SWA v Commissioner for Children and Young People and Child Guardian
[2013] QCAT 458
| CITATION: | SWA v Commissioner for Children and Young People and Child Guardian [2013] QCAT 458 |
| PARTIES: | SWA (Applicant) |
| V | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML168-12 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 25 March 2013 |
| HEARD AT: | Ipswich |
| DECISION OF: | G Quinlivan, Member E Stone, Member |
| DELIVERED ON: | 7 August 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 is set aside and a positive notice is to be issued forthwith to SWA. 2. The Tribunal prohibits the publication of the applicants name, the names of the witnesses and organisations named in this decision and the identity of the complainant in the criminal proceedings. |
| CATCHWORDS: | Serious offence, exceptional case, insight |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | SWA |
| RESPONDENT: | Ms Georgina Thomas Ms Louisa Keown |
REASONS FOR DECISION
SWA and his partner, BJ want to be kinship carers for their son’s children whose names are K, T, C and E. At the time of the application K was being cared for by her biological mother and the other children were in foster homes. Their son was in jail.
In his application SWA says that he needs to have a blue card because “my partner and myself would like to raise our grandchildren together and so I can be a part of their life, I can’t be part of their life when I cannot live at the house without a children’s blue card.”
The Commissioner for Children and Young People and Child Guardian undertook a criminal history check to determine if SWA was suitable to hold a blue card. The Commissioner found that SWA had been convicted in October 1983 of rape. SWA was sentenced to 5 years imprisonment with hard labour. He served 2.5 years in prison and was released on parole for a further period of time. He did not breach his parole.
The complainant at the time was a 36 year old female and SWA was 24 years of age. SWA’s criminal history shows only one conviction that being for the offence of rape.
The allegations at SWA’s sentencing were graphic and damning. The complainant alleged that she accepted a lift with two men in a panel van when she was walking with her baby at about 1.00am in the morning on 11 March 1982. It was raining and her baby was getting wet. She reluctantly entered the vehicle in the belief they would drive her to the wharf where she wished to meet her husband who was out fishing. The two men drove her to the wharf but whilst parked they commenced to grab at her and then they threatened her that if she didn’t do as asked they would harm her small baby.
The men then agreed to drive her home but instead drove her out onto a secluded beach where she was punched and knocked to the ground. One of the men held her down by pinning her arms back over her head, whilst the other man pulled her shorts and panties down and forced her to engage in sexual intercourse against her will. She claimed that the second man kept putting his hand over her mouth to stop her screaming and on two occasions put sand into her mouth to stop her screaming. She claims that she was then left at the beach, her baby pram was put out of the van and she had to find her own way back home.
The sentencing Judge accepted certain denials by SWA particularly regarding threats concerning the complainant’s child. Further he indicated that on SWA’s version of events he offered very little violence to the complainant although he did take advantage of the violence, which may have been dealt out by the other man concerned.
This offence is categorised as a serious offence in accordance with the Commission for Children and Young People and Child Guardian Act 2000 (The Act). The Act provides that where a person has been convicted of a serious offence then the Commissioner must issue a negative notice unless satisfied it is an exceptional case in which it would not harm the best interests of children to issue a positive notice to the applicant. The Act does not define the term “exceptional”.
The Commissioner decided that giving SWA a blue card would be contrary to the best interests of children and young people. The Commissioner was not satisfied that the applicant had gained appropriate insight into his offending behaviour and had not recognised the possible impact of his offending on the complainant and her family.
Further the Commissioner formed the view that SWA appeared to diminish his responsibility for his offending by inferring that there was a “set up”. The Commissioner was not satisfied that the applicant had demonstrated sufficient appreciation of the seriousness of his offending and as a result the Commissioner issued him with a negative notice on 14 September 2012.
It is understandable that the Commissioner was concerned about giving SWA a blue card. It would give him unfettered access to working with children in Queensland.
What the Tribunal must consider in deciding whether an exceptional case exists?
The Tribunal must consider the matter afresh. It may affirm the original decision, amend the original decision or set that decision aside and substitute its own decision.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 ss 20, 24.
The Tribunal is required to make its determination based on the principle that the paramount consideration is the welfare and best interests of children. The decision is guided by the right of children to be cared for in a way that they are protected from harm and in way that promotes their wellbeing.[2]
[2] Commission for Children and Young People and Child Guardian Act 2000 ss 155, 360.
The issue for the Tribunal is to determine whether SWA’s circumstances are sufficient to be treated as an exceptional case in which it would not harm the best interests of children to issue a positive notice notwithstanding his conviction.
The Tribunal is required to consider the matter upon the same principles as the Commissioner.
The standard of proof upon which the Tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Commissioner for Children and Young People and Child Guardian v Maher & Anor[3] the Queensland Court of Appeal at paragraph 30 adopted the submission that:
The Tribunal was required to be satisfied on the balance of probabilities bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.
[3] [2004] QCA 492.
To determine this issue the Queensland Court of Appeal endorsed the approach of identifying and balancing potential risk factors and potential protective factors when considering whether the circumstances amounted to an exceptional case.
In the recent decision of the Tribunal, GP V Commission for Children and Young People [2013] QCAT 324 the Tribunal observed that “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 this 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.
The Tribunal goes on to state:
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.
Section 226(2) of the Act provides that where the decision maker is aware that a person has been convicted of or charged with an offence the decision maker must have regard to the following factors:
(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;
(b) any information about the person given to the commissioner under section 318 or 319;
(c) any report about the person’s mental health given to the commissioner under section 335;
(d) any information about the person given to the commissioner under section 337 (from the Mental Health Court) or 338 (from the Mental Health Review Tribunal);
(e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.
What SWA had to say.
SWA filed his application with the Tribunal on 11 October 2012. Attached to his application was a statement signed by him where he sought to disagree with the decision by the Commissioner. He says that his partner has been given kinship care of their 4 grandchildren and he would like to be there and support her with them. He says that in his case he has been punished for what he did 30 years ago and now he’s being punished again for the same thing. He points out that when he committed the offence, he still had his own 2 children in his care and when he got released from jail they were returned to his custody.
He claims that he did not remember about a child being involved in the incident 30 years earlier and that he was the only one that paid for the offence. He claims that the other person who was involved may have been the person who threatened the child.
He says that in 2004 – 2005 he was fighting in Court for his 4 grandsons and at the time he told his solicitor that he had been to prison and what it was for. He says that his partner is now raising the grandchildren. He says that they have been together for 26 years and that the children’s case worker at the Department of Family Services said that she finds him honest, kind and she doesn’t have a problem with him. She has seen him interact with the children at the visitations before they were put into his partner’s kinship care.
SWA then disputes some of the information contained in the police statement. He refers to the wording of the statement where it says “they offered her a lift home after it happened”. He raises the question that if it was that bad and he claims that he is not saying it wasn’t, why did he still get full custody of his 2 children and did not lose them like he is being punished now after all those years.
He admits “I am not proud of what I done and I would not do it again. I have paid for it and my children also know about what I done and they are not proud of it. They say you paid for what you done so why can’t they just drop it, it happened over 30 years ago.”
In a letter to the Commissioner received by the Tribunal on 15 February 2013 SWA says “I likes(sic) to know why you are holding it on me though it happened 30 or more years ago I also paid my time and it taught me a lot and I have never thought of doing anythink(sic) like it again. Also I raised my 2 children first before I came into a relationship with my partner that I am still with and we have 3 children and 7 grandchildren and I have been with her for 27 years this year. So I was wondering what is so bad that you can hold it on me for so long. Myself I think I should be able to be there for their support while my partner are raising our grandchildren.”
SWA also expresses similar sentiments in a document, which appears to be a summary of his early life in Townsville and Ipswich.
The evidence of the psychologist.
On 28 November 2012 and 16 January 2013 SWA attended a psychologist, Dr DC, to obtain an up to date psychological report pursuant to directions made by the Tribunal on 20 November 2012.
In her report DC provides details of the information provided by SWA regarding the offence. Initially SWA told DC that “he had handed himself in”, however he later reported that he was “dropping off some mowers at the Church” the next day when he was pulled up by the Police. He then accompanied the Police to the Police station. He was charged and placed on bail and reported working as a garbage collector until the Court hearing. While he was in jail his parents cared for his children.
He described his thoughts about leaving the victim and her child at the time – he said, “he felt like an asshole”. He reported that he said to his cousin “let’s turn around” but his cousin allegedly said “keep going”.
SWA said that on the night of the offence he had gone out with his cousin who had a history of getting into a lot of trouble. They had gone to a nightclub where SWA had 4-5 beers and that after the offence had been committed they returned to the nightclub. SWA could not offer an explanation as to why he drove his car in the opposite direction to where the victim requested to go. He said that at the time he was thinking to himself “what am I doing?”
In relation to the allegations, which had been made, he denied that anyone had “held (the victim) down”. He said there were things in the statement that were not true and denied that the child was present during the rape saying “why would you have a child out in the rain?” SWA felt that the sentence he received was harsh and said that his cousin “got off scot free” and that he himself had taken the wrap for the offence.
In his oral evidence before the Tribunal SWA once again described the events surrounding the incident and said that all the things got turned around in the criminal proceeding. He admitted to have been night clubbing at the time, that he was drunk but still driving the car and that his cousin encouraged him to go and try things as he knew her.
SWA claims that the victim was not distressed at the time but that his cousin took her around the side of the van and he heard her scream, he went around and saw her on the ground, he does not know if his cousin had sex with her but expects he probably would have because he was a violent sort of man. He could see that the victim was in distress but he did not intervene. He denies having had sex with her and still sees himself as having “taken the wrap”. He claims it was never his intention to have sex with her and he still feels bad for it now.
When asked about the effect that the incident may have had on the victim he said that it would have affected her badly and that she would have had to live with it. He felt that it probably would have affected her mentally, he did not know what injuries she had sustained or where the child was at the time although he thinks the child may have been in the back of the panel van. He acknowledged that rape is a serious offence, standing by and doing nothing was inappropriate and that the Commissioner has a right to be concerned because “it was a bad thing.” He acknowledged that he should have been punished and that he was punished in the sense that if you “do the crime – do the time”.
When asked whether it could happen again SWA said “no” he has too much going for him now with his missus and his grandkids. He tries not to think about the harm that was occasioned to the victim but if he does he calls himself “stupid” but other than that nothing.
Support for SWA
At the hearing a number of people came forward to support SWA including his partner BJ. All of these people were questioned by the Commissioner’s representative.
References were provided by the following persons:
(a)Ms MS dated 26 July 2012
(b)Ms NA dated 31 July 2012
(c)Ms BJ dated 28 July 2012
(d)Ms CT dated 27 July 2012
(e)Mr MS dated 27 July 2012
(f)Ms KN dated 30 July 2012
All of these persons gave oral evidence. There was also a further reference from Ms MR dated 24 July 2012.
The Commissioner argues that the extent of the referees knowledge of the offence is unclear and that in each instance they seek to minimise the applicant’s involvement and fail to acknowledge the seriousness of the offence. Some of the references seem to accept that SWA was involved as a driver only and that he was set up for the offence. In their oral evidence before the Tribunal a number of the referees were prepared to state that they believe SWA was set up and wrongly accused.
In particular one referee disclosed that she was the victim of an attempted rape as a child and in her view SWA has proven himself – “if he was gunna do it again, he has never done it.” She was glowing in her assessment of SWA.
What does the Commissioner say?
In this case the Tribunal is dealing with a conviction for “rape” under section 347 of the Queensland Criminal Code Act 1999. It is a serious offence but not a disqualifying offence. The offence was committed in March 1982. The Commissioner submits that although the offence occurred more than 30 years ago, the passage of time is not of itself a determinative factor as to whether an exceptional case exists.
It is important where the applicant has been convicted of the offence of rape that the circumstances of the offence be examined closely. She says that the offence occurred at 1.00am at which time the complainant who appears to have been unknown to the applicant and his co accused was walking alone in the rain with her small baby. This placed her in a position of significant vulnerability, which the applicant and his co accused, took advantage of by offering her a lift. They used physical violence to overcome the victim. It appears from the transcript that SWA co-accused applied a good deal of violence to the victim which he then took advantage of by raping her. She suffered cuts to the mouth and bruising as a result of the offence.
The Commissioner submits that in addition to the physical injuries suffered by her she is likely to have suffered significant emotional distress as a result of the conduct of SWA and his co accused. SWA denies that he threatened the victim’s baby but in any event the small baby was present throughout the offence, which was likely to have further distressed the complainant and increased her sense of vulnerability and powerlessness after being raped. SWA and his co accused put her and her baby and pram out of the car and left her to find her own way home, which was several kilometres away.
The Commissioner contends that although the offending was not against a child it is relevant to child regulated employment because:
1.It is violent and sexual in nature.
2.It demonstrates a most concerning failure by SWA to observe fundamental boundaries about appropriate sexual interaction.
3.The fact that the victim’s small baby was present did not deter SWA and his co accused.
The whole event demonstrates a serious failure by SWA to protect the child from harm and protect the child’s wellbeing. It is also possible the child has suffered harm through exposure to this violent offence and the great distress suffered by the complainant although there is no details or evidence to support this submission.
The Commissioner contends that it is significant that SWA was sentenced to 5 years imprisonment with hard labour. She says that the imposition of a lengthy prison sentence reflects the seriousness with which the Court regarded the offence.
The Commissioner argues that SWA has not explained how he feels about the offence or how he reflects on his conduct. To the contrary he expresses surprise that his offending is still being held against him given the passage of time since it occurred and that he has “payed his time”. The Commissioner acknowledges that SWA does say that his time in jail “taught me a lot and I have never thought of doing anythink(sic) like it again.” But he does not say what he has learned or expand upon his thinking about what occurred.
Of most concern to the Commissioner is the fact that SWA expresses no remorse for his conduct and demonstrates a complete lack of insight into the causes of his offending and its impact on the victim.
The Commissioner highlights that the possible consequences of a sexual assault for a complainant are well documented. These may include adverse emotional consequences such as fear, humiliation, shame, feelings of degradation and powerlessness. The attack may also result in psychological disorders such as depression, psychotic behaviour, psychosomatic disorders, suicidal behaviours and “acting out” behaviour associated with alcohol or drug abuse or inappropriate or maladapted sexual behaviours.
The Commissioner submits that SWA has not demonstrated any insight as to the possible adverse impact his offending may have caused the complainant or her child.
The Commissioner referred at length to the report of DC. The most significant issue being the conclusion by DC that SWA had not demonstrated adequate insight into the offence. DC says that “SWA’s developmental, educational and employment history supports a view that he is of compromised cognitive functioning. As such he has limited capacity to problem solve and think consequentially and flexibly. Whilst observed minimisations rationalisations and justifications are in all likelihood done unwittingly in the hope of creating a good impression in the current assessment, SWA has not demonstrated adequate insight regarding the offence.”
To that extent DC indicates that she is inclined to agree with the findings of the Commissioner that she was not convinced the applicant had gained appropriate insight into his offending or recognised the possible impact on the complainant and her family.
DC identifies a number of factors, which place SWA at risk. These include:
§A history of antisocial behaviour including early education years.
§Low cognitive functioning with poor problem solving capacity.
§Educational deficiencies and physical disability that impair his ability to secure or retain employment.
§Limited recreational activities with community involvement.
§Ongoing family engagement in the correctional system.
In terms of protective factors DC identifies the following which could reduce the risk:
§Strong marital and family relationships.
§Pro social interactions as evidenced by referee reports
§Financial security
§No gambling problem
§No alcohol or substance abuse
§No recent history of behavioural or emotional problems.
The Tribunal’s decision
The legislation emphasises that the approach of the Tribunal to determining whether an exceptional case exists is discretionary rather than prescriptive.
The Tribunal is not rehearing the criminal trial and accepts without question the finding of the Criminal Court. The allegations, findings and outcome of that proceeding provide the background against which the Tribunal can evaluate the risks and protective factors.
In evaluating the risk factors the Tribunal has considered the matters identified by DC but is not convinced these factors provide sufficient guidance for the Tribunal in reaching its conclusion.
It is clear from the evidence that SWA had a troubled childhood and education. He is now a 55 year old grandfather with 5 children and at least 12 grandchildren.
DC has identified that SWA has low cognitive functioning with poor problem solving capacity. He also has educational deficiencies and physical disability that impairs his ability to continue working.
DC says that SWA has a history of anti-social behaviour, including early education years. SWA informed DC that he attended multiple primary schools and was eventually expelled from primary school following multiple suspensions for bullying and aggression. He claims to have had learning difficulties and eventually exited the educational system before finishing year 8. As a young person he had no criminal convictions and at the time of his offence he claimed that he had never been sacked from a job.
Since 1982 there is no evidence that SWA has had any engagement with the criminal justice system or the child protection system. He is not a sophisticated man and he has considerable difficulty articulating his views and opinions as was readily demonstrated when he was giving evidence to the Tribunal.
His limited recreational activities and community involvement appear to have centred on his family. He informed DC that he has not drunk alcohol for the past 18-19 years. He was previously a “happy drunk and did not get into any fights”. He has no record of driving under the influence of alcohol. He says that he ceased drinking alcohol to save money because he would previously spend considerable sums at the nearby pub and possibly gambling. He claims that he has never smoked and has not used illicit drugs.
DC also regards a risk factor as being his ongoing family engagement with the correctional systems. The only evidence available to the Tribunal is that his son was in jail at the time of the hearing. There is no other evidence of SWA being involved with the criminal justice system.
Turning to the protective factors identified by DC, which could reduce the risk, SWA has strong marital and family relationships. He is extremely well supported by his partner of 26 years. There can be no doubt that she is aware of his circumstances having met him in jail where she used to visit him. BJ presented as a very strong woman who calls things as she see’s them. She acknowledged that the conviction was for a serious matter and she left the Tribunal in no doubt that in her view “no” means “no”.
She believes that SWA has paid for his actions and while it might worry her that he might do it again as far as she is concerned he is a good grandfather and loves all his kids and in 27 years he has never forced himself on her. She says that his children know about what has happened and continue to support him.
SWA has good social interactions with a wide range of people, some of whom were able to give evidence to the Tribunal. A number of these persons impressed the Tribunal as similar no nonsense women who would not stand by and allow anything to happen to their own children and in the same context were willing to say that their children think highly of SWA and that they trust him enough to leave their children in his care.
As outlined above SWA and his partner have a level of financial security and there is no evidence of any ongoing gambling problem, alcohol or substance abuse.
The Commissioner rightly points out that the fact that more than 30 years has passed since he committed the offence of rape, is of itself not a determining factor however it is a matter which the Tribunal may take into account and is indicative of the determination with which SWA has maintained a clean slate since that time. In his own words “I also payed(sic) my time and it taught me a lot and I have never thought of doing anythink(sic) like it again.”
Risk and Protective Factors
The Tribunal accepts that there is a degree of minimisation regarding SWA’s conviction and its likely impact upon children. This may relate to SWA’s maturity and “compromised functioning” at the time. SWA says in a note attached to his application “I am not proud of what happened and also I do not talk about it a lot as I don’t remember all about what happened as it has been too long. If you want to know would I think of doing it again or to be set up again the answer is “no” I would not. I am quite happy with what I have achived(sic) since I’ve been out and I also gained work until I injured my back. If anyone thinks of doing the wrong things when they are released they did not learn by their mistake like I did. I was so glad the day I was release to be home with my daughter and son.”
DC expresses the view that she is inclined to agree with the findings of the Commissioner that she was “not convinced the applicant has gained appropriate insight into his offending or recognised the possible impact on the complainant and her family.” The Tribunal acknowledges SWA’s limitations as identified by DC.
However the Tribunal considers that communicating insight requires the language skills to articulate this clearly. DC acknowledges that SWA has compromised cognitive functioning. While SWA had difficulty explaining his current position, the Tribunal was satisfied that he understood his role in the events that lead to him being convicted of the rape.
Irrespective of this, the Tribunal is satisfied that SWA has shown by his current lifestyle he has made serious decisions about his previous behaviour and that these changes demonstrate non verbally the insight he cannot find the words to articulate. The Tribunal is satisfied that he has shown remorse. He has clearly been deterred from further criminal activity as a result of his incarceration and this has been an incentive to maintain a crime free lifestyle. He has no further criminal record, since his conviction in 1982. He has raised a family with his long-term partner and desires to continue to play an active role in his grandchildren’s lives.
Moreover, the Tribunal finds that a real and appreciable risk to children does not exist. The evidence confirms his strong and stable relationship with is partner, and healthy relationships with his family and friends.
Based on these factors, the Tribunal has undertaken the process of balancing the risk and protective factors, as outlined in the Maher case. The Tribunal in this instance considers that the protective factors outweigh the risk factors. Applying the principle of the paramount interests of children, the weight of the evidence suggests that this is not a case where it is not in the best interests of children for a Blue card to issue
The Tribunal is conscious that a Blue card is transferable but is satisfied that if SWA were to hold a Blue card to work with children that there is not a real and appreciable risk to children in spite of the extremely serious nature of the offence for which he was convicted. The Tribunal is satisfied on the balance of probabilities that this is an exceptional case in which it would not harm the best interests of children for a positive notice to issue.
Non publication order
On its own initiative the Tribunal is able to make a non-publication order under section 66 of the QCAT Act. The Commissioner also sought a non-publication order prohibiting publication of any information that would enable the grandchildren of the applicant to be identified.
The Tribunal is satisfied that the names of the witnesses and the organisations named in this decision should be deidentified.
The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of blue card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur albeit deidentified.
Orders:
The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice is set aside and a positive notice is to be issued forthwith to SWA.
The Tribunal prohibits the publication of the applicants name, the names of the witnesses and organisations named in this decision and the identity of the complainant in the criminal proceedings.
0
2
0