Rose v Director General, Department of Justice and Attorney-General
[2016] QCAT 507
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- Rose v Director General, Department of Justice and Attorney-General[2016] QCAT 507
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Rose v Director General, Department of Justice and Attorney-General[2016] QCAT 507
Rose v Director General, Department of Justice and Attorney-General[2016] QCAT 507
CITATION: | Rose v Director General, Department of Justice and Attorney-General [2016] QCAT 507 |
PARTIES: | Kenneth James Rose (Applicant) |
v | |
Director General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML191-16 |
MATTER TYPE: | Childrens matter |
HEARING DATE: | 2 December 2016 |
HEARD AT: | Toowoomba |
DECISION OF: | Member Wood |
DELIVERED ON: | 20 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Children’s matters – Blue Card – Applicant convicted of “Serious Offence” – Exceptional case-Applicant sought review of the issue of negative notice by the Respondent Working with Children (Risk management and screening) Act 2000 (Qld) (WWCRMSA), s 5, s 6, s 225, s 226, s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Re TAA [2006] QCST 11 Commissioner for Children and Young People and Child guardian v Storrs [2011] QCATA 28 Commissioner for Children and Young People and Child Guardian v Maher and another [2004] QCATA 492 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 Queensland College of Teachers v Illingworth [2016] QCAT 309 Commissioner for Children and Young People and Child Guardian v AE [2014] QCAT 185 |
APPEARANCES: | |
APPLICANT: | Ms A Glanville of ATSILS for the Applicant |
RESPONDENT: | Mr JJ Thompson Barrister for the Respondent |
REASONS FOR DECISION
- [1]The Applicant is an Aboriginal male who was born on the 17 June 1992 he resided with his Mother who is also his carer until mid-2016. The Respondent issued a negative notice to the Applicant and he was unable to remain in the residence without a blue card as His Niece and Nephew who also resided in the home were subject to a Child Protection Order.
- [2]In early 2014, the Applicant formed a relationship with a young woman, which by May 2014, had begun to deteriorate. For a number of weeks the Applicant had been trying to establish whether his friend wanted to continue with their relationship. He became increasingly frustrated with not getting an answer and on the 7 June 2014 had a telephone conversation with her, which ended with his friend hanging up on him. Because he was “getting led on for so long”, he decided that he would confront her in person. He agreed in evidence that he had never been as angry as he was at that point. He drove about 20 minutes to where his friend was in order to continue the discussion. He was not aware that there were children at the residence. The circumstances that then followed led to the charges noted in the Applicants’ criminal history which consisted of the following:
- Entered dwelling with intent by break using, violence, damage property (Sections 419(1) (2) (3) (B) (1) (3) (B) (IV) Criminal Code) and,
- Common assault and,
- Wilful damage.
- [3]The Police allege that when the Applicant arrived at the residence, a person, confronted him on the nature strip telling him to leave, as he was not welcome. The Applicant returned to his motor vehicle and grabbed two tyre irons from the boot of the vehicle marching towards the dwelling with the weapon raised above his head in a threatening manner. The victim has run inside and has locked the security screen and wooden door and secured it with a deadlock and bolt. The Applicant has begun banging at the door yelling for his friend to come out, the victims were terrified and stood behind the door to reinforce its strength to prevent entry. The Applicant damaged the wire and broke the lock to open the security door before continuing to strike the wooden door with the tyre iron, this has caused damage to the door and further punches and kicks have damaged the doorframes and door jams causing the dead bolt to break. Upon entry, the victim jumped back from behind the door into the hall way and said “leave there are children here” at which the Applicant has swung at the victims head who has managed to move out of the way avoiding the strike. Furniture placed behind the door created an obstacle preventing further entry into the home, the Applicant has then become frustrated and used a tyre iron to hit a piece of furniture (set of shelves) causing significant damage, the victim has told the Applicant to leave and informed him that Police were on their way at which the Applicant left. When he was located by the Police, the Applicant voluntarily took part in an electronic record of interview and stated that he suffers from poor anger management and provided no lawful or justified reason for his actions.
- [4]The Applicant in his evidence before the Tribunal challenged the factual basis outlined by the Prosecution summarised above. In his evidence, he denied that he had a tyre iron. He says that he banged on the door with his fists as he wanted to talk to his friend but the door just broke. There were a number of challenges in his evidence to the facts including denying in evidence, before the Tribunal that any assault occurred.
- [5]The Tribunal did not have the benefit of the transcript of the sentence hearing before the Magistrate however, the Applicant concedes that the facts as summarised were the facts put before the Magistrate. The Applicant was legally represented at his sentence and it was not a contested sentence such that evidence was called in order to allow the Magistrate to make findings of fact on which the Applicant was to be sentenced.
- [6]To the contrary, the Applicant says that he did not challenge the allegation about the tyre iron even though he disagreed with it; he did not raise it with his Solicitor, as he did not think that he should talk during Court.
- [7]The Applicants statements relied on for the purposes of the hearing refer to the circumstances of the offences however there is no challenge in either of his statements to the allegations that he used tyre irons in his offending behaviour. I am unable to make findings of fact, which are inconsistent with the convictions shown on the criminal records of the Applicant.[1] However, in this case the convictions referred to do not include as an element of the charge that the Applicant was armed. Overall and in particular in relation to the circumstances of the offending behaviour, I accept that I must act based on facts, which are sufficient to found the convictions against the Applicant. I am however able to have regard to the circumstances behind them. I find that the Applicants recollections and perceptions are affected by the passage of time and the desire to view the offending behaviour in the most favourable light for him. The Applicant was not a good historian although was not being deliberately evasive.
- [8]In relation to the facts giving rise to the offences, I do not accept the Applicants recollection of events are accurate, including that he did not use a tyre iron, in the offence. The Applicant pleaded guilty to wilful damage and on the evidence before me, that damage includes a screen door, a timber door where a deadlock was broken and furniture inside the house. It seems unlikely that such damage would have been able to be caused in the absence of a tool.
- [9]The Applicant says that when he realised that there were children in the home he left. When questioned about what would have happened had he not become aware of children, his evidence was that he “don’t know what I would have done if there were no children there” and then continued “I would probably keep trying to talk to my ex”.
- [10]He says that on returning home he was immediately remorseful and sorry for what he had done. He expressed the view that if the victim were in court on that day, he would have apologised to them and that he pleaded guilty to the charges because he felt he was guilty.
- [11]Since then, he has formed a relationship with his current girlfriend which has continued for two – 2 ½ years. He says that he has dealt with his anger management issues and that were the circumstances to occur again, he would walk away. He has had the care of children at times since this incident and there have been no concerns. He says that he consumes alcohol infrequently but when he does, he has a 20 or 21 standard drinks usually Jack Daniels. He has not sought any formal counselling for anger management issues, as he “don’t feel like I need it”.
- [12]The Applicants general practitioner Dr Porter gave evidence to the Tribunal. Because of the Applicants convictions, he was placed on probation and Dr Porter provided a certificate to Probation and Parole, which was in evidence before me. That certificate is a Queensland Corrective Services Form recording that there was an appointment with the Applicant on the 29 October 2014, the Doctor has some hand-written notes in the certificate but has ticked an option which includes:
“It is my opinion that the patient does not require any medical, psychiatric or psychological treatment.”
- [13]The Applicant says that he attended the appointment with Dr Porter as he “went in there to do what I had to do for Probation”. Dr Porter recalls the interview, which was attended by the Applicant and other family members and continued for about thirty minutes. Dr Porter confirmed that the Applicant had learning difficulties and felt that counselling would be of little benefit to the Applicant because of his learning difficulties, Dr Porter felt that he would have difficulty learning concepts which would have assisted. He clarified that by saying that the Applicant was not incapable of learning. Dr Porter does not recall that there was any discussion relating to the circumstances of the offences.
- [14]The Doctor felt that the Applicant appeared generally remorseful but later conceded in cross-examine that he could well have been remorseful because he had to go Court. In cross examination Dr Porter conceded that there was no specific discussion about remorse just a general expression made by the Applicant.
- [15]Dr Porter knew the Applicants family well but had only seen the Applicant a number of occasions over a period of 8 years. He was aware that the Applicant had anger issues since early childhood and referred to a letter from his school in 2004 confirming his suspension from school for behavioural issues including swearing at teachers. The Doctor formed the view that this behaviour related at least in part to anger over the separation of his parents. The Doctors’ records also showed that there was a referral to Child and Youth Mental Health Service in 2004 and a prescription for Zoloft in 2004, which was an anti-depressant. He has no records of any prescription since and no report back from the Child and Youth Mental Health Service. He confirmed that counselling would have been available had he recommended it. The Doctor formed the view that the risk of recurrence of the behaviour giving rise to the offences was low which he based upon the Applicants general demeanour and what he had said and the “family support”. This view was expressed in the context that the Doctor was not aware of the circumstances of the offences so in my view little weight can be placed on it.
- [16]He was aware that the Applicant was not supportive of counselling and nor were the family. Had the Applicant not had the learning difficulties, he most likely would have recommended anger management counselling for the Applicant.
- [17]The Applicants Mother Mrs Helmstedt provided a statement and gave evidence before the Tribunal. She says that the blue card was necessary because she was the kinship carer for two grandchildren since January of 2016 and another grandchild for a period of 8 years. She gave evidence that over this period of time, she has never had any concerns with the Applicant caring for the children and found him to be a great support for her and a role model for his nieces and nephews. Since the Applicant has not been able to reside at home, the older grandchild has shown some emotional upset, as there is a strong attachment between them.
- [18]Her evidence was that the Applicant had been wearing hearing aids since the age of three as he has a hearing difficulty, speech impediment and an intellectual disability. He does not understand paperwork well. In terms of his history of anger management, He had a very short temper at school and he was expelled from school for behavioural issues. She does not feel that he needs counselling and that in regards to his temper he “didn’t like people telling him what to do all the time”. She felt that the anger arose out of frustration that he could not understand what was happening at school.
- [19]The Applicants mother was not present when the Applicant attended the house on June 2014. She was present at the phone call immediately prior to his going to the house and expressed the view that the incident occurred because the girlfriend had “angered him”. She went on to say that, this did not justify his behaviour.
- [20]Mrs Helmstedt felt that the Applicant has now learnt strategies to deal with his anger and thought “counselling is a waste of time most of the time”. The Applicants mother does not believe the facts included in the police summary. She was in Court when the Applicant was sentenced and recalls that the allegation related to the tyre iron formed part of the facts before the court. She does not recall a challenge to that fact in Court. Mrs Helmstedt has seen him loose his temper since but he has also adopted strategies to ensure that this does not escalate. She outlined that she was aware that the Applicant regreted what he had done and that he could not lose his temper around children.
- [21]Overall, I formed the view that the Applicants’ mother was an honest witness giving her evidence in a forthright manner. She was supportive of her son and supportive of him in his desire to have his blue card returned. She present as someone who was very much aligned with her son for reasons, which one would expect. I find however that this desire to support her son did at times affect her ability to view her son’s behaviour in an objective fashion and she was unwilling to accept any criticism of her son no matter how minor.
- [22]The other witnesses that gave evidence spoke very highly of the Applicant and his care and compassion and his ability to look after children. They expressed that they had mostly known him for a very lengthy period and had observed him looking after children and would have no concerns with doing so. The witnesses who were called to give evidence included the Applicants girlfriend of two and half years. The Tribunal had the benefit of other statements from family members including close family friends and family members attesting to his good character and behaviour around children.
Statutory Framework
- [23]The Applicant applied for the issue of a blue card and on the 28 June 2016, the Respondent’s predecessor made the decision to issue a negative notice to the Applicant for the reasons set out in its reasons document.
- [24]The Applicant has made an application to this Tribunal to review the decision to issue a negative notice. In conducting a review, the Tribunal has all of the functions in the decision maker[2] and the purpose of the review is to produce the correct and preferable decision[3]. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits[4].
- [25]The legislation provides[5] that the Chief Executive must issue a negative notice to the person if the Chief Executive is aware that an Applicant has been convicted of a serious offence.
- [26]The Applicant was convicted of among other, a charge pursuant to Section 419 (3) (b) (I) of the Criminal Code which is a serious offence. The offence occurred on the 7 June 2014 and the Applicant pleaded guilty in the Toowoomba Magistrates Court on 12 August 2014 to that and other charges arising out of that incident. He was placed on probation for a period of two years, ordered to pay restitution of $600.00 and allowed 6 months to pay in default of payment in prison for 8 days and on all charges, no conviction recorded.
- [27]In order for a positive notice to be issued, the Chief Executive must be satisfied that “it is an exceptional case in which it would not harm the best interest of children for the Chief executive to issue a positive notice”[6]
- [28]The term exceptional case is not defined in the legislation. The legislation sets out the criteria, which must be considered when determining whether there, is an exceptional case[7] however, the Tribunal must exercise its discretion in each case within the parameters of the legislation.[8] Neither party bears the onus to convince the Tribunal of their position as it is for the Tribunal to determine whether an exceptional case exists or not.[9]
- [29]In the event that the Applicant was to be issued with a blue card then that Blue card is transferrable for all purposes. The Tribunal is unable to place any condition on the issue of the card.
- [30]The principals for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[10] In considering appeals of this nature, the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Ram[11] said the following:
“[46]…the legislation has placed a barrier to persons with a conviction for a serious offence from working with children. The offence of robbery in company/used personal violence has been categorised in the Commission Act as a serious offence despite not intrinsically being an offence against children. The proper inference to drawn from the Commission Act must be that it would harm the best interest of children for persons with convictions for that offence to work with the children unless it is an exceptional case. This is in keeping with the objects of the Commission Act to promote and protect the rights, interests and wellbeing of children in Queensland.”
- [31]
Risk Assessment
- [32]There are a number of protective factors in this case.
- It is clear in the evidence that the Applicant has some insight into the effect of his behaviour in that he is sorry for what has occurred and recognised that the children in the house when he entered would have been very scared. He has expressed remorse for his actions.
- The Applicant has good family support including his mother and extending family. On the evidence, He would reside with his Mother if he were granted a blue card.
- The Applicant has formed a long term and stable relationship. The Applicant has not committed any further offences since the 7 June 2014 and does not have any other criminal history prior to it.
- The Applicant has had extensive contact with children both before and after the events of 7 June 2014 there had not been any concerns raised about his care of their children.
- The applicant has not committed any further offences
- [33]There are a number of risk factors in this case.
- The Applicant committed a very serious offence that was premeditated to the extent that having had a telephone argument; he drove 20 minutes in order to confront the person who had hung up on him. He then forcibly gained entry into to premises using a tyre lever, causing significant damage to a security door and timber door and then upon entry causing damage to property. The Applicant left upon realising that there were children in the premises but did not consider it was possible they were present beforehand.
- The Applicants insight into the offending is limited. He appears to feel that the offences were caused by being “led on” by his former girlfriend and his acceptance of responsibility for the behaviour was limited.
- The Applicants insight into his own anger management problems are limited and his acceptance that he has an anger management problem is non-existent. The Applicant would not in my viewing engage in counselling even if it were recommended and available for him.
- The Applicant has a life long history of anger management issues including swearing at teachers. He was suspended from school and then ultimately expelled. He has in the past had contact with the Child and youth Mental Health Service but does not currently seek any treatment for any medical conditions.
Applicant’s Submissions
- [34]The Applicant made some oral submissions at the conclusion of the Hearing and has subsequently filed written submissions. The Applicants Solicitors correctly identify the legislative provisions and concedes that the applicant has a conviction for a “serious offence” for the purposes of the proceedings. The Applicant has correctly identified the test for deciding whether an exceptional case exists and submits that in this case the Tribunal would find that an exceptional case exists for reasons including the following factors:
- The Applicant has expressed remorse for his behaviour and continues to feel ashamed for his actions;
- He has completed his probation period and continues to seek support from his family and if required, his general practitioner;
- There have been no incidents or events since July 2014 which shows that Kenneth is unable to control his temper;
- Family unit has been fractured as a result of the Applicant relocating from his family residence;
- That he does not have any convictions other than those recorded in August 2014;
- That the risk factors from a “toxic” relationship that led to the incident are no longer present and there is no risk of the behaviour reoccurring.
- [35]The Applicant’s submissions refer to other decisions of the Tribunal however, those are decisions, which turn upon their individual facts and do not provide any statements or principals with assist me.
Respondent’s Submissions
- [36]The Respondent had also filed written submissions following the brief oral submissions at the conclusion of the Hearing. Again, the Respondent correctly identifies the Law to be applied in these proceedings.
- [37]The Respondent submits that in considering whether an exceptional case exists, I must weigh the risk and protective factors the Respondent identifies the following Protective factors;
- no further allegations of violence or criminal conduct since 2014;
- The Applicant had the benefit of a 2 year period of supervision under the probation order without breaching of the Order;
- The evidence shows a high level of family support;
- The statements of evidence of witnesses indicates that the Applicant has been remorseful for his offending behaviour;
- The Applicants evidence is that he desisted from offending and left the scene as soon as he became aware the children were present;
- [38]The Respondent identifies the following risk factors:
- The offence committed by the Applicant is a serious offence;
- The offence involved a forcible home invasion in the presence of children;
- The Applicant describe acting out of anger and has not had any professional assistance to address his ability to manage anger;
- That the Tribunal would accept that the offences occurred while the Applicant was armed with at least one tyre iron. The Applicant successfully completed his probation without any breaches.
- The applicant successfully completed his probation without any breaches
Conclusion
- [39]The Applicant and his family in particular his mother, spoke of the hardship that she has faced and will continue to face in the event that the Applicant is not successful in obtaining a blue card. The family members and friends gave evidence of the positive influence that the Applicant has on children. This and other Tribunals have considered issues such as the hardship on the Applicant’s or his family or his positive influence on children. This Tribunal in AE v Commissioner for Children and Young People and Child Guardian[13] paragraph 43 -
“In the case of Chief Executive Officer, Department of Child Protection v Scott (2) (2008) WASCA 171 at 23, it is stated that any hardship or prejudice suffered by the Applicant by such a determination is irrelevant to this consideration. Likewise, any benefit to children that may result from the Applicant having access to children because of his “Knowledge, experience and flare working with children” is not a relevant factor in deciding whether an exceptional case exists”
In the circumstances, these are not relevant factors in deciding whether an exceptional case exists.
- [40]There is no doubt in my mind that the Applicant has learnt a lesson from the behaviour, which occurred on the 7 June 2014. On the evidence before me, He has not been put in a position that is similar to the circumstances that existed then and the skills that he has learnt to control his anger have not been tested to the extent that they were on that day. He has shown insight into how his criminal behaviour may affect his future, in particular by being unable to continue to reside with his mother while she continues to be the kinship carer for her two younger grandchildren. The applicant has continued to live his life with the Support of his family and friends and has behaved in a law-abiding manner as society expects.
- [41]The steps that he has taken to address his anger management are commendable but do not take his circumstances outside of the ordinary and I find that the case is not exceptional.
- [42]I determine that the appropriate order is that the negative notice issued to the Applicant should be confirmed.
Footnotes
[1] Queensland College v Illingworth [2016] QCAT 309.
[2] Section 19 (c) QCAT Act.
[3] Section 20 (1) QCAT Act.
[4] Section 20 (2) Ibid.
[5] Section 225 WWCRMSA Act 2000.
[6] Section 225 (2) Ibid.
[7] Section 226 WWCRMSA.
[8] Commissioner for Young People and Child Guardian v FGC [2011] QCATA 291,Re TAA [2006] QCST 11.
[9] Commissioner for Young People and Child Guardian v Storrs 2011.
[10] Section 6 WWCRMSA.
[11] [2014] QCATA 27.
[12] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCATA 492.
[13] [2014] QCAT 185.