Mackinnon v Chief Executive Officer, Public Safety Business Agency - [2015] QCAT 136

CITATION:

Mackinnon v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 136

PARTIES:	Peter John Mackinnon (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML268-14

MATTER TYPE:

Children’s matters

HEARING DATE:

24 April 2015

HEARD AT:

Cairns

DECISION OF:

Member Johnston

DELIVERED ON:

29 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the Public Safety Business Agency dated 2 December 2014 to issue a negative notice to Peter John Mackinnon is set aside and the Tribunal directs that a positive notice be issued.

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Agency’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where change in criminal history

Working with Children (Risk Management and Screening) Act 2000 s 261, s 266

APPEARANCES:

APPLICANT:

Mr Peter Mackinnon

RESPONDENT:

Natalie Taylor in house Counsel for the Public Safety Business Agency

REASONS FOR DECISION
Background

On 3 October 2013, the Applicant was issued with a positive notice and blue card.
The Respondent was subsequently notified by the Queensland Police Service of a change in the Applicant’s police information.
On 2 December 2014, the Respondent cancelled the positive notice and blue card held by the Applicant and issued a negative notice.
On 19 December 2014, the Applicant filed an application to review the decision of the Respondent to cancel his blue card and issue a negative notice.
On 24 April 2015 the matter was heard by the Queensland Civil and Administrative Tribunal (the Tribunal).

Mr Mackinnon

The Applicant’s criminal history starts with an entry for an assault occasioning bodily harm on 15 July 2007. The Applicant assaulted a woman who he had been involved in a relationship with. The Applicant punched and kicked the woman, who sustained a fractured eye socket and bruising to parts of her body.
Mr Mackinnon participated in an interview and according to the Police records made full admissions to the incident and was very remorseful for his actions. He indicated to the Police that he intended seeking help from counsellors for his behaviour. Mr Mackinnon told the Tribunal that he had paid for the woman’s surgery and had paid her mother to come across from Canada to be with her daughter.
Mr Mackinnon stated to the Tribunal that he deeply regretted his actions. He moved from Cairns following this incident to make a fresh start in Sydney. He still receives telephone calls from the woman from time to time who complains about nightmares and sometimes simply abuses him. Mr Mackinnon conceded that this assault had a serious lasting effect on the victim.
Mr Mackinnon’s second offence involved him turning up at the residence of his mother and stepfather at 3 am on 5 September 2009 and causing a disturbance. He was armed with a timber post and struck his stepfather on the arm with the post before he was disarmed and the police called. He was intoxicated at the time of this offence.
Mr Mackinnon told the Tribunal that he had been estranged from his mother for several years. He accepted that his actions were wrong and that his judgement had been impaired by the consumption of alcohol.
Mr Mackinnon's third offence on 4 May 2011 was fraud related. He dishonestly spent $30,000 of his employer's takings gambling on Keno. The Applicant when he realised what he had done called his employer and make full disclosure of his actions. Mr Mackinnon says that he did work for his employer without pay as part of an agreement with his employer to reduce the debt. He was subsequently charged with fraud and pleaded guilty at the first opportunity. He has continued to work off the debt and at the date of the hearing told the Tribunal that he had repaid all but $2,000. He was sentenced to 2 years imprisonment, granted parole, and ordered to pay $17,307.51.
While on parole, he was charged with stalking. He had between December 2013 and January 2014 started a relationship with the complainant and gone out on a couple of dates. After the complainant's birthday on 27 January 2014 the complainant told the Applicant that she only wanted to be friends and she could not see the relationship going any further.
The Applicant over the following months sent the complainant two sets of flowers and sent her a series of some 30 text messages. The complainant told the Applicant that she did not want him to have contact with her. The Applicant persisted in sending messages to the complainant. The Police became involved and Mr Mackinnon was charged.
Mr Mackinnon told the Tribunal that it was only after he was charged that he had looked into the law of stalking and realised how serious the offence could be. Mr Mackinnon went to jail because the offence was a breach of his parole. He now understands ‘100% the seriousness of the stalking charge’.
Mr Mackinnon told the Tribunal that prison was a life changing experience. He worked on his fitness so that he could engage in refereeing rugby league after he was released from jail. He has long history of being involved with the game of rugby league in the Cairns district. He reached out to his mother to re-establish a relationship with her. He saw a psychiatrist and took medication for depression. He engaged with a psychologist to undertake an anger management program.
Mr Mackinnon told the Tribunal that the course helped him. He undertook six modules with the psychologist. These included conflict resolution, respectful relationships, dealing with difficult situations, recognising triggers, improving interpersonal skills and anger management.
Mr Mackinnon conceded that he had not properly responded to the Respondent when asked to make submissions, as he was angry that complaints had been made about him.
Mr Mackinnon told the Tribunal that he had made positive changes to his lifestyle over the last six months. He stated that he had contributed in a positive way to refereeing, introducing more junior referees and setting up training and development opportunities.
He has worked hard to recognise the triggers for his behaviour and to address those. He acknowledged that he had used to bottle up his feelings and then reach a point where he would explode. He has learnt strategies so that he could have conversations in the right environment, talk the right way and be respectful to others. He has learnt to express his feelings in a respectful way, to be calm and treat others with respect.
Mr Mackinnon gave the Tribunal a recent working example in his evidence of how he had changed; using strategies, he had gained out of his anger management course.
Mr Mackinnon pointed out that he had handled the responsibilities of a referee under stressful situations without any problems. Mr Mackinnon is part of the Queensland Rugby League’s High Performance Group. He attended the group training on the Gold Coast, which provided professional development skills to the group including information about: nutrition, depression, mental health, dealing with conflict, and respecting women. It was out of this programme that he realised he did not have a support network to deal not only with refereeing but to deal with life in general. He has changed the situation by involving several people in his life.
He worked with the mental health service whilst in prison as well is seeing a psychiatrist for eight sessions in the community. This has helped him in dealing with depression. He is no longer on medication and has a much more positive outlook. His support network is there to help him when his positive mental state deteriorates and he is at risk of spiralling down into depression.
He acknowledged that he had in the past turned to binge drinking rather than talking his problems through. He previously attempted to stop drinking alcohol two years ago. He has since November 2014 again stopped drinking alcohol and is using other strategies to deal with the stressors of life. He had started drinking in January 2014 due to a number of stressors, which included the death of his grandmother.
He has been living with his father for the last three years. This forms another limb of his support network. He believes that an improved relationship with his mother and family is another significant sign of his change of life strategies are working.
His involvement in sport is a stabilising factor in his life. He is motivated to work hard on his fitness and that helps with a positive mental state.

Shane Addicott – psychologist

Mr Addicott used a six-module programme developed by the National Health Service in Britain. This worked on developing self-awareness, right thinking, looking at consequences, looking at developing interpersonal communication and how to express thoughts respectfully and appropriately.
Mr Mackinnon has developed good self-awareness and improved his ability to think in a respectful way. He saw significant changes in Mr Mackinnon's attitude from his first contact to the finish of the programme. The workbooks have helped Mr Mackinnon develop clarity in his thoughts and shown him how to communicate respectfully. He has learnt to take criticism on board and take it in the right way. He has seen significant improvements in Mr Mackinnon's ability to deal with conflict situations. He believed that Mr Mackinnon was remorseful over the previous situations that had occurred in his life. Mr Mackinnon understood his triggers and had developed strategies to deal with these triggers. He saw as his strengths an ability to look at himself and grow as a person.
He is passionate about certain things in his life like football. He does have a sense of integrity and takes responsibility for his actions. His weakness is that he can act impulsively, has not self-regulated in the past, and has not thought through his actions, made poor or on the spot decisions without taking into account the consequences. He told the Tribunal that some people do the wrong thing and are not good people. Some people get into situations and get out of their depth or do not think through the consequences and are victims of the moment. Mr Mackinnon is a person who takes responsibility for the things that he has done and Mr Addicott believes that he has integrity. Mr Addicott was of the view that Mr Mackinnon was not an unacceptable risk to children.
Mr Addicott believed that Mr Mackinnon's involvement with children through the Queensland Rugby League has been positive for those children and young people. He has received this information through the Queensland Rugby League official with whom he liaised.

Christine Anne Kolenc

Her relationship with her son has been up and down.
At the time of the offence on 5 September 2009, her son had been estranged for a number of years. Her son had turned up in a highly agitated (and intoxicated) state and she had called the police and her husband had disarmed her son. She described this event ‘as being extremely out of character for Peter’.
The catalyst for change did not come about until much later. In early 2014, her mother who was Peter's grandmother passed away. This event brought all the family together. He then reached out to her from prison seeking to re-establish their relationship.
She has seen significant changes in her son. She has watched him take abuse from players and spectators and deal with that in an appropriate way. She is aware that her son has established a support network to help him with his lifestyle issues.
She acknowledged that Peter had difficulty with personal relationships that he became too intense. She has seen a big improvement in the way that he interacts at family functions. His relationship with his stepfather has also improved. He has an excellent relationship with his younger sister. She believes that his level of maturity has increased.

Patricia Bailey

Pat Bailey has been the Secretary of the Cairns District Rugby League since 1988. She has known Mr Mackinnon for the past 15 years during which time she has ‘never known Peter to act in an inappropriate manner with anyone’.
She spoke of Mr Mackinnon as a very helpful person who had a good disposition. A person willing to take on advice and criticism. She has seen him handle conflict and verbal abuse very calmly and was able to give examples to the Tribunal of Mr Mackinnon's ability to deal with confrontation calmly.

Pietro Salvatore Narducci

Mr Narducci has known Mr Mackinnon since 2000 when he was a teenager refereeing juniors and senior rugby league games. He sees Peter as a very respectful person who has a lot of support in the community. He spoke highly of his involvement with the sport of rugby league firstly as a player and then as an official. His refereeing and employment at a nightclub present plenty of challenges that Mr Mackinnon handles very well.
Mr Narducci has been mentoring Mr Mackinnon both on and off the field. He is in regular contact with Mr Mackinnon during each week. He told the Tribunal that Mr Mackinnon's mood could spiral into depression so that it is important for him and other members of Mr Mackinnon support network to provide support to ensure that he has a positive outlook.
He told the Tribunal that Mr Mackinnon had been very good with the young referees. He provided mentoring and training and had a very positive influence.
He had noticed a big change in Mr Mackinnon over the past several months. He has worked on his fitness and he has been more focused.
He does not believe that Mr Mackinnon is a risk to children and supports him in obtaining his blue card.

What is an “exceptional case”?

The Working with Children (Risk Management and Screening) Act 2000 (the Agency Act) does not define the meaning of an “exceptional case”. Section 226 of the Agency Act refers to certain factors that the Chief Executive must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Chief Executive reasonably considers relevant to the assessment of the person.
The object of the Agency Act is to ‘promote and protect rights, interests and wellbeing of children and young people in Queensland’. The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009, in determining whether an exceptional case exists, ensure that (a) the welfare and best interests of a child are paramount; and (b) every child is entitled to be cared for in a way that protects the child from harm and promotes child well-being.[1]
[1]Formerly named Commissioner for Children and Young People and Child Guardian Act 2000 s 155 (see s 6 of the Act).
It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[3] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[3][2004] QCA 492 at [28].
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].
The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a blue card to be issued.
The Tribunal is of the view that there is a range of protective factors that do minimise risk factors. The protective factors include:
a)    has maintained regular employment;
b)    re-established his relationship with his mother;
c)    ceased his alcohol consumption, towards a healthier lifestyle;
d)    undertaken counselling for anger management and interpersonal relationships;
e)    attended on a psychiatrist for assistance with his mental health;
f)     has expressed remorse for the harm that he has previously caused;
g)    has shown insight into the harm that has been caused by his actions;
h)   he ; has taken responsibility for his actions;
i)     he recognises the triggers for his behaviour;
j)     he has worked positively with young people in support of junior referees;
k)    he has put in place a support network to help him deal with life stressors;
l)     has the support of the Queensland Rugby League who have included him in the High Performance Group;
m)   handled the stressors of refereeing and working in a nightclub very well;
n)   none of his offences are child related;
o)     developed strategies to deal with those stresses that effected his life.
The Tribunal is satisfied that these are the risk factors:
a)    the fact that Mr Mackinnon has convictions for violent behaviour in 2007 and 2009;
b)    the 2007 offence caused significant harm to the complainant;
c)    the 2014 stalking charge involved protracted behaviour;
d)    the applicant has been impulsive in relation to some of his behaviour;
e)    the applicant has only just finished his probation;
f)     the applicant has reacted to situations of personal confrontation poorly;
g)    the applicant is at risk of binge drinking from his previous behaviour;
h)   the applicant is at risk of gambling from his previous behaviour;
i)     the fact that Mr Mackinnon will need to manage his mental state to maintain a positive mental state;
The Tribunal notes that none of Mr Mackinnon's offences are deemed “serious offences” under the legislation so that the Tribunal needs to be satisfied that it is an exceptional case that Mr Mackinnon should not be given a blue card.
While Mr Mackinnon's most recent offence is not a “serious offence”, it is of concern to the community. The Tribunal takes the view that Mr Mackinnon’s offence is at the lower end of the scale for such offences. The inference can be made by the Court ordering nine months’ probation. The Court clearly thought that Mr Mackinnon could be rehabilitated with the supervision.
The Tribunal accepts the evidence of Mr Addicott that Mr Mackinnon has positively engaged in his anger management programme and matured as a person and he has gained the tools to deal with his triggers and learnt how to better communicate with others.
The Applicant has shown the ability to grow. He is putting his newly learnt skills in practice.
Pat Bailey and Peter Narducci spoke highly of his character. The Tribunal accepts their evidence of his good character. They have known him for many years and are in an excellent position to attest to his character.
Mr Mackinnon's mother has talked about the way he has matured.
The fact is that Mr Mackinnon is aware that he will need to manage his mental health to maintain a positive mental state. He has taken several steps to ensure that he does not become depressed.
The Tribunal agrees with the Respondent that the importance of having appropriately developed insight into harmful behaviour cannot be overstated in assessment where such a history of negative behaviour exists. This was recognised by the former Children's Services Tribunal in the published decision of Re TAA [2006] QCST 11. At paragraph [97] the Tribunal stated:
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children

There is evidence that Mr Mackinnon has insight into his actions and he is remorseful for his behaviour. This comes from Mr Addicott and from Mr Mackinnon himself.
The Tribunal is of the view that the protective factors outweigh the risk factors in this case.
The Tribunal is satisfied for the reasons stated that the positive protective factors outweigh the risk factors. This is not an exceptional case where due to the risk factors that exist it would not be in the best interests of children for the Tribunal to overturn the decision of the Chief Executive of the Public Safety Business Agency. The Tribunal overturns the decision of the Agency and directs that a positive notice and blue card be issued to the Applicant.
The Tribunal however would strongly recommend to Mr Mackinnon that:
a) he abstains from consuming alcohol; he continues to engage with his support network; and
b) he continues to use the skills and strategies that he learnt out of the anger management programme he undertook with Mr Addicott.