BPM v Director-General, Department of Justice and Attorney-General [2022] QCAT 286

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BPM v Director-General, Department of Justice and Attorney-General [2022] QCAT 286 PARTIES: BPM (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML131-21 MATTER TYPE: Childrens matters DELIVERED ON: 13 July 2022 HEARING DATE: 25 May 2022 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDER: The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the tribunal’s decision that there is no exceptional case. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – where person committed offences other than serious offences – where negative notice issued – whether exceptional case Human Rights Act 2019 (Qld), s 13, s 26(2) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221(2), s 226, s 360 APPEARANCES & REPRESENTATION: Applicant: E K Higgins, solicitor of Robertson O’Gorman Solicitors Respondent: C A Davis, in-house advocate REASONS FOR DECISION [1] The applicant in this proceeding is a 40 year-old man who I will refer to as BPM. A confidentiality order made by the tribunal on 23 December 2021 prohibits -- 1 of 10 -- 2 identification of the applicant, any family member of the applicant, any child, or ‘any innocent third party to the proceedings’. [2] I will refer to the respondent, for the sake of simplicity, as Blue Card Services. In Queensland, a blue card enables a person to work with children. [3] BPM held a blue card for some 17 years from 2004. However, on 26 March 2021, Blue Card Services decided to issue a negative notice to BPM. That meant he could no longer hold a blue card. This decision came after BPM committed the offences of unlawful stalking and trespass in late 2019 to early 2020. BPM had also committed an earlier offence of unlawful stalking in 2010. The victim in all three offences was a woman who lived next door to BPM’s parents. I will refer to her as the victim. [4] BPM has sought a review in the tribunal of the decision made by Blue Card Services. An oral hearing was held on 25 May 2022, and the legal representatives then filed written submissions in accordance with directions made on 25 May 2022. Ms Davis for Blue Card Services also filed an initial set of submissions on 25 May 2022. [5] The governing legislation is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). The issue to be decided is whether BPM’s is ‘an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person’.1 Background and findings [6] The following matters are uncontested, and accepted by me, except where otherwise indicated. BPM’s offending [7] The victim is a woman approximately 27 years older than BPM. They know each other because she lived next door when BPM was growing up. When he got a car, she allowed him to use a spare garage at her place. [8] BPM moved out of home at the age of 19, well before the first offence occurred, but his parents and the victim continued living next door to each other. His father still lives next door to the victim. BPM’s mother also lived there until she died in 2018. [9] The first stalking charge covered the dates 2 February to 13 March 2010. At that time, BPM was 28. The victim was 55. [10] The police court brief indicates that the victim told police that BPM had stalked her for many years. She had observed him peering into her house, attempting to take photographs of her, and generally making her feel very uncomfortable. She had told him many years ago to desist. He told her she was a very attractive woman. The unwanted attention ceased for some time. Then, between 2 February and 13 March 2010, she received hang-up calls just as she would turn out her lights to go to sleep. This caused her fear, as she was worried that someone was watching her. Investigations revealed that the calls had been made from BPM’s number. In her statement to police, the victim said the calls had occurred two or three nights per week. 1 Working with Children Act, s 221(2). -- 2 of 10 -- 3 [11] Further, according to the police court brief, at approximately 9.30 pm on 1 March 2010, the victim heard a knock on her front door. There was nobody there when she opened it, but a small bag was hanging on the door. It contained a black dress, lacy underwear, a vibrator and an anonymous letter. A slightly redacted version of the letter is in evidence before the tribunal. It consists of two typewritten pages. It was from ‘Your secret admire A’.2 It spoke of how beautiful the neighbour was; how the writer wished he had expressed his feelings earlier so they could spend their lives together, and so on; before setting out detailed sexual fantasies. The writer said he would ring the doorbell again 15 minutes after he first rang it. However, it is not suggested that he did so. [12] The police court brief said the letter included information about the victim’s partner and son. I assume that must be in the sentence, partly redacted in the version before the tribunal, which says ‘I have watched as you have had to deal with ongoing battles with [redacted] and sometimes with [redacted]’…3. The police court brief says the victim was sickened and disgusted by the letter and the items in the package. She was fearful for the safety of herself and her son. In her statement, the victim commented that her son was 16. [13] Further, according to the police court brief, police interviewed BPM. He admitted to having made the calls and having left the package. He acknowledged having an infatuation for the victim. In relation to the calls, he said he sometimes watched the victim’s house from the park across the road. He said he made the calls to provoke or get back at the victim who had refused his advances. He admitted that the package would have caused the victim to feel uncomfortable and uneasy. He was very remorseful, and said he had stopped the behaviour. The police court brief noted that BPM was a religious minister, and that he had been very cooperative in the investigation. [14] BPM pleaded guilty to the charge. No conviction was recorded. BPM was placed on probation for 12 months and a restraining order was made. The sentencing remarks are not before the tribunal. Nor are the terms of the restraining order, but the victim later noted that the restraining order had prohibited BPM from contacting her for a year. [15] Queensland Corrective Services records indicate that BPM completed his probation satisfactorily. [16] In a statement prepared for the tribunal proceeding, BPM describes his 2010 offending as ‘immature, unwarranted and harmful’.4 He says he is extremely remorseful. He says he does not accept the suggestion that he committed the offence to provoke or get back at the victim. However, I am satisfied that he must have said something to that effect to police in 2010, for that assertion to have found its way into the police court brief. BPM says the earlier conduct referred to in the police court brief happened long before his 2010 offending. [17] In October 2010, when his eligibility for a blue card was being reviewed in light of the first stalking offence, BPM provided a submission to Blue Card Services. He 2 Exhibit 8, 22. 3 Ibid, 21. 4 Exhibit 3, 1. -- 3 of 10 -- 4 expressed remorse for causing hurt to the victim. He said he was confident he would never reoffend. [18] The victim says that BPM apologised to her in about 2015 or 2016. He said he hoped they could be friends, and added that he still thought she was an attractive woman. This made her ‘blood curdle’.5 BPM says he made the comment about her attractiveness by way of explanation for his past conduct. If that is so, it was quite insensitive in my view. In light of BPM’s later offending, I can only surmise he was also still testing the waters. [19] BPM reoffended against the same victim in 2019/2020. The stalking charge related to the period 22 November 2019 to 27 January 2020. The trespass charge related to 27 January 2020. The respective ages of BPM and the victim were 38 and 65. [20] The police court brief notes that on 22 November 2019 the victim received an email. A slightly redacted copy of the email is before the tribunal. The email did not identify the sender, but the account name seems to involve some attempt at identification. It consists of the initial of BPM’s first name followed by ‘Uknow’.6 The subject line was ‘My feelings’.7 The email was to the effect that the sender still had strong feelings for the victim. He proposed at least a night or two of passion together, and floated the possibility of a threesome (apparently with the victim’s partner as the additional participant). He also said, in effect, that he would not bother the victim again if she told him she was not interested. [21] The police court brief says the victim suspected the sender was BPM. She did not reply. She did not report the email to police at the time. [22] Further, on the night of 27 January 2020, two people were in a car outside the victim’s house, playing Pokemon Go. They saw a man walking around the house and peering in windows. Initially they assumed the man had been locked out of his own house. They became suspicious, however, when he continued the conduct for about an hour, occasionally jumping up to peer into the house. The man did not see the observers. He walked past their car, taking off black gloves as he went. He then jogged off across the park and got into a car. The observers followed in their vehicle, noted the registration number, and reported the matter to police. Police went to the victim’s home. She said she had not been aware of a trespasser, but suspected that it must have been BPM. She showed police the email. [23] When police questioned BPM, he admitted having sent the email. He also said he had screenshot photographs from the victim’s social media saved on his phone. He said that on the night of 27 January 2020 he had been at his father’s house, looking through his father’s windows, but not the victim’s. He said he had had strong romantic feelings for the victim for a number of years. Police located a pair of black gloves in BPM’s car. [24] BPM pleaded guilty to the two charges including the trespass involving entry into the victim’s yard as observed by the Pokemon Go players. Convictions were recorded. BPM was fined $2,000. The court made a restraining order, prohibiting direct or indirect contact with the victim for five years. A transcript of the magistrate’s sentencing remarks is before the tribunal. The magistrate noted that BPM had denied 5 Exhibit 8, 37. 6 Ibid, 34 7 Ibid. -- 4 of 10 -- 5 to police attending the victim’s address. The magistrate also discussed psychological evidence indicating that BPM may well have displayed symptoms of depression at the time of his offending. The psychological evidence was largely inconclusive as to any motivating force for the offending or any deficiencies that might account for it. The magistrate took into account submissions that BPM was a married father of four; he had been experiencing marital difficulties; his mother had died; he was a senior pastor and a school board member; and he had been involved in counselling people involved in a murder-suicide. The magistrate acknowledged that recording a conviction would have a significant effect on BPM’s career, but considered that a conviction should be recorded so that the real background of BPM would be readily known to ‘his and the institution’s operations’.8 (I assume this was a reference to the church). [25] BPM says in his statement in the tribunal proceeding that he is extremely remorseful. He also points to the stressors which I will discuss under a later heading. In relation to the trespass, BPM says he had gone to check on his father and then, impulsively, went next door. He says he wore gloves so that he would not leave evidence of his presence. He says that, on reflection, checking on his father was just an excuse to go near the victim’s home. BPM’s circumstances [26] BPM says he had a generally good upbringing, though he experienced bullying and anxiety. He remains close to his father and brothers. After leaving school he studied and worked in various jobs before being ordained as a religious minister. He worked as a senior pastor between 2006 and 2021. He also served as chairperson of the board of the school run by the church. He resigned from these roles when he lost his blue card, as a blue card was required. [27] BPM says he has always played sport and been active in church-based community projects. He has been married since 2007. He and his wife have four children. His offending caused problems in the marriage but counselling and open discussion have led to improvement. He also has a few close friends he can confide in. [28] BPM says that when he was on probation, it was suggested he have counselling. He attended five sessions with a counsellor, which she advised was sufficient. [29] BPM says that he experienced stressors in the years leading up to his 2019/2020 offending which, in effect, predisposed him to engaging in escapist behaviour. In 2017 he and his wife provided intensive support to a woman in the congregation whose ex- partner killed himself and their two children. The family was well-known to BPM. He was called on to identify two of the bodies, to spare the woman from this task. He conducted the funeral. In 2018 he provided intensive counselling for a family traumatised by a home invasion which also involved rape. Later in 2018 BPM’s mother, with whom he had been close and who he looked to for guidance, died after a long battle with cancer. In late 2019 / early 2020, BPM and his wife provided a lot of support to a family in which the husband was domestically violent. This support continued despite backlash at times from both the husband and wife. There were times when BPM and his wife took in some of the couple’s children to care for them. BPM says a cumulative effect of these experiences was compassion fatigue and vicarious trauma, and he did not receive meaningful support from colleagues. 8 Exhibit 7, 56. -- 5 of 10 -- 6 [30] BPM says he has attended numerous sessions with clinical and forensic psychologist Owen Pershouse since being charged with the later offences. This therapy has armed him with tools, he believes, and gives him confidence he will not reoffend. [31] In oral evidence, BPM appeared intelligent and open. He was not evasive. He appeared to have reasonable insight into the harm he had caused to the victim. [32] BPM’s wife and another woman – who had been an employee and congregant of BPM, and who had been counselled by him – gave written and oral evidence on his behalf. They are both aware of BPM’s offending, though BPM’s wife has not seen the email BPM sent to the victim. [33] BPM’s wife says that he is temperate rather than impulsive, and she has seen him deal calmly with innumerable emotionally-charged situations in church and family life. She says he is ashamed about his offending, and remorseful. His conduct with their own four children, and numerous other children in sporting clubs, church, schools and social life, has been exemplary. He assisted many women and children as a pastor, including in situations of domestic abuse. [34] The congregant’s evidence is to similar effect. She regards the offending as out of character. She has seen BPM being patient and compassionate with many children. He poses no risk to children, in her view. In oral evidence, she described BPM as having become a more open person in recent years. [35] These witnesses are obviously not independent of BPM, but they are well-placed to comment on his interactions with children. Under cross-examination, they appeared to be honest and thoughtful witnesses, not inclined to blindly defend BPM. I accept them as reliable witnesses of truth. Accordingly, I accept their evidence. [36] The psychologist Mr Pershouse provided a detailed report dated 2 March 2022. He also gave oral evidence. He confirmed that BPM has attended numerous therapy sessions. Mr Pershouse described several psychometric tests carried out. His report also has a focus on whether there are indications of risk of BPM targeting children as sexual objects of interest. This is frankly a little surprising, as there has been no suggestion of paedophilic tendencies in BPM. I assume it must be a standard practice for Mr Pershouse in preparing such reports for legal proceedings. Mr Pershouse concluded that BPM poses a low risk of offending generally, and also specifically against children. Another conclusion was that BPM is unlikely to place his own needs before those of children under his care. Therapy and testing raised no concerns about emotional regulation and impulse control. [37] Mr Pershouse comments that BPM ‘impressed as being a particularly focused and essentially open individual’.9 Mr Pershouse considers that BPM has dysthymia, described as a ‘a long-term depressive condition … which in lay terms relates to sadness about self, or incomplete identity formation’.10 This warrants ‘ongoing support, monitoring and as-needed intermittent intervention to consolidate therapeutic gains’ in BPM as an individual who ‘responds positively to therapeutic engagement and personal challenge’.11 9 Exhibit 4, [20]. 10 Ibid, [84]. 11 Ibid, [85-86]. -- 6 of 10 -- 7 [38] In oral evidence, Mr Pershouse described BPM’s offending as related to him not looking after his mental health, but added that dysthymia itself does not give rise to behavioural risk. Mr Pershouse also commented that losing the role of pastor has been very stressful for BPM, but he has navigated it without relapsing or turning to a secret life. Mr Pershouse outlined potential risk factors, such as if BPM were not to continue looking after himself, and protective factors such as better self-understanding and growth in the marital relationship. [39] Mr Pershouse was very impressive under cross-examination. He demonstrated both command of his field and understanding of BPM. I place considerable weight on Mr Pershouse’s opinions. Legislative framework [40] It is undisputed that the offences committed by BPM were not ‘serious offences’ as defined in the Working with Children Act. In such a case, the chief executive must issue a negative notice if satisfied the person’s case is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued. [41] Section 226 then sets out factors to be considered by the chief executive (and the tribunal on review), relevantly: (2) The chief executive must have regard to the following— (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 …, the court’s reasons for its decision; … (f) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. [42] It is important to keep in mind the object of the Working with Children Act and the principles to be applied in administering the Act and in reviewing decisions. [43] The object of the Act is ‘to promote and protect the rights, interests and wellbeing of children and young people in Queensland …’,12 including through employment 12 Working with Children Act, s 5. -- 7 of 10 -- 8 screening. The Act is to be administered under the principles that the ‘welfare and best interests 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’.13 A review by the tribunal is to be ‘under the principle that the welfare and best interests of a child are paramount’.14 [44] Blue Card Services submits that provisions in the Human Rights Act 2019 (Qld) are relevant. Blue Card Services submits that BPM’s rights to privacy and reputation, right to take part in public life, right to further vocational education and training, and cultural rights may be affected, but that any limitation of those rights necessary to protect children would be demonstrably justified under section 13 of that Act. I accept that confirming the decision in this case could serve to limit one or two of the rights mentioned, and I also consider that doing so would be demonstrably justified if there is indeed an exceptional case. As Blue Card Services points out, children themselves have a right to protection afforded by section 26(2) of the same Act. Submissions [45] The parties have made detailed written submissions. I will endeavour to summarise key factors briefly below. Submissions on behalf of BPM [46] Ms Higgins submits that BPM’s is not an exceptional case. The offending represents two isolated incidents a decade apart, involving a person about whom BPM was infatuated. He made grave mistakes. The offending can be explained, though not excused, by mental health factors. The offending has no connection with child-related employment. Although BPM was not forthcoming with police about the trespass, he accepted responsibility by pleading guilty. He has engaged fully with therapy. Through BPM’s employment and personal life, he has demonstrated a commitment to the best interests of children and other vulnerable people. Submissions by Blue Card Services [47] Blue Card Services submits that BPM’s case is exceptional. It points to the repetition of offending, and the recency of the later offending. There were also related incidents outside those charged, extending back a very long time. BPM held a blue card and a position of trust and authority as a pastor when he offended. [48] BPM’s conduct raises concerns about his ability to respect personal boundaries, to control his impulses, and to have sound judgment. These concerns were only reinforced, Blue Card Services argues, by aspects of BPM’s oral evidence: relating to his failure to anticipate how the victim would react; his persistence in seeking contact with the victim despite requests to desist by his father as well as the victim; his inability to explain how hang-up calls could possibly help in an exploration of whether the victim had feelings for him; and his response to a question about why he had sent the email rather than, for example, inviting the victim to dinner, namely that he had not thought of it. [49] There is also concern about BPM’s respect for the law. Not only did he break the law, he wore gloves in an effort to evade detection and he lied to police about whether he 13 Working with Children Act, s 6. 14 Ibid, s 360. -- 8 of 10 -- 9 had trespassed. His oral evidence demonstrated ‘only limited appreciation of the gravity of intentionally misleading police’.15 There are concerns about BPM’s ability to present as a positive role model. [50] There is concern about BPM’s ability to prioritise the rights, interests and well-being of others over his own. His offending had a significant impact on his family, which itself illustrates such a failure to prioritise. [51] It remains unclear why BPM offended. It remains a concern whether risk factors and triggers have been addressed or mitigated. BPM has left his previous church and joined another. Blue Card Services has concerns about the adequacy of his support network and its ability to serve as a protective factor. The protective factors that were in place, including the earlier counselling, did not prevent a repetition of offending. Mr Pershouse acknowledged in his oral evidence that the ongoing proximity between BPM and the victim is a risk factor. Mr Pershouse’s report indicates that some responses appear to have fallen outside the normal range on validity scales. Mr Pershouse’s responses in cross-examination did not satisfactorily answer all the concerns about risk. Is BPM’s an exceptional case? [52] All three offences involve convictions – as defined in Schedule 7 to the Working with Children Act – rather than merely charges. They are not ‘serious offences’ as defined in section 15 of the Act. The first offence was committed in 2010, while the second and third were committed in either late 2019 or early 2020. [53] The court ordered probation for the earlier offending, and fined BPM on the later occasion. The court also made restraining orders. This was unsurprising in the circumstances. The sentencing remarks in 2020 indicate that imprisonment was not considered, and it can be assumed that it would not have been considered on the first occasion either as it was BPM’s first offence. As noted above, the court in 2020 regarded the recording of a conviction as warranted, specifically for the information of others. The other factors taken into account by the court, such as BPM’s social circumstances and his probable depression, have been summarised earlier. [54] The offences were committed against an adult. However, a child – being a person under 1816 – namely the victim’s 16 year-old son, resided in the house at the time of the 2010 offending. There is no evidence of any impact on the son, but BPM would have known he resided there. It was foreseeable that the child could become aware of the offending and feel threatened and frightened as a result. [55] The stalking on both occasions was frightening for the victim. Bearing in mind that BPM told police in 2010 that he made the hang-up calls to provoke or get back at the victim, it must have been his intention to cause her unease and upset, at least, even if he failed to grasp how frightening it would be for her. His persistence in pressing his peculiar advances, including telling the victim in 2015 or 2016 that he found her attractive, indicate a lack of insight and sensitivity. She had never reciprocated his interest, and he had already been punished for stalking her. The victim was not aware of the trespass when it occurred, but she would have been alarmed if she had discovered it. BPM lied to police when they asked if he had trespassed. 15 Submissions by Blue Card Services dated 13 June 2022, [22]. 16 Acts Interpretation Act (Qld) 1954, Schedule 1, definition of ‘child’. -- 9 of 10 -- 10 [56] BPM pleaded guilty to the charges, but that does not itself prove insight or remorse, as there was compelling evidence of his guilt. [57] BPM had a long-standing infatuation with the victim. Even though his offending has been against only one person, the offending and the surrounding history raise legitimate questions about whether BPM can be trusted to control himself, exercise sound judgment, and respect laws and social norms. His offending therefore has some relevance to child-related employment. Children are inherently vulnerable. Their welfare depends upon carers who exercise sound judgment, who are self-controlled, and who can be trusted. [58] A blue card can be used for any child-related employment: with children of all ages and all degrees of vulnerability. Conditions cannot be imposed on a blue card to address particular risks. [59] However, there is evidence which I accept that BPM has always conducted himself appropriately with children in employment and related settings. This has been in a range of settings including home, sport, church, and school. BPM has had dealings with many children in his work, charitable projects and social life. BPM’s pastoral work has included care for children from distressed families. All of this is powerful evidence that despite the potential relevance of BPM’s offending to child-related employment, the fact is that he has shown over many years that his involvement with children in employment or employment-like endeavours does not undermine their best interests. [60] Mr Pershouse was a highly credible witness. He conceded the limitations of psychological science. He satisfactorily answered questions put to him in cross- examination including why particular responses in tests did not invalidate his conclusions. While there might be unanswered and perhaps unanswerable questions about why BPM offended, the steps taken since in therapy and self-growth mitigate the risk of further offending of a similar nature. However, even if such a risk remains, it has no real bearing on child-related employment when one considers the wider picture. BPM has consistently demonstrated good judgment, emotional regulation, self-control, appropriate modelling, and similar relevant qualities, in the sphere of his child-related work over many years. There is no reason to anticipate that will change. [61] As earlier explained, the object and principles of the Working with Children Act place the welfare, wellbeing, rights and interests of children, and their protection from harm, front and centre. The welfare and best interests of children are paramount. The human right of children to protection is relevant as well. Accordingly, when a person has broken the law, it is important to scrutinise their conduct and their circumstances to evaluate whether the best interests of children would not be served by that person holding a blue card. [62] In BPM’s case, having regard not only to his offending but to the other circumstances discussed, I conclude that his is not an exceptional case in which it would not be in the best interests of children for him to hold a working with children clearance. Conclusion [63] Accordingly, I set aside and replace the decision made by Blue Card Services. -- 10 of 10 --