Kutekute v Commission for Children and Young People and Child Guardian
[2012] QCAT 355
•8 June 2012
| CITATION: | Kutekute v Commission for Children and Young People and Child Guardian [2012] QCAT 355 |
| PARTIES: | Samuel Kutekute |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML113-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 8 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Elizabeth Benson-Stott, Presiding Member Michelle Howard, Member |
| DELIVERED ON: | 8 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian made on the 7 June 2011 to issue a negative notice and refuse the blue card application for Samuel Kutekute is confirmed. |
| CATCHWORDS: | REVIEW JURISDICTION – BLUE CARD – where conviction of serious offence and other offences – whether an exceptional case – factors in determining whether an exceptional case |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Samuel Kutekute represented himself |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian (CCYPCG) represented by Adele Noble |
REASONS FOR DECISION
Background
Mr Samuel Kutekute seeks a review of the decision made by the Commissioner for Children and Young People and Child Guardian to issue him with a negative notice for a blue card. Mr Kutekute seeks to be issued with a positive notice and blue card which he requires if he is to be employed or is to volunteer in a capacity with children.
The application was heard in Brisbane on the 8 February 2012.
The relevant law
The Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) gives the Queensland Civil and Administrative Tribunal jurisdiction to conduct a review of the Commissioner’s decision.[1] On review, the Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision-maker.[2]
[1] CCYPCG Act, s 353.
[2] QCAT Act, s 24.
In its review jurisdiction, the Tribunal must decide the review in accordance with the CCYPCG Act and the QCAT Act.[3] For the review, it has all the functions of the decision-maker for the reviewable decision.[4] The purpose of the review is to produce the correct and preferable decision, following a fresh hearing on the merits.[5] In effect, the Tribunal stands in the shoes of the decision-maker and makes the decision afresh.
[3] QCAT Act, s 19(a).
[4] QCAT Act, s 19(c).
[5] QCAT Act, s 20.
The focus of the CCYPCG Act is the protection of children and promotion of their rights, interests and well-being: their welfare and best interests are paramount.[6] Chapter 8 of the CCYPCG Act sets out provisions about screening for employment and business. The paramount consideration for making employment screening decisions under the CCYPCG Act is the protection of children from harm and promotion of their wellbeing.[7]
[6] CCYPCG Act, ss 5, 6.
[7] CCYPCG Act, s 155.
Chapter 8 makes provision for the classification of serious offences.[8] Serious offences include offences that, at the time they were committed, were of a kind now classified as by the CCYPCG Act as a serious offence.[9] Serious offences include offences of a kind referred to in section 419(3)(b)(i) of the Criminal Code1899 involving burglary if the offender uses or threatens violence.
[8] CCYPCG Act, ss 167, 168.
[9] CCYPCG Act, s 167(a), (e) and Schedule 2.
Chapter 8[10] also sets out the procedure for deciding whether to issue a positive or negative notice. In circumstances when a person has been convicted of a serious offence, sections 225 and 226 are the applicable sections. Section 225 provides, among other things, that if the Commissioner is aware that the person has been convicted of a serious offence, then the Commissioner must issue a negative notice.[11] However, if the Commissioner is satisfied that it is an exceptional case in which it would not harm the best interests of children to issue a positive notice, then the Commissioner must issue a positive notice.[12]
[10] CCYPCG Act, Chapter 8 Part 4 Division 9.
[11] CCYPCG Act, s 225(1).
[12] CCYPCG Act, s 225(2).
The CCYPCG Act does not define the term ‘exceptional case.’ However it is well established that determining whether a case is an exceptional case is a matter of discretion having regard to the merits of the individual case and the factors to be taken into account.[13] In determining whether a case is an exceptional case in circumstances when a person has been convicted of or charged with an offence, the Tribunal, standing in the Commissioner’s shoes, must have regard to the factors set out in section 226 of the CCYPCG Act. They 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;
[13]CCYPCG v Lister (No 2) [2011] QCATA 87; CCYPCG v FCG [2011] QCATA 291; Kent v Wilson [2000] VSC 98 [paragraph 22], Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders.
(b) any information about the person given to the commissioner under section 318 or 319;
(c) any report about the person's mental health given to the commissioner under section 335;
(d) any information about the person given to the commissioner under section 337 or 338;
(e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.
The matters prescribed are not to be considered in isolation: other factors may be relevant to determining whether a case is an exceptional case.[14] One factor to be considered is whether an applicant presents an unacceptable risk of harm to children.[15] Harm is defined[16] to have the same meaning as it is given in the Child Protection Act 1999.
[14] CCYPCG v Lister (No 2) [2011] QCATA 87, [16-17].
[15] CCYPCG v FCG [2011] QCATA 291.
[16] CCYPCG Act, Schedule 7, Definition of Harm.
In Commissioner for Children and Young People and Child Guardian v Maher and Anor,[17] the Queensland Court of Appeal endorsed the approach taken by the former Children Services Tribunal which then had jurisdiction for reviews in assessing the risk of harm to children by identifying and balancing potential risk factors and potential protective factors when considering whether circumstances amount to an exceptional case.
The Evidence
[17][2004] QCA 492; see also discussion in CCYPCG v Lister (No 2) [2011] QCATA 87, [13].
Mr Kutekute’s Criminal History
As part of its decision making process, the CCYPCG obtained a police criminal history check regarding Mr Kutekute. The history shows that Mr Kutekute has a criminal history spanning from 1995 until 2008. He has been convicted of various offences.
The charges, the year of the charges, and a summary of the outcomes are as follows:
a)Murder (2 charges): did not proceed on plea of guilty for alternative offences of “Break and enter and inflict grievous bodily harm” (2001) (2 convictions: 4 years imprisonment for these offences with a non-parole period of 18 months);
b)“Assault police” (1995) (one conviction: good behaviour bond 4 months);
c)“Wilful and unlawful destruction of property in the night-time (2 charges)” (1995); “Stealing” (2 charges) (1995); “Unlawful use motor vehicle for the purpose of facilitating the commission of an indictable offence” (1995); “Break, enter and steal” (2 charges) (1995) (no conviction recorded, on each charge: 3 years probation and restitution of $2265 and community service of 240 hours ordered);
d)“Profane indecent obscene language in public place/so near” (1997) (bail forfeited but outcome otherwise unclear on the information available);
e)“Breach of fine option orders” (by 2) re: exceed speed zone, speed camera offence (1999) (outcome unclear on the information available);
f)“Assault occasioning actual bodily harm” (2006) (convicted: 12 months imprisonment with a non-parole period of 9 months suspended for 12 months on bond, and obey all reasonable directions for counselling and drug and alcohol rehabilitation deemed necessary by the probation service); and
g)“Assault police officer” (2008) (convicted: fine $250).
The convictions for “Break and enter and inflict grievous bodily harm” in 2001, were under the Crimes Act 1900 (NSW). The information from the NSW Police states that Mr Kutekute, with two other armed men, entered a premises armed with a length of wood and the men proceeded to strike two male victims with the weapons resulting in serious head injuries to both men and one man had a portion of his nose cut off.
Mr Kutekute’s convictions for the offences were the result of pleas of guilty. These constitute convictions for serious offences under the CCYPCG Act. The offences are of a kind classified by the CCYPCG Act as a serious offence. In particular, they are of a kind specified in Schedule 2 of the CCYPCG Act under section 419(3)(b)(i) of the Criminal Code.
Putting aside the charges referred to in paragraphs [12] d) and e), for which the outcome is unclear, which would not be in any event serious offences if Mr Kutekute was convicted none of the other offences of which he was convicted are characterised as a serious offence in accordance with the Act.
The NSW Police information about the conviction in 2006 for assault occasioning bodily harm indicates that the assault was on Mr Kutekute’s then partner, with whom he had 2 children, and who was 5 and a half months pregnant at the time.
Mr Kutekute’s evidence
Mr Kutekute told the tribunal at the hearing that he applied for a blue card to undertake a placement as part of a course of study he was undertaking at the Carrick Institute of Education. However, he postponed his studies in the third term as he could not move into the clinical placement that was required as part of his course without a blue card. He now wants to join a prison ministry to undertake volunteer work with youth in his church.
He believes that he has gained awareness about how his childhood and his past have impacted his life, his actions and his offending behaviour. In particular, he did not have a relationship with his father and did not have a close relationship with his mother. He also felt he did not have a connection with his culture when he was younger and lived in Fiji.
When he then arrived in Australia at about age 9 years he felt that there was a significant language barrier. From approximately eight (8) to seventeen (17) years of age he felt that his needs were not met and he felt victimised by people in his school and community. In high school he experienced what he described as racism against him. As a result he became angry and rebellious, turning to alcohol and marijuana.
At the time of his criminal offences he considers that he was vulnerable. However, he did not suggest that he relinquished responsibility for them. He regrets the offences he committed prior to 2008. He feels he has gained valuable insight into the hurt he has caused his victims. He believes that he has caused physical and emotional harm to his victims and added complex issues to their life.
He now understands his offending behaviour was related to stress, vulnerability, mental trauma, substance and alcohol misuse, attitude, and not having conflict resolution skills.
He became a born again Christian in approximately 2002 whilst incarcerated. He has maintained his beliefs, and is currently a member of Twin Rivers Church where he plays the drums in the choir.
The 2006 criminal conviction for assault occasioning actual bodily harm arose from Mr Kutekute assaulting, and injuring, his former partner when she was five and half months pregnant. Mr Kutekute’s other two (2) children were present in the house at the time. He was uncertain if they witnessed this assault. He considers he had experienced many major life changes in a short period of time and did not have the strategies to deal with stress.
With regard to the 2008 offence of the assaulting of a police officer of which he was convicted and a fine of $250 was imposed, Mr Kutekute asserted that he did not assault this officer, rather that he accidentally bumped into him. He was having a night out with a friend and had been drinking prior to this incident. However, he was apologetic about the accidental knock.
He has sought and undertaken rehabilitation including:
a)An anger management course in 2000 (while he was incarcerated), and in 2003/2004 when out of prison, and 2005 when on parole.
b)In approximately 2003/2004, he saw a psychiatrist on one occasion. He states that the psychiatrist said he did not need to return to see him again.
c)From approximately 2005 until 2007, he attended pastoral counselling with his cousin in Fiji. He felt this was when he began to gain insight into his life.
He has also made changes to his lifestyle and undertaken self-education to try to turn his life around. He hopes that as a result of what he went through that he will be able to help others. He has not taken drugs for a couple of years, since about 2009, and now drinks only occasionally. He considers that his attitude is different now, and that he is no longer angry, rather he is understanding. He manages stressors through support from and participation in the Church; associating with supportive friends and colleagues; support from his wife; making changes to his lifestyle including maintaining clear boundaries in his life; exercise; and situational management including talking problems through, taking time out, and trying to resolve issues before going to bed; helping others; and only drinking alcohol on special social occasions. He considers he has developed better self-control.
He considers that programs do not work for him. Therefore he has not attended any programs for rehabilitation, other than the anger management courses discussed earlier.
He has three (3) children aged six (6), seven (7), and eleven (11) with his ex-partner. He has recently obtained orders allowing him contact with the children. He has telephone contact with all three of them and had arrangements for the eldest child to come to Brisbane to visit him over Easter holidays.
He married in 2007. His wife came to Australia from Fiji in approximately 2008. They have a good marriage and there have been no domestic violence incidents with her. They have three (3) children aged one (1), three (3), and five (5) years.
He has held a stable job as a shift work press operator in a sheet metal factory for the past six (6) months. His previous jobs have included fruit and vegetable picking, and forklift driving. He has been in employment in recent years.
He feels he is a different person now because:
(a)He is not using drugs and alcohol to cope;
(b)He now has the ability to be calm and apply strategies when he feels angry;
(c)He is making careful decisions and not being impulsive;
(d)He has learnt to understand life and how to effectively work through issues;
(e)He has a wife who does not drink or smoke.
Witnesses’ evidence
Mark Cresswell, a VET Coordinator & Community Services Teacher from Carrick Institute of Education has known Mr Kutekute for about one (1) year after he enrolled in the Diploma of Community Services Work. As a course coordinator, he saw Mr Kutekute on a daily basis when he attended Carrick Institute.
He confirmed that Mr Kutekute required a blue card to do a clinical placement in his course as he may come into contact with children. Mr Kutekute was due to complete his third term and move into the clinical placement when the blue card matter prevented him from continuing further in his studies.
He is aware of Mr Kutekute’s criminal history. Mr Kutekute has been open about his past. He believes he has shown remorse for his past offending. He considers Mr Kutekute has worked regularly on his skills and has changed his attitude and beliefs, attempted to work on positive change, and has tried to undertake volunteer work. He has worked extensively in prisons and he considers there are no concerns or risks in Mr Kutekute obtaining a blue card.
The parties’ submissions
The Commissioner submits that the evidence supports the original decision and that an exceptional case has not been established by Mr Kutekute. While acknowledging protective factors for Mr Kutekute include support from his wife and friends at church, as well as having a work life, the Commissioner submits that risk factors outweigh protective factors. The Commissioner submits that risk factors for Mr Kutekute include recent drug and alcohol use; the link between drug and alcohol use and offending behaviour; a lengthy offending history until 2008 which demonstrates that he resorts to violence when he is angered or under stress, such as during an assault against his partner in 2006 where the victim was five and a half months pregnant; and a lack of insight and lack of proactive action by Mr Kutekute toward rehabilitation.
Further, the Commissioner submits that it appears two (2) of Mr Kutekute’s children were present during the 2006 assault, and this is relevant to child-related regulated employment. She submits that insufficient time has passed to be satisfied that Mr Kutekute has demonstrated genuine rehabilitation and that he does not present an unacceptable risk to children and young people.
Mr Kutekute submits that a positive notice should be issued. In summary Mr Kutekute’s submissions were that he has changed and that his incarceration has had a positive effect on him, enabling him to gain insight and begin to work through his issues, and as such is committed and determined to rehabilitate himself. Mr Kutekute considers that he is unlikely to be aggressive or act violently towards children or in their presence, and that he does not present as a risk to children as he knows his limitations.
Discussion and Decision
The Tribunal must determine whether an exceptional case, in which it would not harm the best interests of children to issue a positive notice, has been established.
Mr Kutekute’s evidence was largely uncontradicted. The Tribunal does not however accept Mr Kutekute’s account of what occurred in the 2008 assault. It is not consistent with a conviction and a fine being imposed.
It was for Mr Kutekute to produce evidence to the Tribunal in support of his application for review, however he only presented himself and Mr Cresswell’s evidence. The Tribunal has no evidence about Mr Kutekute’s psychological status, only his own comments about how he thinks he is coping and dealing with potential stressors, and his current life situation, bearing in mind that Mr Cresswell on the evidence presented has not seen him since he discontinued his course of study. This is of concern, especially since Mr Kutekute minimises the 2008 assault.
Based on the evidence presented, the Tribunal identified some potential risk factors and some potential protective factors of Mr Kutekute following the example endorsed in CCYPCG v Maher[18].
[18] [2004] QCA 492.
Potential protective factors identified are:
a)Mr Kutekute has supportive relationships with family and church.
b)Mr Kutekute has a stated desire to put the past behind and build a better life for himself, his wife, and his children.
c)His relationship with his three (3) children.
d)Mr Kutekute has no criminal history since 2008 and there is no evidence of abhorrent behavior since 2008.
e)He is in fulltime employment.
f)He has expressed remorse for his past actions.
g)Mr Kutekute has some coping strategies which he implements in his everyday life.
Potential risk factors identified are:
a)A history of violent offending reflected in sentences for imprisonment.
b)A long history of offending with his most recent conviction being in 2008.
c)An assault on his former partner who was five and half months pregnant sustaining significant injuries and Mr Kutekute’s other two (2) children being present in the house.
d)Triggers that led to the offending behaviour have not been addressed through counselling. There has been no counselling support sought for alcohol, substance abuse, anger, and childhood issues.
e)He lacks insight into his issues of alcohol and substance use.
f)There is a link acknowledged by Mr Kutekute between alcohol and anger, which Mr Kutekute is only self-managing.
g)The applicant has not committed himself to ongoing treatment.
Section 226 of the Act
The Tribunal must have regard to the relevant matters listed in section 226 of the CCYPCG Act in deciding whether or not there is an exceptional case.
The Police information provided is outlined above. Mr Kutekute has been charged with a variety of offences and has convictions for numerous offences over the period from 1995 to 2008. Two of the convictions, each for the offence of “Break and enter and inflict grievous bodily harm” in 2001, are for serious offences under the CCYPCG Act. The victims of the offences sustained serious injuries. The other offences and convictions are not classified as serious offences under the CCYPCG Act. However, the most recent offence occurred only relatively recently in 2008.
The assault in 2006 was against Mr Kutekute’s pregnant partner. This is directly relevant to employment that may involve children, as it demonstrates a disregard for the safety of an unborn child. Further, the Tribunal considers it relevant that Mr Kutekute’s other two (2) children of that relationship were in the house at the time. He was unsure if they were physically present in the room at the time. However, whether they directly witnessed the events or not, it is reasonable to infer from Mr Kutekute’s evidence that they were close by. That being so, it is also reasonable to infer that they were aware of the events and the violence against their mother. That being so, it is reasonable to conclude that this event will have been traumatising and harmful for them.
Mr Creswell is an educator with experience working in prisons, and does not consider Mr Kutekute to be a risk to children. The Tribunal has no reason to doubt his sincerity. However, he has not known Mr Kutekute long term and has not seen Mr Kutekute interact with children, or it seems outside of the educational institution at which he met Mr Kutekute. Therefore, his views are given little weight by the Tribunal.
Under section 226, the Tribunal is able to consider ‘anything else’ relating to the commission or alleged commission of offences which it reasonably considers relevant. The Tribunal considers it relevant that the Applicant has not safeguarded, through ongoing counselling, against reverting to learned violent behaviours if faced with stressful, conflict situations in the future. Also, the Tribunal considers it relevant that Mr Kutekute has not demonstrated through his evidence that he has been tested in a stressful situation since the more recent convictions in 2006 and 2008.
A consideration for the Tribunal is whether sufficient time has elapsed since Mr Kutekute began implementing strategies to deal with his behaviour. He has had no offending behaviour since 2008. He has not used drugs since approximately 2009, and now drinks alcohol only occasionally. Does he continue to represent a risk of harm to children? Or, can the Tribunal be satisfied he has turned the corner?
Conclusions
On the evidence presented, the Tribunal is not satisfied that Mr Kutekute has been tested by a situation since he implemented his current strategies and since his last offence. In committing the 2006 offence, he was in a position of trust and power which he misused at the expense of a vulnerable person. Should he obtain a blue card he will be in a position of power, trust, and authority when working with vulnerable persons, namely children.
The Tribunal was not presented with evidence from witnesses about Mr Kutekute’s direct interactions with children or from his wife in relation to Mr Kutekute’s use of strategies appropriately to deal with anger and stress. Nor was there evidence presented from witnesses who have known Mr Kutekute for a long period of time. Mr Kutekute denied himself the opportunity to present evidence to the Tribunal about his current level of risk of reoffending.
Also, Mr Kutekute does not have the benefit of ongoing counselling to safeguard against reverting to learned behaviours if faced with stressful and powerful situations in the future.
Mr Kutekute has presented the Tribunal with evidence of several protective factors. The Tribunal accepts that Mr Kutekute has made some changes to his life in recent years and commends him for it. It is hoped that he will continue to do so.
However, on the balance of probabilities, the Tribunal is not satisfied that this is an exceptional case in which it would not harm the best interest of children to issue a positive notice.
The Tribunal therefore orders that the Commissioner’s decision to issue Mr Kutekute with a negative notice is confirmed.
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