Sadlier v Commission for Children and Young People and Child Guardian
[2012] QCAT 635
| CITATION: | Sadlier v Commission for Children and Young People and Child Guardian [2012] QCAT 635 |
| PARTIES: | Mitchel Sadlier (Applicant/Appellant) |
| v | |
| Commission for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML066-12 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 21 September 2012 |
| HEARD AT: | Mackay |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 10 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice to Mitchel Sadlier is confirmed. |
| CATCHWORDS: | Suitability for blue card – where applicant has conviction for an offence other than a serious offence – whether protective factors outweigh risk factors – whether applicant represents a risk of harm to children – whether case is exceptional |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mitchel Sadlier represented himself |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Ms Georgina Thomas |
REASONS FOR DECISION
Background
Mr Mitchel Sadlier is the applicant in these proceedings. He was issued with a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) on 17 March 2012.
Mr Sadlier seeks a review of this decision and applied to the Tribunal on 13 April 2012. He is a pharmacy student and wishes to complete his qualifications and pursue a career as a pharmacist. He needs a positive notice and blue card to work with children as part of his current studies and future employment. At the time of the hearing he had one conviction for possessing dangerous drugs and five outstanding charges.
The application was heard on 21 September 2012 at Mackay Court.
The relevant law
The CCYPCG Act provides the Queensland Civil and Administrative Tribunal (the Tribunal) with jurisdiction to conduct a review of the Commission’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.
The offence for which Mr Sadlier was convicted and those with which he was charged are not considered serious offences under the CCYPCG Act. As a result section 221 applies. In essence this means that the Tribunal must issue a positive notice unless it is satisfied that it is an exceptional case in which it would not be in the best interests of children to issue a positive notice to the applicant.
Section 226 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if the applicant’s case is an exceptional case.
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 Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” 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 intended to put boundaries around employment/volunteering to protect children from harm. “Harm” is defined in this Act to have the same meaning as given in section 9 of the Child Protection Act 1999.
The Act in section 6 outlines principles for administering the CCYPCG Act. It is to be administered under the principle that the welfare and best interests of a child are paramount. It is this consideration that the Tribunal must apply.
Section 155 further provides that:
"the paramount consideration in making a decision relating to employment screening 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 Tribunal must also take this into account in determining this application.
The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities.
Evidence
Prior to events that occurred on 31 January 2009, Mr Sadlier looked forward to completing his university studies and embarking on a professional career as a pharmacist. On 31 January 2009 he committed an offence, relating to the possession of dangerous drugs, to which he pleaded guilty on 13 February 2009.
Subsequently on 11 October 2011 he was charged with two offences relating to stealing as a clerk and servant and possessing dangerous drugs and then on 17 October 2011 he was further charged with three offences relating to unlawful possession of restricted drugs and possessing utensils or pipes etc that had been used. The charges were still outstanding at the date of the hearing.
The evidence from the applicant was that he intended to plead guilty to the charges relating to events on 11 October 2011 but that he was still intending to vigorously defend the charges relating to events on 17 October 2011.
The applicant had been issued with a positive notice and a blue card on 29 July 2010. On 14 March 2012 the Commissioner cancelled the positive notice he had held under the CCYPCG Act and issued him with a negative notice.
The applicant’s evidence at the hearing consisted of the following:
·A letter to the Commissioner dated 22 February 2012;
·A letter to the Commissioner dated 21 March 2012;
·A personal history dated 30 May 2012;
·A response to the Commissioner’s Statement of Reasons dated 30 May 2012;
·An updated Medical and Drug history dated 27 July 2012.
In support of his application the applicant also provided two witness statements:
·A statement from Dr Herbert Richard Sadlier dated 30 May 2012;
·A letter from Ms Karen Howlett, Psychologist, dated 6 September 2012.
At the hearing Mr Sadlier gave oral evidence, as did his father, Dr Herbert Sadlier, and Ms Howlett both by telephone.
Mr Sadlier advised the Tribunal that from a young age, his mental health issues had caused him to become lonely and isolated resulting in problems with his self-esteem. At school he had problems with bullying and making friends. He found he couldn’t confide in anyone and to this day he still struggles with these issues. At the time he had no outside perspective because it was all about him.
He agreed that he suffered from anxiety and depression and he felt that this became more serious after he moved out of college at University. There were a series of factors which he attributes to his problems including his excessive use of alcohol, his loss of his job and his license as a result of a drink-driving incident. He admitted that his reading for the drink driving offence at the time was 0.18 and that he had run into an unmarked police car resulting in a 6 month disqualification. This behaviour caused him to lose the friends he had made and further contributed to his isolation and depression.
During his evidence the applicant admitted that he had smoked marijuana early in his college career but he has not used any other illegal substances. He described using Kronic which he claims was a legal substance similar to marijuana. He stated that it was legal at the time of his use but he also acknowledged that it is no longer legal.
In relation to his conviction in February 2009, he stated that he had obtained two ecstasy tablets at a music festival in Brisbane. It was the first time he had intended to take them but he was not able to even achieve that before he was apprehended. He readily admitted that it was his abuse of alcohol that was the cause of a lot of his problems. He admitted to a period when he was regularly drinking a bottle of spirits a night. He claimed that he often went to work hung-over but not intoxicated.
Although he had access to prescription drugs during this period because he was being assisted by his father to manage his migraine headaches and sleep, he used these drugs sparingly. He continued to use alcohol heavily. With respect to his depression he said that his father knew that he was depressed but that he “sugar-coated” it for his father. He did not immediately tell his family about the current charges but did eventually tell his father. He described it as a very hard thing to do.
Mr Sadlier has now been living back at home since early December 2011. He started counselling in August 2012 with Ms Howlett. He estimated that he had attended 4-5 sessions. He described the counselling as being really good to have a non-judgmental ear. With respect to his treatment he felt that he had progressed to an intermediate stage, his diet had improved, he was doing exercise and talking to the psychologist had helped. He intended to continue with the counselling sessions while ever he found it beneficial.
When asked about where he is now Mr Sadlier expressed the view that he had made outstanding progress from planning to kill himself in October 2011 to now being guardedly optimistic about the future. He claims that he has cut out most of his drinking and is not using medication to manage his moods at the moment. He is still developing coping strategies and identifying triggers. While hindsight is frustrating for him, the applicant believes he has come to terms with where he is at.
Dr Herbert Sadlier gave evidence by teleconference. He said that he first became aware of his son’s mental health issues while he was in Townsville. He indicated that he was well aware that Mr Sadlier suffered from migraines but that he became aware of his anxiety and depression slowly over time. He admitted that Mr Sadlier did not provide a lot of detail and that it was a drawn out process.
He advised Mr Sadlier to seek independent help possibly from the University Medical Service. He tried to remain objective and he felt that Mr Sadlier might be reluctant to accept his advice. He recalled that Mr Sadlier had seen a psychologist on one occasion.
Dr Sadlier agreed that he had also assisted his son by providing him with prescriptions for drugs for his migraines and sleeping problems as well as for dealing with the side effects from these medications. He also acknowledged that he had provided sample medications over time to be used and given sparingly. He said that he only became aware of the breadth and extent of Mr Sadlier’s suffering and issues this year. He was shocked and underestimated the degree of issues in that Mr Sadlier had considered self-harm and suicide.
He also said that he didn’t think Mr Sadlier had good coping strategies before he came home. He said that he tried to do it on his own, didn’t confide in his family or anyone else. He was in denial, hiding it and drinking alcohol to excess. Dr Sadlier was surprised at the extent of Mr Sadlier’s anger and concerned by his mood. However he believes that over the last 9-10 months that there has been an enormous improvement.
Dr Sadlier also expressed the view that Mr Sadlier is now interested in what is going on, his head space is a lot better, he is more open and less reactive but his personal circumstances remain terrible. He remains socially isolated, has no friends, is not employed and he needs to turn these things around.
Ms Howlett also gave oral evidence. The Tribunal notes that her report consisted of one short paragraph. She said that Mr Sadlier’s first appointment was on 3 August 2012 and he had been to 3 appointments by the time of the hearing.
Ms Howlett appeared to have some knowledge of why she was giving evidence. She understood that Mr Sadlier was seeking to get his blue card back and that in 2011 he had stolen some Fentanyl patches and he had been charged with that. She said that she had been prepared to do a DAS (Depression Anxiety Stress Test) report but the paperwork she needed was not provided.
Ms Howlett described Mr Sadlier as bright with a mild level of depression, and normal anxiety and stress levels. She would advise him to continue with the counselling but while it is recommended it is not vital.
Applicant’s Submissions
In his submissions, Mr Sadlier contends that the Commissioner failed to properly exercise her discretion when issuing the negative notice. He contended that the Commissioner decided that the alleged offences constitute an exceptional case based solely on her personal and unsubstantiated opinion that they “project the applicant as being a poor role model and risks modelling morally compromised methods of dealing with presenting concerns”. Further that the Commissioner failed to document any objective evidence that his continued contact with children and young people as a pharmacy student, and in the near future a pharmacy intern, poses any risk to them.
Mr Sadlier submits that the Commissioner did not demonstrate in her reasons that there was a real and appreciable risk to children if he had a positive notice. In large part, his submissions focused on the reasoning of the Commissioner and on her alleged failure to properly apply the law.
Those submissions are misguided. A review by QCAT is a merits review. QCAT stands in the shoes of the primary decision maker and makes the correct and preferable decision by way of a fresh hearing on the merits of the evidence presented. Such a review would not focus on any errors made by the primary decision maker but rather on the cogency of the case presented by the applicant to be entitled to hold a positive notice.
There has been little evidence presented by Mr Sadlier since October 2011 to counter the proposition that as a result of his conviction and outstanding charges, his case is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The Tribunal has only a short statement from his psychologist as to the existence of any risks that he might pose to children, there is no outcome from the current charges and no report from an independent psychologist with a forensic analysis of the risks he may pose to children. The Tribunal notes that initially Mr Sadlier was adamant that he would be vigorously defending all charges but he has now decided to plead guilty to 2 charges and is still awaiting the results of negotiations in relation to the other three matters.
However the Tribunal has been able to observe Mr Sadlier during the course of the hearing. He has conducted himself in an appropriate manner in a situation which on any assessment would be quite challenging and stressful. The impression that the Tribunal formed was that Mr Sadlier is a young man who was trying to be frank and honest. He was caught out in relation to some matters but overall he appeared to be coming to terms with the problems he has been experiencing.
The Tribunal formed the view that Mr Sadlier is a very articulate, highly intelligent and talented young man who has had to deal with some very serious issues largely on his own. He is extremely anxious to move forward in his life. In his letter to the Commissioner dated 21 March 2013, he presented the essence of his case in a strong and forthright manner:
“I am very disappointed by your decision, which, when one condenses the 8 page contents of your attachment A, appears to be essentially based on your acceptance of the unchallenged assertions of the police brief, implying a presumption of guilt rather than innocence. Your decision will halt my pharmacy career for a minimum of two years, essentially destroying it before I have even had a chance to commence my internship. I believe your decision is highly damaging to me and is grossly unwarranted and unfair, as the alleged offences are unproven and will be defended in court. They are charges not a conviction.”
The Commissioner’s submissions
Ms Noble outlined the legislation relevant to this matter noting that the Commissioner had applied the test relevant to section 221. This section applies to the issuing of a positive notice in circumstances where a person has been convicted of an offence other than a serious offence. She submits that the Commissioner is entitled to take into account charges as well as convictions in the re-assessment of the Applicant’s eligibility to continue to hold a positive notice and a blue card.
Ms Noble confirms that none of the offences on Mr Sadlier’s criminal history (convictions and charges) are defined as serious offences under the CCYPCG Act.
Ms Noble referred the Tribunal to the decision by the QCAT Appeal Tribunal in the matter of Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 which states that the task of the Tribunal is to decide whether it is satisfied an “exceptional case” exists.
She submits that in this case the test is whether the applicant’s case is exceptional such that it would not be in the interests of children for a positive notice and blue card to be issued.
In accordance with section 226(2) of the CCYPCG Act, she contends that the Tribunal must have regard to the prescribed factors where it is aware that a person has been charged with or convicted of an offence. She argues that the offences were committed while Mr Sadlier was performing child related employment for which he obtained his blue card and therefore the decision maker is entitled to take them into account when deciding whether this is an exceptional case.
Regarding the offence committed in 2009, Ms Noble acknowledges that the Court decided not to record a conviction having regard to the nature of the offence, Mr Sadlier’s age and character and the impact of a conviction on his future prospects. However the impact on the applicant is not a factor in determining whether the applicant’s case is an exceptional case.
Further Ms Noble submits that the effect of issuing a blue card is that a card holder may then work in any child related employment or conduct any child related business.
Discussion and decision
The Tribunal has identified potential risk factors and protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 49.
The potential protective factors for Mitchel Sadlier are:
· He has a supportive family;
· He has recently commenced counselling and has expressed a desire to continue while ever he thinks it is assisting him;
· He has considerable incentive to complete his studies and enter his chosen profession;
· His offending behaviour was not for a serious offence as determined by the legislation;
· He has acknowledged the enormity of what he has done and has expressed a desire to change.
The potential risk factors are:
· He has been convicted of a drug related offence;
· He has outstanding charges for other drug related and dishonesty offences;
· He failed to engage with his parents at times when he was under extreme stress and depressed;
· He does not appear to have considered the wider impact especially on children of his drug related behaviour;
· His family did not have full knowledge of the extent of his anxiety and depression;
· He has not demonstrated any insight into the role of the Commissioner;
· His ongoing denial of the potential for his behaviour and activities to impact adversely on children.
The Tribunal must decide whether Mr Sadlier’s case is an exceptional one in which it would not harm the best interests of children for him to be issued with a positive notice. Harm is any detrimental effect of a significant nature on the child’s physical, psychological or emotional well-being and can be caused by abuse or neglect.
The Tribunal accepts:
·That Mr Sadlier has had a lot of stressors in his life and that there is little he can do to change some things that have happened. Mr Sadlier gave evidence that in his view he is not a poor role model and that in his time working as a pharmacy assistant he had “thousands” of interactions with young people.
·That since he has returned to live with his family things have been getting better, he is healthier, his diet has improved and that he wants to move on with his life which means he needs a blue card.
However the Tribunal also has some serious concerns. These include:
·Mr Sadlier was less than fully frank with his parents when he disclosed the extent of his involvement with drugs to them;
·His own evidence is that he will continue counselling only while he thinks that it is assisting him;
·Mr Sadlier has a capacity to downplay some of his behaviour such as the incident which led to his loss of licence which he described as a “minor car accident”. He was driving at more than 3 times the legal limit and does not appear to acknowledge the potential for disaster in such circumstances;
·While he does have some family support he still remains socially isolated and is not employed;
·There is no independent report or assessment regarding his current mental health condition;
·His original conviction for possession of dangerous drugs occurred in February 2009 and he still has outstanding criminal matters that need to be resolved.
If the Tribunal is satisfied that this is an exceptional case in which it would not be in the best interests of children for the Tribunal to issue a positive notice then it must confirm the Commissioner’s decision. In deciding what is an exceptional case the Tribunal must take into account the factors in section 226 of the Act. The Tribunal accepts that Mr Sadlier was not convicted of a serious offence but he has other outstanding charges. As to the nature of these offences and their relevance to employment or carrying out a business that involves or may involve children, the Tribunal has already noted and accepts the submissions of the Commissioner that drug related behaviour can have a profound effect on children.
The Tribunal accepts that Mr Sadlier may not have used drugs around children but he does not demonstrate any insight as to the potential impact his use of drugs might have on other members of the community particularly children. It may have been, for example, that in the course of his own employment he may have wrongly dispensed drugs to or for a child. On his own evidence he regularly attended work while hung-over during the period he was abusing alcohol.
The next matter that the Tribunal needs to take into account in relation to the offending behaviour is the penalty imposed by the Court and if the Court decided not to impose imprisonment the Court’s reasons for its decision. In Mr Sadlier’s case he was convicted and ordered to enter into a recognizance in the amount of $400 to be of good behaviour for 4 months. No conviction was recorded and he was ordered to complete a drug diversion program. Unfortunately the sentencing Magistrate’s remarks are not available at this time. The Tribunal is unable to speculate on the reasons for the sentence. It appears to the Tribunal that the Magistrate applied a degree of leniency for whatever reason.
Section 226(2)(b), (c) and (d) do not apply.
The last matter that the Tribunal can take into account in deciding whether Mr Sadlier’s is an exceptional case is anything else relating to the commission of the offence that the Tribunal considers relevant. The Tribunal is satisfied that no other matters of relevance have been presented by the applicant that would satisfy this criterion.
“Exceptional case” means out of the ordinary. It means that the case is one that does not occur regularly or routinely. It does not mean a change from an abnormal lifestyle to an ordinary one which could be regarded as a change in circumstances not exceptional circumstances.
For Mr Sadlier to obtain a blue card the Tribunal must be satisfied that his case is so out of the ordinary that it would not be in the best interests of children for him to have a blue card. The Tribunal has formed the view that Mr Sadlier has a way to go yet before it could be satisfied that Mr Sadlier’s circumstances have changed to the extent that it could be said that his situation is not exceptional. Mr Sadlier has made some changes. He has commenced counselling, he has returned to live with his family and he has confided in his family regarding his anxiety and depression.
On this assessment the Tribunal is of the view that the potential risk factors outweigh the potential protective factors. Therefore, the Tribunal is not satisfied that Mitchel Sadlier’s case is one that it would not harm the best interests of children for him to have a positive notice.
The Tribunal confirms the Commissioner’s decision.
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