Hockins v Commission for Children and Young People and Child Guardian

[2014] QCAT 378

CITATION: Hockins v Commission for Children and Young People and Child Guardian [2014] QCAT 378

PARTIES:	Barry Glen Hockins (Applicant)
v
Commission for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER: CML226-13

MATTER TYPE: Childrens matters

HEARING DATE: 27 June 2014

HEARD AT: Toowoomba

DECISION OF: Member Goodman
Member Wood

DELIVERED ON: 21 July 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The Respondent’s decision to issue a negative notice to Mr Hockins is confirmed.

CATCHWORDS:

Where applicant for Blue Card convicted of a single serious offence – where exceptional circumstance not established

Commission for Children and Young People and Child Guardian Act 2000 (Qld)
Criminal Code Act 1899 (Qld)

Navaratnam v Commission for Children and Young People [2014] QCAT 55

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Hockins appeared in person

RESPONDENT: Represented by Ms Keown

REASONS FOR DECISION

1. Mr Hockins is a 69 year old man who has applied for a Blue Card so that he is able to broaden the roles in which he may volunteer at his church.

2. After considering Mr Hockins criminal history, the Commissioner refused his application for a Blue Card.  Mr Hockins was charged with the sexual assault of his neighbour in late 2012.  Mr Hockins states that he accepted the advice of his solicitor to plead guilty to the charges when the matter came to Court on 11 September 2013.  No conviction was recorded and Mr Hockins was placed on probation for 12 months.

3. For the purposes of this decision “conviction” includes the acceptance of a guilty plea by a Court, whether or not a conviction was recorded.[1]

   [1]Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) Schedule 7.

4. The legislation categorises sexual assault as a “serious offence”[2] and provides that Mr Hockins cannot be granted a Blue Card unless we are satisfied that this is an exceptional case in which it would not harm the best interests of children to issue a Blue Card.[3]

   [2]Criminal Code Act 1899 s 352, CCYPCG Act Schedule 2.

   [3]CCYPCG Act ss 225, 226.

5. Mr Hockins categorised the incident as ‘an affair gone sour’ and denies sexually assaulting the complainant.  He states that he had been in a consensual sexual relationship with his neighbour for some months. He states that he visited her one evening and they began to kiss and ‘she invited me to take off her clothes and to touch her breasts...All of a sudden she said ‘”No, you have a wife”’.  Mr Hockins says that the woman then asked him to leave and their relationship was ended. Mr Hockins states that he did not consider that he had upset the woman as they stayed outside her house talking for around 20 minutes before he left, and she did not report the alleged assault to the police for many months.  Mr Hockins indicated that it was a “complete mystery” to him why she made the complaint.

6. Mr Hockins has been convicted of a crime.  We cannot find that he did not commit the crime. We will proceed on the basis that Mr Hockins sexually assaulted the woman.

7. Mr Hockins asks that we take into account that he will not be working with children as such, and requires the Blue Card only for the purpose of assisting in the church.  He asks that we take into account that his actions have been and will continue to be closely monitored pursuant to an agreement he has entered into with the parish and the director of professional standards.  We acknowledge that Mr Hockins has complied with risk management protocols and processes put in place in the church setting and has complied with the requirements of his probation.

8. We cannot issue a conditional or limited approval for a Blue Card. A positive notice will allow Mr Hockins to work unfettered with children. Mr Hockins’ current plans to limit his use of a Blue Card are not relevant to our consideration.

9. In making our decision, the welfare and best interests of children are paramount[4], as is their protection from harm and promotion of their wellbeing. [5]  We have considered the factors described in the legislation[6] and other relevant matters that are particular to this case.[7]

   [4]CCYPCG Act ss 5, 6.

   [5]CCYPCG Act s 155.

   [6]CCYPCG Act s 226.

   [7]Commission for Children and Young People and Child Guardianv Lister (No 2) [2011] QCATA 87.

10. In assessing whether this is an exceptional case, we have considered all the available evidence and weighed up the apparent risk factors as against the protective factors, including Mr Hockins’ level of insight into his behaviour.

11. There are some protective factors:

    a)    Mr Hockins has never previously been convicted of (or indeed charged with) a criminal offence.

    b)    Mr Hockins has a long involvement in community work, including coaching weightlifting and football involving young people with no evidence of adverse outcomes for children.

    c)    Mr Hockins says that he has the ongoing support of his wife and adult children,

    d)    Mr Hockins is devoted to the care of his grandchildren, who are aged 3 and 2.  The children have serious medical conditions and Mr Hockins and his wife have at least one of the children staying with them at any given time.

    e)    Mr Hockins’ donates much time to assisting his church and fellow parishioners and he has the ongoing support of senior members of his church community who attest that the sexual assault was not in keeping with the behaviour Mr Hockins otherwise exhibits.

    f)     Father Mark Carlyle noted that Mr Hockins is always very careful to follow protocols put in place by the church after his conviction. Father Carlyle referred to Mr Hockins years of unblemished service to the church and in particular his involvement in a church group which organised activities such as camping for boys from the church. Father Carlyle considers Mr Hockins is no risk to children.

    g)    There is no evidence of any problems in Mr Hockins’ interactions with children or with vulnerable members of his church community.

12. There are also some risk factors, including:

    a)    Mr Hockins’ refusal to accept that his behaviour was criminal.  He has been convicted of assault but does not acknowledge that he assaulted the woman.  He did not demonstrate insight into the harm caused by his criminal activity, primary because he denies that his conduct was criminal.

    b)    Mr Hockins lack of remorse for his behaviour.

    c)    The recency of the event.

13. We must decide: Is this an exceptional case in which it would not harm the best interests of children to issue a Blue Card? Unless this is such an exceptional case, a Blue Card will not be issued.

14. We are not assessing the likelihood of Mr Hockins sexually assaulting a child.  We are determining whether this case is exceptional so that it should fall outside of the usual result: refusal of an application for a Blue Card.[8]

    [8]Navaratnam v Commission for Children and Young People and Child Guardian [2014] QCAT 55.

15. The term “exceptional case” is not defined in the legislation but has its ordinary meaning: to be “exceptional” the case must be significantly different from other cases.  

16. The legislation provides that an offender who commits one “serious offence” (such as sexually assaulting another adult) will not be issued with a Blue Card unless this an exceptional case in which it would not harm the best interests of children to issue a Blue Card.

17. Mr Hockins has committed a single “serious offence” with an adult victim. The lack of prior convictions or of a child victim does not establish an exceptional case. There must be something more.  The legislation provides that a Blue Card is refused in such a case unless the exceptional case test is satisfied.

18. These circumstances are not exceptional. We will confirm the decision to issue a negative notice. That means that a Blue Card will not be issued.