RHG v Chief Executive Officer, Public Safety Business Agency - [2015] QCAT 348

CITATION:

RHG v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 348

PARTIES:	RHG (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML258-14

MATTER TYPE:	Childrens matters
HEARING DATE:	4 June 2015

HEARD AT:

Maroochydore

DECISION OF:

Member Rogers

DELIVERED ON:

17 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Chief Executive dated 19 November 2014 to issue a negative notice to RHG is confirmed.

2. The Tribunal prohibits the publication of material held on the Tribunal file and the names of the applicant and family members in the decision relating to application number CML258-14.

CATCHWORDS:

CHILDREN’S MATTERS - Blue Card application- where applicant pleaded guilty to charges – where no conviction recorded – where applicant sentenced to three years of probation – where probation period still current – whether exceptional case exists

APPEARANCES:

APPLICANT:	RHG appeared in person
RESPONDENT:	Chief Executive, Public Safety Business Agency appeared by Mr Peter Reid, Advocacy Officer

REASONS FOR DECISION

Mr RHG is studying for a Bachelor of Social Work degree. He said he is required to have a blue card to complete his placements even if they do not involve working with children. The Chief Executive issued a negative notice on 24 November 2014 on the basis of his criminal record. Mr RHG applied to the tribunal for a review of this decision on 17 December 2014.
At the same time Mr RHG advised the Chief Executive his court record incorrectly indicated he had been convicted of an offence when in fact no conviction was recorded. He asked for his application to be reconsidered. The decision was reconsidered on 11 May 2015 and the original decision was confirmed[1].
[1]Letter Respondent to QCAT dated 25 May 2015.
Legislation
Assessment for eligibility for a blue card is carried out under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The principles for administering the Act, set out in s 6, are that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. S 360 restates that principle for the purposes of reviewing a child-related employment decision.
Where an applicant has been charged or convicted of an offence, other than a disqualifying or serious offence as defined in the Act, a positive notice must issue unless it is an exceptional case such that it would not be in the best interests of children for the applicant to be issued with a positive notice.[2]
[2]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(1)(b)(iii) and (c) and S221(2).
The Act does not define an ‘exceptional case’ It has been frequently commented that what constitutes an exceptional case is a matter of discretion. It is a question of fact and degree.[3] This means the circumstances of each individual case must be explored within the framework imposed by the principles of the Act.
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
S 226 of the Act sets out the factors that must be considered when making the determination however it does not confine consideration to those matters.[4]
[4]Ibid at paragraph 42.
Once a decision is made to issue a positive notice and blue card the holder is authorised to work with children in any work environment.
Any hardship or prejudice suffered by an applicant as the result of a refusal to issue a positive notice is irrelevant to this consideration.[5]
[5]Chief Executive Officer, Department of Child Protection v Scott (No 2) WASCA 171 at 23.
History and Background
Mr RHG has not been convicted of a serious or disqualifying offence. This means he must be issued with a positive notice unless an exceptional case exists.
In 1996 Mr RHG was convicted and fined $75 for possession of cannabis. In 2000 he was charged with assault however the charges were withdrawn.
In April 2013 he was charged with various counts including producing dangerous drugs, possessing dangerous drugs, failing to dispose of a syringe and unlawful taking of electricity. This involved growing 12 cannabis plants under hydroponic conditions. In September 2013 he was again charged with possessing dangerous drugs, and possessing tainted property. This related to an envelope containing $2000 and two large clip seal bags each containing 456 grams of green leafy material.
Mr RHG pleaded guilty to all the charges which were dealt with together in the Maroochydore District Court on 8 September 2014. He was placed on probation for three years, ordered to perform 200 hours of community service and no conviction was recorded.
Mr RHG spoke about his past experience. The early 2000s were a difficult time for him. His father, an important figure in his life, was suffering a terminal illness. By 2002 he was responsible for the personal care of his father, which he found to be a confronting and distressing experience. He was working at a nightclub and exposed to the easy availability of hard drugs. He started to use amphetamines and opiates as a crutch.
He says that by 2002-2003 he was addicted to opiates and valium prescribed for anxiety. He had a car accident in 2004 resulting in considerable residual pain and he was given prescription drugs for pain relief. By 2005 he sought help and underwent opiate replacement therapy. He participated in a five day Rite of Passage to Manhood and that started the process of change which has continued to the present time. He enrolled in a Diploma of Transpersonal Counselling in Adelaide. He said he has abstained from using hard drugs since 2007, after his daughter was born.
The family moved to Queensland about seven years ago. By 2012-13 Mr RHG was again experiencing challenges. He became aware his job in information technology was at risk. He was having relationship troubles with his partner. They had twins nearly four years ago and he found this to be very difficult. His partner had post natal depression following the birth of the twins. He was conscious of his responsibilities as the main provider. They were isolated from the people he relied on for support in Adelaide. He started to use cannabis heavily and this exacerbated his relationship difficulties. He moved to another house so his children would not be exposed to conflict.
It was during this period that he was charged with the offences referred to above.
Mr RHG said at this time he resolved to abstain from drug use and when his lawyers suggested the QMERIT program in October 2013 he was determined to fully embrace the experience. He was required to participate for three months but he ended up doing 17 weeks because he wanted to be free of the prescription medication he was taking for pain relief for his neck condition following his car accident in 2004. He underwent 35 urine screen tests and all returned a negative result. He has been clean from cannabis use since November 2013. He also started working with Mr S, a psychologist, on drug abuse issues. He first attended Mr S in August 2013 to assist with his relationship difficulties,
Mr RHG said the material relied on by the Chief Executive failed to accurately portray the events described and this resulted in the negative notice. He said the police officer who questioned him at the time of the charges was a learner and very probing. He said he was probably out of line in regard to their policy and procedures. He did refer to himself as an infrequent user but it would have been better to say he had not used hard drugs for nine years. The QMERIT report was written in a hurry and if he had known the extent of the repercussions of inaccuracy he would have taken steps to correct it. The original documentation from the court about his criminal proceedings wrongly identified he had been convicted of the offences when in fact no conviction was recorded.
Mr RHG says he started to change the way he thought and his behaviours in 2005 and that encouraged him to enrol to study youth work. He has come a long way in the last two years and his counselling with Mr S, the QMERIT programme and his study has helped this transition. He is very aware of the issues in his past but he doesn’t suffer from stress anymore. He said anxiety controlled him but he now employs different methods and he is hugely in control of his life. He is better able to recognise the triggers that led to his substance abuse. He no longer plays team sports to avoid a flare up of his pain. He no longer takes pain medication.
Mr RHG said he is aware he is on probation and that is a motivating factor to not reoffend but he was committed to changing his behaviours before the court outcome. He has a lot of people he can refer to if stress arises and says he doesn’t hesitate to talk about his personal life. He will continue to see Mr S, as he has been pivotal in his progress. He is more aware of reassessing what he is doing if he is becoming stressed and managing the balance in his life.
Mr RHG spoke about the influence of his family background. He said his family have been heavily involved in social justice and that is where he will be going.
He said he moved back in to live with his partner four months ago and things are really good. They will always be together. She was prepared to come to the hearing.
Witnesses
Mr S has been Mr RHG’s psychologist since 23 August 2013. He said the initial consultation was about stress on his relationship, matters involving court and financial pressures. Subsequent sessions also dealt with substance abuse. He had a total of 10 sessions but he is intelligent and learnt quickly. He said his anger arose from unresolved grief for his father and he is a pro-social not an anti-social person. He assisted him with the development of his insight through self exploration. He believes Mr RHG had already made the decision to eliminate cannabis from his life and their work involved management and prevention of a relapse. He said his strategies to deal with future challenges involved meditation, relaxation and the use of martial arts. He believes he has moved way beyond self-medication. He has good insight, there is a calmness around him and he is mature enough to work with young people. Mr S said the court has to take as a possibility people do move through stages in life rapidly, Mr RHG has woken up and learnt a lot from his mistakes and people do make radical changes. Mr S said he will maintain contact with Mr RHG.
Mr C has known Mr RHG for 5-6 years. They studied Youth Work Certificate 4 together. He observed him work with children when they were doing an 8 week placement together and he has seen him with his own children. He said Mr RHG is a very courageous and intelligent man with unique insight. He has made mistakes and now wants to repair and repay. He said there is a pandemic with ice and it is important to have men who have had lived experience to assist youth.
Chief Executive’s submissions
The Chief Executive provided written and oral submissions. It was submitted serious concerns still remain. Mr RHG’s involvement with the QMERIT programme was positive. Attending counselling and being prepared to continue that relationship is also protective.
However it is submitted the risk factors outweigh the positives. In 2013 Mr RHG was apprehended with a large quantity of cannabis and charged with offences including the production of a Schedule 2 drug. The production process appears to involve a level of sophistication including bypassing the electricity supply. The search located an uncapped syringe in a sunglasses case.
Mr RHG committed a further offence a few months later while on bail. He told the police officers he was not an occupier of the residence however items located at the residence led officers to conclude he was in fact in residence. At this time police officers located 2 large clip-seal bags that contained 456 grams of cannabis.
In 2000 Mr RHG was charged with an offence of ‘common assault on person other than family member’ where it appears he was acting in an antisocial manner before assaulting the complainant in an unprovoked attack.
Although stating he had not used amphetamines for 9 years in April 2013 when speaking with police he referred to himself as an ‘infrequent amphetamine user’. It is submitted this disclosure does not appear to be one a former user of amphetamines would make, especially if he had ceased using amphetamines 9 years earlier.
He is currently subject to a lengthy period of probation, which indicates the seriousness of the 2013 charges. It is unclear whether Mr RHG’s commitment to a drug free lifestyle is as a result of court supervision orders or whether he is genuinely committed to abstaining from illicit drug use in the future.
There is no evidence to suggest Mr RHG recognised the need for professional help at the time of his first arrest in 2013.
The tribunal cannot be satisfied Mr RHG has demonstrated an ability to promote and protect the best interests of children who may be in his care, given his significant involvement in drug related activities over an extended period of time.
The broader issues regarding transferability and the unconditional nature of the blue card must be considered. Any hardship suffered by Mr RHG is irrelevant to the assessment of risk
It is simply too early to be satisfied Mr RHG does not pose an unacceptable risk to children.
Decision and reasoning
Mr RHG has many protective factors. These include his determination to abstain from the use of drugs in the future, his involvement with tertiary education and his ongoing professional relationship with MS. He completed the QMERIT programme in 2014 and a Rite of Passage programme in 2005. He practices martial arts and meditation and has developed a level of calmness as a result. He says he no longer has stress and he manages his life to ensure he can meet his commitments. He is passionate about helping young people and, against a family background of service to others, he believes he has now found his future direction.
However risk factors do remain. In 2002-2003 Mr RHG relied heavily on opiates and prescription drugs for anxiety when caring for his father. He was a heavy user of cannabis in 2013 when he faced relationship issues and the possible loss of his job. He has used drugs to self medicate when faced with stress and pain and there is a risk he will do so again. He was aware he needed professional help before April 2013 but delayed seeking that help until after the charges in April 2013. He has used drugs for an extended period as an adult so his use cannot be attributed to youth and experimentation. He made comments such as ‘This happens in society, people use to fill a void’ to normalise his behaviour. He did have a support network of people in Adelaide in 2013 who knew he was experiencing difficulties but he chose to isolate himself rather than contact them.
There are a number of matters that remain uncertain.
a)    Mr RHG says he has not used hard drugs for 9 years but does not adequately explain why a used and unsecured syringe would remain in his possession when he moved to Queensland about 7 years ago.
b)    He says he moved out of the family home with his partner to protect the children from conflict in 2013 but he moved back in with her four months ago and things are now really really good. He says they were ‘always together.’ Yet in her statement dated 19 June 2014 Ms A states ‘Our relationship has now run its course. ‘She was not available to give evidence about the change in circumstance.
c)    Mr S, an experienced health professional, is extremely positive about Mr RHG’s future yet he has not had an opportunity to witness him when he is not under court supervision, which Mr RHG acknowledges is a motivating factor to not reoffend.
d)    Mr RHG has recently returned to living with his partner and three children, a situation which caused stress in the past, but in his evidence he says he doesn’t suffer from stress anymore.
I have not given any weight to the charges prior to 2013 on the basis they are aged and are not reliable indicators of future conduct.
In 2014 Mr RHG pleaded guilty to grave criminal charges involving the production of a Schedule 2 drug and the possession of plants. A few months after the first charges he was again charged with possession of a large quantity of cannabis. He admits he was a heavy user of cannabis. I have considered the fact that no conviction was recorded but have to weigh against that the penalty imposed which was a lengthy period of probation and 200 hours of community service. This suggests the sentencing judge, while not wanting to impede Mr RHG’s career ambitions, formed the view a prolonged period of supervision would reduce the risk of reoffending and assist rehabilitation.
Mr RHG recently returned to a relationship with his partner and three children including 3 year old twins. It is to be expected this will present challenges. When faced with relationship difficulties previously he resorted to excessive cannabis use.
I have considered the evidence of Mr S that people can turn their lives around quickly. However when considering risk to children I am not satisfied sufficient time has passed to be confident the risk of a relapse has been minimised.
Mr RHG is still under probation, a fact he acknowledges is at the back of his mind and influencing his behaviour. The probation period extends to 8 September 2017.
While commending the many challenging steps Mr RHG has taken to turn his life around I have formed the view that this is an exceptional case where it is not in the best interests of children for Mr RHG to be issued a positive notice and blue card at this time.
I order the decision of the Chief Executive of 19 November 2014 to issue a negative notice to Mr RHG is confirmed.
Non-publication order
I have formed the view a non-publication order is appropriate in this matter. Non-publication orders can only be made in specific situations. In this case the publication of information could impact on the mental health of the applicant’s children in the future. This order includes material held on the Tribunal file and the names of the applicant and family members.