BWA v Commission for Children and Young People and Child Guardian
[2011] QCAT 310
•4 July 2011
| CITATION: | BWA v Commission for Children and Young People and Child Guardian [2011] QCAT 310 |
| PARTIES: | BWA |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML086-10 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 17 November 2010 and 24 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jennifer Wiltshire, Presiding Member Graham Quinlivan, Member |
| DELIVERED ON: | 4 July 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Tribunal orders that the Commissioner’s decision to issue a negative notice be set aside, and that a positive notice and blue card be issued forthwith. |
| CATCHWORDS: | Whether applicant represents an unacceptable risk of harm to children – exceptional case – protective factors – risk factors – mental health issues |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | BWA represented by Mr D Sushames (Harris Sushames Lawyers) and Mr Andrew Palumbo |
| RESPONDENT: | Commission for Children and Young People and Child Guardian represented by Geoff Woodberry |
REASONS FOR DECISION
Background
BWA is the applicant in these proceedings.
In May 1996 BWA was convicted of the manslaughter of his wife and was sentenced to nine years in prison. He was released from prison in 2000.
On 14 April 2010 BWA lodged an application to cancel a negative notice issued under the Commission for Children and Young People and Child Guardian Act 2000 (the Act) on 21 February 2007. This application was refused.
On 12 May 2010 BWA filed an application for review of the Commissioner’s decision to refuse to cancel the negative notice.
A Compulsory Conference was held on 9 August 2010 and the matter was listed for hearing on 17 November 2010.
The matter was part heard on 17 November 2010. On that date evidence was heard from BWA and a number of witnesses. It was then identified that a recent psychological assessment would assist the Tribunal. With the consent of the parties the matter was adjourned to enable BWA to obtain an assessment from a suitably qualified professional.
The hearing resumed on 24 February 2011. At this time it was identified that the Tribunal member who had presided at the hearing of 17 November 2010 was unexpectedly not available in the foreseeable future. The panel had been reconstituted under section 168 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
On this date, evidence was taken from Wendy Bryant, a registered psychologist with thirty years experience, who had prepared an up-to date psychological assessment. The matter was then adjourned to enable the new presiding member to read the transcript of the hearing which took place on 17 November 2010 and to determine whether further evidence would be required.
The hearing was reconvened by teleconference on 19 April 2011 when the parties were advised that the Tribunal would not call for further evidence and final submissions were heard.
The relevant law
[10] The QCAT Act gives the Tribunal jurisdiction to conduct a review of the Commissioner’s decision. Section 24 outlines the options available to the Tribunal. These options are that the Tribunal may:
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
[11] The operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the Commission for Children and Young People and Child Guardian Act 2000 (the Act). Section 19 of the QCAT Act provides:
19. Exercising review jurisdiction generally
In exercising its review jurisdiction, the Tribunal—
(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the functions conferred on the Tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.
The relevant parts of section 221 of the Act provide:
221. Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence
(1) Subject to subsection (2), the Commissioner must issue a positive notice to the person if—
…
(c)the Commissioner is aware of a conviction of the person for an offence other than a serious offence.
(2) If subsection (1)(b) or (c) applies to the person and the Commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice, the Commissioner must issue a negative notice to the person.
It is this that the Tribunal must consider.
[12] BWA’s criminal history does not contain any convictions for serious offences as defined under the Act. Under these circumstances the Commissioner must issue a positive notice unless satisfied that BWA’s case is an exceptional case and as a result it would not be in the best interests of children for him to have a Blue Card.
[13] Section 226 of the Act outlines the various factors that the Commissioner must take into account in deciding if BWA’s is an exceptional case. The relevant matters are:
(a)in relation to the commission, or alleged commission, of an offence by the person—
(i)whether it is a conviction or a charge; and
(ii)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii)when the offence was committed or is alleged to have been committed; and
(iv)the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision.
[14] The Act does not define what is an exceptional case. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case. In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court considered the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated: “Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V) … as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm. … It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
… Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”
[15] The focus of the Act is the protection of children. The aim is to ensure that there are boundaries put around employment or volunteering to protect children from harm. Harm is defined in the Act to have the same meaning given in section 9 of the ChildProtection Act 1999.
[16] In the former Children Services Tribunal matter of re OAA (2006) QCST 14 the Tribunal stated at paragraph 43 of its Reasons:
“The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.”
[17] This Tribunal considers this to be an appropriate approach. In effect, as part of its review of the Commissioner’s decision, this Tribunal needs to consider whether BWA represents an unacceptable risk to children, in determining whether his is an exceptional case.
[18] The Act in section 6 outlines principles for administering the Act. The Act is to be administered under the principle that the welfare and best interests of a child are paramount. It is this test that the Tribunal must apply. Section 155 further provides that: “the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”. The Tribunal must also take this into account in determining this application.
[19] The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities: Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, as applied in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
The undisputed relevant facts
[20] BWA is now forty-six years of age. He is single and is currently working at a mine in Western Australia as a Rigger.
[21] He works at the mine for four weeks and is flown back for one week. He uses his parents’ home on the Sunshine Coast as a base while not working. He states that he enjoys the lifestyle and the money is assisting him to pay off a house.
[22] In oral evidence he stated that he grew up in Sydney with a brother and three sisters. He described a caring, close family. His parents are still together after fifty years of marriage and said he couldn’t speak more highly of them. He maintains close contact with his parents and siblings who have been consistently supportive of him.
[23] He left school at the age of seventeen after having completed the School Certificate (NSW). He then did a six year apprenticeship as a plumber. He has maintained constant employment except for brief periods between jobs.
[24] He was charged with murder but convicted of manslaughter of his wife in January 1995 when he was twenty nine years old. He was sentenced to nine years imprisonment, served five years and ten months and was released unconditionally.
[25] Prior to the offence, the couple had been married for four years and had an eighteen month old son. His wife had left the marriage with their son some weeks previously. She had returned to the house alone at his request; he stated that he hoped to discuss reconciliation.
[26] The record of police interview records that BWA said he wanted to talk to her and find out why she was leaving. She wanted to change personal effects into her name including the home number and the motor vehicle. She told him she had a boyfriend and said I am gonna go for all the money I can, go for your super. He said I didn’t want to kill her and that half way through …just didn’t know what to do…and happened so quick… I didn’t have any feelings … and that he was not thinking about anything … I was going to end my life anyway. (Page 2 Commissioner’s Reasons document.)
[27] The assault was very violent. He strangled his wife, beat her over the head with a set of bathroom scales at least twice, and cut her throat a number of times with a Stanley knife which caused her death. The strangulation was so severe that it caused her voice box to break.
[28] Following his wife’s death, BWA attempted to commit suicide by driving over a 40 metre cliff after consuming alcohol and prescription drugs but sustained only minor injuries.
[29] BWA’s son is now seventeen years of age and has been cared for by his maternal grandparents. Initially the son had contact with BWA’s parents but this has been limited in recent years. BWA has had no face to face contact with his son since the boy was an infant and he states that he accepts that any future contact will depend on the attitude of his son. He recently had an email from his son asking for information.
Other evidence
[30] BWA provided evidence to the Tribunal in a calm and pragmatic manner. He has never denied his role in the death of his wife, he expresses remorse and states that he regrets the distress he caused both his and her families.
[31] During questioning by the Tribunal he said:
Well not a normal person does something like that you know, and I did it. It must have been anger at that time. The whole thing exploded in, yes, jealousy, love. Love’s a very powerful thing. When you love someone enough, it might sound crazy, but these things do happen. You see a lot in life. It’s not a good thing, yeah. (Transcript of proceedings on 17 Nov 2010, page 30.)
[32] Apart from the assault which caused the death of his wife, his relationship history is unremarkable. He reports having two relationships with girls while at high school and after leaving high school, both lasting up to eighteen months to two years. He met his wife when he was twenty-four and they married a year later.
[33] Since his release from prison he reports having had three serious relationships. One live-in relationship lasted about three years and ended amicably but at her instigation. Two others lasted for periods of months only. All these women knew of the circumstances related to the death of his wife. There have been some casual one night relationships.
[34] He has been single for the past four years and has no immediate plans to settle down in a relationship. He stated:
Well I am enjoying working away at the moment. It suits my lifestyle. I like to come here (WA), put long hours in, but then I get a fair bit if time off to do a bit of fishing and a bit of relaxation, play a bit of golf. And stuff like that. (Transcript of proceedings on 17 Nov 2010, page 28.)
[35] He is paying off a mortgage on a house. Since leaving prison in 2000 he has spent periods of time living with family members and living independently.
[36] BWA admits to three attempts at suicide. (Bryant report 1 Feb 2011.) The first in adolescence when he developed a condition which produced enlarged breasts (gynaecomastia). This was surgically corrected. The second related to marital difficulties and the third immediately after the assault which caused the death of his wife.
[37] BWA denies ever being a heavy drinker and the Tribunal has no evidence to the contrary. He describes drinking socially at the weekend or “having a few with friends”. He does not use illicit substances other than trying marijuana as a young teenager.
[38] His motivation for applying for a Blue Card is to enable him to gain employment in teaching or training at a TAFE level which he has done previously. He said:
… I am getting older and I don’t want to, you know, physically it’s harder to do work I want to start using my brains a bit more and do the training side of it, where therefore that gives me longer activity within my own working life. …
In addition to his qualification, he has a Rigger’s ticket and a Workplace Health and Safety Officer’s ticket.
[39] Dr Ian Atkinson (Consultant Psychiatrist) prepared a report for the Community Corrections Board on 4 January 1999. He wrote: Over the few years around the time of his sentence he was seen by four different Psychiatrists who basically found no mental illness (i.e. in terms of psychosis). He reported that two of these psychiatrists were of the opinion that at the time of the offence this man had not sustained depressive illness nor a personality disturbance which would amount to a personality disorder. Dr Atkinson noted that there is a lot of evidence in the statements of the various doctors to show BWA was a rather insecure person, very much preoccupied with his own self image.
[40] The Tribunal had access to BWA’s prison records. Perusal of these records confirmed that he completed five years and ten months in prison without displaying any concerning behavior. Comments repeatedly described him as cooperative and respectful of other prisoners and staff, or words to that effect. For example:
Very good cooperation (never goes against the grain). Very good organisation, presents himself very well to staff and other people, polite mannerism, excellent punctuality, always attends appointments on time, excellent cleanliness of cell and personal, positive attitude to all directions, positive attitude.
He can become frustrated with the system at times which is normal within the captive environment of Sir David Longland C.C. He is polite and basically a pleasure to deal with in the unit environment.
[41] During his time in prison he attended counselling over several blocks of time. He also attended other courses which were on offer including Anger Management (twice) and a Cognitive Skills course. He does not believe he ever had an anger management problem but concedes that he gained skills while in prison.
[42] In July 1997 it was recorded that he completed an anger management program. It was noted that:
His participation was excellent throughout the program. He contributed positively and honestly during group discussion and displayed good insight into his anger and its consequences. …. He completed all the homework tasks to a good standard. (He) completed a realistic anger management plan which displayed common sense, maturity of thought and an understanding of the course concepts and their application to his circumstances.
[43] He described himself as pretty calm and relaxed these days. He is able to articulate strategies for dealing with conflict and acknowledges the need to talk to a trusted person at times; generally this would be his family. He is clear that he does not need further counselling.
[44] Reports of his counselling sessions while in prison consistently commented on his cooperative, willing, positive response and apparent open and honest disclosure although he was described as having a natural tendency to be suspicious and defensive.
[45] On 31 March 1998 Michael O’Connor (psychologist) recorded that BWA completed the Minnesota Multiphasic Personality inventory (MMP!-2). He noted:
While the test results were no cause for concern, one on one counselling has been continued in order to explore issues around the score on one particular scale (over-controlled hostility).
In October 1998 Mr O’Connor noted:
(He) approached the sessions in an open and cooperative manner. However his natural tendency to be suspicious and defensive hindered progress.
I believe that (he) gained some insights into the relationship between over controlled hostility and sudden explosive outburst of aggression. However I do not feel that that he was able to clearly understand how this applied to him, or how it may have contributed to his offence. This was unfortunate given that (he) freely admitted that he was responsible for his victim’s death, and appeared to be making genuine attempts to understand why he committed the offence. It is my hope that understanding will come in time, but I do not believe that (he) will benefit from more counselling at this time.
[46] In September 1999 Michelle Campbell (psychologist) undertook counselling sessions with BWA to help him to identify and address any adjustment issues and deficient coping strategies; and for support up to his release. She noted:
(He) presents willingly to the sessions and seems to be open and honest in his disclosure. The sessions to date have focused on identifying the strategy of talking with someone as being a valuable coping mechanism, whether it be a family member, friend or counsellor. BWA seems to respond positively to the counselling.
[47] Wendy Bryant is a psychologist with thirty years experience and is a member of the Clinical Psychology Board, the Neuropsychology Board and the Forensic Psychology Board. She provided a written assessment to the Tribunal dated 1 February 2011 and gave telephone evidence during the hearing. She wrote:
The findings of self-report measures suggest (he) likely responded to the questionnaires in a defensive manner. With the latter in mind the findings suggest that (he) presents as free of any psychological problems; except for his self esteem difficulties.
and
From the information obtained during the clinical interview, findings evident in the psychological and psychiatric reports provided in combination with objective measures BWA is likely to present with the following:
·Developed greatly improved communication and assertiveness skills; with greatly increased emotional maturity and independence since his incarceration.
·Maintained close and positive social and family relationships.
·Established a stable work history since his release from prison.
·Denies the presence of any major psychological or substance based problems following his release from prison. He did however admit to some physical altercations with others; the last of these apparently two years ago.
·Presents with low risk of psychopathy or the likelihood of re-offending on objective measures such as the Psychopathy Checklist.
·The likely continued tendency towards over controlled hostility, a small display of which was evident during the clinical (interview) when exploring his feelings about the manslaughter of his wife.
When questioned, Ms Bryant indicated that she did not regard the reference to physical altercations as significant given the lifestyle he was living , i.e. working in mining communities. (Transcript of proceedings on 24 February 2011, page 30). When questioned about the possibility of the offence which resulted in the death of his wife ever being repeated she replied:
I don’t think I am able to comment on whether it would never ever happen again, but I think the probability would be very low. It can’t be zero. (Transcript of proceedings on 24 Feb 2011, page 25.)
In response to further questioning she said:
I feel the potential would probably mainly be if he was in another intimate relationship rather than in his day to day life. (Transcript of proceedings on 24 Feb 2011, page 28.)
[48] BWA’s younger sister CC aged thirty-six gave evidence by telephone to the Tribunal; she advised that she was aware of the offence for which her brother was convicted.
[49] She has two children, a girl aged twelve and a boy two years of age. She stated that BWA has at times looked after her children for her, that she trusts him very much as do her children; they can’t wait to see him when he comes home.
[50] She has frequent contact with her brother when he is home and described him as easy to get on with, has plenty of friends and definitely does not have a temper.
[51] BWA’s father DA gave evidence by telephone to the Tribunal; he advised that he was aware of the offence for which his son was convicted and visited him in prison nearly every weekend. During that time he described his son as very remorseful and always polite to his parents. He confirmed that currently his son stays with him when he is home.
[52] He stated that prior to the offence …you couldn’t have asked for a better son. He was always helpful, always polite. As an adult he was always employed and worked in the same firm as his father for one period and always got good reports from his supervisors.
[53] He described his son’s behavior since release from prison as impeccable, impeccable, unbelievable (sic). He confirmed his good relationship with the children in the family especially his oldest grandchild who would not trust anyone else. He stated he and his son are …good mates. I see him as a best friend, more or less.
[54] MC, a news agency owner, aged forty-nine gave evidence by telephone to the Tribunal; he advised that he was aware of the offence for which BWA was convicted. He has known BWA for approximately eight years as a customer, a friend of the family and has gone to functions and such events with him; he sees him almost daily when BWA is in town. MC described himself as being active in a number of community organisations. He has two adult children.
[55] He testified to BWA’s good character and said …I don’t think you would get a better community member. He is always involved in helping with things around town such as fund raisers at the local RSL club … he is always there to put his hand up and help. He has observed his interactions with children positively.
[56] He described BWA as one of the calmest people he had seen. He does not think violence is in his character.
[57] GM aged sixty-five has been a friend of BWA’s family for forty years. He gave telephone evidence to the Tribunal and advised that he was aware of the offence for which BWA was convicted. He has seen BWA only a couple of times in the last two years because of distance, but in the period between 2002 and 2007 the families lived close together and regularly socialised together.
[58] He described BWA as quiet and reserved and spoke highly of his good interaction with children.
[59] JS has been a police officer for thirty-eight years. He gave telephone evidence to the Tribunal and advised that he was aware of the offence for which BWA was convicted. His association with BWA is through the family and has known him since his release from prison on a personal basis.
[60] He wrote: I have found BWA to be polite, well mannered honest and generous. He verbally confirmed that BWA has been employed almost continuously since his release from prison saying … he’s a person who has picked himself up and got on with his life and made something of himself, he is doing well. He has never seen him lose his temper.
[61] NP has been a police officer for eight and half years and has known BWA since the early nineties. He gave telephone evidence to the Tribunal and advised that he was aware of the offence for which BWA was convicted. He is a good friend of BWA’s brother and has regular contact with BWA through family interactions. He has two daughters and has observed BWA interacting with his own nephews and nieces and has no problem with these interactions. He has never seen BWA lose his temper or display concerning behavior.
The Commissioner’s Submissions
[62] The Commissioner provided written submissions dated 28 October 2010 and further oral submissions on 19 April 2011; the written reasons document dated 13 April 2010 is also relied on. These are summarised below.
· The applicant has a conviction for manslaughter which is not defined as a serious offence under the Act. In this case the nature of manslaughter is equally as serious if not more so than murder given that it involved an uncontrolled sudden outburst of anger.
· The risk to children is his personality profile. His tendency to “bottle things up” was identified. His own father’s evidence was that he still “bottles things up”. He has had counselling but not to the extent that his prison counsellors considered necessary. The psychologist’s (Wendy Bryant) evidence was equivocal about the applicant having developed sufficient anger management skills; she said that “He was prone to controlled hostility and that he is still vulnerable to that”. She said it would take a lot for the applicant to become explosive on a day to day basis but she left the fact open that it could happen.
· Evidence produced during the appeal against the applicant’s sentence and conviction supported the submission that the applicant was suffering from a psychiatric disorder at the time of the offence.
· Wendy Bryant’s (psychologist) evidence was based on two sessions; any weight attached to that evidence must be limited because of that (time) limitation.
· The Blue Card is not necessarily related to a controlled work environment, it is transferable. That indicates the significant risk the applicant still poses.
· The applicant should be credited with having made significant progress but the underlying cause of the crime he committed is still present. He has not addressed the causative factor.
· The applicant has demonstrated a lack of insight in his evidence and by failing to follow advice to seek further counseling; he minimized the seriousness of the condition he is facing. It is the applicant’s view that he has been punished for his criminal offence and would not have been allowed out of goal if he posed a risk to society.
· His psychological issues have not been properly dealt with and resolved.
· The Tribunal can be satisfied that the applicant’s case is an exceptional one such that it would not be in the best interests of children for him to be issued with a positive notice and Blue Card.
The Applicant’s Submissions
[63] The offence for which BWA was convicted was an isolated incident and he has no other offences on his criminal record.
[64] There is no evidence to suggest that the conduct of BWA in any way was a danger to children, nor were any children present at the time of the incident.
[65] The offence of manslaughter is not a serious offence under the Act.
[66] It would not harm the interests of children if the Commissioner was to issue a positive notice under s 226 of the Act.
[67] It is accepted that the protection of children is paramount. However BWA’s offending was an isolated incident in which his wife told him she was leaving him, taking their child and taking his money. BWA is applying for a Blue Card so he can teach children from the age of 16 years of age and above at a TAFE college.
[68] BWA has had subsequent relationships, without any evidence of domestic violence and all have ended amicably.
[69] Ms Bryant (report dated 1 February 2011) noted on page seven (7) “BWA is likely to have developed considerably improved cognitive attitudes, self esteem and anger control skills since his incarceration”. Ms Bryant gave telephone evidence before the Tribunal on 24 February 2011 and confirmed that BWA has developed skills and has the insight to now deal with these situations. The likelihood of an anger outburst is low.
[70] A number of witnesses have given evidence as to BWA’s general character. All witnesses confirmed that he is a well tempered man, who appears to be well regarded by a number of people. It is also relevant to remember that BWA was charged with murder. Obviously the jury must have accepted that the provocation that he received was sufficient to support his defending the charge. He was found not guilty of the charge of murder.
[71] In accordance with s 226(2) of the Act it will not harm the interests of children for the Commissioner to issue a positive notice to BWA.
The Tribunal’s View
[72] The Tribunal has carefully considered the oral and written material before it, with special consideration of the serious nature of BWA’s assault which resulted in the death of his wife.
[73] As part of this decision making the Tribunal identified potential risk and protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
Protective factors are:
· BWA has substantial family support from both parents and siblings which has persisted during his term in prison and to the present.
· He has maintained employment both before and since his release from prison. While his employment has often involved casual and contract work, his qualification as a plumber enables him to maintain constant employment and is likely to in the future. He has completed complementary courses to extend his employment opportunities e.g. Rigger. He hopes to be able to teach/train apprentices.
· There is no evidence that BWA has now or in the past had problems with alcohol or drugs.
· Other than the event which caused the death of his wife, BWA has no other history of violence or criminal activity.
· During his time in prison he received counselling and took part in a variety of courses including anger management and cognitive skills. He is able to articulate some change in his behavior as a result.
· He completed a prison term of five years and ten months without evidence of violent or anti-social behavior; to the contrary, reports of his behavior and presentation were very positive.
· He has always accepted responsibility for the death of his wife, he expresses remorse and concern for the effect the death has had on both his family and that of his wife.
· During the eleven years since his release from prison there is no other evidence of concerning behaviour.
· He has maintained a stable lifestyle, is financially secure and is currently paying off a mortgage on a house.
· He articulates plans for his future.
Risk Factors are:
· The level of violence involved in the death of his wife and the sudden impulsiveness of the assault.
· Psychiatric and psychological assessments over time have identified a personality trait towards “controlled hostility”.
· The potential for BWA to find himself in a similarly stressful domestic situation.
Section 226 of the Act
[74] In deciding whether this is an exceptional case the Tribunal must take into account the matters listed under this section.
[75] BWA was convicted of manslaughter which is not defined as a serious offence under the Act.
[76] The offence was committed in January 1995, sixteen years ago.
[77] The disturbing nature of BWA’s offence is the primary consideration for the Tribunal. It was a sudden, extremely violent and sustained attack which resulted in death.
[78] BWA served five years and ten months of a nine year sentence and was released unconditionally. The Tribunal is of the view that time served in prison alone does not alleviate the risks involved. It is necessary to carefully consider all the evidence.
[79] BWA’s evidence that his unconditional release by a government authority should ensure that he does not have other restrictions placed upon him is not accepted by the Tribunal. The Tribunal must consider matters afresh within the framework of the specific legislative provisions which are set out above.
[80] The question of BWA’s mental health and psychological functioning is complex due to the number of psychiatric and psychological reports which have been variously referred to.
[81] The Commissioner’s submission that evidence produced during the appeal against the applicant’s sentence and conviction supported the submission that the applicant was suffering from a psychiatric disorder at the time of the offence is not supported by the evidence before the Tribunal.
[82] Dr Ian Atkinson in a report dated 10 January 1999, noted that at the time of his sentence he was seen by four different psychiatrists, who basically found no mental illness (in terms of psychosis). He also referred to the reports of two of these psychiatrists who were of the opinion that at the time of the offence this man had not sustained depressive illness nor a personality disturbance which would amount to a personality disorder.
[83] Dr Atkinson also noted evidence from various doctors that he was a rather insecure person, very much preoccupied with his own self image as well as the reports of a prison psychologist which noted his natural tendency to be suspicious and defensive which hindered progress.
[84] Prison records show that BWA engaged in several blocks of counselling with at least two different psychologists. He stated that every time you are moved they put you into counselling.
[85] Overall the reports of these counselling sessions were positive with some reservations and areas requiring further attention noted (see paragraphs 45-50 above). Of particular note is Michael O’Connor’s note dated 31 March 1998 when he noted that the test results held no cause for concern but counselling continued to further explore the area of “over controlled hostility”.
[86] Wendy Bryant had access to previous reports and presented the most recent evaluation. She testified that all BWA’s scores were in the average range and the likelihood of reoffending is very low.
[87] Psychiatric and psychological reports which were prepared for his trial suggested a number of personality traits which may have been present. It is noted that this was a defined period of time sixteen years ago and it is reasonable to assume, a very stressful time. They were also suggested as being present and not a definitive diagnosis. Examples of these traits are:
narcissistic personality trait
insecure person very much preoccupied with his own self image
suspicious and defensive
overly dependent
adjustment disorder.
[88] In her report Ms Bryant was asked to address BWA’s ability to handle stressful situations and his development of necessary skills to cope. She wrote:
BWA is likely to have developed considerably improved cognitive attitudes, self esteem and anger control skills since his incarceration; on a background of low risk in relation to re-offending using violence.
Indications in previous reports of a tendency towards an “over controlled hostility” personality trait in dealing with his feelings of anger and frustration were evident (albeit momentarily) during the clinical interview when discussing the events surrounding the manslaughter of his wife.
The latter suggests that BWA may at times continue to use (even though likely to a significantly lesser extent) maladaptive strategies to deal with negative emotional and/or anger provoking experiences.
BWA appears to have not sought out ongoing therapy following his incarceration. The latter could however improve insight into indications of “over controlled hostility” tendencies.
[89] BWA stated that he does not believe he requires counselling although had counselling been ordered he would have complied. He emphasises that he was released from prison unconditionally. He does not discount the benefits of the counselling sessions he participated in while in prison.
[90] Taking account of all the available material, the Tribunal has examined the concerns alongside the evidence related to how BWA has actually functioned over the past fifteen years. During that period he has been in two distinctly different environments, prison, and on his release work, family and social situations.
[91] There is no evidence that these traits have been evident, or in any way negatively impacted on his work or social relationships or in his presentation to the Tribunal.
[92] In making that finding, the Tribunal does not discount the opinions of the prison psychologists and Ms Bryant. Specifically, that in the counselling situations BWA displayed a tendency towards over controlled hostility and a natural tendency to be suspicious and defensive which hindered progress. They were presented as characteristics within a positive assessment overall.
[93] It is for these reasons that the Tribunal finds that BWA does not pose an unacceptable risk to children.
[94] The Tribunal considered submissions from the parties in relation to the publication of identifying material. The applicant requested his identity not be published in order to prevent unnecessary exposure and stress to his son. The commission supported non-publication in circumstances where a particular child or young person’s welfare may be impacted adversely by publication. The Tribunal considers that the applicant’s son should be so protected.
Conclusion
[95] The Tribunal has formed the view that this is not an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.
[96] On the balance of probabilities the Tribunal does not consider BWA represents an unacceptable risk of harm to children.
[97] The Tribunal orders that the Commissioner’s decision to issue a negative notice be set aside, and that a positive notice and blue card be issued forthwith.
[98] The Tribunal prohibits the publication of any information before the Tribunal that could identify the applicant and his son.
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