Vogt v Commission for Children and Young People and Child Guardian
[2012] QCAT 357
| CITATION: | Vogt v Commission for Children and Young People and Child Guardian [2012] QCAT 357 |
| PARTIES: | Corey Vogt |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML185-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 20 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ron Joachim, Presiding Member Michelle Dooley, Member |
| DELIVERED ON: | 2 May 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Commissioner for Children and Young People and Child Guardian to issue a negative notice to Corey Vogt is confirmed. |
| CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD – REVIEW OF DECISION OF COMMISSION FOR CHILDREN, YOUNG PEOPLE AND CHILD GUARDIAN TO ISSUE A NEGATIVE NOTICE – where applicant has conviction for a serious offence – whether protective factors outweigh risk factors – whether applicant represents a risk of harm to children – whether case is exceptional Child Protection Act1999, s 9 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Corey Vogt represented himself |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Adele Noble |
REASONS FOR DECISION
Background
Mr Corey Vogt 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 29 September 2011.
Mr Vogt seeks a review of this decision and applied to the Tribunal on 17 October 2011. He wishes to establish a surf school and teach children surfing skills as part of this venture and needs a positive notice and blue card to work with children. He has a conviction for drug trafficking.
The application was heard on 20 April 2012 at Southport Court.
The relevant law
The CCYPCG Act gives the Queensland Civil and Administrative Tribunal (the Tribunal) 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 operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the CCYPCG Act. 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.
Mr Vogt was convicted of a serious offence as defined in the CCYPCG Act. As a result section 225 applies. It provides among other things that the commissioner must issue a negative notice to a person in circumstances when a person has a conviction, for a serious offence. However, if the commissioner is satisfied it is an exceptional case in which it would not harm the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a positive notice to the person. It is this that the Tribunal must consider.
Section 226 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if Mr Vogt’s is an exceptional case. These factors include the nature of the offence and charge, when it occurred, its relevance to child related employment and any court imposed penalty.
The CCYPCG Act does not define an exceptional case. However it is now well established that the individual circumstances pertaining to the case must be considered to determine whether the facts of a particular matter constitute an exceptional case.[1]
[1] Kent v Wilson [2000] VSC 98.
The focus of the CCYPCG Act is the protection of children. It is intended to protect children from harm from persons working or volunteering in child related areas. Harm is defined in this Act to have the same meaning 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 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”
and 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
At the hearing Mr Vogt’s mother Cindy Vogt gave oral evidence as did the applicant Corey Vogt, his father, Chris Vogt by phone, Gary Palmer, by phone and Deborah Stahr by phone.
Corey Vogt advised the Tribunal that he had a very good upbringing and that his parents had never touched drugs. He reported that at 15 years of age he started drinking and using drugs unknown to his parents. He was using drugs on week-ends when he started an apprenticeship. He was unable to get a job post apprenticeship and borrowed money from the bank to buy drugs which he could sell. He did this at a time when he owed a considerable amount of money as a result of a real estate deal with his father not going well. He had seen other people selling drugs for money and thought he might be able to do this as well. After a short time and selling on a few occasions he was apparently dobbed in and subsequently went to court. He received a prison sentence wholly suspended and was placed on a parole immediately.
Mr Vogt advised the Tribunal that he wishes to set up a surfing school and to teach children and adults surfing. He has developed a business plan with his father but will shortly be moving to Moranbah to work in the mines. Mr Vogt advised the Tribunal he has broken connections with those people involved in the drug industry and doesn’t see them anymore. He has not been approached for drugs nor has he taken any drugs and has not been to any clubs since his offending behaviour. He needs to report to his parole officer every 3 weeks and he can be called in for random drug tests. He realizes he cannot get into trouble with the law.
He is currently undergoing counselling and since parole he has been involved in 2 sessions. Prior to going to Court, but after being caught for the drug trafficking, he completed 8 sessions with a counsellor. Mr Vogt recognises that he has put himself and his family to shame. He advised he had good family support. He was very upset to have put his family through the grief he did.
Mr Vogt advised the Tribunal when he was using drugs he was in a state where he didn’t really care. He considered the selling of drugs would be an easy way to get out of debt. Since being caught he advised the Tribunal he has cut down on drinking gradually. He has been using medication to reduce his level of anger and he attempts to get away from situations which might cause him stress.
He advised the Tribunal that he did not have a drug addiction and it was easy for him to stop. He said he no longer thinks about drugs and none of his friends take drugs. He put to the Tribunal in strong terms that he will never relapse and he will never put his family through that again.
Mr Vogt considers being caught was the best thing that could have happened to him. He advised that the drugs made him happy and took him out of the real world and whilst he was aware of what was happening he didn’t care what he did and he didn’t care if he got into trouble. He noted that if he was working with children in his surfing school and relapsed this could potentially end with a child drowning.
Cindy Vogt, Mr Vogt’s mother, advised the Tribunal that she has always had a good relationship with Mr Vogt and that he was a good child growing up. She indicated that she thought he got involved with the wrong crowd and for a period of time the lines of communication became broken.
Cindy Vogt advised the Tribunal that she had a history of anxiety and depression and considered that Mr Vogt also suffered from depression and that he dealt with this through alcohol. In her words, he lost his way.
Ms Vogt felt she had failed as a parent because of the drug offending behaviour and she was very happy that Mr Vogt has now started communicating again and has put together a business plan with his father.
Ms Vogt advised that her son would never do anything to hurt children but on questioning conceded that this could have occurred had drugs that he was trafficking fallen into the hands of children. She considers that Mr Vogt will excel at the surfing school and that he will be a great teacher in that he has worked with children with a disability.
She considered that Mr Vogt was paying for and learning from his mistake by having to go to parole regularly and with restrictions placed on him in various aspects of his life because of the parole. Ms Vogt advised that she had seen Mr Vogt affected by alcohol in the past but did not know that he was using drugs. She advised that she would now be more aware of this through Mr Vogt’s behaviour changes and lack of communication. She reiterated Mr Vogt’s evidence that he was disappointed in himself and what he had done to his family. She indicated to the Tribunal that she had no concerns about Mr Vogt relapsing and that he has a lot of support within the family. She noted in relation to this that he now had a job at the mines and there was zero tolerance for drug taking. She clearly indicated to the Tribunal that her understanding was that Mr Vogt had sold drugs for only 2 weeks. Whereas she certainly did not condone it, she advised that he appeared to offend because he was out of work, depressed and needed some money. She also advised the Tribunal that Mr Vogt is no longer associated with his former friends.
Chris Vogt is Mr Vogt’s father. His evidence to the Tribunal mirrored the evidence of Mr Vogt and Ms Vogt except in the following particulars:
a. Children were only 1 aspect of the surf school business.
b. He was with Mr Vogt every step of the process after being charged.
c. He does not condone what Mr Vogt did in supplying drugs.
d. He had no idea about Mr Vogt’s drug issues until a few days after he was caught although he knew he was drinking excessively.
e. He did not know the network of Mr Vogt’s friends who were a problem and is definitely not associated with them now.
f. He and his wife attended 2 counselling sessions.
g. Mr Vogt’s counsellor suggested some strategies which have curbed his behaviours considerably. He noted that as far as he is aware Mr Vogt goes out 1-2 nights a week now, not several nights per week.
h. The family is fully supportive of Mr Vogt and are always talking to him to keep him on track.
i. He is not concerned about Mr Vogt relapsing.
j. Mr Vogt has taken it upon himself to get assistance and to have drug screening.
k. He does not consider Mr Vogt to be a risk to children of Queensland.
It emerged that Chris Vogt, after being told by Mr Vogt about his drug use was still “in the dark” about the full extent of Mr Vogt’s drug use.
Gary Palmer is a surfing coach from whom Mr Vogt has had some mentoring. He advised that children with whom Mr Vogt has worked have liked Mr Vogt and that he is a hard working popular coach. Gary Palmer advised he had never seen Mr Vogt on drugs or alcohol affected. He was aware of a conviction but had limited knowledge of it. He advised that it is possible to run a surfing school for adults only but usually people like being taught as a family group. He noted that there would be a huge danger if a person was drug or alcohol affected and teaching groups of children how to surf.
Deborah Stahr is an employment consultant who has a knowledge of Mr Vogt’s offending. She characterised his offending as a slight mistake and an error of judgment. She advised the Tribunal that Mr Vogt was fully remorseful and had strong family support. She had also never seen him under the influence of drugs. She advised the Tribunal that she has seen Mr Vogt with young children and that he plays well with them and she does not regard him as a risk to children.
She acknowledged that drugs were a problem in the community.
The Commissioner’s submissions
Ms Noble outlined the legislation relevant to this matter noting that the Commissioner had applied the test relevant to section 211. 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.
Following the Commissioner’s determination, she was notified that the applicant was convicted of a serious offence namely drug trafficking.
When a person is convicted of a serious offence section 225 applies. The Commissioner also submitted that the Tribunal must take section 155 into account. This specifies that the paramount consideration in making a decision in respect for screening for regulated employment and regulated business is that a child is entitled to be cared for in a way that protects a child from harm and promotes the child’s wellbeing. This is the paramount consideration.
Ms Noble pointed out to the Tribunal that there was relevance to child related employment as a result of the drug crime. She submitted that a drug problem could directly affect children if a carer is using drugs. She also noted that the provision of drugs to people in the community has an impact on children and in the case of Mr Vogt his actions contributed to the distribution of drugs. Ms Noble submitted that a person who holds a blue card holds a position of trust and put forward the proposition that a person involved with drugs is an inappropriate role model. She further submitted that the applicant has not put in place a preventable strategy. She pointed the Tribunal to the matter of TAA[2] in which the former Childrens Services Tribunal concluded that insight was critical to an offender’s role or risk of offending.
[2] Re TAA [2006] QCST 11.
Ms Noble pointed out that children depend on adults having insight. She noted that whilst Mr Vogt has accepted responsibility and has shown deep remorse it is limited to the immediate affect of him only and not with respect to the impact on the wider community. Ms Noble submitted that Mr Vogt has been involved with drug offending in the past apart from the trafficking and does not acknowledge the risk of relapse. He noted that he does express some insight into how future drug offending would increase the risk of harm to children in his care if he was drug affected.
In relation to Ms Cindy Vogt’s evidence Ms Noble pointed out to the Tribunal that his mother had not been aware of drug problems prior to the offences and had talked to her son post offending. Ms Noble also noted there had been no discussion about the drug supplier or Mr Vogt’s length of drug use. Ms Noble submitted that Ms Vogt did not contemplate that the supply of drugs by her son could cause harm when she stated categorically that Mr Vogt would not do anything to hurt children.
Ms Noble submitted that whilst the applicant says he has let his family and friends down he hasn’t addressed the broader issue about supply of drugs and how this affects children.
She further submitted that the applicant could still run his surf business without involving children.
Ms Noble noted that the applicant had attended 8 counselling sessions after being caught and has now resumed these.
In relation to harm to children she submitted that the applicant disputes that he sold to people under the age of 18 but acknowledged they may have access to the drugs he supplied to others.
Ms Noble noted that the applicant if granted a blue card would be in a position of trust in relation to any children in his surf business. She further noted that the applicant’s offending makes him a poor role model and that insufficient time has elapsed since his offending behaviour to determine whether any relapse might occur. In this connection she noted his offending was related to his inability to cope with life’s stresses in particular debt, relationship breakdown and depression.
Ms Noble expressed concern to the Tribunal that the applicant has not acknowledged the risk of relapse and how relapse would expose children to an unacceptable risk of harm.
The applicant’s submissions
The applicant conceded he had been a poor role model in the past because of his history but not now.
He submitted that the reason he had not put a relapse plan in place was because he was 100% certain he won’t relapse.
He further submitted he had strong family support and seeing Tracey (the counsellor) is a plan in itself.
Mr Vogt reinforced to the Tribunal he got on well with his younger cousins and had a passion to do his surfing business.
He acknowledged that the trafficking of the drugs was the biggest mistake he ever made, that he is trying to move forward and will always remember it as a way of keeping himself on track.
Discussion & 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 Corey Vogt are:
a. He has a very supportive family.
b. He shows great remorse for his actions.
c. He has undertaken counselling of his own volition after being caught.
d. He developed plans for a future business.
e. He is about to undertake fulltime employment in the mines at Moranbah.
f. He has a passion to work running a surf school.
g. His offending behaviour covered a narrow range of time particularly his offending which resulted in the conviction for a serious offence.
h. His acknowledgement that being caught when he was, was the best thing that could have happened to him.
The potential risk factors are:
a. The conviction for drug trafficking.
b. His failure to engage with his parents at times when he was under stress and depressed.
c. His inability to consider the wider impacts on society of his drug trafficking behaviour.
d. His family not having full knowledge of his involvement with drugs.
e. His going to the mines without any counselling support in place.
f. His failure to put a relapse plan in place.
The Tribunal must decide whether Corey Vogt’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 wellbeing and can be caused by abuse or neglect. The Tribunal accepts:
a. That Mr Vogt has been greatly shaken by his recent conviction. The Tribunal accepts his evidence and that of his parents and others that he gets on well with children and has a strong desire to do well in surfing.
b. That he has shown great remorse. Until the potential impact on children of drug trafficking was pointed out to him at the hearing the Tribunal does not believe that Mr Vogt nor his family considered ways in which drug trafficking negatively impacted on the community and in particular its potential impact on children.
The Tribunal has some other concerns. These are:
a. Mr Vogt was less than fully frank with his parents when he disclosed his involvement with drugs to them.
b. Mr Vogt does not consider he needs a plan to prevent relapse.
c. There is no evidence Mr Vogt will have access to counselling when he goes to work in the mines.
d. He will not have family support at the mines.
e. His conviction and sentence was this year, and he has only just commenced probation.
The Tribunal must be satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued. This means the Tribunal must consider whether Mr Vogt’s is an exceptional case. In deciding what is an exceptional case the Tribunal must take into account the factors in section 226 of the Act. The Tribunal notes that in relation to the commission of the offence that Mr Vogt was convicted of a serious offence and that the offence was committed recently. As to the nature of the offence and its 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 trafficking or the supply of drugs to others can have a profound affect on children.
The Tribunal accepts that Mr Vogt may not have sold drugs to children but he does not know on his own evidence where the drugs he sold ended up. It may be that someone to whom he sold drugs has subsequently sold or passed them on to children. It could be that the drugs were subsequently used by an adult caring for children.
The Tribunal notes the evidence given that someone using drugs and conducting a surfing school would be potentially placing students at the serious risk of harm.
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 Vogt’s case the Court imposed a sentence of 2 years and 3 months imprisonment to be wholly suspended immediately. Unfortunately the sentencing Judge’s remarks are not available at this time. The Tribunal is unable to speculate the reasons for Mr Vogt’s sentence. The Tribunal notes, however, that it was fully suspended and under these circumstances it is reasonable to conclude that the Judge applied a level 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 Vogt’s is an exceptional case is anything else relating to the commission of the offence that the Tribunal considers relevant to the assessment of Mr Vogt.
The circumstances surrounding the offence of drug trafficking is certainly relevant to the assessment of Mr Vogt. He was in a desperate financial situation and saw no way of getting out. Unfortunately despite a supportive family, he did not ask them for assistance.
Exceptional case means out of the ordinary. It means that the case is one that does not occur regularly or routinely.[3] 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.[4] For Mr Vogt to obtain a blue card the Tribunal must be satisfied that Mr Vogt’s case is so out of the ordinary that it will not harm the best interests of children for him to have a blue card. What is so different about Mr Vogt’s case? It is arguable that the difference between Mr Vogt’s and other similar matters could be that:
a. His offending behaviour in relation to the supply and trafficking of drugs was across a very short period of time.
b. He has shown great remorse.
c. He has a very supportive family.
d. He received a wholly suspended sentence despite being sentenced for 2 years and 3 months.
[3] R v Kelly [1999] 3 WLR 1100.
[4] Kent v Wilson [2000] VSC 98.
Is this enough to make it exceptional or out of the ordinary as opposed to simply changed circumstances in his life? The Tribunal has concluded that in Mr Vogt’s case, his circumstances have changed. He has a new job, had undertaken some counselling and his family are now aware of his involvement with drugs.
The Tribunal is not satisfied that Corey Vogt’s case is exceptional such that it would not harm the best interests of children for him to have a positive notice.
The Tribunal will confirm the Commissioner’s decision.
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