Pritchard v Chief Executive Officer, Public Service Business Agency
[2015] QCAT 25
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- Pritchard v Chief Executive Officer, Public Service Business Agency[2015] QCAT 25
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Pritchard v Chief Executive Officer, Public Service Business Agency[2015] QCAT 25
Pritchard v Chief Executive Officer, Public Service Business Agency[2015] QCAT 25
CITATION: | Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25 |
PARTIES: | Geoffrey Robert Pritchard (Applicant) |
v | |
Chief Executive Officer, Public Service Business Agency (Respondent) |
APPLICATION NUMBER: | CML107-14 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 19 November 2014 |
HEARD AT: | Rockhampton |
DECISION OF: | Member Rogers |
DELIVERED ON: | 30 January 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
| ||
CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – where applicant’s positive notice and blue card cancelled – where applicant guilty of non serious offence and received custodial sentence and granted immediate parole –whether exceptional case exists Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1) Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 49 | ||
APPEARANCES:
APPLICANT: | Geoffrey Robert Pritchard |
RESPONDENT: | Chief Executive Officer, Public Service Business Agency |
REPRESENTATIVES:
APPLICANT: | represented by Andrew Pritchard |
RESPONDENT: | represented by Peter Reid, Advocacy Officer. |
REASONS FOR DECISION
- [1]In September 2013 Mr Pritchard was awarded a full time position as a cleaner with the Department of Education, Queensland. He was employed at Rockhampton High School and has been now transferred to another location. Before this appointment he had been working on a casual basis as a cleaner at various schools and colleges for 25 years.
- [2]On 21 December 2010 the Commissioner for Children and Young People issued Mr Prichard a positive notice and blue card. He was issued with a further positive notice on 22 October 2013. On 7 May 2014, following an incident that took place on 30 October 2013, Mr Pritchard was issued with a negative notice by the Commissioner. He is seeking a review of that decision at this Tribunal.
- [3]Legislative changes which took effect on 1 July 2014 resulted in the blue card functions of the Commission being transferred to the Public safety Business Agency (Blue Card Services) and the Chief Executive Officer, Public Business Safety Agency is now the respondent in this review.
- [4]It is not in dispute that on 30 October 2013 at about 6pm Mr Pritchard and other cleaners were in a room used by cleaners at Rockhampton State High School. An altercation broke out, Mr Pritchard hit one of the other cleaners with a chair and punched her in the face. She suffered cuts and bruising.
- [5]Mr Prichard was charged on 31/10/2013 with ‘Assaults occasioning bodily harm whilst armed/in company’ He pleaded guilty to these offences in the Rockhampton Magistrate’s Court on 14 January 2014. A conviction was recorded. He was sentenced to imprisonment for 12 months on each offence to be served concurrently, fined $3000 and required to pay compensation of $500. He was released immediately on parole and the term of his sentence expired 14 January 2015.
- [6]This offence is not categorised as a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) and therefore the chief executive must issue a positive notice unless satisfied that this is an exceptional case in which it would harm the best interests of children for Mr Pritchard to have a positive notice.[1]
- [7]It is well accepted that what constitutes an exceptional case is a question of fact and degree[2] and is a matter of discretion for the decision maker.
- [8]Mr Pritchard’s application is determined by merits review. This means the Tribunal, standing in the shoes of the decision maker, must arrive at the correct or preferable decision[3] based on all the information available at the time the decision is made. The Tribunal must consider this application under the provisions of the relevant Act which states[4]:
A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
- [9]In determining whether there is an exceptional case under section 221 I must take into account the factors in section 226 of the Act. These factors include the nature of the offence, when it occurred, its relevance to child related employment, any court imposed penalty and anything else relating to the commission of the offence that may reasonably be considered to be relevant to the assessment.
Mr Pritchard’s case
- [10]Mr Pritchard submitted his first offences were committed when he was 46 years of age. He has no previous history of violence, this situation was highly stressful because he could not use his usual strategy when dealing with conflict, which was to escape from it, and there is little risk of a further offence in the future.
- [11]He was raised in a secure family environment with two younger brothers, although he avoided his father who would punish him physically.
- [12]He was subjected to bullying and provocation as a child at school. He was judged by his appearance and called names. He developed the strategy as a young child of remaining close to the teacher for protection and as he grew older he began avoiding or leaving any situation of potential violence. At school he spent a lot of time in the library and he would retire to his bedroom when conflict arose in his home life. He had few friends and would spend most of his time alone.
- [13]At secondary school he was punched a lot and would have his lunch money stolen from him. He was physically in fear of his life most of the time.
- [14]After leaving school Mr Pritchard had the option to work with his father, who was a Master Builder, but chose to study gardening and worked in many casual jobs as a groundsman or a gardener. He said this work suited him because he could, for the most part, work on his own. He did have confrontations with supervisors or colleagues but he did not get physical and walked away from provocation.
- [15]In October 2009 Mr Pritchard started work as a casual cleaner. When subjected to abuse on one occasion he ‘pulled the pin’ on that job but did not get violent and he ‘stumbled around’ working as a relief cleaner with some periods out of work. Mr Pritchard related instances when he did not feel supported by the management of the organisations he was working for because in his experience they did not respond to his complaints of bullying.
- [16]Mr Pritchard was first diagnosed with Asperger’s Syndrome two years ago[5] and he says it is now clear this condition has affected his whole life and impacted on the way he dealt with other people and conflict.
- [17]In late 2013 Mr Pritchard was working at Rockhampton State High School and was supervised by two women. He said he was finding it difficult to work with his supervisors as they expected him to perform an unfair share of the work and were abusive to him. He applied for and was given a full time position as a cleaner but was unable to start that job immediately so had to remain working in his original position.
- [18]Mr Pritchard described in detail the events on the day leading up to the assault. He said the supervisors verbally abused him during his shift because they thought he should not have been given the full time position and at one point they yelled at him, without stopping, for five minutes.
- [19]At the end of his shift he was in the common room with other cleaners when one of his supervisors left the room and then came back in. She moved towards him and blocked his exit from the room so he picked up the chair, hit her, and then punched her in the face. Another worker pulled him off. He said he wasn’t thinking, he was angry, hurt and humiliated. He left and went home.
- [20]Following this incident Mr Pritchard sought the help of a psychologist and he says he now has strategies to assist him deal with anger. He has been given help to identify situations that might trigger anger. When he recognises a trigger he will shut his eyes, avoid physical contact, take several deep breathes and slowly count to ten. He will ask the person who is angry with him to let him leave the room and he will not react to anger.
- [21]Mr Pritchard says he has had an occasion to try this technique when confronted by a bad driver and he pulled to the side of the road and practised his deep breathing.
- [22]Mr Andrew Pritchard gave evidence about his childhood with his brothers. He said he did not think much about Geoffrey’s behaviour when they were young because he just saw him as his brother. He said following this incident they are now close and in regular communication. He has assisted his brother with preparing for his court appearance, a Department of Education investigation and this application.
- [23]He said he has seen marked changes in Geoffrey since this incident, he is very conscious of the suspended sentence and is paranoid about the prospect of going to prison. He said Geoffrey can’t believe he got so angry that he hurt someone and he didn’t know how to respond.
- [24]Mr Ashton, a psychologist, had twelve or thirteen meetings with Mr Pritchard starting in March 2014. He gave evidence about the treatment Mr Pritchard has been undergoing. He said he was receptive, willing to engage and is now travelling pretty well. He believes Mr Pritchard would benefit from one or two more sessions on applying the techniques he has learnt.
- [25]Mr Pritchard’s mother, Mrs Jan Pritchard, a former teacher, gave evidence. She said in the early years Geoffrey did have behavioural problems. She sought help from doctors and though they were understanding they did not give a diagnosis. She thought he may have been mildly autistic. She said he was intellectually very bright but did not do well in exams. At home if there was an argument in the place he would vanish. At age 30 Geoffrey bought his own home and is now living independently but she sees him a lot.
- [26]Mr Pritchard had told her he was being bullied at Rockhampton State High School but she thought he would be alright once he was moved to his own area following his successful application for full time employment.
- [27]He came to her about thirty minutes after the incident and was really very upset.
- [28]Mrs Pritchard said she has been amazed by Mr Pritchard’s response to counselling. He talks about things a lot more and is a lot more open. Before the counselling Mr Pritchard had only one response when faced with confrontation and that was to clear out but now he has other strategies. His whole attitude to life has changed and she thinks that faced with the same situation again he would handle it well. His high level of family support is continuing.
- [29]Dr Rofe, psychiatrist, first diagnosed Mr Pritchard with Asperger’s Syndrome on 2 April 2012. He said this would now be a diagnosis of Autistic Spectrum Disorder. He has also diagnosed a Major Depressive Illness. He said it is not uncommon for people with Aspergers to be vulnerable to a Major Depressive Disorder. He said at his first consultation Mr Pritchard was upset and frustrated with Centrelink. He was subject to mood swings going from placid to violent in his thoughts but there was no evidence he was violent on a behavioural level. His notes do document a history of bullying during school.
- [30]Dr Rofe said it was unlikely failing to take his prescribed medication, Lexapro, on one occasion would result in an outburst because the medication has a cumulative effect and its effects would not cease immediately. He spoke about the combined effect of Mr Pritchard’s medical conditions and his personality style. He said Mr Pritchard is a prickly individual with a compulsive need for order and routine. He has a heightened sense of right and wrong and his upbringing has amplified his sense of fairness.
- [31]Dr Rofe said the incident on 30 October 2013 was a situation where Mr Pritchard felt trapped and his usual way of dealing with conflict, retreating, was not available to him. He thought it was an excellent idea that he see a psychologist. He believes that it is unlikely Mr Pritchard would resort to violence again.
The views of the Chief Executive Officer
- [32]The Chief Executive Officer has emphasised the following areas of concern[6]
- Mr Pritchard has only recently been diagnosed with Asperger’s Syndrome. He has been involved with numerous work related disputes over the years. He has deflected any blame from himself for these disputes and instead claimed he was unfairly targeted.
- Mr Pritchard acted in a violent manner towards a female work colleague and armed himself with a chair. He said he ‘did not think’. He chose to compound an already aggressive situation by resorting to physical violence.
- The issues that prompted Mr Pritchard to resort to violence are attributable to anger issues, not a failure to take medication.
- Mr Pritchard did not seek treatment for anger management issues until after the assault occurred.
- Ongoing concerns remain about Mr Pritchard’s ability to respond appropriately to life stressors.
- A blue card would allow Mr Pritchard unsupervised and unfettered access to children and young people in a range of regulated activities. A positive notice is fully transferable and unconditional.
- Any hardship or prejudice suffered by Mr Pritchard is irrelevant to the assessment of risk.
- The protective measures in place are not sufficient to prevent Mr Pritchard from potentially responding to a like situation in the future.
- The severity of the sentence is recognition by the court of the seriousness of Mr Pritchard’s offences.
- The recency of the offence means sufficient time has not passed for the Tribunal to be satisfied Mr Pritchard does not pose a risk of harm to children.
Consideration and decision
- [33]I have to decide whether this is an exceptional case such that Mr Pritchard should not be issued a positive notice and in doing so I must consider the requirements of section 226 of the Act.
- [34]The offence, while not disqualifying or serious for the purposes of the Act, is an offence of grave concern. It was an offence of violence resulting in injury to the victim. It occurred just fourteen months ago in the grounds of a school. Even though it occurred after school hours it was possible that children could still have been present and heard the argument and therefore it is relevant that it occurred in a school environment.
- [35]Mr Pritchard stated that he wasn’t thinking when he acted. This was an incident where Mr Pritchard could not control his violent response. He blames that loss of control on the bullying and harassment he had experienced earlier that day and the fact that he was trapped and could not retreat from his place in the common room. However it was not a single reflective response. Mr Pritchard told police he hit the victim over the head with a chair and then punched her in the face. He needed to be restrained by a colleague.
- [36]The court imposed penalty is indicative of the serious nature of the offence. Mr Pritchard provided written submissions after the hearing to explain the circumstances of the penalty. The Tribunal cannot go behind the Court’s finding and must treat the convictions and penalty as they stand.[7]
- [37]I will identify and consider the risk and protective factors in this case as advised in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[8]
- [38]Risk factors for Mr Pritchard are;
- The recent diagnose of his Aspergers condition and his limited opportunity to come to terms with the interaction of this condition with his Major Depressive Illness and personality style
- Mr Ashton’s recommendation that he attend further counselling to apply the techniques he has learnt and his own admission that he ‘still has a way to go’
- Mr Pritchard’s tendency to attribute blame for conflict to others without acknowledging the contribution of his medical conditions and personality style
- Mr Pritchard no longer has the restraint of a parole order, which he was ‘paranoid’ about breaching
- Mr Pritchard had good family support but the potential for a violent outburst was not identified
- [39]Protective factors for Mr Pritchard are
- He has not resorted to violence in the past 46 years in the face of strong provocation and his behaviour was totally out of character.
- He has had counselling to assist him with strategies to improve his communication skills, manage his feelings and cope with conflict situations when he is feeling trapped
- He has been able to implement his new strategies on one occasion
- He is willing to continue to attend counselling and appears to have developed a good rapport with his counsellor
- He has strong family support.
- He is reportedly more open with family in expressing his feelings
- He is committed to returning to work and is now aware of the impact of a violent incident on his employment prospects
- He has the support of church and community organisations as witnessed by his references
- [40]The assault and its circumstances are of such grave concern that a negative notice could be warranted. However I have considered all the matters relevant to this assessment and on balance I have concluded that Mr Pritchard’s case is not exceptional and that he should be issued with a positive notice and blue card for the following reasons.
- [41]Based on the evidence of his family members I accept Mr Pritchard’s behaviour was totally out of character and his preferred response would have been to retreat. I accept that he had been subjected to ongoing provocative behaviour earlier in the day and while this is not an excuse it did provoke an unprecedented reaction from Mr Prichard.
- [42]The decision of the Department of Education to suspend his employment pending the outcome of this application rather than dismiss him supports the view that the attack was a response to a provocation.
- [43]I should note I have not accepted Mr Pritchard’s submission[9] that the Department is a credible arbiter of risks to children in this instance and weight should be given to their desire for him to return to work. The Department was considering his suitability as a cleaner in a school. It is my responsibility to consider the issuing of a blue card which is transferable to any child related employment without supervision or condition. A different standard must be applied where the decision is not restricted to one known employment position and issuing a blue card would allow Mr Pritchard to engage in any new child related employment opportunity that may arise.
- [44]I am concerned a short time has elapsed since the offences. However, offset against this time frame is the fact that Mr Pritchard at 44 years of age had not previously committed any criminal offence. Mr Pritchard states he was frequently involved in school and workplace conflict and did not respond with violence. I am satisfied these offences do not signal a permanent departure from a habit developed over 40 years and there is little likelihood Mr Pritchard will reoffend. This view is supported by the evidence of Dr Rofe
- [45]I do not accept the submission of the Chief Executive Officer that an adverse inference should be drawn from the fact Mr Pritchard did not seek counselling until after these offences. His evidence is that he was surprised by what he had done. He did not anticipate he would resort to violence. He voluntarily engaged in counselling once he diverged from his previously successful avoidance behaviours.
- [46]I consider it is very likely Mr Pritchard’s family will be more aware of any signs of distress he may exhibit and will help him try to identify the source of that distress and any appropriate actions that may need to be taken.
- [47]I have taken into account Mr Pritchard’s awareness that any future outbursts will jeopardise his full time position with the Department of Education. This is an extremely important position to Mr Pritchard and this awareness will ensure he continues to develop his anger management strategies to allow him to deal with conflict as it arises in an appropriate way especially when on school premises.
- [48]I am mindful that the paramount consideration must be the welfare and best interests of children and I am satisfied a positive notice will not compromise their interests, accordingly I am not satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a positive notice.
- [49]I order that the decision of the Commissioner dated 7 May 2014 be set aside and the Chief Executive Officer issue Mr Pritchard with a positive notice and blue card.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
[2] Kent and Wilson [2000] VSC 98 at para 29.
[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).
[4] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
[5] Letter Dr Peter Rofe to Dr Bernard Van Heerden dated 2 April 2012.
[6] Submissions of the chief Executive Officer dated 5 December 2014 at para 32 – 35.
[7] Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 at paragraph 19.
[8] [2004 ]QCA 49
[9] Mr Pritchard’s submissions dated 17 December 2014 paragraph 14e repeating an oral submission which was made at the hearing.