Sharpley v Director General, Department of Justice & Attorney General

[2023] QCAT 80

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Sharpley v Director General, Department of Justice & Attorney General [2023] QCAT 80

PARTIES:

TREVOR AARON SHARPLEY

(applicant)

V

DIRECTOR GENERAL

DEPARTMENT OF JUSTICE & ATTORNEY GENERAL

(respondent)

APPLICATION NO/S:

CML307-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

6 March 2023

HEARING DATE:

16 December 2022

HEARD AT:

Toowoomba

DECISION OF:

Member Wood

ORDERS:

1. The decision of the Director-General, Department of Justice & Attorney-General that the Applicant’s case is not exceptional within the meaning of section 225 of the Working with Children (Risk Management and Screening) Act 2000 Qld is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – Application for Removal of Negative Notice – Applicant has a criminal history including a “serious offence” – Applicant issued with a Negative Notice and on application to cancel a Negative Notice refused by the Respondent – whether an exceptional case exists

Working With Children (Risk Management & Screen Act) 2009 (Qld), s 5, s 6, s 221, s 226, s 360
Human Rights Act 2019 (Qld), s 13

TAA [2006] QCST11

Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
GP v Commissioner for Children and Young People [2013] QCAT 324

Grindrod v Chief Executive Officer Department of Community Development [2008] WASAT 289

APPEARANCES & REPRESENTATION:

Applicant:

Mr Ben O’Neil, Solicitor

Respondent:

Director-General, Department of Justice and Attorney-General, represented by Ms Johnson, Solicitor

REASONS FOR DECISION

Introduction

1. The Applicant is a highly respected member of his local Rugby League community in a regional Queensland town where he was born. He has played Rugby League at an A-Grade and regional representative level. He was aged 42 at the time of the hearing and was married with two children aged 15 and 11. He commenced a relationship with his now wife in 2000, marrying in 2012. He is still actively involved in the Rugby League community and wishes to assist and pass on his rugby league knowledge and skills to junior players by mentoring them and by being actively participating in his own son’s rugby league endeavours by training and managing teams in which they are involved.

2. The Applicant is in full time employment and throughout his adult life has been engaged in the construction industry initially as an apprentice carpenter then variously in the crane and rigging industry working in the high-risk crane industry now with his most recent employment lasting now 10 years.

3. The Applicant’s desire to be involved in his son’s rugby league endeavours is unable to be achieved because he received a Negative Notice on 14 May 2009 as a result of a conviction for a serious offence. He made application to remove the Negative Notice on 18 February 2019. The Respondent advised the Applicant by letter dated 30 June 2020 that his application to cancel the Negative Notice was refused for reasons set out in the reasons document provided.

4. The Applicant was convicted in the Toowoomba District Court of a charge of burglary (the serious offence) with an indictment as follows:

   “That on or about the second day of December 2001 at Toowoomba in the State of Queensland [REDACTED] and Trevor Aaron Sharpley entered the dwelling of [REDACTED] with intent to commit an indictable offence in the dwelling and TREVOR AARON SHARPLEY entered the dwelling by means of a break; and

   [REDACTED] and TREVOR AARON SHARPLEY entered the said dwelling with intent in the night; and

   [REDACTED] and TREVOR AARON SHARPLEY used actual violence; and

   [REDACTED] and TREVOR AARON SHARPLEY were in the company of another person; and

   [REDACTED] and TREVOR AARON SHARPLEY damaged property.”

   And a further charge as follows:

   “That on or about the second day of December 2001 at Toowoomba in the State of Queensland [REDACTED] and TREVOR AARON SHARPLEY unlawfully assaulted [REDACTED] and did him bodily harm; and

   [REDACTED] and TREVOR AARON SHARPLEY were armed with an offensive instrument, namely a chair; and

   [REDACTED] and TREVOR AARON SHARPLEY were in the company of another person.”

5. The burglary offence is a serious offence as that defence is defined in the Working with Children (Risk Management and Screening) Act 2009 (Qld).[1]

   [1]Schedule 2.

6. The charges were dealt with by way of a plea of guilty in the District Court on 10 October 2002. It is apparent from the transcript of the sentencing hearing that the complaint in the matter had known both accused through his involvement with playing rugby league and became involved in a fight with the Applicant’s brother which occurred in the absence of the Applicant.

7. The Applicant gave evidence at the hearing that he believed that his brother had told him when, he saw him that evening, that he had been assaulted and he noticed his brother was bleeding. He cannot recall who suggested going to the complainant’s residence but did so because he was “young and immature at the time”.

8. The prosecution facts, as taken from the sentencing transcript, were that the complainant, approximately five minutes after arriving home that evening, heard smashing glass coming from the back door where they saw the Applicant and another person in the kitchen area. The complainant saw the Applicant’s girlfriend and another girl standing near the front door of the house. One complainant went into the kitchen after hearing the smashing glass where he saw the Applicant. The Applicant immediately struck him across the face and, as a result of that blow, was knocked to the ground. Upon trying to get up, the Applicant hit him to the back and the back of the head with a dining room chair and the complainant recalls being struck with that chair about five times. He lost consciousness and had no further recollection, with his next recollection of coming around and seeing a pool of blood where he was lying. The complainant assaulted by this Applicant suffered a swollen nose, which was possibly fractured, bruising to the anterior and posterior thorax, laceration to his nose and pain in his shoulders and some bruising.

9. At the time of the sentencing, his Counsel expressed his remorse at “acting stupidly” and submitted that the back door was kicked in by the Applicant to lend assistance to his brother and that when he went into the back door, the complainant was armed with a chair when he himself armed himself with a chair and “got the upper hand”.  At the time of the sentencing, he was 22 years of age and was living in a de facto relationship with his now wife.

10. The Applicant was sentenced to imprisonment for 18 months for each of the charges, with the terms to be concurrent, to be suspended after a period of 4 months for an operational period of two years.

11. The Applicant has other entries on his criminal history including the following:

    (a)Toowoomba Magistrates Court offence date 23/12/2000 behave in an indecent manner and PPRA obstruct a police officer – bail forfeited $50. These charges relate to an incident which occurred at 1:20 am on a Saturday morning where the defendant was urinating in the doorway of a shop.

    (b)Toowoomba Magistrates Court offence date 10/03/2018 assault or obstruct a police officer licensed premises x2 (The 2018 offences) – these relate to an incident which occurred at the Irish Club in Newtown when he became aggressive when being asked for identification on licensed premises. In the sentencing remarks which were before the Tribunal made on 27 June 2018 the Magistrate commented:

    “…you clearly obstructed and continue to do so and then you assaulted a police officer by pushing him. I accept the submission made on your behalf, primarily this is a timely plea of guilty because it is a plea on the first occasion after some charges were discontinued.

    You are a mature man; you do support a family of four and I accept that you work full time and work 40-50 hours. I do accept that you could be appropriately punished by way of a fine. I fine you $600; I give you three months to pay that fine. Given your lack of – sorry, conviction will be recorded given you already have a conviction recorded on your history. So, before I leave that, what do you say about the conviction being recorded? It was 2002.”

12. The court did not record a conviction.

13. In addition to those convictions, the Applicant has been charged with other offences which show on his Police check results as follows:

    (a)Toowoomba District Court 10 October 2002 – enter or in dwelling with intent at night using actual violence whilst in company, damage property and break and assaults occasioning bodily harm whilst armed in company and grievous bodily harm. On all these charges, Nolle Prosequi entered the Defendant discharged.

    (b)Toowoomba Magistrates Court 19 April 2018 – to commit public nuisance on licensed premises or in the vicinity of licensed premises – no evidence to offer.

    (c)Toowoomba Magistrates Court 27 June 2018 – fail to leave licensed premises – no evidence to offer.

    (d)Toowoomba Magistrates Court alleged to have occurred 10 March 2018 – commit public nuisance licensed premises or in the vicinity of licensed premises.

    (e)Offence date 10 March 2018 – fail to leave licensed premises – no evidence to offer.

14. When giving evidence regarding the serious offence, the Applicant expressed remorse for his action and agreed that his actions were not proportionate to the injuries which had been suffered by his brother. He volunteered that his behaviour was not acceptable and accepted, although reluctantly, that the impact on the complainant would have been beyond the injuries suffered on that occasion. When asked what he would do if those circumstances occurred again, he volunteered that he would now report it to the police and would not take it into his own hands.

15. When questioned regarding the 2018 offences, the Applicant gave evidence that the QP9 was not consistent with his recollection and that alcohol was not significantly involved as he was breathalysed with a reading of .08. He says that he does not now frequent licensed premises and stays “out of town”. By this he meant that he does not go to pubs. The Applicant says that he does not drink a lot but agrees that when he was younger it affected his behaviour and he avoids situations which could cause some problem.

16. The Applicant had received some counselling regarding behaviours for dealing with stress and during that counselling had learnt that he had made mistakes in the past. He did not agree when asked if his offending suggested that he had alcohol or impulse problems. The Applicant gave evidence that he has never had any disciplinary issues at work including the use of alcohol or other substances.

17. A number of witnesses were called in support of the Applicant. Mr Keith Canning was an associate of the Applicant who had known him for 20 years. He had not read the reasons document published by the Respondent and had not seen the Applicant’s criminal history. He believed that the Negative Notice had been issued to the Applicant due to elements of his past. He believed that they related to the Applicant making poor decisions.

18. When asked by the Respondent’s representative, he agreed that if the Applicant had assaulted police, it may be difficult to be a positive role model for children but went on to say that he had seen the Applicant interact with children on many occasions and that they looked up to him and respected him. He included, in that, that he had acted as a role model for his own son. He commented that he felt the Applicant had an even temperament and that he assisted children to make the right choices.

19. Mr Canning did not socialise often with the Applicant but occasionally did. He found him to be good company and that whilst he did consume alcohol, he did not do so to excess. He had never known him to be asked to leave licensed premises. His opinion of the Applicant did not change when he was shown documents relating to the offending alleged in his criminal history.

20. Mr Travis Butler had known the Applicant for 11 years in his role as the Applicant’s employer. He too had not read the reasons document and had no detailed knowledge of the Applicant’s criminal history. When asked why he believed he had received a Negative Notice, he mentioned that he believed that he trouble with the law in his 20s and that he was not aware of any police involvement in the last 5 years.

21. He did socialise with the Applicant occasionally and believed that the Applicant could be a positive role model for the children. He felt that this was the case even if he had police involvement because he was an honest, hardworking person who had a strong personality which was good for children. From his observation of the Applicant’s interactions with children, he was respected by children. When asked about his alcohol habits, he indicated that he had seen the Applicant drink alcohol but not in excess and, so far as he is aware, he had not been asked to leave licensed premises.

22. Mr Geoff Camp had known the Applicant for 26 years through his involvement in Rugby League. The Applicant was friends of Mr Camp’s children and he had known him extensively as a manager of his football team and was aware that he was involved in a responsible employment position as a crane driver. He was aware that the Applicant had been issued with a Negative Notice as a result of a previous conviction, but he had not read the reasons document issued by the Respondent and, when questioned about what he understood about the conviction, he responded that he knew the Applicant had spent time in jail but that he had “turned his life around”.

23. In his engagement with the Applicant, he formed the view that the Applicant was remorseful and in relation to the offending in 2018 and what he knew of that he responded “…something got out of control in a hotel…something like that.” He agreed that the Applicant had told him what had occurred and was again remorseful for stepping out of line. He was strong in his views that the Applicant was a positive role model for children and commented that the younger players looked up to him and that he was a good club member. He had seen the Applicant interact with children through football and they had socialised on occasions and have not seen him drink alcohol to excess. He felt that over his lifetime that the Applicant had “learnt a lot from his earlier mistake”.

24. When asked about how his life had changed after prison, the witness said that the Applicant had got on with his life and had made changes in his personal life, including married and responsible, and he was aware that the Applicant was disappointed with his 2018 offending.

25. The Applicant had attended on a psychologist, Mr Mayer, who provided a report to the Tribunal. Mr Mayer was not available for cross-examination at the hearing and was no longer a practising psychologist. I can take his report into account, however the fact that he was unavailable for cross-examination affects the weight which I ought to give it. It is not clear what material was relied upon by Mr Mayer for the purposes of completing this report. The evidence from the Applicant was that he had three sessions with him. The report generally speaks in positive terms regarding the Applicant.

26. Overall, I formed the impression of the Applicant that he was a quiet, hardworking man who was honest in his responses in questioning and was genuine in his desire to be involved in his son’s rugby league and the rugby league community in general. When giving evidence regarding his criminal history and charges I felt that he minimised the seriousness of his behaviours and demonstrated little insight into the effect of his offending behaviour on others.

    STATUTORY FRAMEWORK

27. The Applicant applied to cancel a Negative Notice to coach Rugby League. The Application to cancel the notice was refused by the Respondent on 30 June 2020.

28. In considering the information it had received the Respondent determined that the Applicant had been convicted of serious offences as that term is defined; therefore, a Negative Notice must issue unless it was satisfied that it was an exceptional case in which it would not be in the best interests of children to be issued with a Positive Notice.[2] The Commissioner was of the view that it was not an exceptional case and issued the Negative Notice.

    [2]Section 225(2) of the Working with Children (Risk Management and Screening) Act 2009 (Qld), (‘WWCRMSA’).

29. The term ‘exceptional case’ is not defined in the legislation. The WWCRMSA sets out criteria which must be considered when determining when there is an exceptional case[3] however the Tribunal must exercise its discretion in each case within the parameters of the legislation.

    [3]Section 226 WWCRMSA.

30. There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists.[4]

    [4]Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28.

31. In the event that the Applicant was to be issued with a Blue Card then that Blue Card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card.

32. The principles for administering the Act are that the welfare and best interest 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.[5]

    [5]Section 6 WWCRMSA.

33. In making my Decision I need to take into account the protective and risk factors.[6]

    [6]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

34. In the decision of GP V Commissioner for Children and Young People[7] the Tribunal made the following observation:

    [13]    Risk factors may vary according to the view of the assessor, but most particularly will vary according to the identified facts. In considering risk in the context, the Tribunal is not concerned with what may be mere possibilities, but rather will require foundation in fact. The Tribunal is looking at whether, in all the circumstances, there is a real and appreciable risk. It does this as part of its consideration of whether an exceptional case exists.

    [14]    The Act is not a statute intended to impose additional punishment on a person who has a criminal history, rather it is intended to put “gates” around employment to protect children from harm.”

    [7]GP v Commissioner for Children and Young People [2013] QCAT 324.

35. In considering the review before me, any hardship or prejudice to be suffered by the Applicant by the determination of the issues before me is irrelevant to this consideration. Likewise, any benefit to children that may result from the Applicant having access to children because of his “knowledge, experience and flair in working with children” is not a relevant factor in deciding whether an exceptional case exists.[8]

    [8]Grindrod v Chief Executive Officer Department of Community Development [2008] WASAT 289.

RISK ASSESSMENT

1. There are a number of protective factors in this case:

   (a)The serious offence committed by the Applicant was both serious by definition in the legislation and serious in its effect on other people. The offence is alleged to have occurred as a result of an impulsive act by the Applicant 21 years ago.

   (b)The Applicant has a limited criminal history overall and a limited number of charges which were not proceeded with, although without explanation.

   (c)The Applicant has sought some counselling and was remorseful for his actions for all of his offending behaviour as accepted by the District Court in its sentencing of him in 2002 and by the Magistrates Court in sentencing him in 2018. He again expressed that remorse in evidence before the Tribunal.

   (d)None of the offending behaviour involved offences against children or were committed in the presence of children.

   (e)The Applicant is involved in long-term, stable employment. There is no evidence before me that there have been any issues at work involving substances or his performance.

   (f)He has a long-term, stable relationship with a commitment to that relationship and to his children’s future.

   (g)There are no mental health, alcohol or substance abuse issues.

   (h)The Applicant appears to be surrounded by supportive friends and family, in particular within the Rugby League community.

1. There are risk factors:

   (a)The offence classified as a serious offence was indeed serious, warranting a term of imprisonment, notwithstanding a lack of criminal convictions prior to it. The offending involved injuries to other persons and property. The offending occurred during the course of his relationship with his current wife and on the facts alleged against the Applicant, his wife was present at the time that the offending occurred.

   (b)The Applicant was subsequently convicted in 2018, as a mature man of 38 years of age, with two children – at that time aged 11 and 7 – with offences relating to his conduct around licensed premises, alleged to have occurred at approximately midnight on Saturday, 10 March 2018 involving the assault of police. This matter was dealt with by way of a plea of guilty.

   (c)Charges, although not convictions, relate to his conduct which the Applicant classifies as being “mucking around with a friend at the front of a pub”.[9]

   [9]Applicant’s life story, page 3.

APPLICANT’S SUBMISSIONS

1. The Applicant’s Submissions are that this is an exceptional case and that the offending behaviour leading to the term of imprisonment would be viewed in the context of the passage of time since it has occurred and the narrow timeframe within which that offending occurred.

2. They submit that having regard to the age of Mr Sharpley at the time of the offences, his candour in acknowledging the severity of the offences as well as other factors surrounding it are factors which weigh in favour of the Applicant. They submit that since the offending behaviour leading to the term of imprisonment, he has continued to be a positive parental role model and has, following these offences, managed his emotions effectively, evidenced by his attendance with his psychologist who has prepared a report for these proceedings and submit that an exceptional case may be found on that point alone.

RESPONDENT’S SUBMISSION

1. The Respondent submits that the serious offending is something which would weigh heavily on the Tribunal and that there have been other offences after the offending leading to the period of imprisonment and other charges which would impact upon the Tribunal’s decision. The Respondent has filed extensive written submissions but submits that the decision required by the Tribunal is whether, having regard to the paramount principle under the Act, the Applicant’s case is an exceptional one, but having regard to the criminal history, including recent offending in 2018, the Tribunal would find that this is not an exceptional case.

CONCLUSION

1. The legislation has determined, by defining serious offences, that a person convicted of a serious offence should not hold a Blue Card except in exceptional circumstances. I have dealt earlier in these Reasons with the legal tests relating to what constitute exceptional circumstances. In my view the law sets the test as a deliberately high test given the legislature’s intention regarding the issue of Blue Cards.

2. The Applicant has committed offences other than the serious offence and has had other charges as outlined in these reasons. Those offences were committed in 2018 and related to conduct at licensed premises late at night involving the assault of members of the Queensland Police Service. The Applicant was further charged in relation to other behaviour near licensed premises. These offences were committed some 17 years after the serious offence and, except for seeing a counsellor for the purposes of preparing a report for the purposes of these proceedings, the Applicant has not engaged in any other rehabilitative programs or counselling since then.

3. It seems that many of the protective factors which I have identified in my reasons above existed prior to the commission of the 2018 offences. At that stage, he had been in a relationship with his wife for 18 years and his two children were then young. He was then employed with his current employer, although for a much shorter period, and he was actively involved and supported by the Rugby League community. Irrespective of those protective factors, this offending occurred. The offending in 2018 was dealt with by way of a plea of guilty.

4. There are many people in the community who:

   (a)Are involved in sporting and community organisations regardless of the level of skill they might demonstrate in any particular sport.

   (b)Lead a law-abiding life free of contact with the criminal justice system such that they do not have any criminal history.

   (c)Are gainfully and continuously employed during their adult life in order to ensure that that their own and their family’s financial future are secure.

   (d)Who can maintain a long-term healthy and stable relationship with their spouse and to remain supportive of these children.

   These are attributes which do not, either on their own or collectively amount to being exceptional circumstances as they are not out of the ordinary.

5. In this case, the factors which were identified by the Applicant in the submissions filed do not amount, in my view, to exceptional circumstances. Offending occurred in 2018 to which the Applicant pleaded guilty. The Applicant was charged with other charges which did not proceed. Having regard to the Tribunal’s obligation to consider the risk to children taking into account all of the circumstances, I consider the Applicant’s circumstances do not amount to an exceptional case.

Human Rights Act section 13 and section 48

1. I have considered the relevant human rights as set out in the Human Rights Act 2019 (“the Act”). As required by Section 48 of the Act I must interpret the statutory provisions to the extent possible, consistent with their purpose in a way that is compatible with human rights. The decisions that I have made today may impact upon some human rights protected by this legislation. In those circumstances, I must consider whether the engagement of those human rights is demonstrably justified. I am satisfied having regard to the objects and intent of the Working with Children legislation, including the welfare of children that the order that I propose to make today is demonstrably justified in accordance with Section 13 of the Act.

Orders

1. In the circumstances, I order the decision of the Director-General, Department of Justice & Attorney-General that the Applicant’s case is not exceptional within the meaning of section 225 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.