proven to be beneficial and produce endorphins, but it gave me time to reflect and destress regarding my situation. I also began a lot of baking and cooking and gardening. I derive a great deal of enjoyment from feeding people. I love great food and maintaining a healthy diet, I have found, beneficial to my mental and physical health. I also adore gardening and the satisfaction I obtained from watching things grow. These have been creative outlets for me during the past few years.
I continued to work at Across the Waves Sports Bar between 2015 and 2017. During that time, I was able to obtain a second job at a laser clinic called Vanish Ink. I was open and honest with my employers about the charges against me although this caused me a great deal of shame. My boss at Vanish Ink fired me when I disclosed to her my legal issues. I felt that I must disclose the offences to her, as I was at that time being requested to perform laser hair removal on people and I was not qualified to use it. I was assertive in saying that I was not comfortable performing that role and when I disclosed my criminal charges to my employer, she saw fit to terminate my employment. I later left the Across the Waves Sports Bar to undertake a job at Michael Hill Jeweller. I disclosed the charges against me on a Police Check Form as I was required to do. I had a meeting with several managers before commencing my employment. At one of those meetings, I was told that I must plead my case as to why I should obtain the entry level position when I was a "criminal". I obtained the job but felt judged and discriminated against the entire time. I was subsequently deemed "unsuitable" by the HR Department and my employment was terminated without notice to me.
I then commenced employment at JB HiFi and continued to work there from mid 2017 until July 2018. Once again, I disclosed my charges to my employer. I then moved to work at the Lighthouse Hotel at Burnett Heads where I still currently hold employment.
My relationship with Colin ended in 2017 and as indicated, I relocated home. Approximately, one year later, I commenced seeing my partner Joel Fagan. Joel and I are in a committed relationship and are planning a future together. Joel is treated like one of our family and has a very close and loving relationship with my parents and brother. Joel has a daughter named Lilyah. I love Lilyah dearly and would do anything for her. Joel does not have the full time care of Lilyah, but she spends time with him on a regular basis including on school holidays. Over the course of my relationship with Joel, Lilyah and I have grown very close. I love Lilyah as if she was my own child. Joel owns a home with his brother, and we are currently in the process of renovating that home for sale to enable us to purchase a home together.
Joel and I have recently discovered that we are expecting a child together. I am in the very early stages of my pregnancy but am excited and know that we will each be amazing parents.
I commenced studying a Diploma of Nursing in July 2018.
My plan was to complete the Diploma of Nursing and work as an EEN to earn an income whilst I put myself through the remainder of the Bachelor of Nursing Degree. The Diploma qualification would enable me to gain my credit towards the Degree and I would enter the Bachelor of Nursing Degree as a second year student. My plan was that when I completed the Degree, I would be an EEN and an RN. I also wanted to then go on to complete a post graduate Diploma of Cosmetic Nursing and dermal therapies. I had wanted to start of this trajectory of study far earlier however had to wait for the outcome of my Court proceedings. A conviction for drug trafficking would rule out any future nursing. In addition, there was the possibility that I would be sentenced to a term of actual imprisonment. As a result, I waited until my criminal proceedings had finalised before I commenced my nursing studies.
It has been alleged that I have not shown any remorse about the charges. I voluntarily took part in an Electronic Record of Interview with Police in which time I had made admissions to selling the product. I also entered a timely plea of guilty to the charges. There were delays caused in my proceedings. At the time of the delays, I had received a grant of legal aid funding and was represented by a Solicitor. I became very concerned about the delays in my matters, particularly when I heard that one of my co-accused had already been sentenced In Bundaberg. At that time, I approached Legal Aid Queensland and requested a transfer of Solicitor. Legal Aid reviewed my case and my file was subsequently transferred to a Solicitor and I was able to provide instructions to them that I wanted to enter pleas of guilty.
There were submissions made at my sentence with respect to insight shown by me, steps I had taken at rehabilitation and my future career prospects.
When I started studying nursing, I felt that I had truly found my niche. I wish that I had started studying nursing the first time around. I loved everything I was learning and really engaged with material. I also respected my teachers and loved the idea of being able to help people. I saw nursing as a job that "good people" do. I felt confident that I was becoming a good person again for the first time in five years. I was excited to attend University. I was excited to attend placement. I felt that I was learning legitimate skills that would improve people's lives. I found that I was developing excitement for my future again. I accept, when I initially made the submissions to the Blue Card Commission, I did not defend my character as much as I should have. I thought that I had already explained my case in the District Court and have learnt that I should have provided more information. I now know that I will have to plead my case and defend my character every time I apply for a nursing job in the future, if I am permitted to continue on that path. I acknowledge and accept that this is a reality of my criminal history.
I see my employment at the Love Heart Adult Shop, my participation in the offences, and the subsequent legal proceedings as part of my past. I have changed in so many ways and improved as a person since all of this started. I do believe that I deserve a second chance. I also disagree that I have failed to show insight. I have suffered with the terrible decision that I made at the Love Heart Adult Store.
I do want the chance to return to nursing to finish my Diploma. I want to be able to help people with their health outcomes in the future. I want a brighter future and the opportunity to give my unborn child a brighter future as well.
In relation to this life history, I otherwise repeat and rely on the information that has been attached to my Application to review a decision filed in the Queensland Civil and Administrative Tribunal in addition to the Character References that have been attached to that Application.
If I am permitted to obtain a Blue Card, it will set me in good stead to be able to pursue a nursing career and do good for the community in which I work and live.
The evidence of the Applicant at the Tribunal hearing
- The Applicant was cross-examined in relation to her enquiries as to the legality or otherwise of the substances, and her role at the store where she worked. The Applicant provided the following evidence at the Tribunal hearing:
- (a)Speaking of her employment, the Applicant said that for her it was just a job, at an hourly rate. The Applicant said that she trusted her employers. She did not interact personally with her employers. Interactions were conducted remotely. While she engaged with her employers occasionally by telephone, most of her communication was conducted by email.
- (b)When working, the Applicant said that she was solely responsible for the store. That is, for the day-to-day operations. The owners lived in Victoria. The Applicant said that initially, she did not know the ‘tea’ (synthetic cannabis) was illegal. She thought it was legal. The sachets were marked as ‘tea’. It became apparent to her several months after starting that the ‘tea’ was illegal. It was about halfway through working for her employers that she received information that it was illegal. She was told by a friend (Richard from upstairs) that it was illegal. She phoned her employers and they said it was legal. After Richard warned her, she did some research. The Applicant said that she reached the stage where she knew it was not tea – but she was not sure what it was. It was a good seller: more than other products. It was a quiet store.
- (c)Anonymously, she did also phone the police. She did not tell the police about the specifics. Police provided some information. Then she phoned her employers, who said that the police were wrong. She felt that her employers were taking advantage of her, but she became confused. They assured her that it was legal and that scientists had checked it. The employers provided a certificate to state that the tea was legal. They did so in response to her request for proof of legality. They provided the certificate soon after the call, because she was not willing to sell it until receipt. In hindsight, she knows the certificate was not legitimate. At the hearing, she said that at the time she had learned that it was ‘dodgy’. She knew something was wrong, but she used the certificate as justification to continue. She was scared of losing her job. She discussed her concerns with another staff member. For two weeks, she would not sell the product.
- (d)The tea product (‘the Godfather’) caused customers some adverse effects. Some customers told her this. She relayed this information to her employers. They blamed competitors for spreading false information. She was told to advise customers about the strength of the Godfather. She did have concerns about continuing to sell the ‘tea’, but she ‘turned a blind eye’. She sold the synthetic cannabis to persons over the age of 18 years. But age restrictions applied for the entire store.
- (e)She tried the synthetic cannabis. She consumed the synthetic cannabis on three occasions. Once while working at the store and on two occasions before being employed. These occasions occurred before she sought information from police. Beyond that, she has never consumed synthetic cannabis.
- (f)During that period, she was living with her parents. She never consumed the cannabis, or was suffering if the effects of drugs, around or with children. The use of synthetic cannabis, or cannabis, never did result in a situation that was out-of-control or dangerous, causing regrettable actions.
- The Applicant was cross-examined in relation to her use of other illicit drugs, and she provided the following evidence:
- (a)The Applicant said that she has consumed cannabis. She described herself as a casual smoker of the drug; ‘on and off – ‘here and there’, as a ‘casual thing’. When pressed, the Applicant said that she has had a moderate usage of illicit drugs leading up to the time that the police raided, but certainly has not used illicit drugs since that time. She has no wish to use illicit drugs now. To a degree, she felt that when she consumed cannabis, she lost control of her thoughts.
- The Applicant was cross-examined in relation to her involvement with police and the justice system, and she provided the following evidence:
- (a)Police raided the shop in January 2015. Police informed her of ‘a lot of things’. She voluntarily provided an electronic record of interview and she fully co-operated with police. The Applicant told police that she did not know where her employers sourced the drugs (the tea), that was for sale in the store. Police told the Applicant that two people had died from the use of synthetic cannabis. She was shocked. With that information, the Applicant wanted to provide information to police and she was not concerned about ramifications from her employer.
- (b)It was nearly 12 months after the raid before police charged her. Police were involved in ongoing investigations.
- (c)The ‘supply of dangerous drug’ charge was proffered in replacement of the trafficking charge. She entered a plea of guilty and was sentenced to a good behaviour bond. She did not breach the bond. The bond did not have any element of supervision. There was no contact with probation and parole associated with the good behaviour bond.
- (d)When asked about her traffic history, the Applicant confirmed that she suffered licence suspensions in 2017 and 2019. On both occasions, her licence was suspended through default in the payment of fines.
- The Applicant was cross-examined in relation to her involvement with psychologists since early 2015. She provided the following evidence:
- (a)During 2015, the implications of what she had done, and the prospect of being charged, ‘started to take hold’. The Applicant saw a psychologist, because she started to suffer depression when all of this ‘sunk in’. The psychologist gave her strategies to cope. She saw the psychologist before the charges were laid. The consultations with the psychologist continued after she was charged. In 2017, the Applicant changed psychologists – to Dr Graham Killeran, whom she saw four times; with the last occasion being late in 2017. She consulted a new psychologist because she changed her general practitioner and a new referral was required. Dr Killeran did not change her treatment, but she could reach out to him, if needed. The Applicant said that Dr Killeran was very good, and she has referred others to him.
- (b)The psychologists helped her to adopt a healthy lifestyle. She developed insight and coping strategies. Now, she would avoid the situation that led to her committing criminal offences. She would immediately tell police. Even if there were personal consequences, she would now ‘speak up’. Now, she would get out of the situation quickly. Now, she could not ‘turn a blind eye’. She would advise children (and people generally) to stay away from drugs.
- The Applicant was cross-examined in relation to her supports, her involvement with children and her plans. She provided the following evidence:
- (a)The Applicant said that her supports are her family and her partner. She is willing to reach out for assistance, but that is not an issue in her life now. At the time, she told her mother that she worked at the store. Her mother begged her not to do so. She never told her father. If needed, now she would reach out to both of them and seek their guidance. Her relationship with her parents ‘is a fabulous and open relationship’. She has had open discussions about working at the store and the police charges. Her parents fully support her in her endeavours. She sees her parents often. Her plan is for her and her family to live in her parent’s rental property, which is being slowly done up at the moment. She and her family currently live between that rental home and her parent’s home. She is close to her siblings. She has some close friends. They know what has happened. She is fully transparent in terms of discussing events in the past with family and friends.
- (b)The Applicant said that she has been involved with children. She used to babysit when she was young. She is now a step-mother. Her partner’s child is a female, about the age of five years.
- (c)The Applicant said that she has always worked; in cafes etc. She has had limited contact with children in her work environments.
- (d)The Applicant said that she is studying, with ambitions to work as an enrolled nurse. It is an 18 month diploma course. She has commenced the intake process and has done some work towards concluding the requirements of the course but has had to stop because she does not have a blue card. She needs a blue card to work in clinical placements. The first placement is in an aged care facility. The second placement is in the community, with doctors, and that may involve contact with children in a hospital.
The evidence of Danielle Lisa O’Malley, the adult’s mother
- Mrs O’Malley provided a letter of support for her daughter in the following terms:
I am writing this letter of reference in support of my daughter, Shyanne O'Malley, and her appeal for a positive notice — Blue Card working with children. I am aware of the charges relating to Shyanne not being granted a positive notice upon her initial application, and of the surrounding court proceedings.
I provided a letter of support for Shyanne's initial application and reiterate that support as I fully believe that Shyanne is not a threat or risk in any way to any child and that child/vulnerable people related employment would in fact benefit from the honest, ethical care that Shyanne would indeed provide!
Shyanne has grown from the experience of the past 5 years and this is evident in her everyday actions. I have witnessed first hand this growth as it is a direct result of the past 5 years and the toll and thus insight that Shyanne has been subjected to as a result of the court proceedings — and of the actions leading up to Shyanne being charged with said offences. Shyanne is extremely remorseful of her actions leading up to the charges — being arrested was the first insight into the effects that had resulted from using the substance that Shyanne was involved in selling and over the past 5 years this insight has indeed been recapped. Prior to, and during Shyanne's involvement in these proceedings, Shyanne was engaging in casual drug use. Shyanne has acknowledged the detrimental effects that this casual drug use had, and would have continued to have on her life, had she not addressed this.
Shyanne no longer engages in any drug use and had not done so for some time prior to enrolling in her nursing studies. Shyanne has turned her life around and is looking forward to the future with positivity once again. Following the court proceedings and the subsequent shame and embarrassment she experienced, Shyanne did indeed spiral into depression however to her credit she did not allow this to take over her life. She addressed her depression and anxiety and took the approach that to assist the community would be the best form of remorse/rehabilitation.
Whilst it could appear that I, as Shyanne's mother, maybe taking a biased view, I also am a contributing/concerned member of the community (and therefore take an impartial approach to such decisions regarding the protection of vulnerable members of the community. Furthermore, I respected the view of the presiding judge that to punish Shyanne further would overburden" an already overburdened probationary system within the Wide Bay region and indirectly but ultimately be punitive to the community in general. Thus, no conviction was recorded with this in mind allowing Shyanne to continue with her nursing studies.
The fact that Shyanne has been issued with a negative notice has resulted in Shyanne having her enrolment at university deactivated — this has been just devastating for Shyanne as her enrolment was the first positive decision she felt confident enough to commit to following these proceedings and a decision that would benefit not just Shyanne, but the community in general as Shyanne would make an absolutely brilliant nurse!
The pending birth of her first child has indeed had such a positive effect on Shyanne and indeed our whole family, that we look forward with such positivity and pure love to the future with our first grandchild. I have never for one moment had concerns for Shyanne becoming a mother as I know that the honest, loving, caring person she is will allow nature to take its course and for this child to develop in a loving environment!
Shyanne has many friends with children that she sees regularly whom trust Shyanne impeccably and over the years our own friends have trusted Shyanne — Shyanne has regularly baby-sat for our friends in fact many of those children have now grown and are regular visitors to our and Shyanne's home. There have never been any concerns with trusting Shyanne around children and I honestly know that any decision that Shyanne would make in the future would be one that the community would be proud of!
- Mrs O’Malley gave evidence at the Tribunal hearing, and she was cross-examined in relation to her daughter. Mrs O’Malley provided the following evidence at the hearing:
- (a)Mrs O’Malley did state that she has read the BCS rejection letter addressed to her daughter. She confirmed that she is aware of her daughter’s criminal history and that she was involved in the distribution of the synthetic cannabis. She did confirm that her daughter was a casual user of cannabis and of the synthetic cannabis. She said that she took the synthetic cannabis ‘only a couple of times’. She said that her daughter used cannabis on a weekly basis over a period of about six weeks. Once her daughter was upset at taking the drugs and became very emotional. Mrs O’Malley said that her daughter did disclose that the use of the drugs did change her personality at that time. Outside the six week period, Mrs O’Malley said that she was aware of her daughter’s drug taking on one occasion, when she was about 18 years of age, but she is not aware of any other drug taking. Her daughter has no addictions.
- (b)Mrs O’Malley said that her daughter did suffer stress after the breakdown of a relationship. She realised that drugs did not help her with her problems. After the period of six weeks of taking cannabis, her daughter realised that drugs were not a solution. Her daughter went to see the family doctor, who referred her to see counsellors. She also saw counsellors without a referral from the doctor and her daughter was placed under a mental health care plan, but her daughter does not have any underlying mental illness. During that time, her daughter was living at home and she offered support to assist her daughter’s recovery.
- (c)She still sees her daughter on a daily basis, and they are extremely close. Her daughter is extremely remorseful for her actions and she has completely changed her life. Her daughter was living with her when she worked at the Love Heart store and she counselled her daughter to phone the police. Her daughter responded by initially resisting, saying that it is being sold through a store so it must be legal. However her daughter did take her advice to call the police which she suspects did lead to the police raid ‘about a week later’. Her daughter showed her the ‘certificate’ from her employer. They both believed that it was legitimate, but they still harboured some concerns about the employers.
- (d)Mrs O’Malley said that her daughter is going back to university and wants to ‘give back to the community’. Mrs O’Malley said that her daughter is not a drug user and she does not believe that she is a risk to children. She said that her daughter is very good with children, that people trust her, and her daughter interacts very well with her step-daughter. She said that her daughter has ‘risen above it’. She said that her daughter was ignorant of the law but has grown from the experience. Her daughter now does her research and is careful not to take people’s word on matters.
- (e)Mrs O’Malley said that she is totally against the use of illicit drugs. In fact, in her employment, she refers people to Bridges (a drug counselling service). In her employment, Mrs O’Malley said that she has daily contact with people in desperate situations and her role is to provide support. As a result of her employment and her association with drug support agencies, she expressed an opinion to the Tribunal that her daughter does not exhibit signs of needing additional support through drug support or counselling or any other form of external support. She confirmed that her daughter does follow the direction of her general practitioner. Mrs O’Malley did say that if her daughter did suffer a bout of depression, she is confident that she would see her general practitioner and if necessary, act on a referral for counselling. However, her daughter is not displaying any unmanageable signs of depression. Mrs O’Malley said that she would quickly see triggers that might cause her daughter to consider returning to the use of drugs. Her daughter is open and transparent with her and all of the family.
The evidence of Mary Buchanan, a family friend
- Ms Buchanan provided a letter of support for her friend in the following terms:
I am writing this reference in support of Shyanne O'Malley's Application to obtain a Blue Card. I am aware of the nature of the offences of which Shyanne was convicted. I have read all the material which has been produced for these proceedings.
I have known Shyanne and her family for 15 years. We moved to Bargara in January 2004 and the O'Malley family lived 2 doors down from us. I had 2 young children at the time, one aged two and one 4 months. Our families became friends and I recall how good Shyanne was with my children, and others that were around back then. I find it interesting that how people treat your children sticks in your memory. Shyanne was always warm, affectionate and appropriate with my children and they warmed to her accordingly.
After a time Shyanne would regularly babysit for me and on a number of occasions, she, by herself, or occasionally with one of her school friends would take my older child out to the movies, beach or just back to her place to give me a break. Over the years as they all got older, she continued to look after one or both of them from time to time. My children were always keen to "go to Shy's house."
Shyanne has more recently been through a very lengthy legal ordeal. I am aware the proceedings stretched over some years and have had a detrimental affect on Shyanne in a number of ways. While the proceedings were ongoing, she had difficulty with employment. I am aware of two jobs she lost when she was upfront with her employer about the pending proceedings. To her credit she gained other employment and she has always struck me as someone with a very strong work ethic.
I have no doubt that Shyanne will do well in her studies should she be able to continue and will be a kind, competent and caring professional who will contribute in a positive way into the future.
- Ms Buchanan gave evidence at the Tribunal hearing, and cross-examination did not diminish the impact of her written statement.
The evidence of Joel Fagan, the Applicant’s partner
- Mr Fagan provided a letter of support for his partner in the following terms:
I write this statement in support of Shyanne O'Malley's appeal of a negative notice issued by Blue Card Services.
I have known Shyanne for over five years. We met through mutual friends and our relationship developed into a romantic partnership. We have been together for two years. Shyanne is a woman of integrity and honesty. She has my full trust as a partner, stepmother to my five-year-old daughter and soon to be mother of our own child. Our baby is due in September 2019.
I am aware of Shyanne's past offending and her lengthy court proceedings. I was present at her sentencing hearing in April 2018 at which time the Judge stated that her "insight" and "rehabilitation" were behind his decision not to record a conviction for her charges. I also believe Shyanne has shown insight and has rehabilitated herself. Over the past five years, Shyanne's court proceedings have taken their toll on her. This is not solely due to the countless ways in which her life has changed and the barriers she has faced as a result. Shyanne has also carried a great deal of guilt and remorse over her past actions and the effect they had/could have had on other people in the community. She has tried to use this guilt to motivate her to strive towards a more positive life.
I am aware that Shyanne did engage in casual drug use at the time of her offending. I am also aware that this is no longer the case. Shyanne now advocates against any and all drug use and has nothing to do with drugs or people who use them. The nature of her charges and court proceedings made her aware of the severity and potential for harm that involvement with drugs can bring on any person and the community at large and in her own words "scared the life out of her."
I am truly of the belief that Shyanne does not pose any risk to children. Rather, my view is that children benefit from being around her. I have witnessed Shyanne form a loving bond with my daughter, Lilyah. Lilyah adores Shyanne. I am selective with who I choose to allow into my daughter's life, yet never hesitated for a moment when introducing Shyanne to Lilyah. Shyanne encourages me to be an attentive, involved and responsible father and has enriched my daughter's life by being in it. I wholeheartedly trust Shyanne will the safety and wellbeing of my daughter and all children.
I truly hope that Shyanne is given the chance to hold a Blue Card so she can continue her nursing studies. Shyanne has learned valuable lessons from her past and has genuinely turned her life around. I cannot wait to watch her mother our child in the future. I also wish to watch Shyanne achieve her goal of becoming a nurse and helping even more people in the future.
- Mr Fagan gave evidence at the Tribunal hearing, and cross-examination did not diminish the impact of his written statement. He gave evidence that he does not agree with use of dangerous drugs. He said that his partner has tried to better herself, to become a better person and that she has gained insight. He said that he has seen his partner interact with his friend’s children and she has always maintained ‘control and calm’. Even during the time of great stress involving the court case, she maintained a calm demeanour. He has never seen her ‘become physical’, harm anyone, or even become irrational or difficult. She does not use illicit drugs. She was a moderate user of alcohol before becoming pregnant but has not consumed any alcohol during the pregnancy.
The Respondent’s submissions
- The Respondent provided written submissions to the Tribunal dated 24 July 2019. The relevant sections of the submissions are as follows (adopting the number from the original document):
The circumstances of any charge and/or conviction identified in the police information
- The circumstances of the Applicant's offending is disclosed in the various documents filed in these proceedings, in particular, the relevant police report. The Respondent refers to the material filed with the Tribunal for the specific facts of some of the offences of concern listed on the Applicant's criminal history [Police brief of facts BCS-31 to BCS-39].
- In relation to the Applicant's offending, without restating the factual information of the behaviour in detail, the Respondent notes the following key issues, considerations and risk factors:
- the police material contains three (3) charges and four (4) convictions for predominantly drug related offending [Applicant's criminal history dated 10 October 2018, BCS-14 to BCS-15];
- the Applicant's offending and alleged offending of concern occurred over a protracted period of approximately eleven (11) months and therefore her behaviour cannot be characterised as a once-off lapse in judgment. Rather, the Applicant had ample opportunity over the period of time she engaged in offending behaviour to reconsider her actions, however failed to do so; and
- two (2) of the charges recorded on the Applicant's criminal history are for the offences of trafficking in dangerous drugs, which is characterised as a serious offence under the WWC Act. Although the Applicant was not ultimately convicted of these offences, the classification of these offences as serious offences reflects the seriousness with which Parliament considers offences of this nature in the assessment of a person's eligibility to hold a blue card;
- the Applicant's offences and alleged offences of concern relate to her involvement in the sale and supply of synthetic cannabis. The material indicates that whilst working at an adult store, the Applicant knowingly sold synthetic cannabis to members of the public and even after she became aware it was an illegal substance, she continued to sell the product to customers of the store. The material further indicates the Applicant was aware of the deleterious effect of the drug on consumers, however continued to sell the drug to members of the public. The Applicant's involvement in the sale and supply of illicit drugs raises significant concerns about her ability to act in the best interests of others, including children and young people and to present as a positive role model.
The Traffic Record
- In addition to her criminal history, the Applicant's traffic record contains a total of thirteen (13) infringements for a range of offences including exceeding speed limits, driving whilst using a hand held mobile phone and driving whilst unlicensed [Applicant's traffic record dated 9 April 2019, BCS-52 to BCS-53]. The Applicant's drivers licence was also suspended on two (2) occasions, she was disqualified from driving on one (1) occasion and had restrictions imposed on her driver's licence on a further three (3) occasions [Applicant's traffic record dated 9 April 2019, BCS-52 to BCS-53]. This material raises additional concerns about the Applicant's ability to act in an appropriate manner and act within legal boundaries.
Material provided by the Department of Child Safety, Youth and Women
- On 16 May 2019, the Tribunal issued a Notice to Produce to the Department of Child Safety, Youth and Women (the Department) seeking information in relation to interactions the Applicant may have had with the Department. The Department subsequently advised they held no information in relation to the Applicant.
Relevant risk and protective factors arising from the written materials filed in the proceedings
- The Court of Appeal in Maher accepted the approach of identifying and balancing the relevant 'risk' and `protective' factors arising from the circumstances of a particular case [Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492]. The Respondent submits that the weight to be applied to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.
- The Respondent submits that the following protective factors are relevant in this matter:
- the Applicant was 24 years of age at the time of her offending and alleged offending and therefore youth and immaturity may have contributed to her behaviour. The Applicant also submits she was "naive" and "young and stupid" [Applicant's Life Story dated 18 January 2018, paragraphs 41 and 42] which is a further indication youth and immaturity may have influenced her behaviour. This will be explored further at Hearing;
- notwithstanding the serious nature of the Applicant's offending and alleged offending, it is acknowledged she did not purposefully seek to engage in criminal activities, but rather became involved during the course of her employment at a retail store. The material indicates it was not the Applicant's primary intention or purpose to supply illicit drugs and she did not receive any personal gain from her actions (other than to retain her employment at the store). The sentencing remarks of Judge Burnett acknowledge the Applicant was "at the very bottom of the supply chain" and did not derive any personal financial gain from the sale of the illicit drugs [Sentencing remarks of Judge Burnett for various charges, dated 27 April 2018, BCS-17];
- the Applicant indicates that since her offending behaviour ceased, she has made a number of positive changes in her life. In particular, the Applicant submits that she is now in a supportive and committed relationship; maintains employment; has commenced studying Nursing (which is the reason the Applicant requires a blue card); is a step-mother to her partner's young daughter and is expecting a child of her own [Applicant's Life Story dated 18 January 2018, paragraphs 55 to 58]. The positive changes implemented by the Applicant will be explored further at hearing;
- the Applicant submits that although she has suffered mental health issues as a result of her offending and the consequences associated with her behaviour, she has sought professional treatment to assist her to deal with her mental health issues. The Applicant submits that she attended regular sessions with a psychologist in 2015 and on occasion in 2016 and 2017, she "self-referred" for treatment whenever she felt it appropriate or necessary to do so. The extent of the Applicant's mental health issues, engagement with professional treatment, as well as the skills and strategies she may have developed from the treatment will be explored further at hearing;
- as a whole, the material indicates the Applicant has demonstrated remorse in relation to her offending behaviour, including the impact of supplying dangerous drugs to others and the adverse effect drugs have on the community in general [Applicant's Life Story dated 18 January 2018]. The Applicant's remorse will be further explored at hearing; and
- the Applicant submits that although she has suffered mental health issues as a result of her offending and the consequences associated with her behaviour, she has sought professional treatment to assist her to deal with her mental health issues. The Applicant submits that she attended regular sessions with a psychologist in 2015 and on occasion in 2016 and 2017, she "self-referred" for treatment whenever she felt it appropriate or necessary to do so. The extent of the Applicant's mental health issues, engagement with professional treatment, as well as the skills and strategies she may have developed from the treatment will be explored further at hearing;
- as a whole, the material indicates the Applicant has demonstrated remorse in relation to her offending behaviour, including the impact of supplying dangerous drugs to others and the adverse effect drugs have on the community in general [Applicant's Life Story dated 18 January 2018]. The Applicant's remorse will be further explored at hearing; and
- the Applicant has indicated she has a very close and supportive relationship with her partner and family and has indicated that they are a positive support network for her. For the purposes of these proceedings, the Applicant provided (3) supportive witness statements speaking to her good character, remorse about her offending, the positive lifestyle changes she has implemented and her interactions with children. The Applicant also filed two (2) witness statements from her Teachers at the Central Queensland University who attest to her professionalism, intelligence and her commitment to pursuing a career in nursing.
- The Respondent further submits that the following risk factors are present:
- the Applicant's offending of concern occurred over a period of approximately eleven (11) months between February 2014 and January 2015 [Police brief of facts — various offences between 28 February 2014 and 15 January 2015, BCS-31]. The ongoing nature of the Applicant's offending is of significant concern as her offending cannot be considered an isolated or one-off occurrence. During the extended period she engaged in offending behaviour, the Applicant had ample opportunity to reconsider and cease her actions, however she chose to continue to engage in offending behaviour and continually placed her own personal and financial needs over the safety and wellbeing of others;
- the material indicates that during the period of her offending, the Applicant was fully aware the products she supplied to customers called 'tea', were in fact synthetic cannabis [Police brief of facts — various offences between 28 February 2014 and 15 January 2015, BCS-31]. Further, although the material indicates the Applicant may not have been fully aware of the illegal nature of synthetic cannabis during the initial period of her offending behaviour, she subsequently became aware the substance was illegal and nonetheless, continued to supply it to customers. Specifically, on one (1) occasion, the Applicant was advised by a customer that synthetic cannabis was "banned” [Agreed Statement of Facts R v Shyanne Kathleen O'Malley (submitted by the Applicant) paragraph 11] and as a result, the Applicant contacted police who confirmed the sale of synthetic cannabis was illegal. The Applicant submits that after her discussion with police, she stopped selling the unlawful substance for one (1) to two (2) weeks, however resumed doing so after her employer provided her with a document stating the substance was legal. Although the Applicant admits she knew the document was "dodgy" [Sentencing remarks of Judge Burnett for various charges, dated 27 April 2018, BCS-17], she used this as justification to continue selling the unlawful substance to customers [Agreed Statement of Facts R v Shyanne Kathleen O'Malley (submitted by the Applicant), paragraphs 10 and 11 and Sentencing remarks of Judge Burnett for various charges, dated 27 April 2018, BCS-17]. In his sentencing remarks, Judge Burnett stated that the Applicant "turned a blind eye to what you, I think, appreciated was the patently obvious...that what was being sold was a drug" [Sentencing remarks of Judge Burnett for various charges, dated 27 April 2018, BCS-17]. The Applicant's deliberate involvement in the sale and supply of illegal drugs (even after she had explicit confirmation such actions were illegal), raises serious concerns about her willingness to disregard and flaunt legal boundaries. This will be explored further at Hearing;
- it is of further concern that during the period of her offending, the Applicant was aware of the deleterious health benefits of synthetic cannabis, however continued to sell and supply the substance to customers. In particular, the material indicates the Applicant had been told to warn people about the strength of "the Godfather" (one of the synthetic cannabis products sold to customers by the Applicant) and had been advised by customers the substance caused them to have convulsions, "feel overwhelming depressed" and very paranoid [Agreed Statement of Facts R v Shyanne Kathleen O'Malley (submitted by the Applicant), paragraph 10]. In sentencing remarks, it was noted by Judge Burnett that the Applicant had an appreciation of the adverse health effects of the drug, however turned a blind eye to that information. The Applicant's ongoing involvement in the sale and supply of a substance she knew to be particularly harmful, raises her concerns about her ability to act in a responsible and protective manner towards others. This raises concerns about the Applicant's eligibility to work with children and young people, as they are reliant on adults around them to act responsibly and proactively to ensure they are provided with a safe and protective manner and to role model appropriate behaviour. This will be explored further at Hearing;
- the material also indicates the Applicant personally used synthetic cannabis "a couple of times' [Police brief of facts — various offences between 28 February 2014 and 15 January 2015, BCS-32] and experimented with cannabis on occasion [Applicant's Life Story dated 18 January 2018, paragraph 42]. Although the Applicant submits she has not used drugs since the commencement of the criminal legal proceedings against her (January 2016), if the Applicant were to engage in drug use again in the future, it would be likely to impair her ability to appropriately provide for children and young people who may be in her care. This will be explored further at Hearing;
- the relatively recent nature of the Applicant's offending behaviour is also a factor of concern. The Applicant was charged with six (6) offences in January 2016, three (3) of which she was convicted of in April 2018, at which time she was sentenced to a good behaviour period of fifteen (15) months and ordered to enter recognisance of $1,000. The Applicant is therefore subject to a good behaviour period until 27 July 2019 and given she has either been anticipating arrest by police [Applicant's Life Story dated 18 January 2018, paragraph 43 to 45], on bail or subject to a good behaviour period for the entire period of time since she ceased her offending behaviour, the absence of any further entries on the Applicant's criminal history cannot be considered a genuine period of rehabilitation. Given the Applicant has not had the benefit of any period of time, since her offending, without the threat of further penalty or punishment being imposed, there are concerns about her risk of recidivism in the future;
- it is of further note, that despite the Applicant indicating she felt extremely ashamed and guilty for her involvement in the offences of concern and "felt that I was a bad person, [Applicant's Life Story dated 18 January 2018, paragraph 43] even after police intervened in January 2015, she continued to regularly receive traffic infringements and has been suspended from driving on two (2) recent occasions, in 2017 and 2019 [Applicant's traffic history dated 9 April 2019, BCS-52 to BCS-53]. Particularly when viewed in conjunction with her criminal offending, the Applicant's ongoing and recent traffic history raises concerns about her ability to effectively recognise and comply with legal boundaries;
- the material filed by the Applicant demonstrates that she is remorseful for her offending behaviour and has demonstrated some insight into what triggered her actions. However, when considered as a whole, the Applicant's submissions indicate a tendency to minimise her involvement in the offences, minimise her knowledge of the illegality of her actions and to shift blame onto others and it is therefore not clear from the material before the Tribunal, the full extent of genuine remorse and insight possessed by the Applicant about her offending behaviour. The importance of an Applicant possessing insight as a protective factor is demonstrated in the published decision of Re TAA  QCST 11, where the former Children's Services Tribunal stated at paragraph 97 of its reasons:
"The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children."
the Applicant's remorse and insight will be explored further at Hearing; and
- the Applicant submits that she wishes to obtain a positive notice and blue card so that she may complete tertiary study and pursue a career in nursing. However, the effect of issuing the Applicant's blue card is that the Applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just for the purpose for which the Applicant has sought the card. For this reason, the Tribunal must take into account all possible work situations open to the Applicant [JA v Chief Executive Officer, Public Safety Business Agency  QCAT 251, ]. The Tribunal has no power to issue a conditional blue card [RPG v Chief Executive Officer, Public Safety Business Agency  QCAT 331 at  and once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business.
- Overall, material before the Tribunal indicates that the Applicant knowingly and willingly engaged in the supply of synthetic cannabis to a number of customers over an extended period of time in 2014 and 2015. The material indicates that despite the Applicant becoming aware of the illegality of her actions and the serious adverse health effects the drugs were having on customers she sold it to, the Applicant continued to place her own financial and personal interests ahead of those concerns. Further, notwithstanding the positive changes the Applicant has implemented in her life and the positive environment and support networks she has created, the Applicant has not yet demonstrated that she can effectively and independently (without supervision or threat of additional punishment) refrain from offending or inappropriate behaviour in the future.
- The Respondent submits that the object, purpose and nature of the decisions enshrined in the Act support a precautionary approach to decision-making on blue card matters. Apart from the inherent impossibility of predicting future risk with certainty, the WWC Act is premised on past behavior being an indicator of future behavior and allows for precautionary action to be taken even if it is not demonstrated that a person's criminal offending is directly child-related.
- A positive notice is unconditional and fully transferable. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities. The Respondent submits that the Tribunal must consider transferability of notices under the WWC Act when having regard to the best interests of children.
- The Respondent submits that the risk factors identified in the proceedings render the case an exceptional case such that it would not be in the best interests of children and young people for the Applicant to be issued with a positive notice and blue card.
- At the conclusion of the Tribunal hearing, the Respondent submitted that as a protective measure for children, and not as a way of punishing the Applicant, the Tribunal should find that this is an exceptional case, such that it would not be in the best interests of children to issue a positive notice to the Applicant. The Respondent urged the Tribunal to give little weight to the witnesses who provided statements but were not available for cross-examination, and to give limited weight to those witnesses that did attend to provide cross-examination because they said that the Applicant did not know that what she supplied was an illicit drug.
- The Respondent conceded that there are protective factors but that the risk factors outweigh those protective factors. The Respondent submitted that the actions of the Applicant continued over a period of eleven months, which cannot be considered as an isolated incident, that the Applicant should have reconsidered her actions and that despite being alerted to illegality, she continued to supply the dangerous drug. The Respondent said that through her actions the Applicant failed to properly consider safety issues, considered her own job security as paramount, that she used drugs occasionally rather than for a period of six weeks, failed to make full disclosure and resorted to drugs during a difficult time in her life. The Respondent said that by resorting to drugs upon facing difficulties it suggests that the Applicant will do so again in the future. The Respondent said that the Applicant refused medication prescribed by the general practitioner and chose self-medication. The Respondent urged the Tribunal to find that the absence of a further criminal history does not mean there has been genuine rehabilitation and indeed there is further offending through the traffic history, which suggests that the Applicant is not willing to comply with legal boundaries. The Respondent argued that the lack of further criminal history, in part, reflects the recency of the criminal activity and the fact that there has been supervision. The Respondent said that the Applicant’s ability to refrain from further engagement in criminal activity without supervision is effectively untested.
- The Respondent said that the Applicant has minimised her actions and has not made full disclosure about her actions to others close to her. The Respondent said that the Applicant knowingly supplied drugs to customers over an extended period and still has failed to fully accept her actions.
- The Respondent reminded the Tribunal that a blue card is fully transferable.
The Tribunal findings and decision
- To the extent that there is inconsistency in the evidence elsewhere, the Tribunal accepts the Agreed Statement of Facts between prosecution and defence as the factual basis upon which the Applicant was involved in offending behaviour. In doing so, I note that his Honour Judge Burnett did accept the Agreed Statement of Facts and used that as the factual basis upon which his Honour sentenced the Applicant. I note the leniency imposed by the Court, which reflects the degree of criminality and significantly, the rehabilitation of the Applicant.
- The decision of the Tribunal is not intended to reward the Applicant for her rehabilitation, in the same way that it is not intended to punish the Applicant for her crimes. The decision of the Tribunal is centred around the interests of children. In making its decision, the Tribunal does consider the WWC Act and, in that regard, notes that Parliament has seen fit to legislate that the offences for which the Applicant has been convicted are not serious or disqualifying offences. Therefore the presumption is to find that the application is not exceptional. No party has the onus of proving whether the case is exceptional. Having carefully considered the evidence, the Tribunal is of the view that this is not an exceptional case.
- The Tribunal does note all of the circumstances around the offending behaviour, and notes that the trafficking charge was reduced to the supply of dangerous drugs charge. The Tribunal is of the view that the decision was not made lightly by the Crown. The Tribunal does note that the offending behaviour involving the supply of dangerous drugs was accepted by the sentencing judge as having a commercial aspect to it, so that in essence, the commerciality associated with the charge of trafficking in dangerous drugs was also reflected in the matters for which the Applicant was sentenced.
- The Tribunal notes that the Applicant was not specifically financially rewarded for selling the dangerous drugs. It is accepted that she did receive benefits through her pay, but that was at the ordinary hourly rate.
- The Applicant did sell the type of drugs that had serious, and it appears, fatal consequences for some of the users. There is no suggestion that the specific drugs sold by the Applicant resulted in those deaths. However, during the relevant time, the Applicant was not aware of the extent of that danger.
- The Applicant has shown a desire to cooperate with authorities, and to take positive action to better herself. She provided police with a record of interview, she did enter a plea of guilty and she has complied with conditions of bail and the court imposed reconnaissance. All of that goes to her insight into her offending behaviour. It is a significant protective factor.
- The conviction for supply and possession of dangerous drugs, coupled with the original charge of trafficking, are serious matters. But any risk associated with that offending behaviour has been addressed by the Applicant. The Applicant does have insight into her offending behaviour and has made substantial changes to her lifestyle. She has quality support that is accessible, and should the Applicant need support, the Tribunal is confident that she will reach out for that support. The Tribunal accepts that the Applicant has not used illicit drugs since, at the latest, police raided the store where she had worked. That is a factor that significantly reduces risk.
- The Tribunal accepts that the Applicant did demonstrate wilful disregard for the well-being of others for her part in the sale of the dangerous drugs. However, her knowledge of the extent of the danger was limited at the relevant time. The Applicant became aware of the extent of the danger when police raided the store. Since then, she has demonstrated considerable remorse, that has sustained, and she has taken appropriate action to ensure that she is not going to place herself in similar situations in the future. The Tribunal accepts that the Applicant sincerely regrets her decision to work for her former employers. She was naïve and immature. But she has learned from that experience. That is a highly protective factor.
- The Applicant provided compelling evidence to the Tribunal. The Tribunal accepts her evidence as reliable. During the time that she was selling the drugs, the Applicant challenged her employers. While she did continue to sell the drugs after receiving a dubious ‘certificate’ from her employers, she did demonstrate some willingness to question the authenticity of the statements made to her by her employers. That demonstrated some courage and some maturity. The Tribunal accepts that through the process of being charged and sentenced, the Applicant has gained a much deeper appreciation of her offending behaviour. The Tribunal accepts her statements that she does not intend to return to involvement with drugs as correct. That is a significant protective factor. The Applicant is not likely to resume the use of, or have other involvement with, dangerous drugs. That is a significant matter that also goes to the issue of minimisation of risk.
- The Tribunal notes there are other protective factors relevant to the Applicant. During the relevant time, she was a young adult and the Tribunal accepts that she was immature and naïve. She did not look for, or obtain, specific personal gain as a result of her offending behaviour. She was, as his Honour pointed out during the course of sentencing, an employee who was given some instruction about the product and did provide some degree of warning to customers. The Tribunal notes his Honour’s findings that initially the Applicant did not realise the product was a synthetic drug but ultimately came to realise that as being the case. While the Applicant had some appreciation of the deleterious effect on customers and she did, as his Honour pointed out in sentencing, to some extent turn a blind eye to what had she came to appreciate was an unlawful substance, she did seek some further information and answers from her employer. She was the very bottom of the supply chain as a shop assistant. There is no evidence to suggest that the Applicant sold the synthetic drug to anyone under the age of 18 years nor is there any evidence that children were directly involved in the Applicant’s actions or witnessed any of the events the subject of charges against the Applicant. There is no evidence that children were exposed to risk when the Applicant consumed dangerous drugs.
- The Tribunal notes that the sentencing judge did make findings that were favourable to the Applicant. The Court found that she had not committed any offences on bail, she pursued her education, she pursued her employment and she had otherwise been a constructive member of the community. All of those matters point to a minimisation in risk, and they are significant protective factors.
- The Applicant has obtained the benefit of counselling and consulted her general practitioner. She has been frank and honest in her discussions with her family, who remain highly protective and supportive factors in her life. These are matters that all go to minimise risk.
- The quality of the Applicant’s evidence was not diminished by cross-examination.
- The Tribunal was impressed by the evidence presented by the Applicant’s mother, the Applicant’s family friend and the Applicant’s partner. The Tribunal accepts their evidence as reliable.
- In determining that this is not an exceptional case, the Tribunal does take account of the considerations prescribed by section 226 of the WWC Act and other matters as identified in this decision. The Tribunal considers its decision from the perspective that the welfare and best interests of children is paramount. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. In making decisions of this type, the Tribunal does consider the risk to children. That the offending behaviour occurred over a period of up to 11 months does not change the risk perspective. Likewise, that the Applicant has been involved in traffic offences since the criminal offending behaviour does not change the risk perspective.
- The Applicant has a very supportive family and network of friends. The Tribunal has formed the view that the Applicant is a person who is likely to listen carefully to sage advice. While the Applicant did not accept her mother’s advice about working in the store, she has learned from that experience. That is a protective factor.
- The Applicant has embarked on an intended new career path. Her desire to undertake study represents a considerable commitment to a future that is protective by nature. Through her commitment, the Applicant has minimised risk of harm to others, particularly to children. Her decision to change her life through further education and pursue a care-based career are significant protective factors.
- The Applicant has embarked on a new relationship. She is a step-mother and as at the date of hearing was pregnant, expecting her first child. These are protective factors and minimise risk of concern for children.
- The Tribunal accepts that the Applicant has developed appropriate strategies to deal with triggers for stress and she is not likely to resort to the use of illicit drugs as a means of self-medication. Upon the breakdown of a relationship, the Applicant did become depressed and anxious and resorted to self-help, through the use of cannabis. However, she did not resort to the use of illicit drugs when she was faced with the police investigation and process. She has sought out, and is likely to continue to seek out, appropriate medical assistance when necessary.
- The Applicant has shown an extraordinary amount of cooperation with authorities. That goes to her insight.
- The Tribunal rejects the suggestion by the Respondent that the Applicant is untested in relation to her resolve to abstain from the use of dangerous drugs because she has been effectively supervised since the police raid in 2015. The Tribunal finds that the Applicant has not complied with her obligations merely for the sake of avoiding adverse consequences. The evidence presented to the Tribunal demonstrates that the Applicant has gained real insight and her insight does stand independently of any supervision that might be afforded through the court system or sentencing process. The Tribunal finds that the Applicant has shown genuine remorse. The Tribunal does not accept the submissions by the Respondent that the Applicant has minimised her behaviours or failed to make full disclosure to those close to her.
- The orders are as follows:
- The decision of the Respondent that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
The decision of the Tribunal is to be delivered to the parties by email.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).
Ibid, s 20(2).
Working with Children (Risk Management and Screening Act) 2000 (Qld) s 5.
WJ v Chief Executive Officer, Public Safety Business Agency  QCATA 190 .
WWC Act s 221 (1)(c).
BCS – 54, 55.
Sentencing remarks of Judge Burnett in the District Court of Queensland at Brisbane dated 27 April 2018 at pp. 2 & 3.
 Ibid, p 5.
Commissioner for Children and Young People and Child Guardian v Maher & Anor (2004) QCA 492.
WWC Act s 6.
 Ibid, s 167.
 Ibid, s 221(1).
 Ibid, s 221(2).
 By email from the Respondent to the Tribunal dated 29 April 2019.
- Published Case Name:
O'Malley v Department of Justice and Attorney-General
- Shortened Case Name:
O'Malley v Department of Justice and Attorney-General
 QCAT 25
31 Jan 2020