Ram v Commissioner for Children and Young People and Child Guardian
[2013] QCAT 215
| CITATION: | Ram v Commissioner for Children and Young People and Child Guardian [2013] QCAT 215 |
| PARTIES: | Mr Nikhil Ram (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML141-12 |
| MATTER TYPE: | Children’s matter |
| HEARING DATE: | 15 February 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Graham Quinlivan, Member |
| DELIVERED ON: | 3 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice be set aside and a positive notice and blue card be issued to Mr Nikhil Ram |
| CATCHWORDS: | Conviction for serious offence, charge and conviction, Queensland Civil and Administrative Tribunal Act 2009, s 19, s 21, s 24, s 28, s 28(3) Kent v Wilson (2000) VSC 98, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Nikhil Ram represented by Mr Tim Meehan, solicitor from Bosscher Solicitors and Mr Alex Jones |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Ms Georgina Thomas and Ms Nicole Kappa. |
REASONS FOR DECISION
Mr Nikhil Ram was issued with a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) on 1 August 2012. He applied to the Tribunal on 16 August 2012 to set aside the Commissioner’s decision so that he could be issued with a positive notice and Blue card.
Mr Ram is a pharmacy student. He applied to the Commissioner for Children and Young People (the Commissioner) pursuant to section 199 of the Act under the category “health, counselling and support services”, because he wished to undertake a student placement as part of his pharmacy studies.
Mr Ram has a significant history of criminal offending from December 2007 to March 2011. He has no outstanding charges.
Mr Ram’s criminal history contains a number of convictions including a conviction for a serious offence (as defined in section 167 and schedule 2 of the CCYPCG Act) for “robbery in company/used personal violence” on 16 November 2009. As well as his convictions, Mr Ram had a number of charges for other offences.
Relevant Law
Sections 225(1)(c) and 225(2) of the CCYPCG Act provide that where a person has been convicted of a serious offence the Commissioner and as a consequence the Tribunal when conducting a review, must issue a negative notice to the applicant unless satisfied that the applicant’s case is an exceptional case in which it would not harm the best interests of children to issue a positive notice.
Section 226 of the CCYPCG Act outlines the various factors that the Commissioner must take into account in deciding if the applicant’s case is an exceptional case. It provides as follows:
(2) The Commissioner must have regard to the following—
(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;
…
The CCYPCG Act provides that the Queensland Civil and Administrative Tribunal (the Tribunal) has jurisdiction to conduct a review of the Commissioner’s decision. Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) outlines the options available to the Tribunal, these options are that the Tribunal may:
a)Confirm or amend the decision; or
b)Set aside the decision and substitute its own decision; or
c)Set aside the decision and return the matter for reconsideration to the decision maker for the decision with the directions the Tribunal considers appropriate.
The QCAT Act governs the operation of the Tribunal and the CCYPCG Act binds the Tribunal’s decision making. Section 19 of the QCAT Act provides:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal—
(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.
Section 28 of the QCAT Act provides:
28 Conducting proceedings generally
(1) The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
(2) In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
(3) In conducting a proceeding, the tribunal—
(a) must observe the rules of natural justice; and
(b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
(c) may inform itself in any way it considers appropriate; and
(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
The CCYPCG Act does not define what an “exceptional case” is. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case.
In the decision of Kent v Wilson (2000) VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstance” when considering a breach of community correction orders. At paragraph 22 he stated:
The use of the phrase 'exceptional circumstance' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
‘Exceptional’ is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.The focus of the CCYPCG Act is the protection of children. It is to be administered according to the principle that the welfare and best interests of children are paramount. It is intended to put boundaries around employment or volunteering to protect children from harm. ‘Harm’ is defined to have the same meaning as given in section 9 of the Child Protection Act - “Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing”.
Section 155 of the CCYPCG Act provides that
…the paramount consideration in making a decision under this chapter is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities.
Evidence
The Commissioner’s case is set out in the Section 21 materials. It is the Commissioner’s position that the Tribunal must have regard to the prescribed factors as set out in section 226(2) of the Act, where it is aware that a person has been charged with or convicted of a serious offence in deciding whether there is an exceptional case to grant the review application.
The applicant relied on the following material:
§His application filed on 13 August 2012 including attachments. The primary attachment being a document headed “briefly describe any other facts you think are important”.
§A letter from the Commissioner dated 3 July 2012.
§A reference from Mr Ahmed El-Merebi dated 21 January 2013.
§A Pathology report dated 25 January 2013 from QML Pathology.
§A Psychology report by Mr Paul Stevenson, Consultant Psychologist, dated 29 January 2013.
§A reference by the applicant’s mother, Mrs Parminder Rai that was undated but received by the Tribunal on 13 July 2012.
§A life story document tendered on 15 February 2013.
Discussion
The first factor for the Tribunal to consider is Mr Ram’s criminal history. The Commissioner provided a summary including the following details of:
1.Wilful destruction (16 October 2007)
2.Burglary and commit indictable offence (1 November 2007)
3.Stealing (1 November 2007)
4.Possessing dangerous drugs x 4 (26 June 2008, 15 April 2010, 2 September 2010, 30 October 2010)
5.Robbery in company/used personal violence (6 March 2009)
6.Possess utensils, pipes etc for use (2 September 2010).
In addition, Mr Ram had a number of charges that did not proceed or lead to a conviction as follows:
1.Assault occasioning bodily harm (x 2) (22 July 2008 and 30 March 2011).
2.Deprivation of liberty – unlawfully detain/confine (22 July 2008).
3.Unlawful use of motor vehicle – use, used/intended for indictable offence) (22 July 2008).
The Commissioner submits that the Tribunal must consider both convictions and charges as provided for in section 226.
The next factor for the Tribunal to consider is whether any of the offences is a serious offence and if it is, whether it is a disqualifying offence.
The offence committed by the applicant on 6 March 2009 relating to robbery in company/used personal violence is a serious offence under the legislation. This gives rise to a rebuttable presumption that a negative notice must issue. It is not a disqualifying offence under the Act. None of the other offences or charges are serious offences.
The offences and charges occurred between October 2007 and March 2011. The Commissioner therefore submits that they are recent offences but in any event the passage of time is not of itself a determinative factor as to whether an exceptional case exists.
The next factor for the Tribunal to consider is the nature of the offences and their relevance to employment or carrying on a business that may involve children.
The decision of Minister for Immigration and Ethnic Affairs v Gungor (1982) SCA 99 confirms that when conducting a review, the Tribunal cannot go behind the convictions that have been already determined.
In relation to the charges, the Commissioner submits that although they did not proceed, the facts detailed in the QP9’s summarise the evidence gathered by the police about the applicant’s conduct at the relevant time and should be afforded significant weight by the Tribunal. Further, the Commissioner submits that the charges did not proceed because the complainant’s withdrew their complaints as opposed to a lack of evidence or an unwillingness by the prosecution to proceed with the charges.
It is the Commissioner’s submission that when determining whether an exceptional case exists it is necessary to consider carefully the nature of the applicant’s offending. The Commissioner identifies the following considerations:
§The applicant has a lengthy criminal history relative to his young age including violent offences and drug related matters.
§The violent offences demonstrate a propensity on the part of the applicant to resolve conflict and respond to stresses with violence, intimidation and aggression.
§The charge that arose out of the incident on 22 July 2008 allegedly involved an assault and deprivation of liberty by the applicant involving his sister’s then partner. The Commissioner argues that in relation to this particular incident there was a level of premeditation by the applicant and his conduct involved the unlawful detention of the complainant for about 2.5 hours during time which he caused physical injuries and significant emotional distress to the complainant.
§In relation to the serious offence, the Commissioner contends that this involved the theft of a handbag and mobile phone from a 25-year-old woman who was unknown to the applicant. The applicant acted with 2 others, which was an aggravating feature. Further, the complainant suffered injuries when trying to retrieve her property from the car that Mr Ram and his friends were using at the time. The Commissioner points out that the respondent admitted that he and his friends committed the offence because they wanted to acquire money to buy marijuana.
§In relation to the applicant’s five convictions for drug offences the Commissioner points out that he was using a significant amount of marijuana on a daily basis at this time. The Commissioner submits that there is a clear nexus between the applicant’s drug use and the commission of the serious offence on 9 March 2009.
§The charge relating to the alleged assault occasioning bodily harm on 30 March 2011 was allegedly unprovoked and involved the applicant punching the complainant to the mouth causing bruising, lacerations to the inside of his lips and the bending back of the complainant’s two front teeth which required medical attention.
The Commissioner’s representative acknowledged that Mr Ram’s offending was not directed at children or young people. However she argues that it is relevant to child related employment because of the following points:
§His lengthy criminal history is comprised of violent and drug offences and demonstrates a disregard for the law and for the welfare of those around him.
§The violent offences demonstrate a propensity on the part of the applicant to “take matters into his own hands.” On that basis children have a right to receive services from adults who possess the knowledge, skills and strategies to manage anger and frustration safely and appropriately and to model correct behaviour to children.
§The Commissioner submits that the applicant’s drug convictions represent a failure on the part of the applicant to model appropriate behaviours and attitudes about drug use.
§The Commissioner asserts that there is a clear intention in the legislation to identify the offence of robbery in company/used personal violence as relevant to child related employment by defining it as a serious offence and creating a presumption that a negative notice must issue when a person has a conviction for this offence irrespective of when the offence occurred.
The next factor requires the Tribunal to consider the various penalties imposed by the Courts in relation to the convictions sustained by Mr Ram. The Commissioner argued that in addition to imposing various fines on the applicant in response to his drug offending, the Court has also placed the applicant on probation, imposed a 120 hour community service order and imposed a 9 month custodial sentence with an immediate parole release date when the applicant was re-sentenced for the offence of robbery in company/used personal violence after he breached the probation order and community service order previously imposed. When re-sentencing the applicant the Commissioner submits that the Court recorded a conviction reversing its earlier decision to exercise its discretion not to record a conviction.
The Commissioner also submits that the Court decided to record a conviction in relation to several other matters having regard to factors such as:
·the nature of the offence;
·the applicant’s character and age;
·and the impact of the conviction on the applicant’s economic and social wellbeing and chances of finding employment.
The Commissioner argues that the imposition of a conviction reflects the seriousness with which the Court regarded the applicant’s offending on these occasions.
Mr Ram takes issue with the number of criminal offences identified by the Commissioner and states that he has had four convictions. He also claims in relation to the charges that they simply did not occur as alleged. He argues that his last offence took place more than two years before he made an application for a Blue card.
He submits that while two years is not a long time on which to judge whether a person is rehabilitated or not, in his case it should be accepted that in the two year period since his last offence, he managed to successfully complete a TAFE course which enabled him to gain entry into the Bachelor of Pharmacy at the University of Queensland, where he is currently studying “a very tough course”. He expresses his shock at the thought that the Commissioner would suggest “that she has acknowledged (his) youth and immaturity at the time of offences and alleged offences but the Act gives her power to disregard those contributing factors”.
He notes that while the Commissioner describes him as an angry and intimidating person, that is not the case and he is quite a different person now. In relation to his conviction for the serious offence of robbery in company/with violence, he claims that he was not the main offender in that case and there was no actual violence committed by him.
Mr Ram takes issue with the Commissioner’s reasons regarding his convictions. He singles out the fact that the Commissioner criticised him for not undertaking further therapy for his violent offences or completing any courses in relation to those offences. He says that he really wants to improve his life and not get into any more trouble and to that extent he successfully commenced studies for admission to university. He says that he no longer associates with anyone from his past, he doesn’t smoke cannabis, cigarettes or drink, he avoids nightclubs and simply focuses on his university work which keeps him occupied and which he loves.
He submitted that while he has committed a number of criminal offences the decision maker should not put extra weight on those offences than they deserve and especially because he has changed his way of life and also because he has already been punished for those offences once. He says he is very ashamed of his actions in the past but is looking forward to a better future.
Mr Ram explained that in relation to the serious offence of robbery in company/with violence, that he was originally sentenced to a good behaviour bond and community service with no conviction recorded. He admits that he did break his good behaviour bond and was re-sentenced for this offence and was put on court ordered parole for 9 months and a conviction was recorded because it is a mandatory procedure for the Court’s to record a conviction on a re-sentencing if it has not done so on the first occasion. Mr Ram placed great weight on the fact that it is now 2 years since his previous criminal offending ceased.
Regarding the applicant’s insight into his violent and drug related offending behaviour, he argues that if he had not gained insight into his behaviour he could possibly be inside a prison, today, for repeated drug offences. He says he is really proud of himself for changing his life and is quite emotional about having to go through the whole process again.
He claims that the Commissioner has missed the point in relation to his consumption of cannabis because he points out that he is studying to be a pharmacist and if he was to get into trouble for that (or anything else) while studying pharmacy it would create further problems for him because he is registered with AHPRA which is the national body for regulating all health care departments.
Mr Ram also seeks to distance himself from the offence of burglary on the basis that his friend had asked him not to mention his name because he would get in serious trouble from his parents. He now asserts that he did not steal anything but it was his friend who stole a phone without his knowledge. Further, he argues that while the Commissioner states that he does not accept responsibility for his actions he says that in his submissions to the CCYPCG he has on numerous occasions accepted responsibility and stated how ashamed he is and what went wrong.
Mr Ram says that he has had very limited contact with children throughout his life. He says that this is simply because he doesn’t know any children or have friends who have children. He has never worked with children and argues that it would be quite inappropriate for him to go to a local park and try to interact with children just to prove that he is able to do so. He asserts that none of his offending behaviour was against or committed in the presence of children. He submits that it is therefore unfair for the Commissioner to assume that he poses some risk to children.
He also addresses the issue of transferability of a Blue card across areas as being a major issue for the Commissioner. He argues that she has failed to address the actual area that the applicant was going to study in. He claims that in essence he will need a blue card to undertake two visits to a shopping centre in a retail environment where he will need to do two hours on two occasions in order to successfully complete his course at university. His role will be just observing and acting on instructions given to him by the pharmacist on duty at the time.
Mr Ram presented as a well groomed, intelligent but unsophisticated young man who appreciated the seriousness of the application before the Tribunal. He gave oral evidence in a frank but somewhat defensive manner and explained that he needed a Blue card in order to undertake a clinical placement. He said he could not complete his degree without completing the placement. He noted that none of the offences he had committed or was alleged to have committed involved children. He also pointed out that in relation to the serious offence, he did offer to give evidence against his co-accused.
He said that he had last smoked cannabis about two years ago. He believed that it was not a good thing to do and that it plays with your head. He confirmed that he doesn’t associate with his former friends and attends university five days per week. He said that he has been passing his subjects and wishes to seek registration as a pharmacist when he completes his course.
He denied that he applied any pressure to any complainant in relation to the charges that had been withdrawn and also denied that there was any threat or promise or inducement provided to them. He said that he did not commit the alleged offences.
Mr Ram described a difficult childhood where he left India at age 10 and moved with his family to New Zealand where he got involved in the use of cannabis. When his parents determined that this was not an appropriate environment for the children, they moved to Australia but again he fell into bad company.
He said that he realized that he had to go to TAFE to get into university because he had been kicked out of school and after that he had only undertaken a range of manual work.
He referred to his consultation with Mr Paul Stevenson, a consultant psychologist, which occurred two weeks previously and said that he gave a true account of his experiences and completed the tests requested by Mr Stevenson. He said that he does not feel that he is a threat to society. In relation to the serious offence he acknowledges that it was a serious offence but that initially no conviction was recorded. In circumstances where the maximum penalty for the offence would be life imprisonment, he submitted that while he was a party to the offending, he was uneasy about the events surrounding it and tried to convince his friends against being involved. However, he admits that he did not remove himself from the situation.
In cross examination the applicant admitted that he did undertake each of the offences for which he was convicted and that in respect to some of those offences he did have the opportunity to walk away but didn’t.
In relation to the charge of deprivation of liberty – unlawfully detained, confined in July 2008 Mr Ram gave evidence that the incident did not occur. He acknowledged that the complainant was a person that he had introduced to his family and that the person had subsequently developed a relationship with his sister and had moved into their house. He admitted he didn’t appreciate what had occurred and there was a cultural issue involved regarding this person’s respect for his mother and his sister. He acknowledged that he was charged with these offences after his sister moved out with his former acquaintance.
The Commissioner’s representative sought to elicit information from the applicant regarding his version of the alleged incident on 22 July 2008. The representative for Mr Ram strenuously objected to this course. He argued that the applicant had already denied ever being part of the incident and that he had told police as much and made a report. The Tribunal took into account the provisions of section 28(3)(a) - (e) of the QCAT Act and formed the view that the circumstances surrounding each of the charges which were brought against Mr Ram were relevant to determining the issue before it. Mr Ram continued to deny that the events occurred.
The applicant also presented references from his friend Mr Ahmed El-Merebi and Mrs Parvinda Rei, his mother. Both of these persons gave oral evidence in support of his application.
Mr Stevenson gave evidence that there were no psychological reasons to restrict the applicant’s access to a Blue card and consequently children. He indicated that there was no evidence of a current addiction and no evidence of dishonest reporting. As a result Mr Stevenson was of the view that he had no concern regarding Mr Ram offending against children.
In cross-examination, Mr Stevenson indicated that he would have liked to have had more time to assess the applicant. He said that in his opinion the applicant had left his past behind and that he is a man who has changed his direction and his past will not determine his future. He felt that the applicant showed insight and remorse particularly regarding his offending behaviour.
Mr Stevenson described the applicant as being drug and alcohol free, physically fit, leading a healthy lifestyle and as a result felt that the risk factors were reduced. He also indicated that he felt the protective factors were on the increase and that he saw no evidence of a possible relapse. He said the risk of Mr Ram returning to drug offending is low and the protective factors are good. He said he was pleasantly impressed by the change in the applicant’s lifestyle. Mr Stevenson said that two years is a significant time, taking into account the applicant’s age, the amount he was taking and the cessation of his illegal activity. In terms of insight and remorse Mr Stevenson referred to the shame that the applicant felt as a result of his behaviour.
In terms of protective factors Mr Stevenson identified the lifestyle change, the entrance into university study, the fact that the applicant is living with his family, the desire to complete his studies and the fact that the applicant presents as someone who has a desire to stay clean.
In terms of the testing which Mr Stevenson undertook he says that the applicant is a person who has a very, very low current anger rating and believes that he is no risk to society. As far as Mr Stevenson is concerned the applicant is a person who from a psychological perspective is able to operate in all areas of society. He is a stable young man with no deficits of character.
Mr Ram’s representative, submitted that the evidence from Mr Stevenson was compelling and forthright. He argued that there were real material changes to be observed in the applicant. He suggested that the criminal history presented regarding his client, in a vacuum, is a concern, particularly the serious offence. However, he points out that in this regard the original sentence for the serious offence was itself ‘exceptional’ with no term of imprisonment imposed and no conviction recorded. He submitted that normally it is difficult to avoid some term of imprisonment for such a serious matter. He restated that the applicant has disassociated himself from his previous contacts, which was a tangible manifestation of Mr Ram’s intent rather than mere words.
He argued that Mr Ram is a young man who is attempting to right wrongs of the past. He has expressed regret, insight, remorse and acknowledged the impact on himself and his family of his previous behaviour. He says in this regard the question of insight can be put to bed. Further in his submission there is nothing from a psychological perspective to stop Mr Ram from getting a Blue card.
He admitted that the applicant can’t escape his past but that his offending is definitely at the low end of the scale and that in his submission Mr Ram’s evidence was forthright, impressive and honest.
In summary therefore Mr Meehan for Mr Ram contended that the applicant is a young man who made mistakes, who shamed his family and himself. It was a big step for him to offer to give evidence against his associates. Even if he were to relapse in relation to his previous offending, he was unlikely, given the evidence, to have any impact on children by doing so. He described Mr Ram as a young man who wants to finish his tertiary studies and that to stop his dream at this point would be a sad outcome. He therefore argued that this is an exceptional case where a Blue card should issue.
In contrast Ms Thomas for the Commissioner argued that there are 3 matters to be addressed – the procedural background, the law and the evidence.
Ms Thomas points out that there are 9 criminal matters including one for a serious offence, which must be considered. She says that the Commissioner acknowledges the consequences for the applicant are significant but emphasises that this is not a relevant consideration.
She submits that to determine an exceptional case, it has to be done on a case by case basis and that the Commissioner’s decision was made at a particular point in time. She says that the decision maker is entitled to take into account the significant amount of evidence gathered by police that was available to the Commissioner to consider in relation to the charges that were withdrawn. She submits that significant weight should be given to that information particularly because the matters did not proceed because the complainants withdrew their complaints.
Ms Thomas acknowledges that the offences for which the applicant was charged or dealt with were not offences against children but they present a history of violence and drug offences. She relied on her written submissions provided to the Tribunal to support this argument.
She says that the Commissioner acknowledged the significant progress the applicant has made but insists that it is still important that Mr Ram have insight into his offending. She argues that he has failed to properly address all of the information that is before the Tribunal. She points out that in spite of the considerable evidence before the Tribunal as to the events of 22 July 2008, his only response was that nothing happened.
She strongly argues that it is open to the Tribunal on the balance of probabilities to accept that their were circumstances involving the problems with his sister which could have lead to the incidents which have been described. She argues that the applicant’s mother, Mrs Rei, gave clear evidence that it did occur. She submits that a significant aspect of this application is the failure by the applicant to properly acknowledge these matters and reflect on his involvement in them. In her submission, it is clear that he did not take full responsibility for those matters and as a result the Tribunal has been declined the opportunity to fully understand what happened. She contends that to state that nothing occurred “is not a credible submission”. Regarding the evidence contained in the applicant’s character references, Ms Thomas points out that Mr El-Merebi only knew general details about the nature of the drug use and was giving an opinion as a friend while the applicant’s mother’s evidence had to be seen in the light that she was endeavouring to support her son.
She also contends that the evidence from Mr Stevenson was based on one meeting and 100 pages of background material. She says that Mr Stevenson showed a lack of understanding of the nature of a Blue card and there was no consideration of the impact of the applicant’s behaviour on the victims or complainants involved in his offending. Ms Thomas referred to the unconditionality and the transferability of a Blue card. Ms Thomas concluded that based on the totality of the information and the necessity to consider the paramount principle, the Tribunal cannot be satisfied that this is an exceptional case.
Decision
The applicant has a significant criminal history extending from October 2007 through to March 2011. During the hearing, considerable argument arose regarding the charges, which had been laid against Mr Ram but had subsequently been withdrawn by the complainants. Mr Ram denied that the incidents had ever occurred in spite of the large amount of supporting material presented to the Tribunal. His representative argued strenuously that the complaints had been vexatious and that any consideration of them was “rot”.
Regardless of these submissions, section 226 of the CCYPCG Act sets out the criteria that the Tribunal must take into account when deciding if a case is exceptional and that section refers to both convictions and charges. There was some suggestion in the oral evidence by Mr Ram’s mother that there had been at least one incident when the applicant may have hit another person. However, she subsequently retracted any suggestion to that effect. The Tribunal has considered these charges and is satisfied, on the balance of probabilities, that at the time of his offending, the applicant’s behaviour was chaotic and inappropriate. Further it is likely that there were events that occurred involving the applicant that he continues to deny.
Mr Ram committed a serious offence on 6 March 2009 being robbery in company/used personal violence. He was dealt with in the Brisbane District Court on 16 November 2009. The outcome of that proceeding was that no conviction was recorded and Mr Ram was placed on probation for period of 2 years. He was also required to undertake 120 hours cumulative community service. Subsequently on 21 February 2011 Mr Ram was dealt with for a breach of his probation order and a breach of his community service order. The breaches were proven and the previous orders were revoked. Mr Ram was re-sentenced for the original offence, a conviction was recorded and Mr Ram was sentenced to 9 months imprisonment. On the same day the Court ordered that Mr Ram be released on parole.
Section 225 of the CCYPCG requires that subject to section 223 (2), the Commissioner must issue a negative notice to the person if the Commissioner is aware the person – (c) has been convicted of a serious offence. The section also provides that if the Commissioner is satisfied it is an exceptional case in which it would not harm the best interests of children for the Commissioner to issue a positive notice the Commissioner must issue a positive notice to the person.
The date of 21 February 2011 would appear to be a significant date in the applicant’s life. His life history as revealed in various documents presented to the Tribunal would indicate a very troubled childhood following his family’s move from India to New Zealand and subsequently to Australia. This period was characterised by an ongoing use of marijuana as demonstrated in his criminal history. The Tribunal also takes into account the other offences for which Mr Ram was charged or dealt with. They cover a range of criminal activities that on any interpretation could show a considerable disregard for the law.
On his own evidence Mr Ram attended Court on 21 February 2011 fully expecting to receive a period of incarceration. The fact that he was released on the same day on parole appears to have marked a major turning point in his behaviour and his life generally. His representative argued that he made a decision to turn his life around. The Commissioner’s representative argued that the focus must be that the welfare and best interests of children are paramount.
The evidence shows that from 21 November 2011 Mr Ram has disassociated himself from his former colleagues and embarked on a pathway aimed at changing his life for the better. In his own words, “to my surprise the acting Judge on that day released me on parole immediately which was pretty much an awakening alarm for me, that life wasn’t all finished and if I tried hard enough I could still be a better person, a good citizen and good son to my parents.”
The applicant was born on 15 May 1990 and is now approaching 23 years of age. He claims that he has ceased using cannabis, his relationship with his family has strengthened and he has successfully pursued an adult tertiary preparation course at TAFE and has subsequently been admitted into a Bachelor of Pharmacy at the University of Queensland.
The Tribunal is conscious of the decision of the Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 49 regarding the importance for the Tribunal to identify potential risk factors and protective factors. A significant consideration in this regard for the Tribunal has been the long period of time during which the applicant used cannabis/marijuana and also the various allegations related to violent incidences alleged to have occurred and involving the applicant.
The applicant produced a pathology report and a psychological report, which he submits indicate that he has successfully rehabilitated himself from drug use. However, the Commissioner’s representative submits that he does not demonstrate insight into the following matters:
§The triggers or motivations for his drug use;
§The risk of relapse into drug and drug offending; or
§Strategies to avoid relapse such as ongoing counselling or utilising support people.
Another concerning issue for the Tribunal involves the submission by the Commissioner’s representative regarding the applicant’s attitude to his violent offending. She points out that the applicant continues to deny that the alleged offences of 22 July 2008 and 30 March 2011 occurred and continues to minimise his involvement in the serious offence by insisting that he was “not the main offender”. These are very significant issues for the Tribunal to consider.
While Mr Stevenson only saw the applicant on one occasion he makes the following findings and recommendations:
§Mr Ram’s anxiety and depression were in the insignificant ranges respectively;
§He showed no personality deficits of concern;
§He described a lifestyle of healthy living in which previous drug taking was no longer part of his routine;
On the basis of these findings, Mr Stevenson concluded that Mr Ram had successfully rehabilitated himself from his former drug use and had adopted a healthier lifestyle. Mr Stevenson considered that Mr Ram was a low risk of further offending behaviours and saw no implications regarding any danger to children.
Mr Stevenson stated that Mr Ram showed remorse regarding his past behaviours and expressed embarrassment that he had insulted his family. He demonstrated that he has successfully turned his life around and his focus seems to be on his studies and future work prospects. He said that he was aware of his crimes and their impact on society but declared that they had never impinged on the safety or welfare of children at any time.
A practical example of Mr Ram’s determination to change his life was that he had lost 52kg due to a diet and exercise program and according to Mr Stevenson this lifestyle change stands as a good protective factor.
In conclusion Mr Stevenson stated that “there is no reason psychologically to expect Mr Ram will be a future threat to society, people, and in particular, to children. His past criminal behaviours seem to have been fuelled by drug addiction and influence from those with whom he associated at the time. Mr Ram claims to have distanced himself from both catalysts and successfully rehabilitated from his drug use.” Mr Stevenson therefore supports Mr Ram’s application for a blue card.
While the Commissioner’s representative takes issue with the findings of Mr Stevenson based on the limited involvement he had with the applicant, the Tribunal has found his evidence to be helpful to its deliberations.
Based on all of the evidence, the Tribunal has identified some potential risk factors in relation to Mr Ram:
§He has been convicted of a number of drug related offences.
§He has been charged with a number of other offences.
§He has been convicted of a serious offence.
§The evidence would suggest that for a long period of time he showed a considerable disregard for the rule of law.
§He appeared to disregard the impact on his victims, family or the wider impact of his behaviour especially on children. It is apparent to the Tribunal that the applicant did not disclose the full extent of his behaviour to his family or friends.
§He has not demonstrated any insight into the role of the Commissioner.
§He has failed to acknowledge the potential for his behaviour and activities to impact adversely on children.
There appear to be a number of protective factors in relation to Mr Ram’s future behaviour:
§He has a supportive family who appear very concerned for his welfare.
§He has made a number of significant changes in his lifestyle and activities.
§His current lifestyle regime is paying dividends in terms of his own self-esteem and desire to be a successful and contributing member of society.
§He has demonstrated determination and motivation to re-establish himself as a productive member of society by firstly undertaking a TAFE course for admission to university and then subsequently obtaining admission to one of the most competitive courses within the university environment.
§He has acknowledged the enormity of what he has done and what he needs to do to rectify this situation.
The Tribunal must decide whether Mr Ram’s case is an exceptional one in which it would not harm the interests of children for him to be issued with a positive notice. It is clear to the Tribunal that immaturity has played a large part in a lot of Mr Ram’s criminal activities.
The Tribunal accepts that:
§Mr Ram had a very difficult life up until the point where he faced incarceration. There is probably not a lot that he can do to change some of the things that occurred.
§It is noteworthy that throughout his life Mr Ram appears to have had very little to do with any children but he is aware that if he were to have contact with children, it needs to be in appropriate circumstances.
§He appears to have successfully disassociated himself from people who have been a negative influence on him in the past and appears to be making good progress with his studies.
However the Tribunal still has serious concerns that Mr Ram was less than fully frank in his evidence. He continued to minimise the impact of his behaviour on his victims. It has only been slightly more than 2 years since he last appeared in a Court.
In considering whether Mr Ram’s case is exceptional the Tribunal has considered whether the applicant would pose an unacceptable risk to children if he were granted a Blue card. The Tribunal has considered the risk that could be posed to children from coming into contact with Mr Ram.
The Tribunal has formed the view that the evidence does demonstrate an exceptional situation in terms of the behaviour reflected in his criminal history and the subsequent turnaround in the applicant’s life. Having had the benefit of hearing from the applicant in relation to the changes he has made to his life, the Tribunal is satisfied that the applicant is unlikely to act in an aggressive or violent or inappropriate manner towards children or in their presence. It is persuasive from the oral evidence and the supporting documents that Mr Ram has had a rude awakening and has set about on a course of action to ensure that any engagement that he may have with children in the future will be appropriate and at low risk.
There is no doubt that Mr Ram is a highly motivated young man who has approached his rehabilitation with considerable determination and is now focused on completing his studies and obtaining employment in his chosen field. There appears to be minimal risk to children in this respect.
The Tribunal has concluded that although there are a number of risks and concerns attaching to Mr Ram holding a Blue card, those risks are not unacceptable. In the light of the evidence available at the hearing and from the written material the Tribunal does not consider that the applicant’s circumstances would place him at an unacceptable risk to children. Therefore, the order that the Tribunal makes is as follows:
1.The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice be set aside and a positive notice and blue card be issued to Mr Nikhil Ram.
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