Heitmann v Chief Executive Officer, Public Safety Business Agency
[2014] QCAT 583
•20 November 2014
| CITATION: | Heitmann v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 583 |
| PARTIES: | Scott Michael Heitmann (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML123-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 14 November 2014 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Member Lewis |
| DELIVERED ON: | 20 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 3 June 2014 to issue a negative notice to Scott Michael Heitmann is set aside, and the Tribunal directs that a positive notice be issued. |
| CATCHWORDS: | CHILDREN’S MATTER – BLUE CARD – REVIEW – where a negative notice issued – where the applicant seeks a review – history of criminal convictions – where offences were not serious offences – history of drug use – where the applicant had been free of drug use for three years – where the applicant was young when offending – where the applicant had joined a church and preached against drug use – whether matter constitutes an exceptional case Working with Children (Risk Management and Screening) Act 2000 ss 167, 221, 226 Diefenbach v Commissioner for Children and Young People and Child Guardian [2014] QCAT 382 |
APPEARANCES:
| APPLICANT: | Scott Michael Heitmann |
| RESPONDENT: | Chief Executive Officer, Public Safety Business Agency |
REPRESENTATIVES:
| APPLICANT: | In person |
| RESPONDENT: | represented by Peter Reid, Solicitor of Public Safety Business Agency |
REASONS FOR DECISION
The applicant Mr Scott Heitmann is a 26 year old man who resides in the Burnett area. On 11 December 2013, he applied for a blue card under the Commission for Children and Young People and Child Protection Act 2000 as it then was. After considering his application and submissions, the Respondent refused his application on 3 June 2014. The Applicant has lodged this application for review of that refusal.
Mr Heitmann had lodged a previous application in November 2011, but withdrew it in July 2012.
The applicant has an extensive criminal history, from early 2006 until mid 2011 in Queensland, together with one set of offences in New South Wales in October 2011. At that point he realised the error of his ways and has endeavoured to lead an exemplary life. None of the offences was a serious offence under the Act[1] and therefore the applicant is entitled to a positive notice unless it is an exceptional case in which it would not be in the best interests of children to issue a positive notice.[2]
[1]Working with Children (Risk Management and Screening) Act 2000 s 167.
[2]Ibid s 221.
Mr Heitmann’s mother was 17 when he was born. She already had a two year old daughter. She brought them up alone until the applicant was about four, when she formed a relationship with a Glen Heitmann whom she married. The applicant says the family was happy, and he looked up to Glen as a father figure, but things changed when Glen had children of his own. A son was born when the applicant was about 5, and a daughter two years later. Glen began to favour his biological children, which caused problems in the applicant’s relationship with him.
He says he did well in school until about grade 5, when he began to get into trouble. He recalls an incident when a neighbour acted inappropriately towards his sister, then in grade 7. He was disappointed and confused when Glen did nothing about this, and his relationship with Glen deteriorated further. He got into fights, began mixing with the wrong boys, and started smoking cigarettes. He thinks he was looking for approval. He started smoking cannabis in grade 6.
When he was about 12 his parents joined the Seventh Day Adventist church. He was not interested in spiritual matters, and when his mother thought he was at youth groups, he was with his mates using cannabis. He says this was on Friday nights. In year 7 he had to change schools, and was subjected to bullying. His schooling deteriorated. He was more interested in trying to impress his friends.
Matters came to a head when he was 14. He came home from school apparently “stoned”. His mother, already concerned about him, gave him an ultimatum. He had to cease at the present school and start home schooling, stop mixing with his friends, and stop listening to the type of music he was listening to, or else he was not welcome to stay in their home. He refused to accept that and left home that day.
He decided to stay with an 18 year old acquaintance, A, who had been supplying him with cannabis. Co-incidentally A’s mother was killed in a car accident that day, but he nonetheless moved into A’s house. A’s mother had been the drug dealer and they discovered that she had other drugs, heroin and speed. He says they used these, because they were there. So began a lengthy period of drug-taking, mostly cannabis but also other drugs at times, and alcohol.
A was a violent and racist person who sought out fights with groups of local aborigines. Mr Heitmann went along too. He says that he didn’t instigate the fights, and has never made an unprovoked attack on anyone. However he was willingly involved in fights with people who wanted to fight. He was stabbed on two occasions, though he never used knives against anyone else. He says A also beat him up often when he was drunk.
A’s step-father, D, was released from jail after about six months, and he says looked after him. Heitmann had no source of income, and was grateful to D for taking him in. He lived in that household for about a year and a half. However after another attack by A, he left. He lived on the streets, sleeping on awnings in shop car parks, travelled to Brisbane by freight train and hitch-hiking, and lived on the streets there for a while until eventually he was taken in by a pastor in Ipswich.
After a short time he obtained a job as an apprentice tiler in Gympie, and worked there for seven months, and was accommodated by the employer. That ended when employer’s wife found drug utensils in his room. They offered to continue his employment, but not the accommodation. He had nowhere to live so he gave up the job.
He went home and stayed with his mother and step-father. He stayed away from drug use for a time. However after only a month or two he was attacked by his step-father, and left home again. After a period of rental accommodation, he ran into the people he had been living with earlier, and moved back in with D and his new wife.
There were other people living at this house as well, and the inhabitants were dealing in drugs. After a few months, D and the other male occupants were back in jail. Heitmann says that, given how they had looked after him earlier, he felt some sense of responsibility to D’s new wife, and therefore took over the drug dealing activities of the household. At this stage he was 17.
He says he was paid $10 for every $100 sold, and made perhaps $200 a day. He was making enough to keep himself supplied with cannabis, and to cover his living expenses, but it was clearly not a major operation. He was caught by the police after seven or eight months.
The police record begins with a charge of contravening a direction in February 2006, and a small fine was imposed. However on 3 June 2006 (about two months short of his 18th birthday) he was apprehended with eight grams of cannabis, 13 clip seal bags of speed, a set of scales, an extendable baton and $300 in cash. Later, at the police station they discovered a further 28 grams of cannabis and 10 ecstasy tablets. He was charged with supplying and possessing drugs, possessing property for purposes of a drug offence, and possessing a restricted item.
While on bail, he was driving a vehicle in Gympie when the police attempted to pull him over. He was unlicensed and had a baton and some drug utensils in the car. He knew this would be a breach of bail so he attempted to elude the police, driving through a give way sign, across a park and through a hospital car park at about 60 km per hour. He says the car chase lasted about five minutes. He alighted and ran off, but was apprehended a few weeks later. He was charged with dangerous driving, failure to stop, and possession of utensils and restricted items.
He was remanded in custody, and eventually was dealt with in the District Court on the dangerous driving matter on 6 February 2007 when he was sentenced to 2 months jail and two years’ probation. In May the Supreme Court sentenced him to the 171 days imprisonment he had already served, for the supplying drugs offence. No further penalty was imposed for the other matters.
On his release he reverted to selling drugs. He says this was not on a large scale but enough to keep himself supplied and make a little cash.
The police raided his residence several times. Raids on 5 March 2008 and 18 September 2008 resulted in more charges. The March charges were for receiving stolen property, unlawful possession of weapons (knuckle dusters), possession of tainted property and possession of utensils. The September charges were possession of drugs (2 grams of cannabis and 1.5 grams of methyl amphetamine and some unidentified white powder) and utensils. He spent time in custody prior to the hearing of these matters in the Magistrates’ Court on 3 October 2008. He was sentenced to various periods of imprisonment the longest being 6 months for the drug possession matter, but parole was set for the day of the hearing.
He was fined in December 2008 for a breach of his probation order.
By this time he had a son. He decided he wished to turn his life around, and applied to join the army. His initial exam results were good, but they advised he was disqualified for 10 years due to his record. He was told to re-apply in 2017. He had no work and was unsure of his alternatives and unfortunately he soon reverted to his former lifestyle.
He was next apprehended on 4 December 2009 when driving on the Bruce Highway. His driving had caused other road users to alert the police. He was charged with various offences which were dealt with on 18 January 2010 the results being: possession of drugs (16.3 grams of cannabis), 9 months’ imprisonment; possession of a nunchaku, 1 month; possession of an automatic rifle magazine, two machetes, a pair of secateurs and a knife, no further penalty. He was also charged with driving while a learner unaccompanied by another driver, and driving an unregistered vehicle. Again his parole release date was set at the date of hearing.
In April 2011 he was convicted of unauthorised dealing with shop goods and fined $200. The final entry on his Queensland record is a public nuisance offence on 24 April 2011 for which he was fined $300.
In 2010 and 2011 Mr Heitmann was living on and off with his mother, she having separated from Mr Glen Heitmann by then. He says he was still using drugs but was no longer involved in the sale of them. His mother, in evidence to the Tribunal, said it was a period of transition, some hopeful signs but still problem behaviour.
During this period, Mr Heitmann asked his mother if he could go to church with her. By chance, the congregation was addressed by a visiting pastor, who recounted his own story of redemption from an earlier life of crime and drugs. It made a great impact on Heitmann, who apparently realised that he might yet have a chance at a better life. But as it happened, not quite yet.
Heitmann had not given up all of the old connections, and in October agreed to accompany a couple on a trip to Sydney. The associates’ purpose was to obtain drugs. He was not involved in that transaction, but had his own cannabis on him when they were pulled over by the police in New South Wales. He was charged with possession of that, and of two batons and a hunting knife.
He was held in Grafton prison from arrest on 7 October 2011 until a bail hearing on 24 October, when he pleaded guilty and was again sentenced to the time he had already served.
The Grafton offences are the last of Mr Heitmann’s offences, apart from a traffic charge of disqualified driving in July 2012. He says that on this occasion he took a car as he was late for work. It should be mentioned that he has a lengthy driving record, though most of the offences are at the lower end of the spectrum. He has a drink drive (0.109%) and several speeding charges, three at between 13 and 20 km per hour over the limit, and two other disqualified driving charges. He remains disqualified from driving.
When imprisoned in Queensland, he had had the benefit of knowing other inmates, and the time served was not particularly hard, nor it seems particularly beneficial. Grafton was different. He began once again to reassess his life, and also read a book about the Seventh Day Adventist church, and another about parenting called “Raising Boys”. By this stage he had a new partner, and they had a son, and he had two older sons by earlier partners. He says he stopped smoking, and began retraining his thoughts to healthier habits.
On his release from Grafton, he volunteered for the Salvation Army family centre and the Tom Quinn Centre for youth. He ceased this when he got a job as a fabricator. He became active in his church, on which his life is now largely centred. He ceased using drugs, alcohol or tobacco and gave up a number of other things not usually considered problematic by the general community, but proscribed or at least discouraged by his church.
Mr Heitmann gave the Tribunal a lot of information on his church activities. He wanted to be baptised in his faith, and as living outside marriage is a bar to such baptism, he married his partner in 2012. He has involved himself in youth work, and went on a ten day outreach program to an Aboriginal centre near Cherbourg. He is active in bible studies and gives classes in that field. He has preached a lot both at his church and others, relating his own story of overcoming his earlier life of drugs and crime. He received a scholarship to attend a three month church course, which he had to abandon after 8 weeks on the death of his wife’s father, but he hopes to re-do that course soon.
He says that his study would lead to being a minister, although he sees his role as working with people in things like bible studies. He has been asked to be a personal ministry leader which would also involve a place on the church board, but that apparently involves things that would necessitate a blue card. He also wants to be involved in more youth work such as the Aboriginal outreach work, but again the blue card is necessary.
He worked as an installer of blinds and screen for 16 months, and at one stage was working three jobs, about 80 hours a week. At the moment he works with his mother’s new husband on house renovations, between his 30 or 40 hours a week with his church activities.
He and his wife (from whom he is now estranged) have two young sons. He has them every weekend. He also sees his children by his earlier relationships. The mother of the eldest boy, now aged about six, lives in Perth so he sees him only twice a year. The other boy lives at the Sunshine Coast, and spends every second month with Mr Heitmann.
In his refusal of the application, the Commissioner considered the relevant matters as required by section 226(2) of the Act. He was naturally troubled by the applicant’s extensive police record. The decision noted the persistent nature of the offending, including 13 drug related offences (one of supply) and 6 weapons related offences, each associated with drug possession.
The reasons for refusal noted that while there were no specific suggestions of supplying drugs to a minor, the applicant could not control the possibility that drugs might find their way into the hands of a child. Further, supply of drugs to adults might still harm children indirectly, by causing the adult to neglect or deliberately harm a child while under the influence of a drug, or to expose a child to emotional or similar harm. It was noted that children have a right to be protected from exposure to drugs and be cared for by people who are appropriate role models.
The reasons also referred to a suggested admission that the applicant had supplied speed to a mother of six. However this was taken from a transcript of a sermon the applicant had given. Mr Heitmann clarified in both his written material and orally at the hearing that this was not an admission of anything he had done, but given as a theoretical example of conduct he was criticising. I accept that.
The Commissioner did not believe the material suggested the applicant had satisfactorily addressed the triggers for his offending.
With respect to the weapons, the reasons suggested this raised a concern that he lacked the ability to manage conflict, and had a propensity to use inappropriate means, and that he risked modelling morally compromised methods of dealing with difficult circumstances.
While the applicant was young, the offending continued into adulthood. The drug use had continued until as late as 2011.
Other matters relied on included accounts by the applicant (from the sermon transcript) of other reckless driving and a general disrespect for the law, and the admitted fights with Aboriginal people. There was no information then about participation in rehabilitation or counselling.
In submissions to the hearing, the respondent relied generally on the matters mentioned above (though not the mother of six story). In enumerating the risk factors, he also noted that the offending suggested being influenced by others, which may point to a vulnerability of character. While between original decision and hearing the applicant had attended on a psychiatrist and a drug and alcohol counsellor, the respondent did not see a commitment to continued counselling or professional help in dealing with what had been entrenched drug use. He did not see evidence that the applicant had addressed the symptoms and triggers, nor that he recognized the seriousness of the offending.
His drug using lasted in all about 11 years, from the age of about 12 until 2011 when he was 23. The frequency of use varied, and there were periods where he was not using at all. Mostly it was cannabis, though at times other drugs. Asked what effect drug taking had on him, he said it gave him a high but otherwise did not cause him to act other than normally.
Drug dealing started when he was 17, and this apparently ceased by about early 2010 when he was 21. He points out that he was only ever convicted of supplying drugs once, but of course he admitted to much more than this.
When asked how he saw his life then he said that while it was sad to say it now, at the time he thought that it was where he belonged in life, it had become his normal.
He accepted that his drug dealing may have affected children in the way put forward by the respondent, and that this was unacceptable. He pointed out though that he had never been charged with supplying to a minor.
With respect to the weapons offences, he says that it was common to have some degree of protection given the people he was mixing with, though he also says there were other police raids where no weapons were found. There was no evidence that he had used any of these weapons.
He thought his conduct had been triggered by the difficulties at home, particularly the relationship with his stepfather, towards the end of primary school, and especially in high school. However he accepted that this did not excuse his conduct. He also said that at fourteen he thought he knew better, and he described his leaving home as “rebellious foolishness.” He says his criminal conduct is not acceptable or excusable, but he cannot change that history. He can however change how he behaves in the future, and he points to how he has done so. He relies on the fact that he has had a clear record for three years, and denies any criminality or use of drugs in that time.
He says that he has no interest in taking drugs, and is not tempted to do so. He recognises that it had become a habit for him and that as a habit there is the risk of relapse, but believes he can resist that. With one exception, he does not keep company with the people of the past or with drug users. The exception is D’s former wife who has been helped by Mr Heitmann and his mother and who is not apparently involved with drugs herself any longer.
As part of his preparation for this matter he saw a psychiatrist, Dr Jenkins. Dr Jenkins[3] said that there was no evidence of any current or past psychiatric illness, or of thought disorders. He said that he fully acknowledged his previous aberrant behaviour and the impact it had on himself and his family. He had good insight into the impact of that behaviour on children. He could find no reason on his presentation that he would not be fully suitable for child related employment, and that there was no evidence of any ongoing risk nor of factors or triggers likely to lead to a relapse. The applicant had put in place preventative strategies like surrounding himself with supportive people, changing his lifestyle, and disassociating himself from his former contacts.
[3]Report dated 28 July 2014.
The applicant had also seen an Alcohol and Drug Clinician, Dominic Fouhy of Bridges, for three sessions to develop a relapse prevention plan. This included identifying risk situations, managing cravings and triggers, identifying positive self-rewards, as well as a lifestyle balance and positive support networks.
As mentioned, the respondent does not accept that this constitutes a sufficient commitment to counselling or other professional help. When asked, the applicant said he did not think he would use Mr Fouhy further. He said that he had gained valuable things from the sessions, in particular the strategies, but he also says he is working in church based programs which he believes also do a good job, and, he thinks are superior in some ways. He recognises how destructive his drug-taking was, and he has therefore changed his life to one of complete abstinence.
He was asked when he had prepared his sermon about his reform, or testimony as he referred to it. He said that was quite early, not long after he left Grafton prison. He said he no longer uses that version, as on reflection parts of it could be seen as glamorising his aberrant behaviour.
The applicant filed statements from a number of character witnesses and called several of them. One was his mother, who spoke of her anguish when he was a teenager and estranged from him, and of the period when he was struggling through a transition, and of his present position. She said she had been at his court appearances throughout his troubles and had not given up on him. She spoke of a very great change in him between 2010 and 2012. After his release from Grafton he was determined to do well, he stopped associating with problem people, he married, and became more family focussed. She says he is very devoted to his children.
She remains very close to him, and sees him nearly every day. Her new husband is also very supportive of him. She confirmed that he was very involved in the church, and that when he spoke to the congregation he was very well received. The church in turn is very supportive of him.
One of his witnesses, Mr Biggs, said he had met Mr Heitmann when he went to the church. He had had a troubled past himself, and had been struggling with substance abuse. He was told about Mr Heitmann as a person who could help him, and they had worked together for the last six months, leading to his own baptism in the church and his overcoming his own problems. He recounted that Heitmann had patiently and courageously intervened when a neighbour of Biggs had been shouting at his children, and had calmed him down. As a result, the neighbour has now sought further assistance from his church. He said that, on an occasion when he had witnessed some friction between Heitmann and his wife, he handled the matter well. Biggs has sought his advice on child rearing matters.
The other witnesses were members and office holders of the church, including a Senior Elder who had known him as a juvenile, and who impressed as a very sensible man. Each of them spoke highly of him, and emphasised his patience and kindness, his rapport with youth, his affection for his own and other children, and his work with the church. Each was aware of his criminal and drug history. None saw any risk in his working with children.
The significant absence from this generally unanimous enthusiasm for the applicant was his wife. Mr Biggs hinted at difficulties in the marriage. Heitmann’s mother said she did not talk to the wife much, she was a hard woman, and it was better she not say much to her. The applicant did not advise of his separation in his oral evidence, but only in a closing submission handed up at the conclusion of the hearing. It would have been preferable for this to be disclosed earlier as the late disclosure limited the opportunity to consider the implications. This raises a concern about lack of candour. However given the tenor of the filed material, the inference is that this was a recent development, and as it was disclosed, albeit late, I will give the applicant the benefit of the doubt.
Mr Heitmann says the differences in the marriage are in part attributable to her associating with people he sees as a risk to him. Mrs Heitmann does not adhere to the applicant’s religion so perhaps these differences also contributed.
The issue for the tribunal is to determine if this is an exceptional case in which it would not be in the best interests of children to issue a positive notice. The tribunal must consider the risk factors and the protective factors.
There is no doubt that the applicant’s record is a bad one, albeit not including any “serious” offences. It spans nearly six years, and the admitted offending even longer. It displays a long and blatant disrespect for the law. The offences include drug supply, possession of weapons, and dangerous driving. The period since the last offence (ignoring one traffic matter) is only three years.
The respondent has referred the tribunal to Diefenbach v Commissioner for Children and Young People and Child Guardian[4] where the tribunal refused an application to overturn a negative notice where the applicant’s criminal history similarly spanned about five years, but he had not been convicted for some 15 years.
[4][2014] QCAT 382.
The applicant’s case is in important respects better than Diefenbach’s. Mr Diefenbach’s criminal history was somewhat worse than the applicant’s. It included repeated offences of violence, including prolonged attacks, and deprivation of liberty against his partner, some after he had been convicted of similar offences. His drug use included use in front of children. His sentences were generally longer, including one of two years imprisonment, on appeal from a sentence of 7 years and 6 months, whereas the applicant’s longest head sentence was 9 months. He was older when offending. While the lapse of time since offending is longer, Heitmann’s period of rehabilitation is precisely when one would expect significant maturation. The tribunal was critical of Diefenbach’s lack of insight and the presentation of his case generally. Taken overall, I find that the offending of Mr Heitmann is not as bad as in Diefenbach.
It is in Mr Heitmann’s favour that, notwithstanding the weapons convictions, his record does not include any acts of violence. He was involved in fighting, but there is no evidence that he was the instigator, he was then only 14 or 15, and being led by a man 4 years older. This conduct is reprehensible, but I do not see that there is any support in the evidence for the respondent’s submission that this history suggested an inability to handle conflict or a propensity to use inappropriate means.
While his drug use and supplying may have had an effect on children (which he acknowledges) there is no suggestion it involved children directly, which would have been more serious.
On the other hand the evidence is strongly to the effect that he has achieved a remarkable rehabilitation, largely at his own instigation. This is sufficiently detailed above. Coupled with this are significant protective factors.
Dr Jenkins noted factors such as surrounding himself with a vast number of healthy supportive people, comprehensively altering his lifestyle, and disassociating himself from his previous contacts. This is consistent with the other evidence.
One of the important protective factors is insight. The respondent suggests that the applicant fails to recognize the seriousness of his offending, or its possible impact on children. I do not think the evidence supports this. The applicant has clearly spent a great deal of time reflecting on and indeed preaching about this, and addressed it again at the hearing. He acknowledged the possible impact on children, and his story about the mother of six is about this. Importantly, he did not attempt to shift the blame, but acknowledged his responsibility. It was also to his credit that he had realised the problems with the early draft of his testimony and had ceased using that version in his church work.
Similarly the applicant has demonstrated insight into the triggers and symptoms of a drug habit. He is alert to the need to avoid the former company he kept, and he has had the benefit of counselling and guidance from both within and outside his church. While he did not think he would use a service such as Bridges further, he was open to that if he felt the circumstances warranted it.
Of the risk factors, one is the relatively brief period since he stopped offending. Were there nothing else, a three year period without offending might not be sufficient to persuade a tribunal that an applicant had genuinely reformed. However in this case there are significant positive actions that provide a greater level of confidence than would otherwise be the case.
Another factor is the break-down of his marriage. That may well add a level of stress, and possibly suggests some fragility in his personal relationships. On the other hand, his continuing to maintain significant contact with the children of his earlier relationships indicates a good level of responsibility, particularly to children.
The fact that his life is so comprehensively bound up with his church, while providing him with good support, also runs the risk that his support base and indeed his life generally are somewhat one-dimensional. Further, as best one can judge from a brief hearing, he tends to a level of certainty of opinion that risks closing his mind to other opinion and options. This is reflected in his comments about secular professional help.
While these are real concerns, one still has to return to the question of what is likely should one of these risks manifest itself in a significant life crisis. Would he be likely to return to drug taking or crime? Or would the support networks and other help, coupled with his undoubted intelligence, allow him to resolve any problems in acceptable ways? He entered the drug scene at a young and impressionable age in difficult family circumstances. He has seen the futility that lies down that road, and he has had the strength to get himself out of there. He says he no longer has any interest in drug-taking. On balance I do not believe there is a significant risk that he would revert to that lifestyle.
I also take into account that both the professional opinion and the observations of associates say that they see no reason why he would not be suitable to work with children.
Section 221 of the Act requires that in the applicant’s case a positive notice must issue unless the respondent (and on review the tribunal) is satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a positive notice. Considering the factors set out above, on the balance of probabilities I am not satisfied that this constitutes an exceptional case, and accordingly a positive notice should issue.
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