Frescon v Director-General, Department of Justice and Attorney-General
[2018] QCAT 383
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- Frescon v Director-General, Department of Justice and Attorney-General[2018] QCAT 383
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Frescon v Director-General, Department of Justice and Attorney-General[2018] QCAT 383
Frescon v Director-General, Department of Justice and Attorney-General[2018] QCAT 383
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Frescon v Director-General, Department of Justice and Attorney-General [2018] QCAT 383 |
PARTIES: | ROBERT CHARLES FRESCON (applicant) |
| v |
| DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) |
APPLICATION NO: | CML023-18 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 16 November 2018 |
HEARING DATE: | 8 November 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Sheean |
ORDERS: |
|
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where convicted of offences other than a ‘serious offence – whether the Applicant’s case is an ‘exceptional case’ 8pt!importantQueensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360, Schedule 2 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Gindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 Re TAA [2006] QCST 11 The Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | S Wills, Solicitor, Aboriginal and Torres Strait Islander Legal Service |
Respondent: | I McCowie, legal officer of the Director General, Department of Justice and Attorney-General |
REASONS FOR DECISION
Introduction
- [1]Mr Robert Charles Frescon is 33 years old. He was issued with a positive notice and blue card on 8 June 2005. His eligibility was re-assessed as a result of the Queensland Police Service notifying Blue Card Services that his police information had changed. That re-assessment resulted in Mr Frescon being issued with a further positive notice and blue card on 5 December 2007. He was also issued with positive notices on 17 September 2012 and 30 May 2016.
- [2]After the positive notice issued on 30 May 2016, Blue Card Services was notified on 8 November 2016 that Mr Frescon’s police information had changed. As a result, his eligibility was re-assessed.
- [3]The Respondent proposed to issue Mr Frescon with a negative notice and so invited him to make submissions about whether or not there is an exceptional case in the circumstances.
- [4]By letter dated 4 January 2018, the Director of Blue Card Services advised Mr Frescon that his positive notice had been cancelled and that a negative notice had been issued.
- [5]Mr Frescon seeks a review of that decision.
- [6]On 5 December 2016, Mr Frescon was convicted in the Brisbane Magistrates Court of a number of drug-related offences. He was fined $400. No conviction was recorded.
- [7]Because these are not serious offences under the legislation, Mr Frescon is entitled to receive a positive notice and blue card unless it is considered that his is an exceptional case such that it would harm the best interests of children for him to have a positive notice.[1]
- [8]The Tribunal conducts a review of the merits of the Director’s decision by way of a fresh hearing.[2] The Tribunal needs to apply the same law as the Respondent. The Tribunal must take into account s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). This section outlines what the Tribunal is required to consider in deciding if an exceptional case exists.
- [9]The purpose of the review is to produce the correct and preferable decision.[3]
- [10]The WWC Act does not define “exceptional case”. As the Tribunal in its appeal jurisdiction said in Commissioner for Children and Young People and Child Guardian v FGC[4] what is an ‘exceptional case’ is a question of fact and degree to be decided in each individual case, having regard to:
“… the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children”.
- [11]Each case is to be considered on its own facts. As Fullager J stated in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions:[5]
“… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion.”
- [12]
- [13]To be exceptional the case needs to be out of the ordinary, unusual or special.[8]
- [14]I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard, taking into account the legislation and the circumstances.
- [15]The WWC Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard to sections 5, 6 and 360 of the WWC Act.
- [16]A child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
- [17]Blue cards are given without condition so the Applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.
Circumstances of the Charges
- [18]On 5 December 2016, Mr Frescon was convicted in the Brisbane Magistrates Court on two counts of possessing dangerous drugs, one count of not being endorsed to possess restricted drug, and one count of possess utensils or pipes, etc. that had been used.
- [19]Mr Frescon also had an earlier conviction in the Brisbane Magistrates Court. On 16 January 2007, he was convicted of assault occasioning bodily harm. The penalty imposed by the Court required Mr Frescon to enter into a $500 recognisance. He was ordered to be of good behaviour for 12 months, and he was also ordered to pay $250 in restitution. No conviction was recorded.
- [20]This earlier conviction had resulted in the re-assessment which led to Mr Frescon being issued a positive notice and a blue card on 5 December 2007. The offence which led to this conviction was also not a serious offence under the legislation.
- [21]It seems clear that, because Blue Card services issued a positive notice to Mr Frescon following a re-assessment brought about by the 2007 conviction, the Director did not, at the time, consider his conviction an exceptional case such that it would harm the best interests of children for him to have a positive notice.
- [22]The later offences occurred on 7 November 2016.
- [23]Mr Frescon entered a plea of guilty at the first opportunity before the Court. The dangerous drugs the subject of the charges were cannabis and oxycodone. Mr Frescon did not have a prescription for the oxycodone. He also did not have a prescription to possess the restricted drug, sildenafil. The utensil was a straw that the Police alleged had been modified to use as a spoon. The oxycodone, sildenafil and straw were all found in a First Aid kit located under the driver seat of Mr Frescon’s vehicle. The cannabis was found in Mr Frescon’s wallet.
- [24]Mr Frescon’s evidence was that he had not modified the straw but that it was a shovel straw from a 7/11 convenience store, typically used for slurpees. He admitted to the Police that it was a utensil used to scoop drugs out of a bag to “divvy up” them. In his oral evidence, Mr Frescon said he knew this because he had seen such straws used by his housemates at the time. He did not know how the straw had come to be in the First Aid kit and suggested that it could have been put there by any person who had been in his car.
- [25]He said that he had been given the sildenafil by a friend and that the oxycodone belonged to his sister, who had accidentally left it in his car. Mr Frescon’s sister provided a statutory declaration confirming that. She was cross-examined in that regard and I accept her evidence that she had left the oxycodone in the car but had not immediately realised this because she had other tablets at home for the pain she suffered.
- [26]Mr Frescon filed an affidavit in which he said that his sister had been playing with his First Aid kit when she had been in his car earlier in the day. In oral evidence, he stated that he had seen that his sister had left the oxycodone in his car and had slipped it into the First Aid kit to keep it safe and out of the sun until he could return it to her. When asked about the discrepancies in the evidence, Mr Frescon was unable to explain it. Nevertheless, the recording from the police body camera supports Mr Frescon’s oral evidence. I also note that his sister’s evidence supported his oral evidence. I accept that Mr Frescon placed the oxycodone in his First Aid kit.
- [27]Mr Frescon admitted that he has accepted the sildenafil because he intended to try it at some point in the future.
- [28]The facts alleged by the Queensland Police Service in relation to these charges stated that Mr Frescon had told them that he smoked ice when he was asked if he had anything in his car of an illegal nature. Mr Frescon denies this. He points to the lack of any charges in relation to the use of ice and the fact that its use did not form part of his plea as corroborating his denial. He also said that there was no reason he (or anyone) would have said anything of the kind in answer to the question asked.
- [29]Mr Frescon’s denial must be considered against the facts supporting the charge of possess drug utensil, being the straw, to which he entered a plea of guilty. The facts alleged in the Police Brief in relation to that charge are that Mr Frescon told the Police that “he used the straw to divide the ice into a useable portion”. However, the facts upon which the plea was entered did not refer to ice.
- [30]The recording from the Police body camera did not record the entire encounter and it did not contain any discernible reference to the drug, ice.
- [31]Mr Frescon’s solicitor pointed to the lack of evidence of any testing of the straw for any drug to support his client’s denial of any admission in regard to the use of ice. If there was evidence that the straw had been tested and that the results were that it contained no trace of ice, that might support this submission. There was no evidence whether the straw had been tested or not. The unchallenged evidence of Mr Frescon was that he did not know who had placed the straw in the First Aid kit.
- [32]The Respondent’s solicitor submits that a lack of police video footage neither substantiates nor disproves the alleged admission by Mr Frescon in regard to the use of ice. He points to an exchange between the duty lawyer and the Magistrate during Mr Frescon’s sentencing as providing an inference, together with the allegation of the admission of the use of ice, and the fact that Mr Frescon agreed that the straw was used in connection with drugs, that Mr Frescon’s drug use was more extensive than the conviction would indicate.
- [33]I do not accept that the exchange during sentencing supports that inference. As I read it, the exchange relates to allegations by the Police rather than an admission by the duty lawyer on Mr Frescon’s behalf.
- [34]In relation to the use of the straw, Mr Frescon said that he knew that such items were used in connection with drugs because of his housemates. He also said that he had not placed it in the First Aid kit and that anybody who had been in his car could have done so. This evidence was not challenged. On that basis, I find that it does not support an inference that Mr Frescon’s drug use was more extensive than the conviction would indicate.
- [35]The cannabis was found in Mr Frescon’s wallet. He said that he had been asked to procure some for a friend and that he had ‘stupidly’ done so. He had been given it earlier that day, and had no intention of using it.
- [36]It appears that 6 November 2016 was not a good day for Mr Frescon. His evidence was that he had acquired the sildenafil and cannabis and that his sister left her oxycodone in his car all on that day. When he was approached by police just after midnight, the police recording indicates that he co-operated fully and those items, together with the straw were found. It also indicates that Mr Frescon apologised to the Police for having those items.
- [37]At his sentencing, Mr Frescon was fined $400 and did not have a conviction recorded.
The Applicant’s Case
- [38]Mr Frescon gave evidence of his long employment history in the sphere of youth work, including working with Child Safety with an aboriginal organisation, and within the health industry.
- [39]He stated that alcohol was a factor in the 2007 conviction but that he rarely drinks now.
- [40]Mr Frescon has found the Blue Card appeal process has been stressful but he sees a psychologist regularly and he is able to talk to people, in particular his CEO, if he has any issues or concerns.
- [41]When asked about his views of the ability of people who use drugs to protect children, he declined to proffer it stating that he has no information upon which to base a view in that regard. Mr Frescon did refer to the need for children to be safe and the fact that he has 8 nieces and nephews that he would ensure were safe if the need arose. Evidence given by his psychologist, Ms Ryan, clarified that in her conversations with Mr Frescon, he has expressed the opinion that drugs should not be around children and that the use of drugs is not conducive to people being able to care for children.
- [42]Mr Frescon expressed remorse about his actions that led to the drug charges. He said that he had made stupid decisions and that he should not have had the items in the car. He also stated that only people who have prescriptions for those types of drugs should have them and, in those circumstances, they should not be generally accessible. Upon being asked if he would procure an illicit substance for a friend again, he was emphatic that he would say ‘no’ to that request.
- [43]At the time of the drug charges, he was living in a share house that included a person who was involved with drugs. He said that the Police would randomly visit the house. He has since moved into a place by himself and he doesn’t talk to the drug user from the prior house. He said that he has never had a random visit from the Police in his current accommodation.
- [44]At the time of the plea of guilty in relation to the drug charges, Mr Frescon was asked if he would be interested in drug diversion. He refused it because he stated that he did not have a drug problem and that the resources would be better utilised to help people with such problems. Although this may be seen as Mr Frescon being in denial about his problem, it appears that it was a genuine view held by him, which was not unreasonable given the explanations he gave for having the substances, and that such explanations were not seriously challenged in cross-examination.
- [45]Mr Frescon’s sister gave evidence in relation to the oxycodone which I have referred to earlier. She also stated that her brother is very straightforward and truthful, that he is uplifting and funny, that he is a favourite with his nieces and nephews. She said that if her children are being naughty, he will tell them not to do that but that he doesn’t overreact and that he is never out of place with his comments. She stated she would have no concerns leaving her children with Mr Frescon.
- [46]Ms Ryan, a registered psychologist, gave evidence of her knowledge of Mr Frescon both in a clinical setting and a cultural setting. She provides professional supervision of him which includes monthly meetings where they discuss matters such as practices at work, frameworks of how to cope with different situations, and how any situation may be better managed.
- [47]Besides these monthly meetings, Ms Ryan sees Mr Frescon at work related gatherings. She estimated that she would see Mr Frescon at least fortnightly and has done so since about the beginning of 2017.
- [48]Ms Ryan considered that Mr Frescon has gained insight into his actions and the circumstances that led to both the earlier assault charge and the more recent drug-related charges. She spoke about him being more self-reflective than he was when she first met him and about his ability to remove emotional responses and have better self-regulation.
- [49]Ms Ryan has never seen Mr Frescon either drug or alcohol affected. She gave an example of when Mr Frescon declined to attend a party with his co-workers after a “tricky and difficult” time at the recent Apology gathering. Mr Frescon was responsible for a number of stolen generation members. She had observed him calmly helping those people during what was a difficult and emotional day for them. Ms Ryan stated that Mr Frescon’s maturity was on display when he decided to not join his co-workers for a party, at which alcohol was available, and instead chose to accompany the stolen generation members back to the hotel, despite his work day being finished.
- [50]Ms Ryan gave a further example of Mr Frescon’s maturity over the time she has known him. She spoke about a particular staff member that he was required to manage that he, along with many others, found somewhat difficult. Ms Ryan said that, through Mr Frescon’s use of the strategies that they had talked about, the difficulties with that particular staff member no longer exist.
- [51]I accept the evidence given by Mr Frescon’s sister and Ms Ryan.
- [52]I generally accept Mr Frescon’s evidence. In oral evidence, he presented as a witness who was trying to be helpful and give truthful evidence.
The Applicant’s submissions
- [53]The Applicant’s solicitor submitted that Mr Frescon had given open, honest and genuine answers to all questions. He highlighted the remorse that Mr Frescon had shown for both offences and, in the later offences, that he had apologised to the Police at the time of the charges and that he had entered a guilty plea at the first available opportunity.
- [54]The fact that there had been no further issues for Mr Frescon since November 2016 was relied upon as showing that there was no evidence that Mr Frescon had any drug problems that would cause him issues in any dealings with children.
- [55]In responding to a suggestion by the Respondent that the length of period between the two offences, being some 9 years, would indicate that the period of time since the latest offence was not sufficient to ensure that there would be no further offending, the Applicant’s solicitor relied on the very different nature of the offences as not showing any ‘pattern of offending’.
The Respondent’s view
- [56]
- [57]The Respondent referred to the object, purpose and nature of the decisions enshrined in the WWC Act as supporting a precautionary approach to decision making on blue card matters. It submitted that the WWC Act is premised on past behaviour being an indicator of future behaviour and that it allows for precautionary action to be taken even if it is not demonstrated that a person’s criminal offending is directly child-related. I accept those submissions.
- [58]The Respondent, in accordance with the approach accepted by the Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[10] helpfully referred to both the protective factors and the risk factors identified in the evidence.
- [59]The following protective factors were identified:
- (a)Mr Frescon has a record of working as a youth-worker, a case-worker and team leader, including working with indigenous youth, indicating a concern with the welfare of children;
- (b)Ms Ryan’s evidence of Mr Frescon’s remorse, his progress and growing maturity as well as his ability and strategies for dealing with stressful situations;
- (c)Ms Ryan’s evidence of Mr Frescon’s insight into drug use in relation to children, which the Respondent submitted indicates that he is significantly less likely to repeat his actions;
- (d)Mr Frescon pleaded guilty to both sets of charges at the earliest opportunity, and that he showed remorse over the assault in his later interactions with the victim, and over the later offences as demonstrated by his apology to the Police at the time of the drug-related charges;
- (e)the changes that Mr Frescon had made in his life, in particular in removing himself from the household where drug use had occurred;
- (f)that Mr Frescon accepted that his actions at the time of the charges involved poor judgement.
- (a)
- [60]The following risk factors were identified:
- (a)the statement in the Police Court Brief that Mr Frescon admitted to smoking ice;
- (b)that Mr Frescon was not able to give his view in relation to drugs and children but noted that Ms Ryan did provide evidence in that regard;
- (c)because the time between the offences was 9 years, and it is now only 2 years since the last offence, that perhaps more time is needed for Mr Frescon to demonstrate that he is not going to have a relapse of offending behaviour.
- (a)
- [61]In relation to the statement in the Police Court Brief that Mr Frescon admitted to smoking ice, the Respondent:
- (a)did acknowledge that Mr Frescon has not been convicted or charged with offences in relation to that drug and the Police recording did not include any reference to that drug;
- (b)noted that the recording begins some way into the interaction between Mr Frescon and the Police;
- (c)submitted that I should not infer from the absence of reference to that drug that it substantiates denials of its use;
- (d)submitted the Police footage did show that Mr Frescon stated that the straw that was found was used for drugs;
- (e)referred to the sentencing remarks in relation to the reference to the straw being used for drugs “not the subject of the charges”;
- (f)stated that the Tribunal is not concerned with the guilt or otherwise of Mr Frescon in relation to the drug, ice;
- (g)submitted that all of the above provide an inference that Mr Frescon’s use of drugs was greater than those in relation to which he was charged and that such an inference is material in considering whether this is an exceptional case.
- (a)
The Tribunal’s view
- [62]I need to have regard to s 226(2) of the WWC Act in deciding if Mr Frescon’s is an exceptional case.
- [63]I note that his criminal history is comprised of two matters, some 9 years apart. He was convicted in both cases, but neither instance involved a serious offence as defined in the WWC Act.[11]
- [64]The first offence of assault occurred about 11 years ago and was the result of the personal history of Mr Frescon and his victim. There is evidence that Mr Frescon has apologised to the victim some time later, and that the apology appeared to have been accepted. It did not involve children and was not in the course of Mr Frescon’s employment. The penalty imposed involved a fine, and an amount of restitution to the victim, with no conviction recorded.
- [65]The second offences occurred about 2 years ago. They were not related to Mr Frescon’s employment and did not involve children. The penalty involved was a small fine and, again, no conviction was recorded.
- [66]I have taken into account the information obtained in relation to the drug-related offences.
- [67]I accept the evidence given by Ms Ryan in relation to Mr Frescon’s insight into his offences and the steps that he has taken that demonstrably provide him with better coping mechanisms.
- [68]I accept the protective factors in this case are as identified by the Respondent.
- [69]I do not accept that the matters referred to by the Respondent as supporting an inference that Mr Frescon’s use of drugs was greater than those in relation to which he was charged. I accept Mr Frescon’s explanation for his knowledge of the use of the straw. His evidence that the straw could have been placed in the First Aid kit by a number of people was unchallenged. As stated earlier, I do not accept that the exchange between Mr Frescon’s duty solicitor and the Magistrate was an admission by the duty solicitor that Mr Frescon used the drug, ice.
- [70]I do accept that the admission of the use of ice contained in the Police Court Brief may have been made prior to the commencement of the Police recording. However, it is not a matter that was returned to by the Police after Mr Frescon was cautioned in relation to his rights, including when the use of the straw was discussed. In those circumstances, I give little weight to that allegation.
- [71]I accept that the most recent offence occurred relatively recently but I do not accept that the length of time between the two offences indicate that a lengthier period of time is necessary to ensure that Mr Frescon does not reoffend. In that regard, I have taken into account the change in Mr Frescon’s living arrangements, his evidence that he has not been randomly visited at his new home by the Police, that he has a number of support people who he can talk to in times of stress, that he does not use drugs and rarely uses alcohol, and Ms Ryan’s evidence of Mr Frescon’s ability to deal with stresses and the strategies that she has observed him to use when faced with difficult and stressful situations. I have also taken into account Ms Ryan’s evidence of Mr Frescon recently declining to attend a party at which alcohol was available in favour of continuing to assist vulnerable people, despite his work duties having concluded.
- [72]I have also taken into account Mr Frescon’s admission that his actions had been “stupid” and Ms Ryan’s evidence of his insight into drug use in relation to children.
- [73]
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.
- [74]I have taken into account the risk factors identified by the Respondent, but I do not accept that the evidence supports an inference that Mr Frescon’s drug use was greater than that for which he was charged.
- [75]I accept that Mr Frescon was unable to indicate his insight into the effect of drug use in relation to children but note that Ms Ryan was able to provide that, that her evidence in that regard was unchallenged, and included as a protective factor by the Respondent.
- [76]I am of the view that the protective factors outweigh the risk factors.
- [77]After taking into account all of the above matters, I find on the balance of probabilities, bearing in mind the gravity of the consequences involved,[13] that Mr Frescon’s case is not exceptional such that it would harm the best interests of children for him to have a positive notice and blue card.
- [78]The decision of the Respondent that the Applicant’s case is an exceptional one within the meaning of s 221(2) WWC is set aside, and is replaced with the Tribunal’s decision that there is no exceptional case.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.
[3] Ibid.
[4] [2011] QCATA 291 at [31] (citing Kent v Wilson [2000] VSC 98 per Hedigan J at [22]).
[5] [1983] VR 1 (citing Re Perry and Brown’s Patents (1930) 48 RPC 200 per Luxmoore J).
[6] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 per Buss J at [109].
[7] Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 at [33].
[8] Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 at [8].
[9] Exhibit 1.
[10] [2004] QCA 492.
[11] Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.
[12] [2006] QCST 11.
[13] Briginshaw v Briginshaw (1938) 60 CLR 336