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Hoefler v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 298

Hoefler v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 298

CITATION:

Hoefler v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 298

PARTIES:

Justin Andrew Hoefler

(Applicant/Appellant)

 

v

 

Chief Executive Officer,

Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML224-14

MATTER TYPE:

Childrens matters

HEARING DATE:

11 March 2015 & 25 June 2015

HEARD AT:

Dalby

DECISION OF:

Member Wood

DELIVERED ON:

29 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. That the Decision of the Chief Executive Officer of Public Safety Business Agency made on the 10th October 2014 to refuse the cancel a Negative Notice is confirmed.

CATCHWORDS:

Application for Removal of Negative Notice – Applicant has lengthy criminal history – none of the offences “serious offences” – the Applicant issued with a negative notice – whether an exceptional case exists – whether protective factors outweigh the risk factors.

Working With Children (Risk Management & Screen Act) 2009 (Qld) (WWCRMSA) ss 5, 6, 221, 226 & 360.

Queensland Civil and Administration Tribunal Act 2009 (Qld) s 28

TAA [2006] QCST11

Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28

Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCATA 492

Jones v Dunkel [1959] HCA 8

APPLICANT:

Mr MD Bond Solicitor at the Hearing on the 11th March 2015 and Self-Represented on the 25th June 2015.

RESPONDENT:

Ms Peter Reid, Solicitor

Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
    On the 13th March 2014 the Applicant applied to cancel a Negative Notice which has been issued to him on 5 October 2010 with the Application being refused by letter dated the 10th October 2014.
  2. [2]
    In the course of considering the Application the Respondent made enquiries and established that the Applicant had a criminal history in Queensland consisting of the following:-
    1. (a)
      16 May 1994 – Dalby Magistrates Court – Assault Occasioning Bodily Harm (on 5 April 1994) – probation and community service;
    2. (b)
      16 May 1994 – Dalby Magistrates Court – Behaving in an offensive manner (on 15 April 1994) – no conviction recorded, community service.
    3. (c)
      7 July 1995 – Dalby Magistrates Court – Break and enter a dwelling house with intent (11 April 1995) and break and enter dwelling house with intent (13 April 1995) and stealing (13 April 2015) – community service 100 hours, restitution $385.60.
    4. (d)
      6 September 1999 – Dalby Magistrates Court – Assault occasioning Bodily Harm (9 July 1999) and Common Assault (9 July 1999) – recognizance $300.00 and to be good behaviour for 6 months, compensation of $300.00;
    5. (e)
      16 May 2005 – Dalby Magistrates Court – Assault occasioning bodily harm (9 April 2005) – Fined $100.00, compensation $100.00;
    6. (f)
      8 December 2005 – Toowoomba Magistrates Court – Dangerous operation of a vehicle – one penalty imposed with traffic matters – fined $900.00 disqualified for 6 months.
  3. [3]
    It is this offending behaviour which lead to the issue of the Negative Notice on the 8th October 2010 and the Respondent’s refusal to cancel the Negative Notice in the most recent Application.
  4. [4]
    The Applicant was born on 20 February 1974 and had a normal upbringing. He is the second of 4 children and he enjoys a close relationship with each of his siblings and with his parents. He was born in Dalby and with a short period of absence from Dalby as a result of his employment he has lived all of his life in Dalby.
  5. [5]
    His mother has been an employee at the Dalby Police Citizens Youth Club (PCYC) for many years and the Applicant has throughout his life spent a significant period of time around the PCYC. One of the witnesses called by him was Sergeant Mick Hughes, the current General Manager of the Club. He gave evidence that the Applicant has been involved in playing volley ball and basketball at the club and in the past has been the “go to” person for cleaning and facility maintenance. He has been actively involved in the past as a volunteer but also as a paid employee. The Applicant sought to have his Negative Notice removed to work at the club to coach basketball.
  6. [6]
    The offending behaviour that I have referred to include offences committed whilst this Applicant was involved in activities at the Dalby PCYC. The details of offending behaviour are as follows:-
    1. (a)
      5 April 1994 Assault Occasioning Bodily Harm – on this occasion the Applicant was 20 years of age and the Complainant was a 12 year old boy. On the date of the offence the Complainant was at the PCYC skating with friends and they were involved in a game involving pushing one of his friends causing him to fall over. This was on the Complainant’s evidence in fun. Shortly after this game the Complainant sat on the floor near a wall and the Applicant approached him and said “I’ve had enough of you kid”. The Complainant replied “piss off” and the Applicant kicked the Complainant in the chest winding him and forcing him onto his side. It is alleged that the Complainant tried to regain his breath and the Applicant kicked him again in the face near his left eye causing him to feel pain and a lack of vision. There was a third kick in his back while he was lying on the floor. The Applicant then walked away but the Complainant sustained bruising and soreness. When interviewed by the Police the Applicant admitted that he kicked the Complainant because he saw him tripping a number of people on the skating rink. He as aware that the Complainant was 11 or 12 years of age and assaulted him because he was sick of him pushing other children. The Applicant described to the Police that he was wearing work boots and said that the last two kicks were as hard as if he were kicking a football over goal posts.
    2. (b)
      15 April 1994 Behaving in an Offensive Manner – It is alleged on this occasion that the Applicant rode past the oval of St Mary’s Christian Brothers College on a Scooter exposing his buttocks to the male and female students who were on the oval. A number of female students were offended. He was interviewed by the Police and admitted the offence and was aware that it was likely given the timing of the offence that his bare buttocks would be seen. In a letter to the Respondent on the 1st October 2010 the Applicant in relation to this said that he behaved in his manner as he accepted a dare from a person who was in the yard. This is inconsistent with the statement made to the Police however not much turns on this.
    3. (c)
      Assaults Occasioning Bodily Harm and Common Assault on 9 July 1999 – These assaults occurred when the Applicant was 25 years of age and the Complainants were 12 and 13 years of age respectively. On the day in question the Complainants were at the PCYC as part of a School activity and the Complainants were returning a broom to the office at the PCYC. The Applicant threw a basketball which struck one Complainant and then rebounding hitting the other. The Applicant rushed at both Complainants and pushed them as a result of which one fell to the floor. The Applicant grabbed the second Complainant and pushed her against the wall and she fell to the floor and was then kicked and punched by the Applicant. The Applicant then stopped and walked to the Canteen and returned with an iron bar and was then restrained by the Complainant’s Mother. The Complainant in relation to the Bodily Harm Charge suffered bruising to her right eye, graze to her left shoulder blade, bruising to the back of her head and soreness. The Applicant refused to be interviewed. In evidence before me the Applicant’s explanation for these offences were that he had been taunted for a number of weeks verbally and he said “I didn’t think I had an alternative at the time, it just got to me”. He denied that he had an iron bar.
    4. (d)
      9 April 2005 Assault Occasioning Bodily Harm – The Applicant was 31 years of age at the time of the offence and the Complainant was a 12 year old boy. On the day in question the Applicant was helping out at the Dalby PCYC and at 3pm the Complainant attended to volunteer at the Canteen there as an event was being held. At approximately 5:30pm the Applicant went to the Canteen and spoke to a female person who was working with the Complainant but the Complainant told the Applicant “go away and leave her alone”. The Applicant immediately reached across the counter of the canteen and hit the Complainant on the jaw. The Complainant did not have time to move away and suffered immediate pain and discomfort. The Applicant was interviewed by the Police and stated the Complainant was being a “smart alec” and that he hit the Complainant with an open hand.
    5. (e)
      18 July 2005 Dangerous Operation of a Vehicle – on the date of the offence the Police saw the Applicant driving observing him swerving between lanes several times and indicating to turn left but continuing straight. Police did not indicate for the Applicant to pull over however he slowed down and drifted to the side of the road when the Police approached the car and saw the Applicant sitting in the front passenger seat and someone else sitting in the drivers seat. The Police concluded that the driver and passenger had swapped seats. The Police found an unconscious female lying unrestrained in the back seat of the car and she appeared heavily intoxicated with alcohol or drugs. On questioning by the Police the Applicant agreed that he had swapped places with the driver but refused to answer further questions.
    6. (f)
      The Applicant is unable to recall any details of the offences of break and entering a dwelling house and break and entering a dwelling with intent and stealing.
  7. [7]
    The Applicant is currently employed on a casual basis at a local panel beaters 16 hours per week. He completed Year 12 at Dalby State High in 1991 and to his great credit has undertaken a number of TAFE studies obtaining certificates to assist in maintaining his employment including in the horticulture areas, hospitality areas and traffic control. He holds a White Card for construction induction and a responsible gaming service qualification.
  8. [8]
    He has worked in a number of positions during his adult life including with the Caloundra City Council as a trainee and labourer in Parks and Gardens and Tong Park Piggery. He has worked in the hospitality industry as a Bar Attendant and restaurant Waiter and as a traffic controller. He was most recently working as a car detailer at a local car yard but dismissed from that position as he was required to have a knee reconstruction meaning he was unable to work for 9 months. He was involved in an accident when he was 12 years of age and has been on medication for epilepsy since 1987. He has been seeing a Neurologist for 14 years but has not had any seizures for about the last 5 years. I do not have the benefit of a report from the neurologist. There is no suggestion of the use of illicit substances at all nor excessive use of alcohol.
  9. [9]
    The Applicant is a person who enjoys keeping fit and active representing Darling Downs in Soccer as a young teenager and remains actively involved playing basketball as well as refereeing Senior Games. He is also involved in coaching basketball and volleyball.
  10. [10]
    In giving evidence the Applicant was quietly spoken and it seemed to me anxious about giving evidence in an unfamiliar environment. This is not surprising. The Applicant answered questions frankly and honestly.
  11. [11]
    During the course of his evidence he outlined that he had undertaken an anger manager course recommended by Max Solution Employment Agency. That course involved attending on the Wednesday of each week, two hours per day for 7 weeks. It was commenced in April 2015. The Applicant did not believe that he required assistance at all for anger management however Max Network thought it would be of assistance in undertaking the course. He feels that he achieved some results in that during the course he looked at other ways of dealing with issues and communicating but has not yet had the opportunity to use the strategies that he had learnt. That course is now completed.
  12. [12]
    He saw a psychologist Mr Baccaria on two occasions, four appointments were made but two of them were cancelled by the Psychologist. He is aware that Mr Baccaria had seen the reasons document prepared by the Respondent. The Applicant did not feel that he got anything out of the discussion with Mr Baccaria. Mr Baccaria was engaged to provide a Report for these proceedings. I will refer to the Report later in these reasons.
  13. [13]
    The Applicant was asked during the course of his evidence about whether he had thought about the effect of his assaultative actions towards children. Some of his answers demonstrated insight into the effect of his behaviour including that he would not like to be treated the same way and agreed that children should feel safe at the PCYC. He says that he regretted his actions because it was holding him back “from a blue card” and people would feel bad. He recognised that the Complainants would not like to be treated the way that they were particularly given that he was an adult and recognised that adults should treat children by sitting down and talking to them.
  14. [14]
    In terms of whether he intending doing any further counselling he said that he would do it “if need be”.
  15. [15]
    As mentioned previously Sergeant Hughes, the General Manager of the PCYC, gave evidence he supported the Applicant’s attempt to have a blue card returned to him and acted as his support person for the Hearing on the 25th June. He outlined that if the Applicant had a Blue Card he could be signed up as a volunteer and outlined that he had seen the Applicant with children and had not seen him act in appropriately. He was aware of the details of the Applicant’s criminal history. He can recall having seen the Applicant angry and recounted an incident where the Applicant felt that somebody during the course of a gymnastics carnival was using the basketball courts when the Applicant felt they should not have been. The Applicant was acting protectively of the basketball courts.
  16. [16]
    Sergeant Hughes also advised that he had not seen the Applicant away from the Club environment but had engaged socially at PCYC events. He confirmed that the Dalby PCYC has about 1,500 members and that there are young people at the club all of the time.
  17. [17]
    If the Applicant worked at the club Sergeant Hughes advised that the Club could put “strategies in place” if the need arose and when asked for example about the Applicant working in child care at the club said there would be strategies needed to allow that to occur but that he could look after children “in the right circumstances”. The Sergeant was aware that there had been no offending for a very long time but he could not rule out the Applicant “snapping” as he has done in the past. The Sergeant was able to indicate that the Applicant has a very supportive and structured family who was well known in the community and well known to staff and members of the PCYC such that in effect he is being supervised by each and every PCYC member at all times when he is there.
  18. [18]
    The Applicant also called evidence from Sergeant Ashley Freyling who was the former General Manager of the Dalby PCYC. Sergeant Freyling provided a reference in support of the Blue Card and gave evidence that he saw the Applicant weekly between 2010 and 2012. He was aware of the general details of offences committed by the Applicant but did not observe any. He is aware that he had punched a young boy. He gave evidence that he had concerns in the past about the way that the Applicant approaches confrontational situations but he feels that that was all a long time ago and the Sergeant had seen changes in the Applicant. He believed that he had matured and realised that his behaviour was wrong.
  19. [19]
    Mrs Margaret Troe has known the Applicant for in excess of 17 years and the Applicant has had a close involvement with her family. She sees the Applicant socially at family events and has never seen him lose his temper. She did not know whether or not the Applicant had any criminal history. In her reference to the Respondent she said that the Applicant interacts with his Nieces and Nephews at social gathering and seems to have fun with them while acting responsibly.
  20. [20]
    Mr Robert Hoghes is the father of friends of the Applicant. Mr Hoghes has seen the Applicant around children over many years. He has seen nothing bad but commented that the Applicant has improved with age and is getting on with life. His involvement is at social events and he sees him now about once a week and in the past has seen him more often.
  21. [21]
    To Mr Hoghes’ knowledge the Applicant does not have a criminal history and he had only seen him lose his temper once when kids were “mucking around” in the shed when he fell over and was knocked unconscious. He had a lump on his head.
  22. [22]
    The Applicant provided a Report from Mr Gavin Beccaria from Toowoomba Psychological Services. Mr Beccaria was engaged for the purposes of a Report for these proceedings. His Report is dated 18 May 2015 addressed to whom it may concern. Mr Beccaria was not called to give evidence. Mr Beccaria’s Report is very clear, his conclusions are as follows:

“Given Mr Hoefler’s attending history and his current coping strategies (ie. walking away) I could not give Mr Hoefler a favourable Report for the QCAT Tribunal...”

“Unfortunately Mr Hoefler static (or post) risk factors cannot place his overall risk as below a medium according to any risk management tool.

I also have to note that in my opinion Mr Hoefler would be safe to work around children provided he was not the person solely responsible for them...”

  1. [23]
    The Directions made in this matter on the 26th November 2014 included a Direction that witnesses who have given statements must attend the Hearing in person for cross examination[1]. Mr Beccaria was not called. In my view the evidence is admissible in these proceedings. In conducting these proceedings I must act fairly but I am not bound by the rules of evidence or any practice or procedures applying to Courts of record. In addition I may inform myself in any way I consider appropriate. Most importantly I must ensure that so far as is practical all relevant material is disclosed to enable me to decide the proceeding with all relevant facts[2].
  2. [24]
    I consider this evidence to be important. Mr Beccaria was engaged for the purposes of preparing a Report by the Applicant. The Report was provided to the Tribunal by the Applicant and there was no reason advanced as to why Mr Beccaria was not available to give evidence. The Applicant submits that not withstanding this Report I should find in his favour. The Tribunal can in my view proceed on the basis that Mr Beccaria’s evidence if he were to give evidence would not have been any more favourable to the Applicant than is contained in the Report dated 18 May 2015[3].

STATUTORY FRAMEWORK

  1. [25]
    The Applicant applied for the removal of a Negative Notice in order to allow him to coach basketball and to undertake paid employment at the Dalby PCYC. The Application was refused.
  2. [26]
    In considering the information it had received the Respondent determined that none of the offences were “serious offences” as that term is defined and that therefore a Positive Notice must issue unless it was satisfied that it was an exceptional case in which would not be in the best interest of the children to be issued with Positive Notice.[4] The Commissioner was of the view that it was an exceptional case and issued the Negative Notice.
  3. [27]
    The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case[5] however the Tribunal must exercise its discretion in each case within the parameters of the legislation.
  4. [28]
    There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine wether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists[6].
  5. [29]
    In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card.
  6. [30]
    The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
  7. [31]
    In making my Decision I need to take into account the protective and risk factors[8].

RISK ASSESSMENT

  1. [32]
    There are a number of protective factors in this case:-
    1. The Applicant does not have any criminal convictions since his appearance in Court on 8 December 2005, a period of almost 10 years.
    2. The Applicant has undertaken an Anger Management Course in 2015 as a result of which he was provided with strategies to handle conflict.
    3. The Applicant has supportive friends and family and is well liked and respected in the Dalby community as well as the PCYC community.
    4. The Applicant whilst he has epilepsy is well treated for it as a result of which he holds a drivers licence and had not had any seizures for 5 years.
    5. The Applicant has been successful in undertaking study for vocational purposes and has been in paid employment it seems for a large part of his adult life.
    6. The Applicant does not appear to consume illicit substances and rarely uses alcohol.
  2. [33]
    There are a number of  risk factors:-
    1. The Applicant’s criminal history reflects that he has regularly resorted to violence against child complainants at a time when he has been frustrated about their behaviour or felt harassed by them.
    2. The Applicant has not developed full insight into the effect of these behaviours on the complainant children and in his evidence it seems that his main regret for the offending behaviour was that it now prevented him from obtaining a Blue Card.
    3. The Applicant’s assaultative behaviour has all occurred at the Dalby PCYC in the context of either volunteering or employment at the club which is a club which always has young children present.
    4. The Applicant whilst he has undertaken the behaviour management course “Dealing with Anger” has not been put in a conflictual situation since such that the strategies and skills which he has learnt have been able to be tested.

APPLICANT’S SUBMISSIONS

  1. [34]
    The Applicant submits that I should grant him a Blue Card in order to enable him to undertake his paid and volunteer work. The Applicant points to the fact that he has not had any criminal history for 10 years and that in the general community he has not been charged with any assaults. The Applicant submits that I would find that he has learnt from his mistakes and that he feels sorry for the children and that he wishes to obtain paid employment at the PCYC and volunteer work in other areas.
  2. [35]
    The Applicant submits that given that he does intend working only at the PCYC I should accept the evidence of Sergeant Hughes that they would be able and prepared to put in place safe guards to ensure the safety of children in his care.

RESPONDENT’S SUBMISSION

  1. [36]
    The Respondent submits that in considering the question of risk it is a global consideration outside of the confines of the PCYC club. The Respondent submits that I should place significant weight on the Report of Mr Beccaria.
  2. [37]
    The Respondent submits that the Applicant’s insight is limited and that the offending behaviour against children is such that I would be satisfied that this is an exceptional case.

DISCUSSION

  1. [38]
    The Applicant does have considerable criminal history which involves violence against children including in the nature of hitting, kicking and pushing them such as to cause them bodily harm. Whilst I accept that none of the complainants in the offences were hurt beyond bruising it is particularly concerning when an adult commits an offence against young children.
  2. [39]
    The Applicant in his evidence did not appear to me to fully understand the consequences of his actions in relation to the children who were assaulted by him. He does not believe that he necessarily has an anger management problem or that he requires assistance. His evidence was that he would be prepared to undertake courses if he “needed it”.
  3. [40]
    Whilst he is to be commended for undertaking the recent anger management course this would appear to be the only formal course of education he has undertaken to address anger management issues.
  4. [41]
    Whilst I accept that if he were to undertake either paid or volunteer work at the PCYC then Sergeant Hughes would ensure the safety of any children there I must consider that a Blue Card is unconditional and transferable.
  5. [42]
    In all of the circumstances of this case I am of the view that it is an exceptional case where it would not be in the best interests of children to grant a Positive Notice as the risk factors outweigh the protective factors.

DECISION

  1. [43]
    The Decision of the Chief Executive Officer made on the 10 October 2014 to issue a Negative Notice to the Applicant is confirmed.

Footnotes

[1]Order 10, Directions Senior Member Endicott 26 November 2014.

[2]QCAT Act s 28(3).

[3]Jones v Dunkel [1959] HCA 8

[4]WWCRMSA s 221(2).

[5]WWCRMSA s 226.

[6]Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28.

[7]WWCRMSA s 6.

[8]Commissioner for Children and Young People and Child Guardian v Maher and Another [2004] QCATA 492

Close

Editorial Notes

  • Published Case Name:

    Hoefler v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Hoefler v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2015] QCAT 298

  • Court:

    QCAT

  • Judge(s):

    Member Wood

  • Date:

    29 Jul 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
Jones v Dunkel [1959] HCA 8
2 citations
Jump To
Cite 1 - [1959] HCA 8
Cite 2 - [1959] HCA 8
Re TAA (2006) QCST 11
1 citation
Jump To
Cite 1 - (2006) QCST 11
Young People and Child Guardian v Maher and Another [2004] QCATA 492
2 citations
Jump To
Cite 1 - [2004] QCATA 492
Cite 2 - [2004] QCATA 492

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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