PGI v Public Safety Business Agency
[2015] QCAT 91
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- Unreported Judgment
- PGI v Public Safety Business Agency[2015] QCAT 91
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PGI v Public Safety Business Agency[2015] QCAT 91
PGI v Public Safety Business Agency[2015] QCAT 91
CITATION: | PGI v Public Safety Business Agency [2015] QCAT 91 |
PARTIES: | PGI (Applicant) |
v | |
Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML205-14 |
MATTER TYPE: | Children’s matters |
HEARING DATE: | 26 February 2015 |
HEARD AT: | Coolangatta |
DECISION OF: | Member Mc Donald |
DELIVERED ON: | 11 March 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Whether exceptional case – non serious offences – role model |
APPEARANCES:
APPLICANT: | Mr PGI |
RESPONDENT: | Mr Reid |
REASONS FOR DECISION
- [1]PGI applied for a blue card in order to continue his role as coach with his local rugby league club. PGI informed the Tribunal that he previously had worked as coach with children of the club since 2008. However since new charges were laid in 2010, the Public Safety Business Agency (the Agency), did not renew his blue card. The Agency issued a negative notice for a blue card, finding that due to his criminal history which included physical violence in the presence of children, it was not in the best interests of children that a positive notice issue.
- [2]PGI sought review of this decision in the Tribunal. He argued that he was deeply remorseful about his actions in front of children and should have found other ways of responding to the trigger incidents. He reflects that he is not a violent person, does not consume alcohol anymore and has witnesses who attest that he has a nonviolent nature and is not a bad example to children in his conduct.
- [3]The offences in PGI’s criminal history are not serious offences. In those circumstances section 221 of the Working with Children (Risk management and Screening Act (the Act) requires the decision maker to issue a positive notice unless they are of the opinion that PGI’s case forms an exceptional case. Where a person has been convicted of or charged with an offence, the decision maker must have regard to the factors stated in section 226 of the Act to determine whether an exceptional case exists.
- [4]There are a number of elements in PGI’s criminal history. He has been convicted of the following offences since 1990: assault on a female in 1990, two occasions of permitting an unlicensed driver to drive in 2004 and 2009, and assault occasioning bodily harm in 2004. He also had charges of stalking /intimidate intend to cause fear of physical harm, and assault occasioning bodily actual harm in relation to an incident which occurred on 31 December 2010. These charges were discontinued when the prosecution had no evidence to offer, however, the incident giving rise to the charges has direct bearing on PGI’s conduct in front of children, and is considered for that reason.
- [5]PGI’s offences are not serious or disqualifying offences under the Act. Section 226(2) of the Act also requires consideration of when these offences were committed. PGI was 25 when he verbally assaulted a woman at a caravan park where he lived during an argument. He was convicted and entered a good behaviour bond for 6 months with a $250 recognisance. This is a fairly low level penalty for the offence. Further, he was 42 when he committed the assault occasioning bodily harm offence for which he was convicted. He was penalised with a 16 month imprisonment with a 12 month non parole period, suspended upon entering a bond. Most recently, PGI was 49 years in the incident subject of the charges for assault occasioning bodily harm and stalking /intimidation, which occurred in 2010. The incident occurred just four years ago, and while PGI was working for the club as a coach.
- [6]The decision maker must also have regard to the nature of the offence and its relevance to employment that involves or may involve children. PGI described the 2010 incident as occurring occurs in the context of a heated argument amongst his children and his son’s partner that he stepped in to quell. The police complaint alleges he lunged at the complainant, a young woman, with his fists clenched, and he has used his head to cause injury to the complainant’s forehead. He was later noted to raise his fingers in an obscene gesture to this person and call her a “slut” in front of his 3 year old grandchild who had been disturbed by the commotion. The woman was the child’s mother. This incident occurred some 4 years ago, while PGI was a mature aged man, and indeed a grandfather. It occurred at a time when he was in a coaching role at the football club in the role for which he seeks a blue card. PGI was an active participant in a physical altercation between the child’s parents, a third party and himself. PGI was the child’s grandfather. I note PGI’s recollection that the child was observed to be crying, evidently in distress. Yet despite PGI’s mature age, and role as the elder in the household, his response to resolve the conflict embroiled him within a physical fight, in front of the child, in a situation where the child had no calm or responsible adults in the room demonstrating protective behaviour for him. The absence of consideration of the child’s emotional needs at this point concerns the Tribunal. That PGI was in the role of coach at the club, in the role for which he seeks a blue card is of further concern to the Tribunal.
- [7]The nature of the 2004 offence is particularly concerning in respect of its relevance to working with children. PGI gave evidence that there were three teenage boys present at the incident, who watched him as he and his teenage son physically attached the complainant in retribution for an assault on his daughter. PGI engaged his son to physically attack the man with him, while a number of adolescent boys watched on. The physical attack according to the police records notes that the complainant was shoved to the ground and kicked in the head and kidney area by the applicant and his co-offenders. At the time, PGI endorsed his sons’ participation in the attack which police reports states includes kicking the complainant in the chest while he was on the ground. The complainant sustained severe bruising to his kidney ribs and right eye. The complainant had eye injuries including bruising swelling and a black eye, and blood in his right eye. PGI gave evidence at the hearing that it was his idea to go down to see the man, and that he regretted involving his son in the incident, having since apologised to him. He reflects on the incident saying that he should have called the police rather than taking matters into his own hands, and would do so if the event occurred now.
- [8]The Tribunal holds grave concerns in relation to the conduct involved in this 2004 incident, which endorsed vigilante violence as a means of resolving a dispute and actively and passively engaged teenage boys in this pursuit. PGI’s conduct modelled exceptionally poor means of resolving a dispute. At the time of this offence, PGI was a middle aged man of 42 years, with two teenage children of his own. In front of his own son, and other teenage boys he engaged an attack of relentless aggression upon a person knocked to the ground. The Tribunal considers that in engaging in the series of acts in this 2004 offence, PGI holds himself as a poor role model for children.
- [9]PGI has convictions on two separate occasions some five years apart for permitting an unlicensed driver to drive a vehicle. In 2004, PGI pleaded guilty to this charge, allowing his then 16 year old daughter to drive his car. Before the Tribunal he claimed that his daughter had taken the keys without his consent but in order to stop her being charged with theft he pled guilty to the offence. Be that as it may, the Tribunal is unable to go behind a plea of guilty and must accept it on its face.
- [10]On the second occasion, some 5 years later, he permitted his son to drive unlicensed. He stated that the circumstances that this occurred was that he was in an industrial estate, which he considered a safe area and gave his son have a try at driving. The Tribunal is concerned about PGI’s judgement in allowing a child to drive a vehicle, a dangerous object, and demonstrating to the child that he considered it was acceptable to operate outside of the law. It is particularly unfortunate where PGI held a conviction for this specific offence, and therefore had full awareness of its illegality.
- [11]The Tribunal concludes that the circumstances of the 2004 and 2010 offences raise concerns about PGI’s ability to manage conflict in a manner that is appropriate in front of children, and to act as a role model in this regard.
- [12]The oral evidence put forward by PGI’s witnesses, JN, Club Registrar, and MS, Assistant Vice President and Coaching Director of the club, both suggests that PGI has been observed to be nothing but a positive role model while he has participated in club activity, dating back to 2008. MS described PGI as very well, liked, someone who had never raised his voice, was gentle and laid back, and puts his heart and soul into his coaching work. He said no-one at the club ever had any problems with him, and he had never had any concerns voiced to him by the children’s parents about PGI’s conduct. He said he was confident that he could manage conflicts within the club without escalating situations. MS had remarked that he was aware of incidents in PGI’s criminal history, having read the Agency’s material. He stated that he was shocked because he had not seen any conduct of this nature in the seven years he had known PGI. He stated that PGI was ‘not that person’. He did not believe that PGI would ever hit a woman. The Tribunal notes that PGI’s witnesses have attested that they have not seen any aggressive behaviour in PGI in the time that they have known him. However, it remains of concern to the tribunal that PGI did engage in concerning aggression in front of young children in 2010, while he had been active at the club.
- [13]JN similarly attested that she had not seen aggressive behaviour in PGI in his time at the club. She noted that there were procedures in place which would ensure that PGI was not engaged in any conflict situations.
- [14]She described him as helpful, committed and a knockabout bloke. She denied PGI drank alcohol to excess, and described him as a juicedrinker. He was described as a coke drinker by MS, since PGI commenced a diet, but noted that they had an occasional social drink prior to PGI’s “diet”. She said she had no concerns about PGI getting into a conflict in front of children. She had observed the children having very positive feelings for PGI.
- [15]The Agency concedes that PGI’s witnesses suggest that he not been witnessed to be aggressive or have difficulties managing conflict but that his criminal history suggests otherwise. It is therefore significant that the 2010 incident occurred when he was known to the witnesses, and in this regard, the Tribunal notes that the applicant is capable of concerning conduct in front of children despite the witnesses’ awareness of the same.
- [16]The Agency also submits that PGI’s traffic record raises concerns about him transporting children. This record includes driving uninsured vehicles in 2004, not wearing a seatbelt, (2002) permitting a child to travel unrestrained (1996), and several entries for speeding. He dismissed his traffic record stating to the Tribunal he has a lead foot. In doing so he did not satisfy the Tribunal that he had insight into the significance of the risks he exposed the children to as a result of these offences.
- [17]The Agency submitted that there are some protective factors noted. He keeps busy with a range of activities, in an active business and provides care to his frail mother. He sought counselling on a one off basis. He had also reflected upon his conduct and had acted to change himself, rather than seek professional help. The agency submitted that there were several risk factors, noting a number of criminal offences in his criminal history. They argued that his traffic history was concerning where there were several entries for speeding and were he to be in a position with a blue card which required that he transport children, he could expose children to risk.
- [18]Despite these protective factors, the Agency submitted that the several risk factors exist. The high degree of violence in the 2004 offence, where PGI took matters into his own hands, knowing little of the surrounding circumstances was a relevant factor in considering whether an exceptional case exists. There were conflicting accounts between the police record and PGI’s own account of the events. In particular, the police report noted that after the assault, PGI had walked away from the injured complainant not knowing what state he was in. PGI denied this and claimed that he watched him walk away. PGI stated that he initiated compensation for the victim, and that this was indicative of his remorse. PGI indicated that he is paying $20 per fortnight towards victim compensation at his own initiative. The Tribunal has no other evidence of whether this a not a voluntary arrangement but notes that $20 over the last 10 years has not been a significant incursion on PGI’s lifestyle, and accordingly places limited weight upon this.
- [19]The Commission also submit that PGI has tended to down play the seriousness of his offending. The Tribunal accepts this submission.
- [20]The case of Commissioner for Children and Child Guardian v Maher and Anor[1] (Maher’s case) also suggests that exceptional cases must be determined on a case by case basis, as a matter of discretion, and suggests a process of weighing risk and protective factors. In The Commissioner for Children Young People and Child Guardian v FGC the Appeals Tribunal indicated that exceptional case must be considered in the context of the legislation which contains them, and the interests of the persons whom it her quite obviously designed to protect: children.[2]
- [21]In determining whether an exceptional case exists, the principle that the welfare and best interests of children is the paramount consideration, ‘to which all others yield’.[3]
- [22]Having regard to these considerations, the Tribunal finds that the circumstances in PGI’s criminal history suggest that he has been unable to control his behaviour around children, and has exercised poor judgement in exposing children to high levels of conflict without regard for their emotional well being and without regard for his status as role model. He has exercised poor judgement allowing minors to drive unlicensed and model in doing so model illegal behaviour, as well as driving children unrestrained. The protective factors exhibited here do not outweigh the risk factors in light of the circumstances of PGI’s offences, and in particular the involvement of children at the time.
- [23]The Tribunal finds that on the balance of probabilities an exceptional case exists where it is not in the interests of children to issue a positive notice. The decision of the Agency to issue PGI with a negative notice for a blue card is confirmed.