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

Lightbody v Director-General, Department of Justice and Attorney-General

 

[2020] QCAT 62

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Lightbody v Director-General, Department of Justice and Attorney-General [2020] QCAT 62

PARTIES:

Ben Charles David Lightbody

 

(applicant)

 

v

 

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

 

(respondent)

APPLICATION NO/S:

CML291-18

MATTER TYPE:

Childrens matters

DELIVERED ON:

5 March 2020

HEARING DATE:

1 August 2019

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. The decision of the Tribunal is to be delivered to the parties by email.

CATCHWORDS:

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 Applicant was convicted of an animal cruelty offence – where Applicant was a member of the armed services at the time of the offending behaviour – 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, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 167, s 221, s 226

CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294

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

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219

Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VR 1

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

A Bryant, In-house Government Legal Officer of the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

  1. [1]
    In 2004, Mr Ben Charles David Lightbody (‘the Applicant’) was a 21 year old soldier in the Australian Army. Together with five other soldiers he was involved in an abhorrent case of animal cruelty. He now applies for a blue card, so that he may work with children.
  2. [2]
    On 8 January 2018, 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’).
  3. [3]
    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 14 September 2018, the Respondent denied the Applicant his request for a blue card. BCS provided the Applicant with written notice of the decision, the reasons for the decision (‘the Reasons Document’) and the relevant review information.
  4. [4]
    The Applicant applied for a review of this reviewable decision under the WWC Act.
  5. [5]
    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).[1] The purpose of the review is to produce the correct and preferable decision.[2]
  6. [6]
    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.[3] 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’.[4]
  7. [7]
    The Applicant requested a blue card because his wife wanted to operate a family day care business and he wanted to be involved with children’s sport.[5]
  8. [8]
    The Respondent refused to issue a blue card because the Applicant had been involved in criminal activity, involving animal cruelty. 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,[6] and therefore the presumption is to find that the application is not exceptional.[7] Unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so, the decision-maker must issue a positive notice.[8]
  9. [9]
    The Respondent acknowledged that the Applicant has no other criminal history.
  10. [10]
    It was common ground that the Tribunal must find the case is exceptional to deny the Applicant a blue card. BCS determined that the Applicant’s case was exceptional, and this position was maintained by the Respondent at the Tribunal hearing. Of course, the Applicant urged the Tribunal to find that the case was not exceptional.
  11. [11]
    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 it does prescribe certain matters that the Tribunal must consider in deciding an application.[9] The Tribunal must consider identified risk factors and identified protective factors in determining whether an exceptional case exists. 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.[10]
  12. [12]
    The Applicant’s actions that caused particular concern to BCS, and to the Tribunal, involved horrendous acts of animal cruelty, but do not involve any acts directly relating to, or witnessed by, children. The acts of animal cruelty raised concerns about issues to do with the stability of the Applicant’s mental health and concerns about his lack of empathy, which may impact on his ability to make appropriate decisions in and around children. The Applicant expressed his remorse and acknowledged his immaturity in his involvement, with five others, all while he was working as a soldier. He acknowledges that as a soldier, he was in a position of trust and responsibility.
  13. [13]
    In determining this matter, the Tribunal is not directly concerned about the prospect of future events of animal cruelty. That is not the test. The concern for the Tribunal is solely related to the welfare and best interests of children. The Respondent says that the acts of animal cruelty suggest the possibility that the Applicant would not act in a way that is protective of children from harm, and that the Applicant would not act in a way that promotes the well-being of children. The Applicant says that, despite his actions, he is not a risk to children.
  14. [14]
    The Tribunal has a wide discretion to determine whether this is an exceptional case. In Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] VR 1, 10, Fullager J stated that, ‘it would be most unwise to lay down any general rule with regard to what is an exceptional case ... All these matters are matters of discretion’. Each case is to be considered on its own facts.

Charges and court history

  1. [15]
    The Applicant's criminal history contains one conviction for cruelty to animals, which was committed on 10 April 2004.[11]
  2. [16]
    The Respondent identified the key issues in the following manner:

Along with five (5) other Australian Defence Force soldiers, the Applicant attended a barbeque, during which time they consumed alcohol.[12] The group then located a litter of four (4) domestic kittens (aged about three weeks) in a nearby storage room and commenced torturing them. A number of cruel and inhumane acts were committed by the group, including urinating on one (1) of the kittens, throwing a kitten onto the concrete ground, purposely running over one (1) of the kittens with a Landcruiser motor vehicle, and dousing three (3) kittens in fuel before setting them on fire.[13]

  1. [17]
    According to the Respondent:

Of particular concern was the Applicant's direct involvement in the offending, which included tying a noose around one of the kitten's necks and dragging it behind a motorcycle. When he returned from dragging the kitten along, it was noted that the kitten was in obvious distress, however he again took off with the kitten dragging behind him after his co-offenders advised the kitten was not yet dead.[14]

  1. [18]
    The Respondent produced a transcript of the sentencing proceedings.
  2. [19]
    During the process of sentencing, the prosecutor made the following comments about the Applicant:

When interviewed, each defendant now before the Court provided an account or version of the events, your Worship. The defendant Lightbody admitted that he was the rider of the motorcycle on both occasions. He said that he knew a kitten was attached to the rear of the motorcycle by rope and deliberately dragged it around the accommodation block. He could offer no reason as to why he acted in this manner. It was established that the defendant Lightbody played no further part in the offence.[15]

  1. [20]
    The prosecutor made the following submissions:

… Two soldiers were using a rope. These people tied a noose at either end of the rope and placed it back into the tray of a white Toyota LandCruiser utility. One of the soldiers then tied one end of the rope to the rear of the unregistered trail bike – or then unregistered trail bike – and the other end around one of the kittens that had been removed from the litter and placed it onto the tray of the utility. Another soldier then drove the motorcycle around the unit complex at speeds variously described as being between 30 and 50 km an hour trailing the kitten around behind the motorcycle.[16]

  1. [21]
    The Tribunal accepts that the Applicant was involved in the offending behaviour as the rider of the motorcycle, but he was not otherwise involved. Based on the Tribunal’s reading of the sentencing transcript, the Applicant was not involved in the process of tying the rope around the trail bike, the LandCruiser or the kitten. The Applicant was identified as ‘another soldier’.
  2. [22]
    During the Tribunal hearing, the Applicant said that he had not consumed any alcohol. But the following statement is included in the court brief prepared by the Queensland Police Service:

All defendants admitted during the course of the day they had consumed varying amounts of intoxicating liquor.[17]

  1. [23]
    Neither the court brief nor the sentencing remarks specifically highlighted any issues of concern in relation to the consumption of alcohol by the Applicant. On balance, the Tribunal is not satisfied that the Applicant was adversely affected by the consumption of alcohol at the time of the offending behaviour. Therefore, the Tribunal does not accept that, as a result, the consumption of alcohol was, or is, a potential risk concern in these proceedings.
  2. [24]
    In relation to this offence, the Court imposed a $2,000 fine, disqualified the Applicant's motor driver's licence for six (6) months and ordered no conviction be recorded.[18]
  3. [25]
    Of particular concern to the sentencing Court, and this Tribunal, was the Applicant's direct involvement in the offending. The kitten was approximately three weeks old at the time of the offence. It was particularly vulnerable. When the Applicant returned from dragging the kitten along, the kitten was in obvious distress, however the Applicant again took off with the kitten dragging behind him after his co-offenders advised that the kitten was not yet dead.[19]

Risk factors and protective factors

  1. [26]
    The Tribunal considers that the actions of the Applicant in his offending behaviour were deplorable, but to what extent has the Applicant modified his behaviour over the past 15 years and to what extent should his actions at that time he regarded as being a risk to children at this time? These are key issues for the determination of the Tribunal.
  2. [27]
    The Tribunal must balance relevant risk and protective factors in each case and, where there are multiple factors in a case, the Tribunal must apply weight to the relevant factors.[20] That requires the Tribunal to undertake a careful analysis of the circumstances in the case, which involves the application of a discretion.

Matters to which the Tribunal must have regard

  1. [28]
    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 and the circumstances of the offending behaviour, and is 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.
  2. [29]
    The Applicant’s offending of concern occurred as a single event. It was 15 years prior to the hearing. The Respondent did not raise any issues of concern about the Applicant’s behaviours before or after the events of 10 April 2004.
  3. [30]
    The Respondent urges the Tribunal to find that the conviction for animal cruelty is a serious matter, even though it is not a ‘serious offence’. The Respondent also acknowledged a degree of remorse by the Applicant but suggested that he lacked insight into his offending behaviour.
  4. [31]
    The Applicant produced some 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 him to re-engage in offending behaviours and that ultimately allowing the Applicant to have a blue card would have a negative impact on children.
  5. [32]
    The Applicant urged the Tribunal to find that he does have insight, that he has made substantial changes to his lifestyle and that his personal circumstances have changed.

The life story of the Applicant

  1. [33]
    The Applicant provided a version of his life story (‘the Applicant’s Life Story’), dated 10 November 2018, to the Tribunal.
  2. [34]
    The Applicant spoke of his normal, and loving, upbringing as part of a well-rounded family with two sisters, one younger and one older, with parents who are still happily married. After school, he undertook some horticultural studies and he worked in nurseries before choosing to enlist in the military. He took to all aspects of training and was posted to Townsville, from where he was deployed to the Solomon Islands. He struggled on the deployment and he felt he was not well prepared mentally. He returned to normal duties in Townsville but felt that he had developed a medical condition from what he had witnessed overseas. He said that it was a few months after that return that he was involved in the animal cruelty incident. Shortly after the animal cruelty incident, he accepted a forced discharge from the military, his relationship with his then-fiancée deteriorated, and the relationship ended. He returned to Maryborough and he was ostracised by his former friends and parts of the community as a result of his involvement in animal cruelty. He was diagnosed with severe depression, and he was medicated for up to twelve months. He was able to commence work at a sawmill in Maryborough as a labourer and with the support of his family he started to rebuild his life, commencing with the co-purchase of a home that required a large-scale renovation and together with his father they spent the next four years working on the house. In the Applicant’s case, that was on an after-hours basis. He formed a fresh relationship with a lady whom he married, and they had children. They moved to Emerald and he worked in the mining industry. Their house in Emerald flooded and caused a great deal of distress. The Applicant then secured employment in the heavy haulage industry and the family relocated to Brisbane. The Applicant and his wife separated, and he returned home. He has since remarried. He and his current wife, and children, live in a family home with ‘two beautiful dogs rescued from refuge’.[21]

The evidence of the Applicant at the Tribunal hearing

  1. [35]
    The Applicant was cross-examined at the Tribunal hearing, and during his evidence the Applicant said:
    1. (a)
      He experienced a lot of bullying and rank distinction in the military.
    2. (b)
      He struggled on deployment and found the brutality of the situation overseas difficult to handle. The events changed him.
    3. (c)
      The images of war were not pretty, and he did not receive any counselling through the military. In fact, he found that his inability to cope led him to be subjected to a form of ‘interrogation’ which was difficult and made him feel undervalued.
    4. (d)
      He developed a mental health condition overseas which upon reflection was the catalyst for his later depression.
    5. (e)
      He received no assistance from the military regarding his condition.
    6. (f)
      He was experiencing some degree of slight depression on 10 April 2004, being the date of the offending behaviour. Those with whom he was charged had been consuming alcohol that day, but he had not consumed alcohol.
    7. (g)
      He did not tie the kitten to the motorbike, but he did ride the motorbike knowing that the kitten was tethered to it. It was not his idea to commit this particular act of cruelty, and there was some urging for him to participate, but he did so knowingly.
    8. (h)
      The kitten was in obvious distress. After riding around the barracks and returning to the original location the kitten was not dead. Someone suggested he ride around again, which he did.
    9. (i)
      After returning, he got off the bike and went inside. His fiancée who was in his unit, had heard the motorbike and she was unhappy.
    10. (j)
      On reflection, he felt he would have been the subject of mocking had he not participated. He was trying to fit in and be part of the group of boys.
    11. (k)
      He was not a witness to, or involved in, any other acts of cruelty towards the kittens.
    12. (l)
      Being discharged from the military was very significant.
    13. (m)
      He did seek counselling through his general practitioner.
    14. (n)
      The events of the evening are etched in his mind. The effects on him were long-standing. Because of his actions, he lost the first love of his life, lost his career, suffered court proceedings and endured threats once the matter became public knowledge. As a young man, he was scared.
    15. (o)
      He withdrew, but he rebuilt his life.
    16. (p)
      He took on a job in a sawmill and worked hard. He met his (now ex-) wife. He and his father bought a house. He was ostracised by others in his home town because of the media interest in his story. Initially his father was firm but remained supportive.
    17. (q)
      He fell into a severe depression, but his general practitioner provided counselling assistance. He took medication for six to twelve months and that really helped. He engaged in lengthy informal counselling sessions with his general practitioner which involved sessions of once per month for up to 12 months.
    18. (r)
      After 12 months, he stopped taking the medication for depression. He engaged in marriage counselling with his ex-wife.
    19. (s)
      He was not aware that research showed that cruelty to animals may demonstrate an underlying mental health issue or fundamental personality flaw. He was not aware of that until he saw the Reasons Document. He said his actions were peer pressure related.
    20. (t)
      He has spoken with his current wife about the past and she has not expressed concern.
    21. (u)
      He could not afford to obtain a psychological report to assist the Tribunal.
    22. (v)
      Alcohol is not an issue for him. He is not a heavy drinker.
    23. (w)
      He has reflected upon his behaviours of animal cruelty. He is not proud of his actions. He would never undertake that type of behaviour again.
    24. (x)
      He could now deal with peer pressure – he would simply walk away. He is now strong-willed, and he can stand up to peer pressure if applied.
    25. (y)
      He has support through his wife and his children, his parents, his family and his quality friends. He has a good relationship with all his children, and he has moved to a location that is close by the location of his ex-wife and she has no issues with him having contact with their children.
    26. (z)
      At the time of the offending behaviour, he now realises that he was suffering a degree of depression. The involvement he had with his general practitioner and the medication he took for up to 12 months served a valuable purpose of avoiding a further downward spiral.
    27. (aa)
      He has not involved himself in any parenting programs and that was not suggested to him during the period of his separation from his first wife. No issues were raised during that separation that may have a bearing on his ability to parent properly.
    28. (ab)
      He has never had anger management issues.

The evidence of David Lightbody (father of the Applicant)

  1. [36]
    David Lightbody provided a letter of support for the Applicant dated 2 April 2019, which included the following statement:

The reader of this reference could assume that as Ben's father I would make claims about Ben's life that are exaggerated to make him stand out. I admit that I am very close to Ben. … I can assure you that as a parent, I have never sugar-coated my children's life's experiences both good and bad. We stand behind our children to provide support, express disappointment and provide encouragement but at the end of the day they are what they are and have achieved their life goals by themselves. I am extremely proud of what my wife and I have achieved in raising our children in that they are all proven assets to their community, friends and families.

  1. [37]
    Mr Lightbody gave evidence at the Tribunal hearing:
    1. (a)
      The penalty for animal cruelty was fair.
    2. (b)
      The animal cruelty was out of character and something that his son would never repeat.
    3. (c)
      After discharge from the army, his son was depressed, and he and his wife were very concerned about him.
    4. (d)
      His son started to work through his issues and gradually his mood started to improve.
    5. (e)
      Everyone in the family, and his friends, offered reassuring words.
    6. (f)
      His son is a loving father.
    7. (g)
      His son can now stand up to people and he has grown and matured. He has never experienced his son to be involved in any other instance of harming animals. He would never harm a child or an animal – his actions were a one-off incident.

The evidence of Narelle Lightbody (mother of the Applicant)

  1. [38]
    Narelle Lightbody provided a letter of support for the Applicant dated 2 April 2019. She said that:
    1. (a)
      She has seen her son grow and mature into a responsible young man.
    2. (b)
      The army culture seemed to involve a lot of bullying and rank distinction.
    3. (c)
      Her son seemed to like the initial training but when he was sent to the barracks in Townsville, he seemed to lose his way.
    4. (d)
      He is not a big alcohol drinker, and as this was prevalent in the barracks, he struggled to fit in.
    5. (e)
      The incidence with the cats in Townsville was so out of character. It was very difficult for them to actually understand that this was something that their son was involved in.
    6. (f)
      Since leaving the army he has matured.
  2. [39]
    Mrs Lightbody used these words to describe his current state of mind:

I have seen all the emotions there is for Ben as he has grown to become a man. I am very proud of the way he has handled himself the past 10 years to become such a well-adjusted person. He is surrounding himself with like-minded people and with the support of his wife and family I know that Ben has become a strong, outstanding citizen and a credit to his own self-worth as he has travelled through this journey of life.

  1. [40]
    Mrs Lightbody also presented a second support letter where she confirms having worked in the childcare field for over 30 years and that her son has been involved with her in helping with supervision, play-based activities and other activities involved in successful running of the childcare centre.
  2. [41]
    Mrs Lightbody gave evidence at the Tribunal hearing:
    1. (a)
      There seemed to be a lot of bullying and rank distinction in the army.
    2. (b)
      After the animal cruelty matter, her son suffered depression and anxiety. He did seek counselling from a GP. He has never done anything like this before or since the event.
    3. (c)
      Her son would never allow others to bully him – he would tell them to go away (politely).
    4. (d)
      Her son loves children. He has his own and has other contact with other children, such as his nieces and nephews. He loves to interact and play games and they enjoy interacting with him.
    5. (e)
      Her son is not a big drinker.

The Respondent’s submissions

  1. [42]
    The Respondent provided written submissions to the Tribunal dated 30 July 2019. The relevant sections of the submissions are as follows (adopting the number from the original document):

Protective factors

  1. The Respondent submits that the following protective factors are relevant in this matter:
  1. the cruelty to animals offence is the only offence recorded on the Applicant's criminal history;
  2. the Applicant was 21 years of age at the time of the offending behaviour and therefore his offending may be mitigated, to some extent, on the basis of his youth and lack of maturity. While this factor should be considered in the context of the Applicant's ability to be influenced by others, the weight afforded to it should be tempered given the Applicant was mature enough to have had sufficient understanding of the heinousness of his actions;
  3. the Applicant has indicated his significant remorse for his offending and involvement in the events of that night throughout his written material. He also stated "I have grown to be more responsible for my actions and [am] no longer subject to being coerced into carrying out actions which were not and have not been part of my character before or after the event." This indicates the Applicant now has an understanding of the wrongfulness of his behaviour and the importance of responsible and autonomous decision making;
  4. since the offending, the Applicant has made a number of positive changes to his life including obtaining full time employment outside of the military, having children and maintaining a supportive relationship with his current partner despite the challenges they have faced as a couple;[22] and
  5. the Applicant's mother and father have both provided witness statements in support of his application. They alluded to the difficulties the Applicant faced while in the military and stated he struggled with his mental health following his offending and the resulting consequences. Both witnesses assert the Applicant's offending was out of character and that he has learned from his past mistakes and has matured. The witnesses' evidence will be further explored at the hearing.

Risk Factors

  1. The Respondent further submits that the following risk factors are present:
  1. the Applicant's offending behaviour was cruel, inhumane and torturous. It is noted that the offending was prolonged and carried the clear intention of killing the kittens. The kittens were approximately three (3) weeks old at the time of the offence and were particularly vulnerable in the circumstances. The Applicant's actions indicate he took advantage of the vulnerability of the animals and deliberately caused them severe harm and ultimately death, for no apparent reason. Blue card holders are expected to ensure they act in the best interests of children at all times, including protecting them from dangerous situations or activities which may be harmful to their physical, emotional or mental wellbeing. The Applicant's offending behaviour suggests a concerning inability to empathise, and a general disregard for life and wellbeing, raising concerns regarding his ability to provide a protective environment for vulnerable children;
  2. research indicates cruelty to animals can be linked to other issues such as undiagnosed or poorly managed mental illness to fundamental personality flaws such as the lack of empathy towards the pain and the suffering of the animal or a delight in the cruelty inflicted on that animal.[23] There is also mounting evidence that animal cruelty is linked to domestic violence and child abuse, as well as other criminal activity and a range of antisocial problems.[24] It is noted the Applicant indicated that shortly prior to the offence he had returned from overseas deployment due to his "inability to cope with the brutality of the situation",[25] however did not receive any professional support following his return. In the absence of any independent psychological material, concerns are raised regarding the triggers for the Applicant's offending and his ongoing management of his mental health;
  3. it is noted that no reason or trigger for the heinous offending behaviour has been articulated during the court proceedings or in the material provided by the Applicant. It was submitted during the court proceedings that the Applicant was particularly prone to the influence of others, resulting in his involvement in the offending.[26] Children are entirely reliant on the adults around them to exercise sound decision making skills in order to provide a safe and protective environment and act in their best interest. The Applicant's tendency to be easily influenced by others raises concerns that he may not be able to prioritise the best interests of children in difficult situations. This issue will be explored further at the hearing;
  4. the material indicates the Applicant's intoxication played a role in the offending behaviour, suggesting he may reoffend when intoxicated. Further, it is noted restrictions were also imposed on the Applicant's alcohol consumption by the Department of Defence following the offending.[27] In the absence of detailed information regarding past and present professional treatment sought, existing support networks and strategies utilised to reduce substance abuse, concerns remain regarding a risk of recidivism. This issue will be explored further at the hearing;
  5. as a soldier in the Australian Defence Force, the Applicant held a position of respect, trust and responsibility within the community. He would have been looked to as a role model by many. He should have known, or ought to have known, that his offending behaviour was in complete contradiction to his position as a member of Australia's defence personnel and the protective nature that role entailed. It has been stated by the Queensland Civil and Administrative Tribunal, that:

It can be harmful for children to become aware people they respect don't obey the law because it can create confusion for them as they try to develop a sense of right and wrong;[28]

The general abhorrence held by the community, with respect to such cases of cruelty to animals, was reflected at the time in reported statements by representatives of the RSPCA and the Returned Services League.[29] The statements suggest that the Applicant's (and his co-accused's) behaviours of concern were not the standard of behaviours expected by an adult in his position;

  1. the material indicates the Applicant accepted a forced discharge from the military following his offending,[30] reflecting the seriousness with which his actions were considered by his supervisors; and
  2. while the Applicant's offending occurred in April 2004, approximately 15 years ago, the passage of time is not in itself a determinative factor. It has been considered by the Tribunal that the passage of time can be considered a protective factor where it is accompanied by genuine insight.[31] The material provided by the Applicant provides limited insight into the triggers for his offending and the implications of his actions on those affected, instead focusing on the negative implications of the offending on himself. The extent of the Applicant's insight will be explored further at the hearing.

Conclusion

  1. 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.
  2. 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.
  3. 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.
  1. [43]
    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.
  2. [44]
    The Respondent conceded that there are protective factors but that the risk factors outweigh those protective factors.

The Tribunal findings and decision

  1. [45]
    In determining the application, the Tribunal maintains its focus on the best interest of children. This is not a case which involves imposing further punishment upon the Applicant nor is it a case where the Tribunal considers any detriment to the applicant as a result of determining that the case is exceptional. The Tribunal is concerned about the effect on children as a result of the Applicant potentially having a blue card. The Tribunal does consider the Applicant’s criminal history and the offending behaviour. The Tribunal must consider whether it raises issues of long-term concern and lack of empathy. The Tribunal must consider whether the Applicant has gained insight, particularly into those triggers that may cause a lack of judgement, which may have a potentially adverse effect on children. The Tribunal considers whether the Applicant has addressed the triggers and has gained skills to avoid issues arising in the future. The Tribunal considers the risk factors and the protective factors. The Tribunal considers the Applicant’s lifestyle and support network.
  2. [46]
    The decision of the Tribunal is not intended to reward the Applicant for his rehabilitation, in the same way that it is not intended to punish the Applicant for his 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.
  3. [47]
    Having carefully considered the evidence, the Tribunal is of the view that this is not an exceptional case.
  4. [48]
    The Tribunal does note all of the circumstances around the offending behaviour, and that the incident of animal cruelty was abhorrent. The Tribunal does note that the Applicant was not the initiator of the cruelty, but he did play a direct part in the cruelty to a very young, and vulnerable, kitten.
  5. [49]
    The Tribunal is not satisfied that those actions of the Applicant some 15 years ago mean that it is appropriate to conclude that the Applicant will commit such actions again against animals. More so, the Tribunal is not satisfied that those actions of the Applicant are actions that demonstrate a general propensity to cruelty or exploitation of children, or indeed any lack of empathy towards the needs of children.
  6. [50]
    The animal cruelty did not involve children, nor were children exposed to the animal cruelty.
  7. [51]
    The Applicant has shown a desire to cooperate with authorities, and to take positive action to better himself. He has demonstrated insight into his offending behaviour. It is a significant protective factor. Any risk associated with that offending behaviour has been addressed by the Applicant. The Applicant does have insight into his offending behaviour and has made substantial changes to his lifestyle. The Applicant has quality support that is accessible, and should the Applicant need support, the Tribunal is confident that he will reach out for that support. The Tribunal accepts that the Applicant has not been associated with animal cruelty, or indeed any offending behaviour, since 2004. The mere lapse of time does not minimise risk, but it is important evidence that the Tribunal considers within the overall context of weighing up any risk that the Applicant may pose to children.
  8. [52]
    The Tribunal accepts that the Applicant did demonstrate a lack of empathy towards a defenceless and vulnerable animal, but since then, he has demonstrated considerable remorse. The Tribunal accepts that the Applicant sincerely regrets his actions. He was affected by peer pressure and he was immature. But he has learned from that experience. The Tribunal accepts that the Applicant has developed appropriate strategies to deal with triggers for peer pressure. That is a highly protective factor.
  9. [53]
    The Applicant provided compelling evidence to the Tribunal. The quality of the Applicant’s evidence was not diminished by cross-examination. The Tribunal accepts his evidence as reliable. The Tribunal accepts that through the process of being charged and sentenced, the Applicant has gained a much deeper appreciation of his offending behaviour. The Tribunal accepts the Applicant’s statements that he will not commit acts of animal cruelty in the future as correct. That is a significant protective factor.
  10. [54]
    The Tribunal was impressed by the evidence presented by the Applicant’s parents. The Tribunal accepts their evidence as reliable.
  11. [55]
    The Tribunal notes there are other protective factors relevant to the Applicant. He committed a horrendous act, but he was not involved beyond the one incident of animal cruelty. The Applicant said that the cruelty he inflicted was the biggest error of judgement in his life.[32]
  12. [56]
    The Tribunal notes that the Applicant was destabilised by his deployment shortly before the offending behaviour. Since discharge from the army, the Applicant has gone on to lead a productive life and has established himself as a constructive member of the community. All of those matters point to a minimisation in risk, and they are significant protective factors.
  13. [57]
    The Applicant has obtained the benefit of counselling and consulted his general practitioner. His family remain a highly protective and supportive factor in his life. These are matters that all go to minimise risk.
  14. [58]
    The Applicant has made a number of positive changes to his life. He has full-time employment. He has a home and family, children and pets. He is surrounded by supportive people. He has had to face substantial challenges in his life, and he has overcome those challenges without resorting to criminal behaviours, animal cruelty, or any risk behaviours adverse to the best interest of children.
  15. [59]
    The Applicant did struggle with his mental health during and after the time of the offending behaviour with the resulting consequences. He did seek professional assistance to overcome those mental health issues. There is no evidence to the Tribunal to suggest any underlying mental health issues that indicate the Applicant has a greater propensity than the general population to commit future acts of animal cruelty or otherwise be involved in any activities that might be regarded as harmful for children.
  16. [60]
    The Applicant’s offending behaviour was cruel, inhumane and torturous. However, it was not prolonged over an extended period. It was a one-off event. The Respondent conceded that the offending behaviour may be considered as an isolated incident.[33] The Applicant did take advantage of the vulnerability of animals and did cause a kitten severe harm. The Applicant’s behaviour was out of character and his actions were not part of an ongoing course of conduct. He does not have a propensity to cause harm to animals, or to act in a way that is harmful to children.
  17. [61]
    The extent of the Applicant’s remorse and the absence of further offending suggests to the Tribunal that he has developed an ability to empathise. Indeed, the Tribunal is of the view that he always had the ability to empathise. The incident of animal cruelty was a significant lapse, but not indicative of a general disregard for life and well-being. The Applicant maintains the ability to provide a protective environment for vulnerable children.
  18. [62]
    The Tribunal notes the submissions to the effect that research indicates cruelty to animals can be linked to other issues such as undiagnosed or poorly managed mental illness or to fundamental personality flaws such as lack of empathy towards the pain and suffering of an animal or delight in cruelty inflicted on that animal. There is nothing in the evidence in this case that suggests to the Tribunal that the past diagnosis  of depression now impacts on the Applicant’s life or choices. The Tribunal rejects the suggestion that the Applicant’s horrendous action in 2004, of itself, now causes the Applicant to be a greater risk of committing domestic violence and child abuse, or other criminal activities or antisocial problems, beyond that of the general population.
  19. [63]
    The Tribunal accepts the Applicant’s evidence that he had suffered mental instability as a result of his deployment to the Solomon Islands. However, the Tribunal does not accept that, of itself, as raising concerns now about triggers for potential offending or ongoing management of the Applicant’s mental health.
  20. [64]
    The Tribunal is of the view that the Applicant is no longer particularly prone to the influence of others.
  21. [65]
    The Applicant has a very supportive wife, parents and family. The Tribunal has formed the view that the Applicant is a person who is likely to listen carefully to sage advice.
  22. [66]
    The Tribunal is of the view that the Applicant is able to act in the best interest of children.
  23. [67]
    There is no evidence to suggest that intoxication is a trigger which may increase any likelihood of reoffending or acting in a way that is contrary to the best interests of children.
  24. [68]
    There is no evidence to suggest to the Tribunal that the Applicant is at risk of recidivism.
  25. [69]
    The Tribunal acknowledges that as a soldier in the Australian Defence Force, the Applicant did hold a position of respect, trust and responsibility within the community. He lost that respect of the community, particularly in 2004 when his involvement in the animal cruelty became public knowledge through publication in the media. To his credit, he has regained a position of respect, trust and responsibility within the community.
  26. [70]
    The Tribunal accepts that the actions of the Applicant were serious, and it appreciates the expectations of the community and the general concerns held by the community, and courts, with respect to cases of cruelty and animals.
  27. [71]
    In coming to its conclusion, the Tribunal does so by adopting a precautionary approach to decision-making on blue card matters. In this case, the Applicant’s offending behaviour is not a reliable indicator of future behaviour. What the Applicant has done with his life, other than on 10 April 2004, serves as a more reliable indicator of future behaviours.
  28. [72]
    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.
  29. [73]
    The Tribunal acknowledges that a blue card is fully transferable.

Publication

  1. [74]
    The Tribunal may make an order prohibiting the publication of the following (other than in the way and to the persons stated in the order):
    1. (a)
      the contents of a document or other thing produced to the Tribunal;
    2. (b)
      evidence given before the Tribunal;
    3. (c)
      information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[34]
  1. [75]
    The Tribunal may make such an order only if the Tribunal considers the order is necessary:
    1. (a)
      to avoid interfering with the proper administration of justice; or
    2. (b)
      to avoid endangering the physical or mental health or safety of a person; or
    3. (c)
      to avoid offending public decency or morality; or
    4. (d)
      to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
    5. (e)
      for any other reason in the interests of justice.[35]
  2. [76]
    The presumption is that the identity of the Applicant and witnesses is available in the public sphere. I appreciate that as a result of the publication of the events that occurred in 2004, the Applicant suffered adverse mental health consequences; however, the Tribunal is of the view that publication would not endanger the physical or mental health or safety of a person, nor would it be contrary to the public interest to identify the Applicant or his witnesses. There is no other reason in the interests of justice to make an order prohibiting the publication of any contents of a document produced to the Tribunal, evidence before the Tribunal or information that would enable a person who has appeared to be identified.

Orders

  1. [77]
    The orders are as follows:
  1. The decision of the Director-General, Department of Justice and Attorney-General that the Applicant's case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.
  2. The decision of the Tribunal is to be delivered to the parties by email.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[2]  Ibid, s 20(2).

[3] Working with Children (Risk Management and Screening Act) 2000 (Qld), s 5.

[4] WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].

[5]  Oral evidence of the Applicant at the Tribunal hearing.

[6]  WWC Act, s 167.

[7]  Ibid, s 221(1)(c).

[8]  Ibid, s 221(2). 

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

[10]  WWC Act, s 6.

[11]  Criminal History, BCS-12.

[12]  Ibid.

[13]  Respondent’s Outline of Submissions, 30 July 2019, [25].

[14]  Ibid, [26].

[15]  Sentencing Transcript, BCS41.

[16]  Ibid.

[17]  Police Brief of Facts, BCS-16.

[18]  Sentencing Transcript, BCS41.

[19]  Police Brief of Facts, BCS-14.

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

[21]  Applicant's Life Story, 3.

[22]  Applicant's Life Story, 2-3.

[23]  See generally GJ Patronek, ‘Hoarding of animals: an under-recognized public health problem in a difficult-to-study population’ (1999) 114(1) Public Health Reporter 81 and MR Dadds, C Whiting, DJ Hawes, ‘Associations among cruelty to animals, family conflict, and psychopathic traits in childhood’ (2006) 21(3) Journal of Interpersonal Violence 411.

[24]  See generally Arnold Arluke et al, ‘The relationship of animal abuse to violence and other forms of antisocial behaviour’ (1999) 14(9) Journal of Interpersonal Violence 963; L Merz-Perez, KM Heide and IJ Silverman, ‘Childhood cruelty to animals and subsequent violence against humans’ (2001) 45(5) International Journal of Offender Therapy and Comparative Criminology 556.

[25]  Applicant's Life Story, 1.

[26]  Transcript of [sentencing] Proceedings, BCS-47.

[27]  Ibid.

[28] CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [61] and [67].

[29]  BCS 54 to BCS 55, news24archives, 'Kitten dragged behind bike'.

[30]  Applicant's Life Story, 2.

[31] CNL v Director-General, Department of Justice and Attorney-General [2017] QCAT 294, [166].

[32]  Oral evidence of the Applicant at the Tribunal hearing.

[33]  Respondent's closing submissions at the Tribunal hearing.

[34] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 (1).

[35]  Ibid, s 66(2).

Close

Editorial Notes

  • Published Case Name:

    Lightbody v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    Lightbody v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2020] QCAT 62

  • Court:

    QCAT

  • Judge(s):

    Milburn

  • Date:

    05 Mar 2020

Appeal Status

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

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.