HT v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 431
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- HT v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 431
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HT v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 431
HT v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 431
CITATION: | HT v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 431 |
PARTIES: | HT (Applicant) |
v | |
Chief Executive Officer, Public Safety Business Agency (Respondent) | |
APPLICATION NUMBER: | CML139-14 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 5 February 2015 |
HEARD AT: | Bundaberg |
DECISION OF: | Member Beckinsale |
DELIVERED ON: | 21 October 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CHILDREN - BLUECARD - exceptional case - where a review sought of cancellation of a positive notice – where person convicted of an offence - where that offence was not categorised as serious - where positive notice was cancelled and a negative notice issued - where evidence of risk factors and protective factors - whether or not in the best interests of children for a positive notice to remain in place. Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 237(1) and (2), 354 and 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2) and 66 Child Protection Act 1999 ss 189(1)(a) and 194(1)(a) Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Re TAA [2006] QCST 11 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 |
APPEARANCES: | |
APPLICANT: | HT represented himself |
RESPONDENT: | Chief Executive Officer, Public Safety Business Agency represented by Natalie Taylor, an officer of the Public Safety Business Agency |
REASONS FOR DECISION
Background
- [1]HT was issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 (Qld) on 5 December 2011. Subsequently the Queensland Police Service notified the Commission that HT’s criminal history had changed. After reassessing HT’s eligibility, the Commissioner (now the Chief Executive Officer of the Public Safety Business Agency), on 27 June 2014, cancelled HT’s positive notice and issued a negative notice.
The Legislation
- [2]HT has applied to the Tribunal for a review of that decision pursuant to section 236 of the Working with Children (Risk Management and Screening) Act 2000 (the Act).
- [3]Under section 354 of the Act, the Tribunal can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.[1]
- [4]The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.[2]
- [5]
- [6]The Act does not define “exceptional case”. The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC said that phrases such as “exceptional case” must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect.[5] “Exceptional case” is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.[6]
- [7]Although the Act does not define “exceptional case” it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
- [8]In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.[7]
- [9]
The Evidence
Criminal History
- [10]HT was convicted on 23 May 2014 of producing a dangerous drug, possession of dangerous drugs, possession of weapons category C/E weapon and possession of utensils that had been used in connection with a dangerous drug. On all charges he was fined $1000 with no conviction recorded.
- [11]The circumstances of the offences as outlined in the brief were that police arrived at HT’s residence with a search warrant. HT told police they were incorrect and there was no cannabis on the premises, that he was a Justice of the Peace and the grounds of the search warrant would have to be “really good” to get signed.
- [12]Police conducted a search and found eight cannabis plants ranging from 5cm to 20cm in height growing under shade cloth in the back yard. HT stated they were coriander plants and that he had been “set up” as he had been given coriander seeds to grow. Eventually he admitted they were cannabis plants he had grown from seeds approximately two weeks prior.
- [13]HT denied having anything further to declare but police found two containers containing cannabis in the kitchen. HT admitted it was cannabis and was his and said there was nothing else in the house. After being asked twice more whether he had anything further to declare HT produced a glass bong which he told police he had purchased in Caloundra and used to smoke cannabis approximately four days earlier.
- [14]Police then located a firearms’ safe for which HT provided a key. The safe contained a number of firearms for which HT was licenced but also a category C weapon for which he was not licenced. HT acknowledged he did not have a licence for that category of weapon. He told police he did not know where it had come from other than it was handed through friends to him. He told police he had tried to surrender it during the last amnesty but Bundaberg police would not take it. He was unable to advise when this occurred or to whom he had spoken and he was described as very vague in his answers.
- [15]When asked by police why he had been uncooperative HT said he had panicked.
- [16]HT’s evidence was that he had never previously used illegal drugs, was not a smoker and drank alcohol very moderately. A combination of mainly work related events over the years resulted in his experiencing stress as well as what he suspected was Post Traumatic Stress Disorder. He was constantly in pain from his ankle as the result of an injury 15 years before when he fell from a bicycle. He did not tolerate the pain medication well and felt frustrated by his lack of mobility. He had been on a waiting list over 12 months for an operation he could not afford to have privately. In desperation, and feeling he had been let down by the medical profession, HT said he researched the use of cannabis to treat his symptoms.
- [17]HT said he had a work trip to the Gold Coast and decided to travel from there to Nimbin to find out whether he would be able to purchase cannabis. He said he was offered cannabis immediately he arrived in Nimbin and he bought a bag containing leaf material and some seeds.
- [18]When he returned home he tried to cook the cannabis in a biscuit because he was not a smoker but found the most successful method for him to consume cannabis was as a tea he drank at night a couple of time a week just before going to bed. He said whilst using the drug in this way he had his best sleep in recent years, greatly reduced pain and greatly increased mobility in his ankle.
- [19]On a family visit to the Sunshine Coast over Christmas, HT purchased a pipe to try smoking the drug but as a non-smoker found this unsuccessful and resumed his before bedtime drinks which he consumed after his wife and their children were in bed.
- [20]HT planted the seeds he found with the leaf material in his backyard greenhouse. He said that he told no one about his drug use and no one but himself ever accessed the greenhouse which he had further secured so that children would not be able to gain entry. He said he can only assume someone spotted the greenhouse and reported that as suspicious. A neighbour whom had wrongly blamed his children for a breakage had contacted police some weeks before the raid.
- [21]HT maintained his initial lack of cooperation with police was because he panicked. When his children and wife became aware that police were at the house they assumed it was in relation to HT’s work as a JP. They were in the upstairs level of the house and not present while the police conducted their search.
- [22]HT maintained he had not been aware of the presence of the gun for which he was not licensed. He thought initially the gun found by police was an old rifle he had tried to surrender but later realised it was not that gun and thought it could only have been left in his safe by a friend he was no longer in touch with. He pointed out that following his conviction for the firearms offence, his licence was not revoked, Weapons Licensing considering him a fit and proper person to retain his licence.
- [23]The transcript of HT’s guilty plea was not provided so the submissions of HT’s lawyer nor the sentencing remarks of the magistrate are not known.
Life History
- [24]HT provided a written statement as well as oral evidence of his personal history. He grew up on the Gold Coast in what he describes as an average household with a father and mother who both worked and a younger brother and sister. He said his parents instilled in him a strong work ethic. He has happy memories of his childhood. He said he has a good relationship with his family and rings his mother most days.
- [25]He completed grade 12 and upon turning 18 joined the military to train as a chef. He was made redundant after nearly six years service when civilian contractors were engaged to do the military catering. Because the training he had done was not recognised outside of the military, he found it difficult to obtain work in the industry.
- [26]HT met his wife whilst they were both serving in the military. At the time he was discharged she was transferred away from Townsville where they had both been based, to Western Australia. This was difficult for the relationship but it continued and they have now been together 22 years and married for 15 with three children aged 12,10 and 6.
- [27]After his discharge from the military HT worked as a security guard. He then obtained work at the Gold Coast City Council, initially picking up rubbish, then as a meter reader before being employed as a compliance officer. He later worked as a compliance officer for the council at Hervey Bay. The compliance issues he dealt with in this position included dog and other animal matters, including the care and euthanasia of impounded animals, illegal businesses, street signage and food permits. He described dealing with members of the public in situations of conflict and being on the front line in situations where police needed to enter property and he was required to make entry safe by restraining dangerous dogs on the properties, for example. He sustained permanent nerve damage to his hand as a result of an attack by a dog in the course of work and still has no feeling in his left palm. That injury means he is no longer able to play the saxophone, a loss he finds upsetting.
- [28]He described the attitude of the public as one of the most distressing aspects of this work. He had been threatened with a blood filled syringe. He related an incident where he was recognized in a supermarket with his wife and young son by a member of the public who was so aggressive he was forced to abandon his shopping and leave.
- [29]HT moved his family to Townsville where he worked as a compliance officer for NQ Water and commenced a dive business. He had qualifications as a first aid instructor and additionally became qualified as a trainer of first aid instructors. HT said whilst working as a first aid officer he experienced the trauma of being unsuccessful reviving patients.
- [30]HT said his dive business was successful and was engaged by organizations such as James Cook University as well as refineries and mining and construction companies. The business was involved within the community in activities such as a programme with the youth detention centre whereby young people were offered a pool based dive experience as a reward for good behaviour and Clean Up Australia Day working with the local surf life saving club. HT additionally volunteered at the local PCYC teaching bike maintenance.
- [31]After 7 years in Townsville HT relocated his family to Bundaberg in order to reduce the time spent working away and to be closer to extended family.
- [32]In Bundaberg HT operated a business teaching first aid and as a marriage celebrant. He describes himself as being immersed in the local community as a volunteer judging surf club competitions, with maintenance and upkeep at the tennis club, as a Justice of the Peace and at the primary school participating in the P and C and catering for school functions.
- [33]As a result of his criminal convictions HT has had to resign as a Justice of the Peace and cease work as a marriage celebrant which was his main source of income. HT requires a Bluecard for his work as a first aid trainer and also to volunteer for his children’s school and sporting activities.
Mental Health
- [34]HT first saw a psychologist shortly before finishing his time in the military. He says he had 3 or 4 counselling sessions to help with stress following the suicide of a relative. He took stress leave after the dog attack while working at Hervey Bay but that was on the recommendation of a GP and he did not see a mental health practitioner. Whilst never formally diagnosed, HT believes he suffered Post Traumatic Stress Disorder as a result of his work place experiences.
- [35]HT commenced treatment with BR, accredited mental health social worker under a Mental Health Care Plan dated 15 September 2014. He said he has not been prescribed medication and the treatment is cognitive behaviour therapy. He described the symptoms he experiences as being “down in the dumps”, “a bit short” with people and not feeling like “getting involved”. Occasionally he still has bad dreams or “flashbacks”.
- [36]HT described his current supports as his parents, brother, sister, wife, friends including KJ and PA as well as his counsellor, BR. He described his relationship with his wife as really good. At the time he decided to experiment with cannabis he had not wanted to burden his wife with how he was feeling as she had a lot of issues of her own to deal with including with her own work and her mother’s ill health. He was adamant he would not make the same mistake again and would confide in her. He did not want to put her through such an ordeal again. He had let her down as well as their children.
- [37]HT reported sessions with BR as being very helpful in understanding his past actions and dealing with stress. He also said his ankle is being successfully treated with hydrotherapy and physiotherapy as well as some medication and he has been told he does not require an operation.
Evidence of Psychologist
- [38]HT’s treating Mental Health Practitioner, BR, said HT commenced treatment under a Mental Health Care Plan Dated 15 September 2014. She said his initial 4 sessions focused on psycho-education around pain management options, the risks of drug use to manage chronic pain and impacts of stress on the body and mind. Sessions explored the process that led to his decision to commence drinking cannabis as a tea. BR reported that HT expressed remorse and responsibility for his decisions and actions.
- [39]BR identified protective factors present which reduce the likelihood of “further concerns”: HT’s commitment to attend psycho-therapy sessions and complete activities given in the sessions; his business and professional reputation and client base; ongoing reported abstinence from drugs or alcohol; lack of previous criminal history or outstanding charges; and his insight into his decision and the consequences of his decision.
- [40]BR reported also that HT was engaging in appropriate pain management including medication, hydrotherapy and physiotherapy.
- [41]BR said as far as she is aware, HT has not used drugs in the past. She believes he will use his support network and seek help if needed in the future. She says he has worked hard in therapy and believes he will continue to do so. Whilst BR has not had the opportunity of observing HT interacting with children, she said from her interactions with him, she has no concerns about him working with children.
Evidence of Other Witnesses
- [42]KJ described herself as a close friend who met HT 10 years ago through his dive business. She described HT as a respected member of the community, dedicated family man, upstanding businessman and in both his personal and professional life as caring, hardworking and regularly contributing to community events and his children’s schooling and sporting events.
- [43]Whilst KJ works as a counsellor, she has provided a reference for HT as a friend and has not counselled him. In her written reference originally provided to the court at the time HT was sentenced, KJ attributed HT’s use of cannabis to his mental health issues but in oral evidence at this hearing she said HT’s use of cannabis was an attempt to manage the pain of his injured ankle. She described his offending as out of character.
- [44]KJ said now that HT has commenced counselling, she has every confidence he will implement the recommended strategies and will succeed given the supports he has in place. She said she has no concerns regarding HT interacting with children and young people.
- [45]PA is a Senior Case Manager for Corrective Services who described herself as a family friend who has known HT fifteen years. She described HT to be of exemplary character, a hardworking, loving and responsible father who has been an upstanding member of the community.
- [46]In her reference written in support of HT at the time of his sentencing, she also attributed his cannabis use to his mental health issues. At this hearing PA said HT had referred to “self- medicating” which she had taken as referring to management of his anxiety and depression but she was aware he experienced pain from an ankle injury. She gave evidence of the help and support HT had given her with her two children, particularly her youngest who has behavioural issues. As a parole officer she said she was aware of the operation of the system for issuing Bluecards and had no concerns about HT having a Bluecard.
- [47]HT’s wife JT gave evidence that she has a close relationship with her husband and normally they talk about anything and everything although she had no idea he was using cannabis. At the hearing she remained unclear about exactly what he had acquired at Nimbin, and referred to his purchasing seeds which he then grew. She described herself as very anti-drug and anti-smoking. Although she had been very angry when she found out, after the police raided their home, what had occurred, she said she could understand why her husband took that direction because she had seen how much pain he was in on a daily basis. She said HT had been on a wait list for an operation but that a second opinion was that surgery is not necessary. She said HT has been treating his injury through hydrotherapy, physiotherapy and pain medication. She recalled that he had injured his ankle falling downs steps rather than in a bicycling accident. HT said his wife had been present when he fell down the steps when he had rehurt his ankle but was not present when he came off the bicycle and initially sustained the injury so she probably recollected the steps incident being the cause.
- [48]JT corroborated that HT had felt stressed by work situations such being confronted by members of the public and being attacked by dogs.
- [49]JT said her husband’s consultations with BR have helped immensely with his stress and pain management.
Submissions of Bluecard Services
- [50]Ms Taylor identified a number of protective factors relevant to HT including:
- His expressing a desire and willingness to avoid reoffending.
- His understanding of the impact on children of drugs to some extent by at least consuming cannabis only after his children were in bed and placing the plants where they were not accessible to them.
- Taking more appropriate methods of pain management such as physiotherapy, hydrotherapy and over-the-counter medication which appears to be effective with HT experiencing less pain and more mobility.
- HT taking steps to manage stress through counselling with 6 sessions being undertaken to date.
- HT appears to have a good support network including a good relationship with his wife who is opposed to drug use.
- He has demonstrated remorse in both oral and written evidence.
- Witnesses attest to his good character and whilst they do not see him all that regularly, seem close personally and support his application for a Bluecard.
- Witnesses, with knowledge of his offending, made positive comments on his parenting and his dealings with other children.
- [51]Ms Taylor submitted that whilst there were protective factors there were a number of risk factors arising from the evidence.
- That the offending is very recent.
- That the offending occurred in adulthood and is not the result of youth or immaturity, raises issues about HT’s ability to present as a positive role model and make appropriate choices.
- That the significant fine of $1000 is a severe penalty for a first offence and reflects the Court’s view of the seriousness of the offending and attitude towards HT’s failure to cooperate with Police.
- That the drugs were located in a home shared with three young children and whilst there is no suggestion the children were or could have been exposed to drug use, HT was not a good role model. The children were at home during the police search.
- That there is inconsistency with HT’s version of events and the Police Brief, for example, HT’s insistence only 5 plants were cannabis and further, that his recent use of the water pipe made it difficult to believe he forgot about its existence. Ms Taylor submitted that the Tribunal should give weight to the Police material as regards HT’s lack of cooperation.
- Whilst Ms Taylor acknowledged HT has a good support network, she noted that was available to him prior to his drug use but did not prevent his offending.
- The fact that HT’s family and friends were not aware of his drug use prior to the court proceedings raised some concerns regarding his level of deception, particularly towards his wife. Whilst HT said he will use counselling and harness his support network, Ms Taylor said that remains to be seen with his ability to deceive meaning that has not worked in the past.
- There is no independent evidence of a formal diagnosis in relation to HT’s mental health and there may be multiple triggers for his drug use. She submitted that there has been insufficient time for the Tribunal to be satisfied HT has addressed all the underlying issues raised such as pain management and anxiety and to test whether he will implement strategies.
- HT has had significant mental health issues over a period of time, including an impaired ability to deal with life’s stresses. Further, that these factors along with pain management were the reasons for HT resorting to drug use and the concern remains that these are ongoing issues not completely resolved, leaving HT vulnerable to a return to drugs in order to self-medicate.
Discussion
- [52]It is true that the offences were committed by HT recently and when he was a mature adult. His offending did not occur over a long period although it is unknown how long HT may have continued to use cannabis had the police raid not occurred. Possibly he is lucky his offending was brought to police attention so soon. The fine of $1000 is a significant sum but the magistrate did not record a conviction and saw no need for any probationary period.
- [53]I accept HT’s offending was of a “one off” nature and very unlikely to be repeated. He had not been convicted of any offence in the past and I accept his evidence he has not previously been a user of illegal drugs. I accept his evidence in relation to how he came into possession of the gun for which he held no licence.
- [54]Whilst I agree there is some discrepancy in the police brief and what HT said occurred, I do not find the discrepancies significant. Whilst parts of HT’s written material and his oral submissions to Bluecard Services had a tone of indignation that the consequences to him were out of proportion to what he had done, at the time of this hearing I found his attitude contrite, which I think was genuine.
- [55]HT’s behaviour in terms of his offending and his attitude to police on that occasion was not good role modelling. However, throughout his adulthood, his work ethic, his community involvement and his character as attested to by his witnesses, do present HT as a good role model. However I note it is not a requirement of the legislation that a holder of a Bluecard to be a good role model.[10] Placing such a requirement is a gloss on the wording in the legislation and is not a statutorily mandated factor to be satisfied before a conclusion can be reached that a person is issued with a positive notice.
- [56]It is true that HT did not find himself able to seek the counsel of family and friends whom he claims as a support network prior to making an inappropriate decision to self-medicate with cannabis. However he has now sought professional help. I accept the evidence of BR that HT has made good progress in therapeutic sessions and as to the protective factors identified by her which mean it is not likely he will reoffend. I accept HT’s evidence that he would not reoffend given the consequences of his previous poor decision making.
- [57]I do not find it necessary that any particular diagnosis be ruled out or in. The fact that HT is appropriately addressing his symptoms is a substantial protective factor.
- [58]I do not consider that there are risk factors which outweigh the positive factors and I am not satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the negative notice is set aside and a positive notice issued to HT.
Non-Publication of Identifying Information
- [59]HT requested that his identity be kept private. Ms Taylor had no submissions regarding that request. The Tribunal has the power to prohibit publication of information that may identify persons appearing before the Tribunal or whom may be affected by the proceeding,[11] including particulars which may reasonably lead to the identification of children. I am satisfied that it is not in the public interest to release identifying information regarding the applicant nor his witnesses and the principles of openness and accountability can be achieved by permitting the public access to the details of Bluecard matters, the decisions of the Tribunal and the reasons for the decisions.
Orders
- The decision made on 27 June 2014 to cancel the positive notice and to issue a negative notice is set aside.
- A positive notice is to be issued to HT.
- The publication of this matter will occur in a de-identified manner.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a) 20(2).
[3]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167.
[4]Ibid s 221.
[5]Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291 at [31].
[6]Ibid at [33].
[7]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [28].
[8]Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171.
[9]Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
[10]CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219 at [47].
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66.