Trung Minh Pham v Chief Executive, Public Safety Business Agency
[2014] QCAT 480
•22 September 2014
| CITATION: | Trung Minh Pham v Chief Executive, Public Safety Business Agency [2014] QCAT 480 |
| PARTIES: | Trung Minh Pham (Applicant) |
| v | |
| Chief Executive, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML028-14 |
| MATTER TYPE: | Children’s matters |
| HEARING DATE: | 25 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Clifford |
| DELIVERED ON: | 22 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Chief Executive’s decision to issue a negative notice to Mr Pham is confirmed. |
| CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD REVIEW – where negative notice issued – where serious offence – where exceptional circumstances not established Queensland Civil and Administrative Tribunal Act 2009 ss 17 – 24 Chief Executive for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Pham, self-represented |
| RESPONDENT: | Chief Executive (formerly Commissioner for Children and Young People and Child Guardian) represented by Louisa Keown, Legal Officer (in-house) |
REASONS FOR DECISION
Trung Minh Pham, known as Tony Pham, is a 38 year-old man of Vietnamese background who has an undisputed serious conviction[1] for the trafficking of a dangerous drug (heroin), amongst other convictions.
[1]Working with Children (Risk Management and Screening) Act 2000 (Working with Children Act) Schedule 2.
On 25 August 1998 the Supreme Court of Queensland, sentenced Mr Pham, to 8 years imprisonment. It recommended Mr Pham be considered for parole after 18 months. Mr Pham was 22 years old at that time.
In August 2013 Mr Pham applied for a Blue Card so that he could broaden his role in the voluntary work he is undertaking at his church through an internship and study programme.
On 10 January 2014, the Chief Executive (the then Commissioner for Children and Young People and Child Guardian)[2], issued Mr Pham with a ‘negative notice’.
[2]The Commissioner for Children and Young People and Child Guardian Act 2000 was repealed and replaced by the Working with Children (Risk Management and Screening Act) 2000 on 1 July 2014.
On 12 February 2014 Mr Pham sought a review of the decision, by the Chief Executive to issue a negative notice, with the Tribunal.
The Chief Executive filed a Statement of Reasons with attachments, to the Tribunal as directed, and Mr Pham filed a response in June 2014.
The purpose of a review is for the Tribunal, by way of a fresh hearing on the merits of the case, to produce the correct and preferable decision. In doing so, the Tribunal may either confirm the decision of the Chief Executive, or set it aside, and substitute it with its own decision or return it to the decision-maker with appropriate directions.[3]
[3]Queensland Civil and Administrative Tribunal Act 2009 ss 17 – 24.
On review the Tribunal must consider the objectives and framework of the enabling law, in this case the Working with Children Act. Under this law the welfare and best interests of a child are paramount.[4]
[4]Working with Children Act s 155.
The Working with Children Act also states that if an applicant for a Blue Card has a conviction for a serious offence, a negative notice must be issued unless the decision-maker 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 the conviction.[5]
[5]Ibid ss 225 (1) and (2).
Is Mr Pham’s case an exceptional case?
The Working with Children Act does not define what an exceptional case is, rather it provides matters to be considered when assessing a case.[6] The Queensland Court of Appeal however, in the matter of Maher & Anor[7], provided guidance and applied earlier cases that found that it would be unwise to lay down any general rule with regard to what is an exceptional case, and that an exceptional case must be decided on a case by case basis having regard to the matters for consideration outlined in the law, and making findings that takes the case outside the normal rule and thus makes it an exceptional case.
[6]Ibid s 226(2).
[7]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
Relevant section 226(2) considerations
a) nature of the offence
It is undisputed Mr Pham was convicted of the serious offence of trafficking a dangerous drug (heroin) in 1998 at age 22 years. He was convicted following an undercover police operation. He was sentenced for 8 years imprisonment. Mr Pham stated he was released on work release after 20 months and progressed onto full parole in 2001.
Following a relationship breakup Mr Pham was re-incarcerated in early 2004 for breaching parole conditions (positive urine test for drugs) until October 2006, when he was released without condition.
Mr Pham also has a number of other offences stemming mostly from his earlier years, and more recently (2010 – 11) speeding offences,[8] which are neither serious offences nor disqualifying offences for the purpose of the Working with Children Act, but which can be considered in this review.
[8]Queensland Police History.
e) anything else relevant to the assessment
Mr Pham stated that he was born in Vietnam but brought up in Brisbane. Mr Pham stated that he had a troubled childhood from about age 8 years, following sexual abuse by a relative that made him ‘angry, resentful and broke my trust of figures of authority’ and that put his mindset on a different direction. Mr Pham states he didn’t report the abuse because of shame and losing face. Mr Pham states he was living in two cultures, one Vietnamese, the other Australian.
Mr Pham advises he later found acceptance with people on the wrong side of the law. He states he was drawn to other troubled kids as friends as he didn’t feel threatened by them. Mr Pham states by his early teens he was involved with alcohol and cigarettes, and by the time he was 16 – 17 years he was using heroin. Mr Pham states he finished high school with a Junior (Year 10) Certificate.
Mr Pham states by the time he was 18 years old he was fully addicted to heroin and was involved with crime helping others moving and selling drugs. Mr Pham however states he worked in a computer warehouse for a number of years, assisting with sales and repairs. He described himself as a ‘functional addict’ but states that he needed drugs every day.
Mr Pham states at the time he was so self-centred that he didn’t think about the damage he was doing to himself or the community. He states that he was blasé about reality as he always had somewhere to live, mostly renting with friends.
In relation to the serious offence conviction Mr Pham advises he always felt that you ‘do the crime, do the time’. He states he does not feel unduly dealt with, and that he has his father to thank for getting him to ‘own it’ in pleading guilty to the offence.
In prison, Mr Pham states he did the courses required for the sake of doing them. He states he gained no insight into his offending behaviour. Mr Pham states it wasn’t until his release on bail in 2001 that was introduced to Christianity.
Mr Pham states for a while he was living well in the community and had formed a relationship with a girl with whom he was honest with. Mr Pham, states however, that her parents were not as forgiving of his past and that the relationship failed. Mr Pham states having ‘lost hope of living a normal life’ he started using heroin again. Mr Pham states this was short-lived as he tested positive for drugs on screening, and after about 2½ years of living in the community he was re-incarcerated in early 2004 until his unconditional release in 2006.
Mr Pham states on release he moved back with his parents and found work with his brother as a metal fabricator. He states he tried to ‘stay clean, keep a job and hope of marriage’, but states that he felt unforgiving pressure from his parents and didn’t know how to act in typical social situations. He states later around 2009 –10 he started running into old associates and started to dabble in drugs again, marijuana and alcohol, which overtook his work and he became unemployed.
Mr Pham states he tried self-rehabilitation and moving from Brisbane to Townsville, but it was unsuccessful.
In March 2011 a friend from church introduced him to the ‘Transformations’ programme. Mr Pham states he thought rehabilitation programmes were only for rich people.
Mr Pham describes the programme as the most intense thing he has ever done. Mr Pham states the programme is a minimum 12 month live-in programme that holds resident accountable for the consequences of negative behaviour. Mr Pham states the programme included psychological counselling, dealing with conflict and behavioural reflection. Leave was required to visit family. Residents were subject to random and periodic urine drug testing. Mr Pham states he took 2 years to complete the programme.
Mr Pham states that he moved out of the residence in early 2014, after working there voluntarily for some months, and he now shares a house with others from his church.
Mr Pham states he is now undertaking a Diploma in Christian Ministries through the Hope Academy, but that without a Blue Card it limits the people he can talk to. Mr Pham states he wants to use his interest in art as a Ministry as he has a passion for reaching out to sub-cultures, such as graffitists, and he believes he can help by turning negatives into positives.
Dr Gavin Brown, Psychologist, in testimony and reports[9] states that he provided psychological treatment for Mr Pham between September 2012 and June 2013, and on a sporadic basis between October – December 2013, as part of his treatment in the Transformations rehabilitation facility.
[9]Reports of Dr Gavin Brown, 7 February and 30 May 2014.
Dr Brown states he and Mr Pham attend the same church.
Dr Brown states Mr Pham has been open and receptive throughout his treatment and has never sought to hide or minimise his criminal history. Dr Brown confirms Mr Pham disclosed in treatment allegations of sexual abuse by a relative in his childhood, and that he expressed the shame attached to that abuse. Dr Brown states Mr Pham found it hard to fit in with the traditional Vietnamese way of life, and so became disconnected from his family and influenced by his peer group.
Dr Brown opines Mr Pham does not represent a risk to young people, he states Mr Pham’s prospects of continuing drug-free have developed well, in that he is no longer involved in a peer network involved with criminal acts, and that family relationships have improved. Moreover, he is involved in the faith community, which is protective, aware of his past and who know him for whom he is, which provides great motivation for him not to lose his current community and not return to the past.
Dr Brown states that Mr Pham does not need ongoing therapy as he has insight into when he needs to re-engage. Dr Brown rates Mr Pham as having greater success than others in the programme because he has more insight and continues to strengthen relationships.
Dr Brown states Mr Pham has a desire to help young people through his art, and that his observations of Mr Pham’s interaction with children at church have raised no concerns.
Dr Brown states the next step for Mr Pham is developing broader relationships beyond the Transformations programme and his current internship.
Dr Brown states it would be impossible that Mr Pham’s referees[10], who all supported Mr Pham in the initial application for a Blue card, not to be aware of Mr Pham’s offences.
[10]References from Steve Power, Fran Nguyen and Marshall Ney did not disclose knowledge of Mr Pham’s criminal record. Given this the Chief Executive stated, in the reasons for decision, that only limited weight was given to these references as it was unknown whether they would continue to support the applicant had they been aware of his offending.
Conclusion
Whilst the Tribunal found Mr Pham very open about his involvement with drugs and honest about his relapses and temptations, which was in keeping with Dr Brown’s testimony, the Tribunal was not persuaded Mr Pham’s case is an exceptional case that should overturn the normal rule, that a negative notice be issued in the presence of a serious offence, because it would not harm the interest of children to issue a positive notice, despite the conviction.
Mr Pham has had a difficult life journey. He has struggled with the expectations of competing cultures, experienced abuse, been driven by a heroin addiction and founded relationships with others who were involved in criminal acts. Mr Pham was convicted of trafficking heroin as a young man through an undercover police operation, and convicted for 8 years imprisonment. He was given the opportunity of early parole, but after 2 and a half years he was unsuccessful in maintaining a drug free lifestyle following the breakdown of a relationship. He was re-incarcerated and on release from prison in 2006 he struggled, up until 2011, to live a life free from drugs and engagement with others involved in criminal activity.
Mr Pham is now 38 years old and he has just emerged from a 2-year intensive, 24 hour-supported and protective rehabilitation programme in a faith-based environment. Although Mr Pham’s life is moving into more positive territory, for which he is to be commended and encouraged to continue, it is a very short period of time since he has been drug free and not involved with criminal activity.
Illegal drug use and trafficking is destructive to individuals and the community. Mr Pham knows only too well how it can put a young person on the wrong path for any years. Mr Pham now recognises this damage and is remorseful.
The Tribunal however is not persuaded that a positive blue card should be issued to him based on the fact he has sought rehabilitation and now has insight to this damaging behaviour. These attributes and insight are the societal expectation of someone released from prison after serious addiction and drug offences.
Mr Pham seeks to work voluntarily in the supportive environment of a faith-based community, however, a Blue Card is not issued for specific areas of work, nor does it place conditions on a person. A positive notice/Blue Card would allow Mr Pham to work with children across all areas and businesses regulated by the Act whether he is working in a strongly supportive environment or not.
Whilst Mr Pham has come a long way from his days of addiction to heroin and his involvement with drug trafficking, and he has support from those involved in the Transformations programme, at this stage, particularly given the difficulties and relapses Mr Pham has faced along his journey to only relatively recently, the Tribunal is not satisfied that Mr Pham’s case is an exceptional case, in that the ordinary rule of issuing a negative notice for a person with a serious offence should be overturned.
The decision of the Chief Executive is confirmed. The Tribunal orders accordingly.
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