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Walmsley v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 130

Walmsley v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 130

CITATION:

Walmsley v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 130

PARTIES:

Clive Edward Walmsley

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML347-15

MATTER TYPE:

Childrens matters

HEARING DATE:

19 May 2016

HEARD AT:

Brisbane

DECISION OF:

Member Rogers

DELIVERED ON:

9 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 26 November 2015 to issue a negative notice to Mr Walmsley is set aside.
  2. Mr Clive Edward Walmsley is to be issued with a positive notice and blue card forthwith.

CATCHWORDS:

BLUE CARD – where convictions for firearm and violence offences – where custodial sentence imposed – where mental illness subsequently diagnosed -  whether an ‘exceptional case’ exists

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221

APPEARANCES:

APPLICANT:

Clive Edward Walmsley

RESPONDENT:

Chief Executive Officer, Public Safety Business Agency

REPRESENTATIVES:

APPLICANT:

Represented by Mr J Thomas, solicitor of McMillan Kelly Thomas Lawyers

RESPONDENT:

Represented by Ms P Hughes, advocate, Public Safety Business Agency

REASONS FOR DECISION

  1. [1]
    Mr Walmsley applied for a renewal of his blue card to continue his work as a landscape labourer because there are occasions when he needs to work around schools.
  2. [2]
    Applications for a blue card are made to the Public Safety Business Agency (“the Agency”) and are determined under the guidelines established by the Working with Children (Risk Management and Screening) Act 2000 (Qld), (the Act). 
  3. [3]
    On 26 November 2015 a delegate of the Agency issued Mr Walmsley with a negative notice. This means he is not eligible for a blue card. The decision to issue a negative notice was based on his criminal history.
  4. [4]
    He seeks a review of that decision before this Tribunal.
  5. [5]
    Mr Walmsley’s criminal history is restricted to a short period in 2013, when he was 45 years of age. In April 2014 he was convicted of the following offences in relation to an incident which occurred on 6 October 2013:

Threatening violence – discharge of firearms or other act at night, for which he was sentenced to three months imprisonment. Mr Walmsley had spent 24 days in gaol after his arrest and this time was taken into account at the time of sentencing. The balance of the period was suspended for a period of two years.

Common assault, which resulted in probation for twelve months.

Possessing strychnine and possession of a weapon while intoxicated for which he was convicted and fined $400. 

In addition he was convicted of possession of an unregistered firearm following an inspection at his house on 20 September 2013 and fined $300. This firearm had been kept in a locked locker and no conviction was recorded for this charge.[1]

  1. [6]
    These offences are not serious or disqualifying offences for the purposes of the Act, however they involve a combination of intoxication, violence and firearms and therefore raise grave concerns when considering suitability to work with children.
  2. [7]
    The purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[2]  This means evidence obtained and events occurring after the original decision was made can be considered.
  3. [8]
    The paramount consideration when making an employment related decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well being.[3]
  4. [9]
    Because Mr Walmsley has not been convicted of a serious or disqualifying offence he must be issued a positive notice and blue card unless I am satisfied it is ‘an exceptional case’ in which it would not be in the best interests of children to issue a positive notice.[4]
  5. [10]
    Mr Walmsley provided a life story to explain the circumstances of his offences. He describes a stable and close early family life. He was one year old when it was discovered he had eyesight problems. He is legally blind. He says that means he can’t drive a vehicle and it has made it difficult for him to gain meaningful employment. He has been employed in numerous jobs and has worked as a landscape labourer for the last twelve years.
  6. [11]
    He has been married twice. He met his second (and current) wife in 2000. They married twelve years ago and between them have five children and five grandchildren. Most of the children are in contact and are often in their home.
  7. [12]
    At around the time of the incident he was very stressed with pressure from his employer at work. The business he worked for had been sold and his new employer expected him to have answers he did not have and to complete paperwork, which was difficult for him. He was trying to give up smoking and taking the drug Zyban. He was feeling depressed as a result of the pressure and drinking heavily.
  8. [13]
    In oral evidence Mr Walmsley said both guns and the strychnine came with him when he moved to Queensland in 2000. He bought the gun for his first wife to shoot snakes on their farm and the strychnine was to kill rats.
  9. [14]
    He could not explain why one gun was registered and the other was not. He kept both guns locked securely.
  10. [15]
    He did not really think about the strychnine, it was in a hard to reach place in his shed and he had to shift a heavy bench to reach it but he always knew it was there. He knew he should have declared possession of the strychnine but didn’t get around to it.
  11. [16]
    Police came to their house in September 2013 because he had had too much to drink and was arguing with his wife. They asked to see the gun registered at the premises. They inspected the locked locker, discovered the unregistered gun and took both guns away. A few days later they returned the registered gun but not the unregistered gun.
  12. [17]
    On the night of the incident in October 2013 Mr Walmsley had been drinking heavily with friends who were staying with them. He was arguing with his wife. He got his gun and the strychnine. He threatened his wife with the gun. He was going to use the strychnine to end his life. He doesn’t remember much about the event.
  13. [18]
    Ms Catherine Stanbrook, Mr Walmsley’s wife gave evidence. She is a senior social worker. She said that Mr Walmsley had been verbally aggressive for about two months before October 2013. In September 2013 she had called the police because he had been drinking and was screaming, ranting and swearing. She was not aware how much he had been drinking during this period until she checked their credit cards after the charges were laid. She had been trying to tell him he was depressed in the months before the charges but he would not listen to her.
  14. [19]
    At the time of the offences she said Mr Walmsley had drunk too much. ‘He had a gun, threatened my life then told me he would kill me and him’. She ran out and called the police and then hid until they arrived.
  15. [20]
    The police brief is consistent with the evidence of the witnesses. It says after the police arrived they telephoned Mr Walmsley and asked him to surrender himself. He did as he was requested and was detained. He appeared to be heavily under the influence of liquor at the time.
  16. [21]
    Mr Walmsley described where the gun would be found and police located and seized it. It was loaded, in full view of passing traffic and easily accessible by members of the public.
  17. [22]
    Police located two containers containing strychnine near the rear of the house. They called the Queensland Fire and Rescue Service to remove the strychnine.
  18. [23]
    There were no children at the house though their two teenage children were living with them at the time. Police obtained a Domestic Violence Order and included Ms Stanbrook and the two children on the order. The children were upset they could not contact their father and their names were subsequently removed from the order.
  19. [24]
    Mr Walmsley argues the offences occurred when he was suffering depression although it had not been diagnosed at that time and was not recognised by him as a medical condition. Since these events he has undergone treatment, developed an awareness of his behaviours and made considerable changes to his life. He says no evidence suggests he poses a risk to children and there is little, if any, risk that he would behave that way again.
  20. [25]
    He attended alcohol counselling as a result of his bail conditions, but by that time he had already stopped drinking. He has now returned to moderate social drinking. He was diagnosed and treated by Dr Colls, psychiatrist and underwent counselling by Mr Lennon, psychologist.
  21. [26]
    As a result of these interventions Mr Walmsley says he has been given strategies to use in times of stress, is prepared to reengage with medical treatment if it becomes necessary, has changed his job, has become more prepared to say no to the repeated requests made to him for help and has the support of his family and friends. He found he loves fishing and takes time for that.
  22. [27]
    This view is supported by Dr Colls who prepared two written reports and gave oral evidence. He first saw Mr Walmsley in November 2013 and then continued to treat him until June 2015, by which time his medication was ceased. He then saw him again in February 2016 as a result of the stress arising from this application and for the purpose of providing a report.
  23. [28]
    Dr Colls says Mr Walmsley was suffering from an untreated depressive illness. His poor vision meant he had a difficult childhood, he didn’t think he deserved much of life and as a result he did not recognise he had a mental illness when it occurred. Dr Colls is of the view the offences were not characteristic of Mr Walmsley. He could not understand what he had done. Dr Colls stated Mr Walmsley has now developed an awareness of the risks associated with alcohol use and the symptoms of depressive illness, He has developed strategies to deal with stress, he is not resorting to excessive alcohol use, he is well supported by his partner and as a result there is no significant risk at this time. 
  24. [29]
    Dr Colls said he will continue to see Mr Walmsley as necessary but thinks his recent recurrence of some symptoms, which may not amount to a diagnosis of depression at this time, may be a reasonable response to the stress associated with this application and his recent change of job.
  25. [30]
    He thinks it is unlikely Mr Walmsley’s behaviour was caused by the medication Zyban and was more likely the result of his untreated depression and alcohol consumption.
  26. [31]
    Ms Stanbrook states that after the October 2013 event they took things slowly but she is now living with him again and ‘Clive continues to make every effort.’ She acknowledges ‘I will be on edge for a while yet as a result of previous relationships’ however she now has back the man she married and she will be staying with him.
  27. [32]
    Ms Stanbrook also gave evidence about the change in Mr Walmsley’s behaviour. She said he now says no to people when they ask him for help and he takes time for himself. They go for walks together, take holidays, have date nights and have put in place things to reduce stress. She encouraged Mr Walmsley to look for a new job, which he did and that is much better for him.
  28. [33]
    She says Mr Walmsley will listen to her if she tells him he is starting to get depressed again and he will do something about it. As an example Ms Stanbrook states Mr Walmsley was badly affected by the blue card decision. He thought he would lose his job and their house and he was still being penalised. She suggested it was time for him to speak with Dr Colls and he made an appointment the next day.
  29. [34]
    The Chief Executive Officer argues the events occurred two and a half years ago and that is still recent. The events were extremely serious and resulted in the magistrate imposing a custodial sentence and an extended period of supervision. They involved children to the extent the boys were named on the Domestic Violence Order obtained by the police after the incident. Dr Colls does not support Mr Walmsley’s argument relying on the impact of Zyban. The offences were driven by alcohol and Mr Walmsley has now started to drink alcohol again. The recent recurrence of his depressive symptoms suggests Mr Walmsley needs to continue to address the underlying triggers and manage his condition.
  30. [35]
    I have given consideration to the convictions, which are not serious or disqualifying, the time that has elapsed since their occurrence and their circumstances, which were not in an employment or child related environment. I have considered the sentences and in particular that a custodial sentence was imposed and the sentencing remarks commenting both on the evidence relating to a mental illness and the need for continuing supervision.
  31. [36]
    The offences are of great concern. The potential for grave injury and the ongoing impact on those involved must be considered. In addition, Mr Walmsley’s careless attitude to the registration of the second gun and the strychnine, which cannot be excused by his medical condition, suggest a failure to take responsibility for the risks associated with those items.
  32. [37]
    I note that Mr Walmsley is not able to hold a gun licence for five years and he indicates he does not intent to apply for another licence. The strychnine has now been removed. This will result in a safer environment in the future.
  33. [38]
    I have given weight to the evidence of Dr Colls over the submissions of the Chief Executive Officer. I am satisfied that Mr Walmsley will recognise and manage his depressive episodes with the assistance of his wife, he will be compliant with any medication regime and he will seek further assistance if necessary. In these circumstances I have formed the view little risk can be attributed to Mr Walmsley’s medical condition.
  34. [39]
    I have given no weight to the part Zyban might have played in the behaviour, nor in what may be considered an attempt to make it an excuse. Mention was made of Zyban but not in a way that detracted from Mr Walmsley taking responsibility for his actions and showing remorse.
  35. [40]
    These events happened when Mr Walmsley was 45 years of age and this suggests excessive drinking, leading to legal consequences, has not been habitual over a long period. I have taken this into account and accepted Mr Walmsley’s evidence that he can now drink in a social setting without needing to continue. I accept his drinking was self medicating in a situation where he did not understand he had an illness and his attendances at alcohol counselling, his psychologist and psychiatrist suggest he will not continue to resort to excessive alcohol use.
  36. [41]
    I have given weight to the fact that on two occasions Ms Stanbrook was prepared to call the police to situations she considered unacceptable. This demonstrates she is prepared to act in situations of danger. Her professional skills as a senior social worker will assist her to maintain awareness of risks. Her ongoing support for Mr Walmsley, and that of her family, will also assist him to manage stress and illness.
  37. [42]
    To the extent that a risk continues to exist that risk is to the community at large and is not a risk specifically to children.
  38. [43]
    For these reasons I am satisfied the offending behaviour is unlikely to be repeated and the circumstances do not signal a risk into the future outside the bounds of normal human behaviour. It is therefore not ‘an exceptional case’ in which it would not be in the best interests of children to issue a positive notice. I will set aside the decision and in its place order that a positive notice and blue card be issued.

Footnotes

[1] This history has been taken from the Transcript of Proceedings of the Magistrates Court dated 3 April 2014, page 4, line 13-50 because it differs from the police record obtained by the decision maker dated 3 June 2015.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) s 20.

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 360.

[4] Ibid s 221.

Close

Editorial Notes

  • Published Case Name:

    Walmsley v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Walmsley v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 130

  • Court:

    QCAT

  • Judge(s):

    Member Rogers

  • Date:

    09 Jun 2016

Appeal Status

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

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