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Humphreys v Chief Executive Officer, Public Safety Business Agency QCAT 342
Humphreys v Chief Executive Officer, Public Safety Business Agency  QCAT 342
Jory Michael Humphreys
Chief Executive Officer, Public Safety Business Agency
22 June 2016
27 September 2016
CHILDREN – BLUE CARD – where person convicted of a serious offence – where negative notice issued preventing that person from working with children– where person young adult at time of offending- where evidence of risk factors and protective factors – whether exceptional case such that it is in the best interests of children for a positive notice to issue.
Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 353, 354 and 360
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19 and 20
Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27
Jory Michael Humphreys in person
Chief Executive Officer, Public Safety Business Agency by Ms Paula Hughes, advocate.
REASONS FOR DECISION
- Mr Humphreys is about to enter the final year of his course at Queensland University of Technology. He is studying Health Information Management and has to undergo a practical placement doing clinical classification in the Health Information Department of a Queensland Health Hospital. He won’t be mixing with children in his placement or his career but is required to have a blue card before he starts his placement in a public hospital.
- Applications for blue cards are made to the Public Safety Business Agency, the organisation responsible for screening persons employed in child-related employment. On 22 January 2016 the Chief Executive issued Mr Humphreys a negative notice, which means he is not eligible to obtain a blue card. He has asked this Tribunal to review that decision.
- Mr Humphreys has a number of charges and convictions. Of particular relevance are his convictions on 10 July 2012 for trafficking in dangerous drugs schedule 2 between 17 July 2009 and 25 September 2010 and supplying dangerous drugs on 25 September 2010. He was sentenced to a period of three years imprisonment on all charges and released on parole immediately.
- The trafficking offence is a ‘serious offence’ for the purposes of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’) and a negative notice must issue unless an exceptional case exists in which it would not harm the best interests of children for a positive notice to issue.
- The decision to be reviewed is whether or not there is an ’exceptional case for the person’. In making this decision I must consider those factors listed in the WWC Act. This list is not exhaustive as the Tribunal has a broad discretion and the offending behaviour, its relevance to employment that involves or may involve children and any relevant change in circumstances in the life and functioning of this applicant for a blue card may be considered.
- 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. The Tribunal is bound by the same legislation as the original decision maker. Evidence obtained and events occurring after the original decision was made can be considered.
- 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.
- In addition to the convictions already listed Mr Humphreys has other charges and convictions. The charges of possessing dangerous drugs on 26 September 2010 resulted in no evidence offered. They appear to duplicate the same charge for 25 September 2010. I have given no weight to the charges.
- Offences of possessing dangerous drugs, possessing tainted property and possessing anything for use in commission of a crime on 25 September 2010 were all dealt with following the trafficking offence. A conviction was recorded but no further punishment was imposed. Mr Humphreys also has a conviction on 14 July 2011 for importing prohibited goods for which he was fined $8000. He has a further conviction of possessing dangerous drugs on 22 September 2012 and was fined $750.
- Born on 9 June 1989 he was 19-23 years when he committed the offences. He is now 27 years of age. In his written life story and oral evidence Mr Humphreys described his childhood and explained the circumstances leading to the charges.
- Mr Humphreys says his parents separated when he was young. He kept in contact with his father until he was about 10 years of age. His father then disappeared and he lost contact with him. His mother remarried and had another child, his half sister, who he adored. His step father was good to him but he missed his dad.
- He said he was regularly in trouble at primary school for being disruptive and the class clown. This behaviour continued when he came to Queensland at about 14 years of age. He went to a private school. While he was still disruptive he got on well with his English teacher and scored the highest English and history marks of the males in his final year. He was proud of that. He left school and began to study a law and justice course.
- Mr Humphreys said he really wanted to contact his dad and his mum knew that. He just wanted to be able to chat with him and have a beer when he turned 18. He states when he was about 19 he came home one day and ’Mum found my dad in a newspaper. He had died two years prior….I don’t even know where he got buried.’
- After that event his attitude changed, he started taking illicit drugs and quit studying. ‘I was on a downward spiral and living on the Gold Coast didn’t help the process.’
- He completed a personal trainers certificate and started to work at a gym where steroids were used widely. Because he was his own marketer, he needed his body to look good to get work and his own steroid use arose from that. He says friends wanted to look the same as he did and he began supplying steroids to friends.
- This activity resulted in the trafficking charge. In the sentencing remarks it was stated there were 36 transactions to 23 different people. It was acknowledged Mr Humphreys did not make a lavish profit. He was ‘buying a lifestyle and so-called friends, but that’s not to understate the seriousness of the offence of trafficking.’
- When he turned 20 he travelled overseas with a friend. They decided it would be a good idea to bring back a small amount of steroids for personal use because they were so cheap. The steroids were detected at customs and taken off them. Mr Humphreys said they were released by the customs officers and went home. He didn’t think much of it at the time.
- On 25 September 2010 Mr Humphreys was partying with some friends at Broadbeach and was apprehended during a drug raid. He was charged with possession of a dangerous drug and then he confessed to supplying one of his friends with ecstasy and was charged with supply of a dangerous drug.
- The police searched his mobile phone and found evidence he was supplying steroids to his friends. He was then charged with the trafficking offence.
- At about that time he was also charged with the customs offence resulting from his overseas trip and attempt to bring back steroids the previous year.
- In the 18 month period before the charges were dealt with in the Supreme Court Mr Humphreys says he turned his life around. He stopped taking steroids. He told his parents about his offences and moved back home. He got a new job, went to drug rehabilitation, took frequent urine analysis tests and went to a psychologist to discuss his issues. ‘Because of my hard work the judge granted me immediate parole to serve for three years. It was such a relief.’
- Two months after being dealt with by the Supreme Court Mr Humphreys said ‘I backslid.’ He became part of a new group of friends who were taking drugs. He ended his relationship with his girlfriend of the time. His parents had separated a month after his Supreme Court appearance. Asked if he was engaging in self destructive behaviour he replied ‘Absolutely.’
- Detained with white powder in his possession, he was again charged with possession. The reaction of his parole officer had a profound impact on him. It seems the parole officer expressed disappointment and challenged him to consider his future. He was ashamed of himself and did not tell his parents of this charge. He resolved to not offend again. He thought he would go to goal this time. He was not charged with a breach of parole.
- During the next three years he completed his parole without further incidents. He enrolled in a University degree. He has been achieving excellent results and in 2016 was made the student representative for his year.
- He met his now partner, confided in her his past story and settled into a home together with their two dogs.
- Mr Humphreys states he has paid for his past mistakes and has truly reformed into a better person. He does not hang around with people who take hard drugs.
- He is trying to work full time and study at University. His Grade Point Average was 6 but it dropped to 5.4 as a result of what he is going through. His father-in-law recently died in tragic circumstances. His blue card application is stressful. He is not taking medication but is facing his situation head on. He says he does not smoke, drink or take hard drugs but he did have some cannabis a couple of months ago.
- He is seeing the counsellor to help him through this difficult time. He is addressing his anxiety and depression and working through the issues with his biological father, it is not about taking drugs.
- He says if he is not allowed to complete his placement, and his degree, it would crush him. He wants to make his parents proud of him. He has too much to jeopardise to do anything as mindless as what he did in his very early 20’s.
- Mr Humphreys’ counsellor, Jan Bond gave oral evidence. She has seen him four times since his first visit on 4 April 2016. She has not read the Reasons document and did not prepare a written report.
- She said he has made incredible changes in their four sessions and she expects these to be ongoing. He goes to the gym and is very health conscious. He goes to his Dad’s house to study. His partner is very supportive of him. He has taken steps to deal with with his grief and loss following the death of his biological father. He is embarrassed by his convictions and has worked to recognise the long term consequences of his decisions. Ms Bond says while she is using the word anxiety in a general sense to describe his symptoms, she does not think he has an anxiety disorder or any psychological condition. He has developed strategies and is better equipped to face life challenges into the future. She believes he is not likely to offend again.
- Mr Humphrey’s family also supported his application. His maternal aunt, who has a psychology degree and works in the health area, says she has seen a great change in him since he went to University. He is now strong, mature and compassionate. He is the first member of his immediate family to go to University and that is part of the reason they are so close. They have common interests. He is open to seeking help if he needs it, as is evidenced by his recent attendance at counselling.
- Mr Humphrey’s step father also gave evidence. He says they speak nearly every day. It is his evidence that Mr Humphreys has changed a lot in the last few years. He has cleaned up his act, started a new relationship, he carries himself well and dresses well. It is his view that this short period of time of offending is a one off mistake that he is not likely to repeat.
- His mother says he has changed ‘astronomically’ in the last few years. He is back to where he was as a young child. He has the support of his girlfriend and is making healthy choices. She said she has a good relationship with her son but he does get embarrassed to talk about what he is going through to her.
- Finally Mr Humphreys’ partner gave evidence. She has worked as a residential caseworker in a child protection facility. She does not have great knowledge of his past life and says they are looking to the future rather than the past. His old friends are no longer part of his life. She says they have now lived together for three years and there is no indication he is using hard drugs or steroids. He has now found a career he is passionate about and can talk about endlessly. He is surrounded by a strong support network. He was prepared to actively seek counselling himself. He interacts well with young friends and talks to them about the dangers of drug use. The young people listen because they think he knows what he is talking about.
- The Chief Executive acknowledges the efforts Mr Humphreys has made to turn his life around but say this is not an exceptional case. He has committed what parliament has deemed to be a serious offence, highlighting its concerns about the destructive impact of drugs on the individual and society. There was a supply to 23 people over a year. The penalty imposed was three years imprisonment, albeit with immediate parole and the sentencing remarks refer to the seriousness of the offence. The judge also commented the supply charge could have become a trafficking charge if he had not been caught and his behaviour had continued.
- It is further submitted by the Chief Executive Mr Humphreys was sentenced in the Supreme Court. He was made aware of the possible consequences of his behaviour yet he reoffended when he was on parole. He has admitted using marijuana in the last two months. This demonstrates an unwillingness to cease drug use. It is only twelve months since his period of parole was completed and his counselling sessions are ongoing. His witnesses all supported him when he was being sentenced but he has since reoffended, therefore little weight can be given to their assessment of his likelihood of reoffending.
- It is accepted appropriate to consider the risk and protective factors arising from Mr Humphreys’ circumstances. The protective factors can be identified as:
- He was young when he committed the offences and dealing with difficult issues.
- He has expressed remorse and made changes to his life.
- He has a supportive partner.
- He has nearly completed a university degree.
- He has a strong support network.
- He has distanced himself from his previous social circles.
- His referees have given positive references about the changes he has made.
- He is undergoing professional counselling.
- None of the offences involved children or child related employment.
- The risk factors include:
- There are multiple offences including a serious offence.
- The trafficking involved 23 people over a more than twelve months period.
- He received a heavy penalty of three years gaol for his major offence, demonstrating the gravity of the offence.
- His drug use included ecstasy, methamphetamines and steroids and his use of cannabis two months ago demonstrates a reluctance to give up drug use completely.
- He pleaded guilty to possession of a dangerous drug but says it was not his and he pleaded guilty because he was told he would not be further punished, demonstrating a lack of remorse.
- It is twelve months since his parole period ceased and he is having ongoing counselling.
- The starting point for this application is that, following commission of a serious offence, a negative notice must issue. However it is acknowledged by parliament there will be circumstances a positive notice should issue where a decision maker is satisfied it will not harm the best interests of children.
- I have seriously considered the nature of the charges and the penalty imposed. For the trafficking offences it cannot be ignored a custodial sentence was imposed. However the sentencing judge took into account the mitigating circumstances and Mr Humphreys was granted parole immediately. This indicates he was not considered a risk to the community at that time.
- The further possession charges did not have a further penalty imposed and for this reason I have given them little weight.
- The customs offence was dealt with by way of a very substantial fine. It is interesting Mr Humphreys thought nothing would happen once the drugs were impounded. This suggests an unusual naivety and immaturity. It is true that it took some time for the charges to be laid, but there is no evidence he sought any advice or asked questions about what would happen next. This supports the impression that he simply did not consider consequences at this time in his life.
- Finally there is the offence that occurred two months after the Supreme Court dealt with him. While he attributes this to backsliding it is of great concern that he did not appear to learn from that experience. However it appears the intervention of the parole officer was a turning point and there are no further convictions after that date.
- I have given weight to the period of time that has elapsed since the last offence. My Humphreys said that after his last offence there were no further breaches of the patrol. He attended the required counselling and passed all screening checks.
- The Chief Executive submits that simply complying with the law is not an exceptional circumstance, it is what is expected by society. I accept that a period of time without offending is not, by itself, sufficient to constitute an exceptional circumstance but it is one fact that must be considered as part of the bigger picture. It may be evidence of a change of behaviours that would support an exceptional case.
- I have given weight to the circumstances leading to the period of offending. It was difficult for Mr Humphreys to deal with the death of his father, as that prevented him from re-establishing a relationship with him. He is now attending counselling to better understand the impact of his child hood experiences. Greater awareness of his personal development and triggers should be a protective factor into the future.
- Mr Humphreys left school and found the transition to adult life difficult. He dropped out of the course he was studying and took a job. He moved into a work environment which ignored the long term effect of steroid use for immediate gain. In an atmosphere where ‘every one was doing it’ he lacked the maturity to resist the temptation to improve his body image. He says he thought his steroid use and distributing steroids would make him popular. It appears he did not engage in the criminal behaviour for financial benefit. These are the actions of a young man who lacks direction and maturity.
- It has not been argued that Mr Humphreys did not know what he was doing was wrong. He said in the Personal Training Certificate course he studied body systems, muscles and how to motivate people. Asked if this included the impact of steroids he responded ‘Maybe.’ I find Mr Humphreys did know what he was doing was wrong and he was reckless about the impact of his behaviours on himself and others.
- I have given weight to the changes Mr Humphreys has made to his life. He has distanced himself from those friends who engaged in steroid and drug use. He is now engaged in a stable relationship. He has reconnected with and speaks regularly with family members. He is proud of his university achievements and has a purpose in his life with good job prospects. His family members who gave evidence agree that Mr Humphrey’s life has changed for the better. In particular they point to his relationship with his partner and his commitment to his career. His step father referred to his involvement with the local golf club demonstrating his ability to relax and look after himself.
- The supporting evidence of his counsellor cannot be considered independent. Ms Bond has a therapeutic relationship with Mr Humphreys and therefore I have given little weight to her opinion that he will not offend again. However it is positive that when he experienced stress as a result of a combination of circumstances he did access professional help. She has identified the steps he is taking to deal with stressful situations and I am satisfied voluntarily entering counselling is a protective factor.
- I am satisfied Mr Humphreys now has a protective circle of relationships with people who are aware of his needs that he did not have at the time of his offending. He has direction in his life and has had the opportunity to reflect on his past behaviour.
- Factors similar to this case have been considered previously by the Tribunal in the case of Ram where it was said Mr Ram is now:
‘living his life in a law abiding manner as society expects. He has not shown he has insight into how his past violence and disregard for legal restrictions on his choice of conduct might affect his dealings with others, particularly vulnerable people. Mr Ram’s evidence is put no higher than he is now functioning in the community at a level expected of a person of his stage and age in life. These changes do not take Mr Ram’s circumstances outside of what is otherwise the “ordinary course”. His case is not exceptional.
- I have found this case to be helpful because while Mr Humphreys says he has turned his life around, and his witnesses all attest to that, the evidence suggests he is simply living his life in a law abiding manner. That is to be commended and I am not in any way trivialising the personal growth and strength of character needed to achieve this change. However it cannot be said that living life in a law abiding manner is an ‘exceptional circumstance’.
- Against this growth and the protective relationships is the evidence of his counsellor that he is still working through issues concerning his childhood and developing strategies to deal with stress. There is also his use of cannabis about two months ago. Both these circumstances suggest to me that Mr Humphreys still needs support when he is experiencing a time of stress. This is not unusual but it means there remains a risk that he could react in an unthinking way resulting in serious consequences.
- The WWC Act says a negative notice must issue unless it is an exceptional case. That is a high bar to reach. Mr Humphreys has not had extensive dealings with children and that makes it difficult for him to bring evidence directly related to children. However there was no evidence that suggests Mr Humphreys understands why the proliferation of drugs in society, even where it does not involve children, should be considered a serious offence by parliament. I accept he is remorseful and accepts what he did was wrong, but I am not satisfied he has developed that higher level of insight at this time.
- It is difficult for Mr Humphreys to accept this decision when his study is not directed towards working with children and he does not intend to pursue that course. I acknowledge that frustration however his workplace requires him to have a blue card and he must meet the screening requirements. The legislation does not allow an assessment to be made of the risk in the context of the intended use of a blue card. This assessment must be made on the basis the blue card could be used to engage in any child related employment. To this extent it is a blunt instrument.
- When making this decision I am not permitted to consider the impact the decision will have on Mr Humphreys because parliament has put the welfare of children at a level above the entitlement of citizens to put their past criminal behaviour behind them.
- On balance I have decided that it is too early to be satisfied an ’exceptional case’ exists at this time. This view is based on the length of time since the offences occurred, the period since the parole period was completed and the further activities of Mr Humphreys in more recent times.
- Mr Humphreys can apply again in two years from the date of the original decision. I encourage him at that time to provide to the decision maker evidence of abstaining from illegal drug use, a report from his counsellor detailing the progress of his counselling and examples of occasions where he has used strategies to curtail impulsive or ill considered reactions to stressful behaviour. Evidence of greater awareness and insight of the impact of drugs in society on children would also be considered.
- For these reasons I have decided to confirm the decision of the Chief Executive.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 8.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 167 and Schedule 2.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 225(1)(c) and 225(2).
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 353.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.
 Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT ACT) s 20.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6 and 360.
 Transcript of Proceeding, Supreme Court of Queensland 10 July 7 2012 pg 2-3.
 Commissioner for Children and Young People and Child Guardian v Maher  QCA 492.
 Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27 at para 47.
 Ram v Commissioner for Children and Young People and Child Guardian  QCAT 215.
 Kent v Wilson (2000) VSC 98 at .
- Published Case Name:
Humphreys v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
Humphreys v Chief Executive Officer, Public Safety Business Agency
 QCAT 342
27 Sep 2016