Kembrey v Commissioner for Children and Young People and Child Guardian - [2014] QCAT 279

CITATION:

Kembrey v Commissioner for Children and Young People and Child Guardian [2014] QCAT 279

PARTIES:	Warren Neville Kembrey (Applicant)
v
Commissioner for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER:

CML209-13

MATTER TYPE:

Childrens matters

HEARING DATE:

28 March 2014

HEARD AT:

Maroochydore

DECISION OF:

Member Quinlivan

DELIVERED ON:

17 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Commissioner for Children and Young People and Child Guardian made on 3 October 2013 to issue Warren Kembrey with a negative notice is confirmed.

CATCHWORDS:

Childrens matters – blue card – criminal history – whether exceptional case exists –

Commissioner for Children and Young People and Child Guardian Act 2000 (Qld)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Warren Kembrey

RESPONDENT:

Commissioner for Children and Young People and Child Guardian represented by Craig Capper

REASONS FOR DECISION

Warren Kembrey is a 25 year old man who lives in Noosaville, Queensland. In May 2013 he applied to the Commissioner for Children and Young People and Child Guardian (the Commissioner) for a volunteer Blue card.
The Commissioner invited Mr Kembrey to make submissions about his police information and why he should not be issued with a negative notice. Mr Kembrey responded to the Commissioner and on 3 October 2013 the Commissioner advised Mr Kembrey that he had issued a negative notice.
As part of the screening process, the Queensland Police Service disclosed details of Mr Kembrey’s criminal history. During 2012, he engaged in a series of offences commencing with an alleged false representation to police followed by a number of charges for fraud, wilful damage and entering premises and committing indictable offences by break.
On all charges Mr Kembrey was convicted and sentenced to 6 months imprisonment to be served by way of an intensive correction order. His offences are not categorised as serious or disqualifying offences under the CCYPCG Act.
On 25 October 2013 Mr Kembrey made an application for a review of the Commissioner's decision. He said that he would like to see the Tribunal allow him to have his Blue card, at the very least maybe a trial, “suspended loss” or equivalent.
He said that in terms of employment opportunities that he is qualified for, the lack of a Blue card would simply impede his applications. Also his current volunteer work may, at some time, be affected in a negative way. He claims that the decision is unfair and absolutely confines his social activities that are church organised. He says he would be unable to attend almost all church services - unemployment is a real issue and without his Blue card he will have almost no chance of competing against someone with a Blue card where a job requires one.
Mr Kembrey admits that he is aware that his actions were “plain wrong”. He says that the remorse he has, is something he has each day of his life. He claims that he does not take this issue lightly and is rebuilding his life and needs the chance to do so and to show that he is never going to break the law again. He says he is a good worker and is looking forward to enlisting in the Army.

What went wrong?

Mr Kembrey says that he had a normal childhood and was always part of a church group. He asserts that he follows that faith today. He has a good circle of friends and mixes with them professionally and socially. He claims his attitude towards women and children is healthy and normal. He lives at home with his mother and stepfather, although he has rented and lived away from home as well.
He states he has no issues with drugs or alcohol and has volunteered with the SES and volunteer Coast Guard.
In his life story, Mr Kembrey refers to an incident, where a young female member of the church alleged that he had raped her on a large number of occasions over a three-month period. Apparently police conducted an intensive investigation and her allegations were dismissed. It appears that he was one of several people who had been accused of similar actions by the same person.
Unfortunately he claims that the people closest to him within the church believed the allegations and withdrew their friendship from him. At around the same time he found out that a close friend had committed suicide. He says that he became quite distressed and completely consumed by the “rejection and ostracisation”(sic).
He says that he became depressed and for three months behaved irrationally and immaturely. He admits that he seemed unable to identify the fact that he was not well and made what he now sees as stupid choices that were “plain wrong”.
Mr Kembrey says that he eventually sought psychological help to assist him in understanding his depression and anxiety. He believes that he has learned strategies in coping with and resolving troubling issues. He has learned to ask for help, to share his problems and to accept help. He wants to be someone who is seen as a good, nice person who is willing to help out in the community. He is also hoping to enrol in Bible College to become a youth pastor. He prays that his encounter with the law does not inhibit his ambitions and prevent him from working or socialising with young people or old people.
Mr Kembrey offending occurred in early 2012. At the time of his offences he was in the company of his 14-year-old nephew who he actively engaged in his criminal behaviour by using him to act as a lookout while he committed acts of vandalism and theft. The victim of the offences was mainly the Salvation Army, which is a charitable organisation dedicated to assisting the poor and underprivileged within the community. Mr Kembrey had previously worked for the organisation.
The Commissioner points out that in addition to entering the premises and stealing food items, guitars, an iPad and other sundry items, Mr Kembrey also stole a safe, which contained a donations tin. The total restitution sought was $11,430.82. The Commissioner submits that this is indicative of the value of property and monies stolen from the organisation.
The Commissioner contends that the acts of vandalism committed by Mr Kembrey involved gratuitous violence against a demountable building, owned by the Salvation Army, including smashing all windows and punching holes in the walls, ripping a toilet from the wall, ripping roof lights from the ceiling and punching holes in the kitchen cupboards.
The Commissioner says that Mr Kembrey initially denied any knowledge of the offending or attempted to minimise his criminality, until the police further interviewed him after having spoken to the child co-offender.

Discussion

The Commissioner submits that in the decision of CCYPCG v Maher and Anor[1], the Court of Appeal endorsed an approach of identifying and balancing the relevant “risk” and “protective” factors arising from the circumstances of a particular case. He says that the weight to be given to each factor is dependent upon the circumstances of the case and may vary accordingly.
[1][2004] QCA 492.
The Commissioner states that there are number of protective factors identified in the evidence. The applicant acknowledges that he breached the position of trust or authority and responsibility he occupied in relation to his nephew. He points out that he can identify steps he has taken to remedy this situation including apologies, family meetings and discussions with his nephew. However the Commissioner argues that the evidence from Mr Kembrey's psychologist Dr Donna Eshuys identifies that he only has partial insight into his actions and did not appear to understand that his nephew may also have been harmed by his criminal behaviour.
He appears to be somewhat remorseful for his offences and submits that he takes responsibility for them. Dr Eshuys indicates that in her opinion he has a high chance of not re-offending in the next two years.
Mr Kembrey says that he sought counselling from his psychologist in relation to his depression and he has discussed various strategies and methods for resolving conflict and coping with trauma.
He has undertaken considerable community volunteer work with a number of organisations and participates in his church. However the Commissioner submits that while this is a protective factor, Mr Kembrey's behaviour was directed towards the organisation where he undertook his work and that it is a benevolent institution trying to help the disadvantaged and vulnerable in the community.
Mr Kembrey's psychologist says that the applicant’s lack of insight may be the result of his naivety and low-average intelligence. His poor insight also can also be identified in the nature of his relationship with his nephew, who he viewed as a peer or close friend because they grew up together. Consequently she expressed the view that he would have been unlikely to suggest participation in the offences to an unknown minor.
Dr Eshuys also identified other protective factors including the applicant’s supportive family and church, his gainful employment, his pro-social friends, his stable mental health and his awareness of the wrongfulness of his crimes. The Commissioner acknowledges all of the protective factors identified but submits that the weight that can be given to these factors is significantly diminished, because those factors were also present when he engaged in his offending behaviour.
The Commissioner argues that there are some significant risk factors that arise from the evidence in this case. Mr Kembrey's offending behaviour is relatively recent. His relationship with the child co-offender is significant because he occupied a position of trust and responsibility regarding his nephew. He disregarded this position and failed to meet his obligations as a role model for his nephew.
The Commissioner submits that the applicant has failed to demonstrate any insight into the significant impact that the theft of the large amount of money and property and the cost of repairing the large amount of damage he caused, would have upon some of the most vulnerable members of the community including poor and disadvantaged children.
The Commissioner points out that Mr Kembrey's initial submissions lacked insight into the impact of his behaviour on his 14-year-old nephew. Dr Eshuys says in her report that he ‘was seemingly unaware of the developmental status and needs of his nephew at the time” and “did not take into account his nephew’s physical, psychological and emotional well-being’.
In this regard the applicant was the principal offender and his conduct was motivated by his own grievances and he encouraged his nephew to commit the offences with him by acting as a lookout for police.
Dr Eshuys observes that Mr Kembrey appeared to have ‘poor conflict resolution skills’ and an inadequate ability for self-reflection.
The Commissioner contends that despite these risk factors being present, Mr Kembrey has indicated to Dr Eshuys that he ‘sees no need for any further psychotherapy follow-up and is not motivated to engage in such’. Accordingly despite his submissions that he is prepared to approach a psychologist for assistance should he need it, Dr Eshuys’ observations appear to contradict this and expressly identify that the applicant is reluctant to engage with professional support services.
The Commissioner also submits that the penalty imposed upon the applicant reflects the gravity with which the Court viewed his offending.
The Commissioner reminds the Tribunal that if a positive notice were granted it would be unconditional and fully transferable across all areas of regulated child related employment. This would mean that the applicant could engage in unsupervised activities in areas such as tutoring, coaching and mentoring. There is no provision in the legislation for the precaution of allowing a Blue card subject to a trial, “suspended loss” or equivalent as requested in his application.
Finally the Commissioner submits that there is no evidence that the child co-offender would have engaged in the criminal activities had it not been for the applicant's influence and encouragement due to his own intention to undertake criminal activity to address his own grievances. He acknowledges that Dr Eshuys suggests that Mr Kembrey saw the child co-offender as his peer that there was no grooming or manipulative behaviour. However the Commissioner submits that involving or encouraging the child co-offender to engage in criminal activities raises serious concerns about his ability to recognize appropriate boundaries.
The Commissioner argues that the applicant's conduct suggests that he lacks insight into the position of trust and authority he occupied in relation to his nephew and his responsibilities as a role model or more concerningly that he failed to recognise or took advantage of the child's naivety, immaturity and inherent vulnerabilities to assist him in his own criminal endeavours.

The Law

Mr Kembrey made an application on 31 May 2013 for a volunteer Blue card. The guiding principle in any decision regarding an application for a Blue card is that the welfare and best interests of children are paramount. The paramount consideration in this case is that a child is entitled to be cared for in a way that protects them from harm and promotes their well-being.
Where a person has a charge or conviction for an offence other than a serious or disqualifying offence, then the Tribunal must issue a Blue card unless it is satisfied that it is an exceptional case where it would not be in the best interests of children to issue a positive notice. The applicant has been convicted of offences other than a serious or disqualifying offence.
The Tribunal must be satisfied on the balance of probabilities that an exceptional case exists. However neither party bears an onus to prove that an exceptional case exists.
The Appeal Tribunal has previously stated that phrases like exceptional case must be considered in the context of the legislation, which contains them[2]. The Appeal Tribunal observed that ‘the proper approach to it, is that… adopted by Philippides J to consider its application in each case unhampered by any special meaning or interpretation’.
[2]CCYPCG v FGC [2011] QCATA 291 at 31.
Any hardship or prejudice suffered by the Applicant from such a decision is irrelevant. Further any benefit to children from the applicant obtaining a Blue card is also not a relevant factor.
Where a person has been charged with or convicted of an offence the Tribunal must give consideration to section 226 of the CCYPCG Act in determining whether an exceptional case exists.
In relation to the criteria in section 226 the applicant has a number of convictions for offences other than serious or disqualifying offences. These primarily relate to the series of “enter premises and commit indictable offence by break” offences. The offences occurred between June 2011 and June 2012 and recent in time.
A number of the offences directly involved the applicant’s 14-year-old nephew. The applicant was sentenced to prison to be served by way of and Intensive Correction Order. The Commissioner submits that this indicates the ‘gravity with which the Court viewed the applicant’s offending’.
The Commissioner urges that significant weight should be given to the circumstances of Mr Kembrey’s offending. In particular, he submits that Mr Kembrey has shown a clear lack of appropriate insight into the developmental status and needs of the child who he enlisted to engage in his criminal activities or the potential harm that could be suffered by that child. The Commissioner points out that the resultant harm from his conduct could include possible lifelong consequences for the child due to their association with his offending and any subsequent charge or conviction.
The Commissioner acknowledges that Mr Kembrey was supported by his stepfather and that Mr Crawford was full and frank in his evidence.

The Outcome?

Mr Kembrey presented to the Tribunal as nervous and uncomfortable. This is understandable given that the seriousness of his application. I found the level of his presentation throughout the hearing was not consistent with his written material. I agree with Dr Eshuys and found him to be naïve, immature and unsophisticated.
I am concerned that Mr Kembrey feels that he no longer requires counselling and psychological support. He clearly has not reflected to any great extent on his actions, in a way that would demonstrate that he has learnt from his previous mistakes.
I accept and it was conceded by the Commissioner that Mr Kembrey has come a long way since the date of his offending. He is now mixing with people of his own age.
However I am not satisfied that he has demonstrated that he has matured sufficiently and has appropriate insight into what occurred. I am not satisfied that his conflict resolution strategies have developed to a point where he really appreciates that he is the adult and his nephew is the child. He must model appropriate behaviour at all times.
I am not able to find any evidence to convince me that he would act any differently if placed in a similar situation in the future. There is no acceptable explanation for his behaviour. He has not managed his relationship with his nephew in a protective way. He has not demonstrated a sufficient level of insight into the potential impact of his behaviour on children generally.
On the evidence available, I am satisfied on the balance of probabilities that this is an “exceptional case” where it would not be in the best interests of children for Mr Kembrey to be granted a Blue card.
I therefore order that the decision of the Commissioner to issue Warren Kembrey with a negative notice is confirmed.