Nunn v The Director General Department of Justice and Attorney-General
[2017] QCAT 68
•2 February 2017
CITATION: | Nunn v The Director General Department of Justice and Attorney-General [2017] QCAT 68 |
PARTIES: | Graeme Troy Nunn |
| v | |
| The Director General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML 203-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 16 May 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman |
DELIVERED ON: | 2 February 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the respondent to issue a negative notice to Mr Nunn on 30 March 2015 is confirmed. |
CATCHWORDS: | Childrens matters - Blue Card - Where applicant has a long criminal history with multiple offences – where no serious offence – where applicant claims to have been rehabilitated. Working with Children (Risk Management and Screening) Act 2000 (Qld) |
APPEARANCES: | |
APPLICANT: | Mr Nunn represented himself |
RESPONDENT: | Ms Paula Hughes represented the respondent |
REASONS FOR DECISION
Mr Nunn applied for a Blue Card so that he could advance in his career teaching martial arts. The respondent refused his application, and issued him with a negative notice. Mr Nunn has applied to QCAT seeking a review of that decision. He asks that a positive notice be issued, so that he is granted a Blue Card.
This matter was heard in May 2016. The issuing of the decision has been delayed somewhat due to a delay in receiving final submissions. I am making this decision based on the evidence available to me at the hearing in May 2016, and the submissions subsequently received.
This is not an appeal decision, but a review. I am standing in the shoes of the original decision maker and must make the correct and preferable decision[1]. My decision making is governed by the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The paramount consideration for me is the welfare and best interests of children.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
[2]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6.
Mr Nunn has a criminal history. He has not been convicted of a “serious offence”, as that term is defined in the legislation, and so a positive notice must be issued unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children for Mr Nunn to be issued with a positive notice.[3]
[3]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221.
A Blue Card is unconditional and transferable, allowing a holder to work unsupervised with children across a wide range of activities.
Mr Nunn has a criminal history spanning from 1991 to 2013. It is considerably lengthy and has been attached at the back of this decision. He has a history of charges and convictions involving stealing, breaking and entering, violence and weapons. I have taken those matters into account in this decision.
Mr Nunn provided written and oral evidence. He stated that:
a)He had a stable and “awesome” childhood. He did not enjoy high school, where he was easily distracted, and left school when he was 15 to study cabinet making at TAFE.
b)The 1991 offence of assault occasioning bodily harm occurred when he was involved with a fight with a student from another school. Reflecting on that situation, martial arts has now taught him that you should never hit anyone, and only protect yourself if you are cornered. Martial arts is about being humble and respectful, and is non-contact.
c)He began working when 16 or 17, first in a factory and then cabinet making. He began to get into trouble when he started hanging around with someone he had known at school.
d)They began breaking into places to steal so that he had money to buy things. It was his fault as he was impulsive and wanted to fit in and buy nice things. When he was not in trouble or doing community service he would look for work.
e)The 1995 charges (break, enter and steal; unlawful use of motor vehicle; dangerous driving; wilful and unlawful damage to property; serous assault on a police officer) resulted in a term of imprisonment of 3 months and disqualification from having a drivers licence. He was joyriding with a friend in a stolen car while on probation for riding a trail bike that was unregistered without a licence or helmet. They drove to Southport and he panicked when he saw police and tried to get away. He hit a police officer with the car without realising it. On reflection, he is embarrassed by the incident and knows it was wrong. At the time he didn’t think about the impact of his actions on anyone else, and now he feels bad for hurting people. He doesn’t like the things he did or who he was. It is embarrassing that he hurt people physically and emotionally.
f)In 2001 he had his grandfather’s old army rifle and was mucking around and “chopped it up” to make it look cool. He was carrying it in a bag when he was caught stealing and it was confiscated. He didn’t have bullets and is not sure if the gun worked as it was rusty.
g)He used speed for about 6 – 12 months in 2003. He used it to stay awake. Someone had tried to set his mother’s house on fire and he wanted to stay awake in case someone came to the home. The drug use did not impact on his children because he only saw them once a week or once a fortnight. It is possible that he was under the influence of speed while caring for the children. That was not good as his judgement may have been clouded.
h)In 2003 he completed a Drug Court programme and got off speed. Speed sent him “funny in the head” and was a problem (although cannabis was not a problem). The counselling helped him to stop using speed.
i)The 2003 offence relating to possession of a weapon was because he was carrying a screwdriver. He had committed a break and enter with his baby son in an attempt to contribute financially to the family. He jumped off a balcony and then threw rocks and a screwdriver at someone in the neighbourhood who attempted to stop him from leaving. At the time he was panicking and not thinking about the effect on the victims. Now, looking back he feels bad as he hurt someone although he is not a violent person. At the time he was upset because he realised that the baby could have been taken away. Fortunately, his partner at the time was very stable and was able to continue to care for the child even when Mr Nunn spent 8 months in jail.
j)At around that time he was prescribed an anti-depressant which he took for a while. He was very easily frustrated and impulsive and there was a suggestion he may have ADHD.
k)He began smoking marijuana as a 16 or 17 year old and continued to use it until approximately 3 – 5 years ago, when he stopped because he wanted to be healthier and because he currently works with people who do not use drugs. His use just faded out. He had previously used marijuana in the back shed or the garden, not in the house. He did not consider that a risk to the children because his mother or wife were always around. The drugs relaxed him and he would play with the children for hours. On reflection, his behaviour was not ok because it is illegal and he could have fallen asleep or “something could have happened”. He would hate for his children to do the same and took active steps to ensure that his niece stopped using drugs when she stayed with him.
l)Similarly, he has not drunk more than a couple of alcoholic drinks at Christmas since about 4 or 5 years ago. That decision was driven by health concerns with his kidneys, and a desire to be healthier. He had previously been a heavy drinker, beginning to binge drink when about 19. Before he cut down, he would drink all weekend and on payday would drink with friends. Looking back, there was “probably” an impact on his children.
m)The 2009 offence of dangerous operation of a vehicle occurred when he had been driving a 4WD while drunk and rolled it onto its roof while driving through a paddock. The police started a fight with him and the officer used excessive force.
n)The most recent offence, in 2013, occurred when he was out jogging and impulsively opened an unlocked door at a community centre and began looking through the centre.
o)He currently lives with his wife and their three children, aged 11, 9 and 6. He has two older children that he has contact with at times that suit their schedules.
p)He puts his long criminal history down to impulsiveness. He knew what he was doing was wrong and his thinking was “ridiculous”. That history has now been addressed because he spends his time with normal people. His career in karate requires him to continue with his personal development and he spends his time around managers who keep him thinking positively. For the first time, he has something to look forward to.
q)He has been working full time with karate for two years. He is respected in his workplace and has future goals. He is working towards something positive and is surrounded by people who support him and want the best for him. He manages his difficulties with impulse control by reading personal growth material and working alongside positive influences. He is passionate about his work and has finally “dug his way out”.
r)He has learned new ways to deal with anger, such as positive self talk, staying focused, and doing something positive. He receives advice and suggestions from the rest of the team.
s)He has begun counselling with psychologist Dr Nguyen and will continue to see him into the future. He only began counselling to obtain a report for QCAT and didn’t realise he needed someone like that. Now he believes that Dr Nguyen helps him because he is a neutral person who he can talk to and who doesn’t pass judgement.
t)He is proud of who he is and what he does, and can hold his head up. He is now putting other people before himself - that is a big change and he doesn’t want to go back.
Mr Nunn provided a number of written references supporting his application. In addition, some witnesses provided oral evidence.
Kelvin Trembath, Mr Nunn’s manager, provided written and oral evidence via telephone. He told the tribunal that:
a)He met Mr Nunn in 2010 when Mr Nunn was a student in his karate class. He later selected Mr Nunn for training as an instructor as Mr Nunn had demonstrated respect, discipline and humility. He is monitoring and mentoring him as a karate instructor and as a person with a view to a future management role within the organisation.
b)Mr Nunn is undertaking a professional development programme which involves continually reading and listening to positive successful people to learn what works to become successful.
c)While Mr Nunn is not proud of his past, he is eager to be the best person that he can be. They meet every day and talk a lot about communication, positive thoughts, keeping a level head and not swearing. He has received good reports and feedback about Mr Nunn’s progress.
d)He would not have Mr Nunn on his team if he was concerned about his attitude or behaviour. He has worked very closely with Mr Nunn for about two years and has no concerns at all about Mr Nunn’s ability to manage his behaviour. Mr Nunn is developing skills in handling situations appropriately, controlling his body through karate techniques, he has a supportive family and incentive to stay on the straight and narrow.
Michelle Nunn, Mr Nunn’s wife, provided evidence to the Tribunal. She stated:
a)She has known Mr Nunn since 2000 and has been in a relationship with him for the last 12 years. They married in 2009. Mr Nunn has grown in the last 3 to 5 years - he was previously selfish and thought only of himself. He would drink or do whatever he wanted and not worry about how it affected the family. Now, he thinks of her and the children.
b)His criminal history came about because he didn’t think. He would regret his actions later but couldn’t explain why he did it.
c)Drugs and alcohol were a big part of Mr Nunn’s life up until he stopped. He used cannabis and was under the influence while around the children but only if she was also present. He used to drink every day. He rarely drinks now and never uses marijuana. He is a totally different person.
d)Mr Nunn used to be frustrated and impatient. Now he has more patience. He has used a lot of self-help books, CDs and DVDs. He used to drink or smoke when frustrated but now jumps on the trampoline with the kids and plays with them.
e)He will never go back to his former ways. He has a goal of being promoted at work so that she can stop working. She has always previously had to work because Mr Nunn’s criminal history made it hard for him to find employment.
f)Mr Nunn receives ongoing support from his GP, psychologist, his mother, a close friend and from her. He is now open to talking and getting help when he needs support. He is motivated to help children.
Irene Nunn, Mr Nunn’s mother provided evidence that:
a)She has seen Mr Nunn change from an angry person who would yell and smash things to someone who is calm and civil and really good with his kids. He is now setting goals for himself.
b)She is very proud of Mr Nunn, and that is something that she would not have said for a long time.
Mr Nunn provided a written report from Dr Nguyen, a consultant clinical psychologist, dated 9 May 2016. Dr Nguyen did not provide oral evidence to the Tribunal. His report states:
a)Mr Nunn has attended 6 sessions aimed at ameliorating symptoms of anger issues in the past. The sessions have focused on cognitive and behavioural skills, and involved psychoeducation, breathing retraining, relaxation exercises, problem solving, behaviour modification, cognitive restructuring and relapse prevention.
b)Mr Nun provided him with details of his criminal history.
c)Mr Nunn has made positive progress and shown good insight into his problems and past behaviours and displayed positive motivation to change and address the past triggers that led to his past offending behaviours, including the death of his father, alcohol use, substance abuse and impulsive behaviours.
d)Mr Nunn may benefit from ongoing assistance to regularly monitor his mood and to learn relapse prevention strategies.
I must determine whether this is an exceptional case in which it would not be in the best interests of children for Mr Nunn to be issued with a positive notice. This is decided on the balance of probabilities, and there is no onus on either party to establish that such a case does or does not exist.
I must have regard to the matters set out in legislation[4] and any other relevant matters. So far as the matters set out in the legislation are concerned, I find that:
a)Mr Nunn has a long history of convictions and other charges, these are discussed above.
b)Most of the offending occurred between 1991 and 2009. There is one further conviction in 2013.
c)The offences are directly relevant to employment involving children. They involve violence, weapons and dangerous driving. One series of offences was committed while holding his 14 month old son. He has a history of alcohol and drug misuse, including while having the care of his children. Mr Nunn’s history raises concerns as to whether he can act in a way that protects and promotes childrens safety and wellbeing.
d)The Courts have imposed significant penalties, including imprisonment, in relation to the offences.
[4]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.
Mr Nunn states that no exceptional case is established. The respondent submits that this is an exceptional case in which it would not be in the best interests of children to issue a positive notice.
Mr Nunn submits that:
a)His offences were committed during a period of turmoil and he accepted responsibility for his actions by pleading guilty to the offences he committed. The 2013 offence related only to him being inquisitive, not from any intention to commit a crime.
b)He has made steps to reduce the risk factors associated with his criminal activity. He is reading a lot about personal growth and development and now has a strong supportive network around him.
c)There is no evidence of him posing a threat to children.
d)The Tribunal has previously granted positive notices to people who have offended against children or when children have witnessed their offending behaviour.
e)His past criminal history would only be useful to determine the likelihood of future offending if the same triggers for the behaviour continue to be present. That is not the case. In particular, he no longer uses illicit drugs, and has made a complete lifestyle change. Previous trigger factors have been replaced with training, learning and being surrounded by positive people.
f)Most of his offences occurred in the late 1990’s, relatively soon after the death of his father. This was in the context of a background of poor education and inability to communicate his problems.
g)He has taken full responsibility for his actions and offending behaviour. He is currently entrusted with a high level of responsibility at work. He has been honest and forthright in his dealings with the Tribunal.
h)He is now a valued member of society and is more than capable of making life choices that will not pose a risk to anyone. He has been rehabilitated.
i)He is heavily involved with karate which requires discipline, respect for self and others and respect for authority.
I must determine whether this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to Mr Nunn. This is a difficult matter. Mr Nunn has a long criminal history. He has struggled for a long time with excessive drug and alcohol use. His behaviour has been unlawful, violent, dangerous and selfish. In recent years, Mr Nunn has found a community that accepts him and believes in him. Mr Nunn has now committed himself to a sober and productive life. His family and his associates in the karate community support him in his quest. He is closely monitored, mentored and supported in his work environment. He is highly motivated to maintain his positive progress and not lose the gains he has made.
Mr Nunn has recently begun to participate in psychological counselling sessions. He sees some benefit in those sessions and states that they will continue.
It is appropriate to acknowledge the difficult and challenging task that Mr Nunn is undertaking in turning his life around. He has established a more stable and supportive relationship with wife and extended family and is highly motivated to stay out of trouble. Mr Nunn has begun to address the triggers of his offending behaviour through counselling.
There is other evidence that I must take into account. The number of crimes Mr Nunn has committed, and the span of the offending behaviour is of great concern, showing a pattern of anti-social and dangerous behaviour from his teenage years well into his 30’s. His history of long term use of alcohol and illicit drugs raises concerns regarding his future long term ability to abstain from use.
Mr Nunn has clearly not demonstrated good judgement in the past. He cared for children while under the influence of drugs, and one of his violent crimes was committed while he was holding his then 14 month old son.
The Tribunal did not have the benefit of oral evidence from Dr Ngyuen. I note that, in any event, Mr Nunn did not have, at the time of the hearing, a well established therapeutic relationship with Dr Ngyuen. I have no evidence of what assessment Dr Ngyuen has made of Mr Nunn’s risk to children, his suitability for child related employment, or the sustainability of the progress he has made.
On balance I accept the respondent’s submission “the triggers to the Applicant’s offending behaviour have been numerous, including drug and alcohol abuse, mental health concerns, anger management, impulse control, and feelings of grief over the loss of his father…there is insufficient evidence before the Tribunal of ways in which the applicant has addressed all of these issues.”
On the evidence currently before me I am not satisfied that respondent is able to safeguard the safety and wellbeing of children placed in his care. I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a positive notice.
The decision of the respondent is confirmed.
CRIMINAL HISTORY
a)8/8/91 Ipswich Childrens Court: Stealing – admonished and discharged
b)17/10/91 Ipswich Childrens Court: Assault occasioning bodily harm – admonished and discharged
c)13/3/95 Ipswich Magistrates Court: dangerous driving – fined $800 (option 133 hours community service)
d)15/6/95 Ipswich District Court: break, enter and steal; unlawful use of motor vehicle; dangerous driving; wilful and unlawful damage to property; serous assault on a police officer – imprisonment 3 months, 3 years probation, drivers licence disqualified. When probation was breached, resentenced to 12 months imprisonment. The Court Brief indicates that Mr Nunn was driving a stolen car and did a U-turn at a RBT station. Police pursued and Mr Nunn drove the car at over 190 km/hour and attempted to ram a set of gates to get onto a railway line. A police officer attempted to pull Mr Nunn and the co-offender from the car and was knocked to the ground and injured when Mr Nunn reversed the car to try to get away. He reversed into two parked police cars and crashed through a fence and trees.
e)16/6/95 Beenleigh Magistrates Court: unlawful use of motor vehicle for the purpose of facilitating the commission of an indictable offence; break, enter and steal; steal and then broke out; wilful and unlawful damage to property in the night time; dangerous driving having been previously convicted; serious assault on a police officer – no evidence to offer, dealt with ex-officio
f)7/9/95 Ipswich Magistrates Court: break and enter dwelling house with intent, stealing – convicted, community service, $350 restitution.
g)21/11/95 Ipswich Magistrates Court: breach fine option orders, breach community service order. Resentenced to 6 months imprisonment, suspended for 3 years, restitution $350
h)29/2/96 Ipswich District Court: breach probation, breach suspended sentence - resentenced to 12 months imprisonment. Unlawful use of motor vehicle X 2 – imprisonment 3 years (concurrent).
i)26/3/96 Ipswich Magistrates Court: obstruct police. Convicted and fined $210.
j)14/1/98 Ipswich District Court: enter premises and commit an indictable offence and break – imprisonment 12 months, compensation $120, condition to submit to treatment to address alcohol problem. Enter a place and steal X 3; enter premises with intent – discharged, nolle prosequi entered.
k)14/7/98 Ipswich Magistrates Court: Stealing, receiving – no evidence to offer. Possess property that may reasonably be suspected of being tainted property – convicted and fined $400.
l)4/9/98 Ipswich Magistrates Court: stealing – convicted, imprisonment 3 months.
m)16/10/98 Ipswich Magistrates Court: breach intensive correction order 14/1/98. Resentenced. Imprisonment 12 months, concurrent.
n)17/5/99 Ipswich Magistrates Court: enter premises with intent to commit indictable offence and break – no evidence to offer
o)12/4/01 Ipswich Magistrates Court: enter premises and commit an indictable offence and break – no evidence to offer. Possession of weapons; shortening firearms; enter or in premises and commit indictable offence; stealing; enter or in dwelling and commit indictable offence; receive property obtained in Qld. Convicted. Intensive drug rehabilitation order.
p)18/4/02 Ipswich Magistrates Court: possession of weapons, shortening firearms – no conviction recorded, probation 15 months. Enter dwelling and commit indictable offence; stealing; enter or in premises and commit indictable offence; receiving stolen property or property fraudulently obtained – conviction recorded, probations 15 months.
q)18/7/03 Ipswich Magistrates Court: possession of weapons – convicted and fined $750
r)28/11/03 Ipswich District Court: enter dwelling and commit indictable offence X 2; enter dwelling and commit indictable offence and break x 2; assault occasioning bodily harm while armed; threatening violence – discharge firearm or other act; enter dwelling and commit indictable offence; enter dwelling and commit indictable offence and break – conviction recorded. Probation 3 years. Must submit to random urine tests, must attend psychiatric / psychological treatment, must adhere to prescribed medication. The Court Brief reveals that Mr Nunn broke into a home while caring for his 14 month old son and when disturbed he jumped from a balcony to the ground while carrying his son. When the complainant attempted to prevent him leaving the premises Mr Nunn threw rocks at him and threatened him with a screwdriver. He hotwired his car and drove off with his son and was later arrested by police.
s)21/10/04 Ipswich District Court: receiving; fraud X 2; enter dwelling and commit indictable offence. Conviction recorded. Fined $500. Breach of probation. Conviction recorded.
t)3/8/05 Ipswich Magistrates Court: breach of probation X 2 – convicted and fined $240.
u)7/3/06 Ipswich Magistrates Court: breach of probation orders X 2 – convicted and fined $300
v)22/9/06 Ipswich District Court: breach of probation orders. Resentenced. Conviction recorded. Fined $250.
w)26/10/06 Brisbane Magistrates Court: stealing of a vehicle – convicted probation 3 months.
x)17/1/07 Ipswich Magistrates Court: enter dwelling with intent to break X 3. No conviction recorded. Restitution $1.030.
y)8/5/09 Ipswich Magistrates Court: burglary and commit indictable offence – no evidence to offer. Dangerous operation of a vehicle – conviction recorded. Imprisonment 8 months, immediately released on parole. Receiving tainted property – conviction recorded. Fined $450. The Court Brief states that Mr Nunn was doing “donuts” in grass paddock adjacent to a tavern and had overturned the car, landing on its roof on the driveway entry to the tavern. Mr Nunn became aggressive and kicked and punched at police officers. He kicked the police car door when inside.
z)18/8/09 Ipswich Magistrates Court: commit public nuisance, assault or obstruct police officer. Conviction recorded. Fined $350.
aa)12/11/13 Ipswich Magistrates Court: enter premises with intent to commit indictable offence – conviction recorded, recognisance $500, good behaviour period 6 months, restitution $485.52.
0
0
2