Shipp v Commission for Children and Young People and Child Guardian - [2014] QCAT 335

CITATION:

Shipp v Commission for Children and Young People and Child Guardian [2014] QCAT 335

PARTIES:	Bertram Shipp (Applicant)
v
Commission for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER:

CML177-13

MATTER TYPE:

Childrens matters

HEARING DATE:

29 April 2014

HEARD AT:

Brisbane

DECISION OF:

Member Dooley

DELIVERED ON:

5 June 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The Commissioner’s decision to issue a negative notice to Bertram Shipp is confirmed.

CATCHWORDS:

CHILDREN’S MATTER – serious criminal history – blue card

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Bertram Shipp

RESPONDENT:

Craig Capper representing the Commissioner for Children and Young People and Child Guardian

REASONS FOR DECISION

On 30 May 2013, the Applicant applied for a Blue Card so that he could continue in his employment in health, counselling and support services with Ganyjuu Family Support Service.
On 24 July 2013 the Commissioner for Children and Young People and Child Guardian refused the application for a Blue Card and issued the Applicant with a negative notice.
On 3 September 2013 the Applicant filed an Application to review this decision with QCAT.
The Applicant asserts in his Application that the Commissioner's decision of 24 July 2013 is wrong or not properly made in that the decision placed undue reliance on his past history of criminal offending dating from 1987 to 2007 and particularly the serious offending during 1990 and placed too much weight on excerpts of examination in chief, cross-examination, Judge’s comments and sentencing transcripts of the convictions in 1990.
The Applicant is a 42 year old man who is in a stable relationship and is the father of a 4 year old daughter. He is currently working as a Court Support officer with Ganyjuu Family Support Service. Clearly these are all positive factors to the Applicant’s benefit.
In his submissions to the Commissioner, the Applicant sets out details of his difficult childhood and the extensive domestic violence and physical abuse which he was subjected to, particularly by his mother.
The Applicant says that by the time he was a teenager ‘I hated everyone. I hated the world and everyone in it, including myself. I felt that the world owed me for the abuse I had suffered’.
The Applicant acknowledges his extensive criminal history from 1987 to 2007.
The Applicant's criminal history includes 1990 convictions for Rape (6 counts), Carnal Knowledge against the Order of Nature and Indecent Assault on a Female - all being serious charges as categorised under the Commission of Children and Young People and Child Guardian Act 2000 (the Act).
The Applicant was also charged with a further serious offence of Attempt to Kill. The Prosecution did not proceed with this charge.
The Applicant’s criminal history also includes offences not categorised as serious offences under the Act, being Assault Occasioning Bodily Harm (4 counts), Unlawful Assault (2 charges), Deprivation of Liberty, Grievous Bodily Harm, Common Assault (2 counts), Aggravated Assault on a female, Resist Police (3 counts) and Assault Police (3 counts).
The Applicant as part of his submissions has provided an impressive number of certificates of achievements dating from 1991 to 2005. The Applicant has also provided a number of written references from family, friends, work colleagues and employers.
These certificates and references provide evidence of the Applicant’s ongoing efforts in self improvement and the high regard in which he is held in the community.
The Applicant says in his statement that ‘my goals are to continue employment in an area where my life experiences are beneficial, continue to be a good father and remain offence free for the rest of my life’.
Psychologist Dr Sirous Momenzadeh has provided a report for the Applicant dated 31 March 2014 and gave evidence at the hearing.
In this report Dr Momenzadeh states ‘I am in the view that he has capacity, skills and knowledge to regulate his anger and he is aware of the factors such as drinking alcohol that may affect his ability in managing anger adversely’. Dr Momenzadeh further states ‘I think he can continue to work as an advocate, educator and support worker and has the skills to contribute to the community’.
A letter of reference was provided by Pamela Fisher, General Manager of Ganyjuu Family Support Services. Ms Fisher also gave evidence at the hearing.
Ms Fisher’s evidence was that the Applicant is an integral part of their organisation.
Ms Fisher stated that ‘with agency events the Applicant has assisted many community members and interacted respectfully and appropriately with all ages. From a cultural point of view the Applicant shines with his contribution to the Aboriginal and Torres Strait Islander community members both young and old’.
In her evidence Ms Fisher confirmed that the Applicant needed a Blue Card to carry out his role with the service.
A letter of reference was provided by Pam Swan, the Applicant’s Aunt, together with evidence at the Tribunal.
Ms Swan spoke highly of the Applicant’s contribution to his family and his community.

The Act

In this matter the Applicant has a conviction for a serious offence. Therefore under the Act the Commissioner cannot issue a positive notice unless the Commissioner is 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 notwithstanding this conviction. This is the issue which the Tribunal must address.
The Act does not define the terms “exceptional case”. Whether a case is exceptional is a matter of discretion to be determined by looking at the circumstances of each individual case and having regard to the legislative intention of the Act.
The standard of proof on which the Tribunal must be satisfied is on the balance of probabilities.
The Tribunal is guided by the decision of Philippides J in Commissioner forChildren and Young People and Child Guardian v Maher & Anor [2004] QCA 492 which requires that the Tribunal balance the risk factors against the protective factors.
The Tribunal in assessing whether a case is exceptional must have regard to the paramount consideration under the Act i.e. the principal that the welfare and best interests of the child are paramount.
The object of the Act is to promote and protect the rights interests and wellbeing of children in Queensland.
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.
Where the Applicant has been convicted of or charged with an offence the Tribunal must give consideration to the factors set out in section 226(2) of the Act.

The Applicant’s History

The Applicant at the age of 18 years committed violent offences against a 19 year old woman.
The Applicant was charged with a series of serious offences including 6 charges of rape for which he was sentenced to 14 years imprisonment.
His Honour Mr Justice de Jersey described the offences in sentencing as ‘particularly bad’. He referred to the Applicant’s ‘persistence in repeatedly raping and sodomising’ the complainant ‘subjecting her to other disgusting acts at various locations over a lengthy period’.
His Honour also referred to the Applicant’s actions in callously punching and kicking the complainant violently before going off and leaving her.
During the criminal hearing evidence was given by the complainant that the Applicant put his hands around the complainant’s throat and attempted to choke her until she lost consciousness. The evidence indicates that the Applicant made multiple threats to kill the complainant during the incident.
It is of great concern that in the Applicant’s own personal statement to the Commissioner in July 2013 of CCYPCG 058 the Applicant refers to the complainant, after these offences had occurred, giving the Applicant a ‘dirty look’ he thought implying that he intended to steal her purse.
This then caused the Applicant offence which resulted in him punching, kicking and attempting to choke the complainant.
Also of great concern regarding these 1990 offences is that whilst on bail the Applicant committed further similar offences involving the Applicant dragging a 17 year old girl (a child) into a garden bed and attempting to assault her in a manner similar to the earlier offences.
The Applicant was of course only 18 years of age at the time of these offences, however Justice de Jersey when sentencing refers to the Applicant’s age and states ‘we reach a point where the gross and extreme nature of the offence demands a long term of imprisonment, notwithstanding the age of the offender’.
At the more mature age of 34 years the Applicant then commits an offence of Grievous Bodily Harm which leads to a complainant loosing his sight in one eye.
This offence occurred after the Applicant deliberately stood on his ex-girlfriend’s foot because as the Applicant stated in evidence ‘I wanted to show her that I was angry’.
It is of great concern that whilst on bail, the Applicant, knowing that there were serious charges pending, commits two further offences of Common Assault.
As a result of this offending the Applicant is sentenced to 4 years imprisonment.
The Applicant in his offending has shown a lack of anger control and the inability to consider the consequences of his actions.
The Applicant has submitted evidence of courses completed during his initial period of incarceration.
When asked during cross examination what the courses taught him the Applicant replied ‘Didn’t teach much at all. Did courses because had to. Took a bit in here and there’.
The Applicant clearly did not benefit from these courses as he then went on to commit further offences.
The Applicant provided evidence of a “Violence Intervention Program” taken by the Applicant while in custody between 2007-2009.
The Applicant believes that was beneficial to him in helping him to identify the triggers for his anger.
In evidence the Applicant set out that image was a trigger for him.
The Applicant did not want anyone to think they could push him around and wanted people to be scared of him.
Another trigger set out by the Applicant is that he did not want to be thought of as stupid.
In Dr Momenzadeh’s report on page 2 the Applicant reported that he still can get angry when he feels disrespected, or when people talk over him and he is actively learning about his warning signs and it seems he has strategies to communicate more effectively with people and to alert them when he is frustrated or stressed.
All human beings feel frustrated when they feel disrespected. Equally all human beings are entitled to be treated in a respectful manner at all times.
This Tribunal is however concerned if the event of some level of disrespect can trigger an inappropriate and extreme reaction by the Applicant.
Dr Momenzadeh concludes his report by stating that ‘I have not found any evidence to suggest he needs immediate psychology sessions however additional psychology session in accepting and expressing emotions more openly freely’.
In Dr Momenzadeh’s evidence he stated that the Applicant was referred to him in January 2014 and that he has had no ongoing counselling during the past years since leaving prison.
Dr Momenzadeh’s agreed that without the Blue Card the Applicant would not have attended upon a psychologist.
Dr Momenzadeh emphasised that he was not a Forensic Psychologist and that his report is only to provide an update of the six psychology sessions.
In evidence Dr Momenzadeh emphasised that the Applicant’s case was not a simple case but was a complex case.
The Applicant has had many areas of trauma in his life.
He has had to deal with his childhood, his strained relationship with his Mother and issues with women, his anger issues and alcohol issues to name some of the general areas.
The common themes going through the Applicant’s offences are anger, alcohol, lack of forethought (none of the offences were pre-mediated). These are all triggers and therefore potential risk factors.
The Applicant has taken giant steps and has applied himself to self improvement. He has not committed any further criminal offences since 2007.
The Applicant is in a stable relationship and has a child.
However although such a transition is unusual and to be admired, a transition from an abnormal life to a normal life does not fulfil the requirement of exceptional.
The question has to be asked, although the Applicant has taken huge steps to improve himself and is actively working for the community, has he actually fully dealt with all of the complex issues in his life.
Dr Momenzadeh was clearly of the view that the Applicant would benefit in attending additional psychology sessions.
This is a difficult matter because the Applicant is a person who wishes to be of great assistance to the community but has made some serious mistakes in the past. He is genuinely striving to improve his lot in life and wants to put his poor history behind him.
Unfortunately it was partly because of a sad and complex history that the Applicant became involved in this level of offending. It is however this Tribunal’s job to ensure that there is sufficient evidence to show that all the obvious triggers and risk factors have been properly addressed. The Tribunal concludes that it does not have sufficient evidence to conclude that all issues have been addressed.
In all the circumstances the Tribunal orders that the Commissioner’s decision be confirmed.