Green v Chief Executive Officer Public Safety Business Agency
[2015] QCAT 299
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- Unreported Judgment
- Green v Chief Executive Officer Public Safety Business Agency[2015] QCAT 299
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Green v Chief Executive Officer Public Safety Business Agency[2015] QCAT 299
Green v Chief Executive Officer Public Safety Business Agency[2015] QCAT 299
CITATION: | Green v Chief Executive Officer Public Safety Business Agency [2015] QCAT 299 |
PARTIES: | Peter Darryle Green (Applicant) |
v | |
Chief Executive Officer Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML260-14 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 24 April 2015 |
HEARD AT: | Hervey Bay |
DECISION OF: | Member Milburn |
DELIVERED ON: | 4 August 2015 |
DELIVERED AT: | Hervey Bay |
ORDERS MADE: |
|
CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – Where negative notice issued – a serious offence – whether case is exceptional – where the serious offence occurred when the applicant was 13 years of age – many offences, other than a serious offence – where substance-abuse has been addressed – whether the protective factors outweigh the negative factors Working with Children (Risk Management and Screening) Act 2000 ss 6, 7(2), 225 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
|
APPEARANCES:
APPLICANT: | Peter Darryle Green |
RESPONDENT: | Public Safety Business Agency |
REPRESENTATIVES:
APPLICANT: | Self |
RESPONDENT: | Mr P Reid |
REASONS FOR DECISION
- [1]The applicant, Mr Green, is 33 years of age. He would like a blue card but has a criminal history. While he has a number of convictions for various offences, one in particular is notable because, under the relevant legislation[1], it is a ‘serious offence’, as defined[2]. The conviction in question is for the offence of ‘steal with actual violence whilst in company’; that is, robbery[3]. This offence occurred when he was 13 years of age and he remained that age when sentenced[4].
- [2]Late in 2014, the Public Safety Business Agency (PSBA) advised the applicant that it had rejected his application for a blue card. It rejected the application due to concerns relating to his criminal history, use of drugs and problems associated with consumption of alcohol. The applicant requested this tribunal review the decision.
- [3]I do not dismiss the offending behaviour lightly.
The serious offence
- [4]The serious offence of robbery involved the applicant and two co-offenders attending a ‘day and night chemist’ at about 11:50am. One of them went to the safe and when the complainant intervened, the co-offenders punched and kicked him. A customer was a witness to the events and called police. Police attended and located two of the three offenders. The complainant suffered a number of injuries, including swelling and redness to his eyes, swelling to his cheekbones and knee, tenderness to his leg, a deep abrasion of his right hand and some small fractures around his left eye.
The other offences and allegations
- [5]Police alleged the applicant committed an offence of aggravated assault on a female when he was 14 years of age. The prosecutor offered no evidence so there was no conviction. However, I do consider the allegations. According to police, the complainant was walking behind the applicant. The applicant stopped walking and turned around to face her. When he went to within 30 cm of her he raised both his hands in a fighting stance and said in a threatening manner, "What are you following us for slut? I'll take you down with one blow." She was scared that he would punch her because of the statement and the way he raised his hands towards her. The applicant then turned around and continued walking away. On the same day, within the same hour, police alleged an offence of behaving in a threatening manner. The prosecutor offered no evidence of this charge. However, the allegation was that the complainant was standing on a veranda and could see the applicant. The applicant ran his fingers across his throat in a cutthroat fashion. She felt threatened by his actions and was under the impression he was going to cut her throat.
- [6]Between the ages of 14 and 15, the applicant received a detention order for a period of 10 months for various convictions. These included assault occasioning bodily harm whilst in company, wilful damage to property, unlawful use of motor vehicle, stealing and break and enter. The assault charge involved the applicant and two other youths. The applicant punched the complainant, threw a bottle at a window and the other two youths were abusive and threatening towards the complainant.
- [7]When 21 years of age, the sentencing court imposed a fine of $700 against the applicant for possessing a dangerous drug and failing to dispose of a needle and syringe properly. The applicant had not disposed of a used hypodermic syringe needle, wrapped inside a cigarette packet. He admitted that he had used it earlier in the day to inject ‘speed’ and was aware of his obligations for disposing of the syringe and needle.
- [8]While still 21, a sentencing court imposed a period of imprisonment of 18 months for dangerous operation of a vehicle and burglary, amongst others. Ultimately, the applicant served two years in custody because the period of imprisonment was cumulative to a conviction for earlier matters. These earlier matters involved a breach of suspended sentences imposed with respect to convictions for unlawful use of motor vehicles, receiving stolen property, enter dwelling (and commit an indictable offence), possession of dangerous drugs and fail to dispose of a needle.
- [9]The conviction for dangerous operation of the vehicle with a circumstance of aggravation involved the applicant, at age 21 years, driving at high speed and refusing to acknowledge or act upon the activation of sirens by police. Another male was a passenger in the vehicle. While driving, the applicant failed to stop at a stop sign near a primary school, drove at about 140 km/h and swerved to the wrong side of the road. When the applicant went to turn off a street, near a primary school, he lost control of the vehicle, smashed into a fence and struck a tree. He fled on foot and police gave chase. Police dragged him from under a truck. Police administered a breath test that returned a blood alcohol concentration reading of 0.079%.
- [10]The conviction for behaving in an indecent manner occurred when the applicant, at age 21 years, had removed his shorts and walked through a business precinct without wearing clothing and committed various offences (not sexual in nature).
The legal tests
- [11]The Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) states that the principles of the welfare and best interests of the 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 well-being[5]. In making a decision, I must consider the consequences to a child. The consequences of the decision to the applicant are irrelevant.
- [12]In this case, amongst other things, I must consider the serious offence, committed when the applicant was 13 years of age. The Act provides that the chief executive[6] must issue a negative notice in such circumstances unless it is an exceptional case[7]. If the chief executive is satisfied it is an exceptional case, in which it would not harm the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a positive notice to the person[8]. The chief executive determined this is not an exceptional case.
- [13]The applicant also served periods of imprisonment. This came later, up until 2004, for convictions for offences other than a serious offence[9]. In such circumstances, the chief executive is obliged to issue a positive notice to the person, unless satisfied it is an exceptional case.
- [14]The same tests apply to the tribunal as it does to the chief executive.
- [15]The Act does not define ‘exceptional case’. Whether a case is exceptional or not is a matter of discretion, to be determined by looking at the circumstances of each individual case[10]. In doing so, the tribunal must consider legislative intention of the Act.
- [16]The Queensland Civil and Administrative Appeals Tribunal recently confirmed[11] that the Act places a barrier to persons with a conviction for a serious offence from working with children. The tribunal stated that the proper inference to draw must be that it would harm the best interest of children for persons with convictions for a serious offence to work with children, unless it is an exceptional case[12]. It also confirmed that changes in a person's circumstances, which simply amount to them living in a law-abiding manner as society expects and functioning at a level expected of a person at their stage and age in life, are generally considered to be the ‘ordinary course’ and not exceptional[13].
- [17]Apart from the one serious offence referred to above, the applicant has many convictions, some of which are for matters that are not serious as defined, but serious in nature. He has convictions for behaving in a threatening manner, assault occasioning bodily harm, break and enter premises, stealing, unlawful use of motor vehicle, drug-related matters, dangerous operation of motor vehicle with a circumstance of aggravation, wilful destruction of property, behave in an indecent manner and various breach matters. In 2007 and 2009, courts convicted him of various matters; however, they were historical, committed during the 1990s. The last bout of actual offending behaviour occurred when he was 21 years of age. He was not a parent or a person involved in the care of children at that time. Courts imposed periods of imprisonment and, as a result, the applicant did remain in prison between 2003 and 2005.
Protective factors
- [18]During his time in prison, the applicant says he changed his life. He undertook drug rehabilitation and importantly made a connection with a counsellor. This helped him greatly and he maintains contact with the counsellor, who has become a mentor.
- [19]During the hearing, I had the benefit of receiving evidence from the applicant and the counsellor. I was most impressed with the evidence of both witnesses. The counsellor has assisted the applicant, which has led to the applicant having a great insight in relation to various triggers and strategies for dealing with issues, which had previously seen him resort to drugs as a means of coping and existing. The applicant adopted positive strategies that included moving away from the area where he had grown up, avoiding his ex-friends, learning to say ‘no’ and gaining insight into the effects of drug usage and excessive alcohol consumption.
- [20]The applicant had been using hard drugs from a very young age. He had also been consuming alcohol, at times to excess. With the guidance of his counsellor, he has undertaken courses through Narcotics Anonymous, anger management and drug and alcohol counselling. This has helped him through his adult years.
- [21]I am satisfied that the applicant has gained insight through his counselling, such that he is now contributing positively to his own family life and to the benefit of the community generally.
- [22]The applicant had an unfortunate upbringing. He was the victim of violence at the hands of his mother's boyfriend. The Department of Child Safety became involved in his life and he stayed with friends from an early age. He was involved with people who were using drugs and he experimented with hard drugs from an early age.
- [23]I am satisfied from the material that the applicant has changed his life during and since his period of incarceration. He is no longer a user of illicit drugs. He has a wife who has been with him for 11 years and they have been married for 8 years. He has four children with his wife and an older child from an earlier relationship. He has gained great insight into his past offending behaviour. He has made excellent life choices since incarceration and he directs his focus towards helping people. He has earned respect in the community. He is engaged in sporting activities that also involve some of his children. Importantly, he continues to have positive interaction with his mentor and counsellor. He has undertaken rehabilitation programs with significant positive outcomes.
- [24]Prior to, and at the hearing, the applicant produced witnesses who attested to his good character. Importantly, they spoke of his ability to overcome substance-abuse problems successfully. He is aware of possible triggers which could cause relapse and I am satisfied that he has a strong support network to assist him, should the need arise. I accept the (untested) evidence of the applicant’s General Practitioner[14] where he says:
The (applicant) is a patient of this medical practice. He has attended on a regular basis since 2005. During that time, there has been no evidence of mental health problems, or evidence of antisocial, immoral or illegal behaviour. He freely admitted on his first attendance in 2005 that he had a previous addiction to illicit drugs, but this had ceased two years previously. I am quite confident that there have been no relapses in the time I have known him.
- [25]I accept the evidence of the applicant’s wife. She was realistic in acknowledging that her husband has had his failings but with some conviction, attested to the fact that he has recognised the triggers and put protective measures in place to ensure, as far as possible, there will be no relapse. I found her evidence to be heartfelt and genuine. She acknowledged that her husband does drink alcohol on social occasions but does so in a controlled and responsible manner. I accept her evidence when she says that drugs and alcohol use are no longer issues of concern in the life of her husband. I accept her assessment that he is not at risk of relapse in this regard. She spoke of the applicant being a wonderful father and husband who has been supportive of his family during difficult times. She spoke highly of his ability as a parent and importantly of his protective abilities with respect to children.
Conclusion
- [26]While I accept that the applicant has a conviction for an offence that is categorised as a ‘serious offence’ under the Act, on that point, I have concluded that this is an exceptional case. I am mindful of the gravity with which Parliament considers offences of this nature, but I do note that the serious offence occurred when the applicant was 13 years of age. I accept that the Act specifically excludes the operation of the Criminal Law (Rehabilitation of Offenders) Act 1986, which means that regardless of how long ago an offence was committed, it remains significant when assessing a person's ability to hold a blue card. I also acknowledge that the passing of time is just a factor for consideration and the passage of time does not diminish the overall seriousness of the applicants offending behaviour.
- [27]In relation to all other offences and allegations, on that point, I have concluded this is not an exceptional case.
- [28]I acknowledge that drugs were a significant contributory factor to his offending. That is clear from the police and court material and by the applicant’s own acknowledgements. I acknowledge that the applicant does have a lengthy, now aged, history of violent and antisocial behaviour and that may be relevant to his ability to protect children from harm and promote their well-being. I accept that this constitutes a risk factor in the assessment. However, I do not believe that this is, any longer, a significant risk factor. The period of imprisonment did provide the applicant an opportunity to take stock of his position and change his life, which I am satisfied he did admirably.
- [29]I accept that a change in personal circumstances, which simply amount to an applicant living in a law-abiding manner as society expects and functioning at an ordinary level expected of a person at this stage and age and life, is generally considered to be in the ordinary course and not exceptional. I do find however that this applicant has gained considerable insight, empathy and compassion.
- [30]In my assessment, the applicant has identified and taken advantage of counselling which has assisted in his rehabilitation.
- [31]In the circumstances, I am satisfied that issuing the applicant a blue card is in the best interests of children and young people at this time. I set aside the decision of the chief executive and I direct the chief executive to issue a positive notice to the applicant.
Footnotes
[1] Working with Children (Risk Management and Screening) Act; formerly named the Commission for Children and Young People and Child Guardian Act 2000 (the Act).
[2] See schedule 2 of the Act.
[3] Queensland Criminal Code, section 409.
[4] The court ordered he serve a period of probation for 2 years; coupled with a concurrent community service order imposed for committing other offences.
[5] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6(1); formerly named the Commission for Children and Young People and Child Guardian Act 2000 (Qld).
[6] Section 7(2) of the Act provides that a reference in this Act to the chief executive is a reference to the chief executive officer of the Public Safety Business Agency.
[7] Section 225(1) of the Act.
[8] Ibid s 225(2).
[9] ‘Serious offences’ are defined in schedule 2 of the Act.
[10] Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].
[11] In Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27.
[12] At paragraph 46, reflecting the legislation.
[13] At paragraph 47.
[14] Name withheld.