Caple v Director-General, Department of Justice and Attorney-General [2019] QCAT 130

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Caple v Director-General, Department of Justice and Attorney-General [2018] QCAT 130 PARTIES: ADAM RAYMOND CAPLE (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO/S: CML143-18 MATTER TYPE: Childrens matters DELIVERED ON: 16 May 2019 HEARING DATE: 28 November 2018 HEARD AT: Caloundra DECISION OF: Member Feil ORDERS: The decision of the Respondent that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by Respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review – blue card – whether exceptional case – whether or not in best interests of children to issue a positive notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – where Applicant was convicted and served a term of imprisonment for a serious offence of trafficking a dangerous drug Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 225, s 226 -- 1 of 10 -- 2 Chief Executive Officer, Department of Child Protection v Scott [No.2] [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Kent v Wilson [2000] VSC 98 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: I McCowie, solicitor of Director-General, Department of Justice and Attorney-General REASONS FOR DECISION [1] The Applicant Mr Caple obtained a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) in 2010, 2012, 2016 and 2017. A change in his police information triggered a re-assessment of his eligibility to hold a blue card. Mr Caple’s blue card and positive notice were cancelled on 10 May 2018 when he was issued with a negative notice. On 25 May 2018, Mr Caple applied to the Tribunal for a review of the decision of the Director- General, Department of Justice and Attorney-General (‘DJAG’) Blue Card Services (BCS), that his case was not an exceptional case in which it would not harm the best interests of children for him to hold a positive notice and blue card. The Legislative Framework [2] The screening of persons for regulated employment is set out in Chapter 8 of the Act and is 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 a child from harm and promotes the child’s wellbeing.1 The Tribunal must consider not only the provisions of s 226 of the Act, but the paramount consideration. This paramount consideration is the one to which all others yield.2 The purpose of the review is to produce the correct and preferable decision.3 [3] The Tribunal must exercise its discretion after considering the circumstances of Mr Caple’s case, within the guiding principles of the Act. [4] Section 221 of the Act provides that a positive notice must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children. If so, a negative notice must issue. Section 225 of the Act provides in respect of disqualified persons or persons convicted of a serious offence, that a negative notice must issue unless the Chief Executive is satisfied that it is an exceptional case in which it would not harm the best interests of children to issue a positive notice. In such case, a positive notice must issue. 1 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6. 2 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. 3 Queensland Civil and Administrative Act 2009 (Qld), s 20. -- 2 of 10 -- 3 [5] Section 226 sets out the factors which the Tribunal must consider in determining if there is an exceptional case for Mr Caple. The evidence considered takes into account s 226 of the Act. These factors are not an exhaustive list of considerations. [6] Exceptional case is not defined in the Act. Whether a case is exceptional is a matter of discretion to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act.4 That the issuing of a negative notice may have an adverse impact on the Applicant is not, however, a factor which the Tribunal is obliged or entitled to take into account.5 The Offences [7] Mr Caple is 45 years old. He has an extensive criminal history from 1989 to 16 November 2017, with over 150 charges and convictions. In summary this history relates to offences involving theft, assault, escape lawful custody, offensive weapons, possession of firearms and ammunition, liquor, driving, property damage, receiving, possession, use and trafficking of cannabis, breaches of orders, and public nuisance. [8] Of relevance is Mr Caple’s conviction for the serious offence of trafficking cannabis. Where there is such conviction, DJAG must issue a negative notice. At the same time Mr Caple was convicted of possession and use of cannabis, cultivating a narcotic plant (cannabis), dealing with property suspected to be proceeds of crime, possession of a prohibited weapon without exemption/approval, possession of a firearm as a prohibited person, and possession of ammunition without a license. Mr Caple was sentenced to an aggregate of five months imprisonment to be served by way of an Intensive Correction Order in Victoria. [9] In respect of other drugs charges, Mr Caple was convicted and fined for possession and use of cannabis in Victoria in 1991. He was also ordered to perform 30 hours of community service in Victoria in 1996, following convictions for possession and use of cannabis. In 1997 he was convicted and fined for possessing and using cannabis. [10] On 16 November 2017 in Brisbane, Mr Caple was placed on a good behaviour bond for four months with a recognisance of $440.00 and required to attend a drug diversion session, for possession of a dangerous drug. The Serious Offence [11] Mr Caple gave evidence in respect of his trafficking conviction in 2006, that he was cultivating cannabis hydroponically in a bungalow. The bungalow was located five metres from the home where he lived with his wife and two children aged 5 and 3 at the time. They never entered the bungalow. The Police evidence is that a total of 17 cannabis plants and 7 small seedlings were found. [12] At the hearing Mr Caple stated that his cousin who was aged 18 at the time, was staying in the bungalow and was not involved in the cannabis production. However in his life story, Mr Caple stated that he and his cousin grew cannabis. Mr Caple referred to mentoring his cousin who came to work with him in his concreting business. His cousin used to smoke cannabis with his father. [13] Mr Caple stated that he grew cannabis to make into cakes and cookies for pain relief. He advised Police that he grew cannabis for his personal use. While he denied selling cannabis, he admitted giving some cannabis to friends. 4 Kent v Wilson [2000] VSC 98. 5 Chief Executive Officer, Department of Child Protection v Scott [No.2] [2008] WASCA 171. -- 3 of 10 -- 4 [14] However in his submission of 18 November 2009, Mr Caple referred to being influenced by a ‘so called’ friend to grow marijuana plants. Mr Caple set up two rooms to grow marijuana plants to sell to his friend, so he could make money to buy his first block of land. Those submissions made no reference to Mr Caple growing cannabis for pain relief. Mr Caple’s Evidence and Life Story [15] Mr Caple referred to his prejudicial upbringing and to his use of alcohol from age 10. He referred to his father engaging in violent behaviour with his mother, ‘robbing him of his childhood’, and giving him no guidance. He described himself as a ‘disturbed and angry young man.’ He did not have a positive role model in his life. He did not attend school much, turned to ‘petty crimes’, and was involved in minor drug use and high level alcohol use. He referred to being violent under the influence of alcohol, resulting in a number of his criminal charges. [16] Mr Caple gave up alcohol around 2000 after a 12 month custodial sentence, and has had no relapses of his sobriety. In 2008 he relocated to Queensland for his children not to ‘follow his name’, and to better the lives of his children and his wife. He decided to better himself and started his own boxing gym and gave young people a positive direction. He stated that young people are drawn to him. Through massage, conversation and ‘tapping into’ Buddhism, he has found his inner peace. He stated that the boxing gym, his overall health and his positive mindset, have been the crux of his life. He wants to be a role model for his children. [17] In November 2017, Mr Caple completed a Diploma in Youth Work. He commenced employment with Life Without Barriers working with young people in the community service sector, after volunteering and mentoring youth for 18 years through his boxing gyms. Mr Caple needs a blue card in his concrete construction business when he is a subcontractor performing construction work at day care centres. He needs a blue card for his change of career from concreting to community sector employment, due to the impact of concreting on his health. Mr Caple needs a blue card to continue volunteering as a boxing trainer and fitness coach for a basketball team which is taken by his wife to the USA. Due to his criminal history, Mr Caple has been denied entry to the USA where his son studied and played basketball for four years. He is unable to accompany his wife on basketball tours to the USA, due to his criminal history. [18] Mr Caple has occasionally seen a psychologist over the past 4 to 5 years. He had 8 to 10 appointments from 2016 to 2018. Mr Caple provided no evidence from his psychologist as to the outcome of this therapy. [19] Mr Caple stated that he ‘doesn’t do drugs’, although cannabis and pharmaceutical medication are drugs. He referred to growing marijuana as ‘stupid’, because it got him into trouble. He stressed every day for 3 to 4 months about being caught. He referred to growing marijuana as becoming addictive, and that it became like a hobby. [20] Mr Caple acknowledged, in respect of his public nuisance offences in 2013 and 2015, that he made the wrong decision and became involved in incidents where he should have walked away and called the Police. These charges related to incidents where Mr Caple was involved in physical confrontations. [21] Mr Caple suffered pain after a motor cycle accident. He now uses anti-inflammatory medication occasionally, chiropractic treatment, stretching, yoga and swimming to relieve pain. He is still concreting. Mr Caple stated that he used cannabis in the medicinal form of an oil and butter to manage severe back and nerve pain, and to assist -- 4 of 10 -- 5 him sleeping. He uses cannabis as opposed to pharmaceutical drugs prescribed by his Neurosurgeon. He stated that he refuses to take medication. [22] On 6 November 2017, Dr Valdivia GP confirmed Mr Caple’s chronic pain and spinal degenerative changes. He stated that Mr Caple cannot take strong painkillers and morphine related analgesics due to his training and appearances at different competitions. Dr David Johnson Neurosurgeon on 8 November 2017 referred to Mr Caple’s consultations with him in 2015 and 2016, when Lyrica was prescribed. Mr Caple advised Dr Johnson’s assistant Dr Home on 10 June 2015, that he had decided not to take Lyrica. [23] In July 2018, Mr Caple resumed fortnightly massage therapy with Ms Evans. He has a strong connection with her and she assists him in bettering himself. From Ms Evans he has learnt not to take everything personally, not to be involved in others’ issues, and has increased his tolerance to situations. [24] In respect of his last charge of possession of cannabis in October 2017, Mr Caple referred to having the care of his nephew for one year at age 9, at the same time as that charge. At that time he telephoned a neighbour to advise him that the Police were jumping over his fence. He advised his neighbour that he was in the middle of ‘cooking’. When the Police came to his home, he hid the cannabis and then made admissions. While Mr Caple referred to being in possession of 20 grams of cannabis, the Police evidence was that in, addition, they seized 3 tubs of cannabis butter and a small packet of cannabis cookies. Mr Caple admitted to Police that he knew it was an offence to be in possession of cannabis in any form. [25] In respect of his ongoing use of cannabis, Mr Caple stated at the hearing that he last made cannabis cookies two to three months ago. He has no prescription for medical marijuana and is aware that it is not legal to possess cannabis. Mr Caple stated that he ‘despises’ taking drugs, but has a different view with cannabis. He considers it is a lot healthier if cooked and digested. He sources cannabis from ‘a really good person’, a teacher who lives in the bush. He referred to the drug ICE as destroying lives, and to cannabis curing nerve pain. He considers that cannabis releases muscles, and takes away nerve pain. He considers prescription drugs can kill, while cannabis will not kill. However depending on the individual, it ‘can lead to other things’. Mr Caple stated, ‘If I told you I was on Valium, I wouldn’t even be in this system.’ He stated that his use of cannabis brings no harm to himself or others. He would not use it if he was on- call with Life Without Barriers, as he likes to have a clear mind when working. [26] Mr Caple stated that he only uses cannabis at night, and ‘doesn’t bring children into it’. He stores the cannabis cookies in a freezer in his garage, which his family have access to. He explained that his nephew aged approximately 11, would ask him if he wanted to access that freezer. He stated that since his last charge for possession of cannabis in October 2017, he has used cannabis between three and ten times. [27] Mr Caple wants a blue card to work with children and young people. He appreciates the purpose of a blue card in terms of the health and safety of children. He doesn’t consider himself to be a threat to children and has a lot to teach young people in general, especially what not to do. He will continue to work with them even if he is not paid. Referees [28] The Tribunal received 21 written references in support of Mr Caple’s application. The referees supported Mr Caple’s passion for working with youth, his volunteer boxing, -- 5 of 10 -- 6 being a role model for youth, and his contribution to and respect in the community. These referees did not refer to Mr Caple’s criminal history. While Mr Caple’s son and parents in law made reference to their knowledge of Mr Caple’s criminal history, they did not outline their knowledge of the extent of his history. Ms Heather Parsons who referred to being fully aware of Mr Caple’s past history, provided no particulars of this history. As these persons were not available to give evidence and be available for cross-examination, the Tribunal gives less weight to these references. [29] Ms Anna Evans gave oral evidence in support of Mr Caple’s application. She has no formal qualifications as a counsellor, but has coached and guided people around the world in situations of grief and trauma. Ms Evans has a Certificate IV in remedial massage and has worked with Mr Caple through massage to help release pain through his physical body. She has given him supportive guidance to see ‘other avenues’. [30] Ms Evans was aware of Mr Caple being charged with possession of cannabis butter in 2017 to alleviate pain, and was aware that this was illegal. She was aware of him growing cannabis in 2005 for his own personal use, but did not know details of his other convictions. She considered Mr Caple could fulfil the requirements of a blue card, as his focus is to help himself and his family, and as he was determined to change his lifestyle. She felt that had he continued massage therapy after the period from 2013 to 2016, his body would be out of pain and he would not have needed the cannabis butter. Mr Caple resumed fortnightly massage sessions with Ms Evans in July 2018. Ms Evans referred to Mr Caple seeing cannabis as a way to alleviate physical, mental and emotional pain in his private way. In her ‘Reflections’ document, Ms Evans stated that she alleviated much of Mr Caple’s pain and torment through deep tissue massage. [31] Ms Evans’ evidence is that Mr Caple has shown his understanding of illegal drugs, and that it was not the way of life. She stated that Mr Caple last used cannabis when charged in 2017. When advised of his ongoing use of cannabis, she was not surprised due to his pain levels. [32] Mr Caple’s wife Mrs Kelly Caple, gave oral evidence at the hearing that Mr Caple was very aware of the responsibility of holding a blue card. Mr Caple has known Mr Caple for 22 years, since October 1996. They have been married for 20 years. For the first five years Mr Caple engaged in binge drinking. He has been sober since 2000 after a 12 month custodial sentence (following Mr Caple’s conviction for recklessly causing injury, unlawful assault, resist police, breach of a suspended sentence order, and driving whilst disqualified.) [33] Mr and Mrs Caple moved to break away from negative influences to a farm in Victoria, where cannabis was grown resulting in the trafficking charge. They moved to Queensland in 2006, at which time Mr Caple concentrated on eliminating all negative people from his life. Mr and Mrs Caple worked and devoted their lives to their children. Mr Caple was devoted to boxing and training and was connected with a boxing gym from 2008 to 2012. This was not sustainable as Mr Caple worked away. In the past five years he made a clear decision to invest time in himself, his boxing training, and Jiu Jitsu. [34] Mr Caple had 4 to 5 sessions with Mr Dale Martin psychologist from 2015 to 2017, to deal with his past trauma. Mr and Mrs Caple have discussed Mr Caple re-engaging with Mr Martin for therapy, as Mr Caple’s trauma history is lengthy and ‘never ending’. Mrs Caple was aware Mr Caple was using cannabis for pain relief, that he -- 6 of 10 -- 7 was given a prescription for Lyrica, and that his local Doctor offered Mr Caple other medications. [35] Mrs Caple was aware that until cannabis is legalised for chronic pain, it was not a lawful option to treat chronic pain. She disagreed with Mr Caple using cannabis cookies, as it ‘brings trouble’. She stated that Mr Caple last used cannabis when the Police came to their home on 9 October 2017. He is now managing his pain with chiropractic treatment, massage, physiotherapy and natural therapies. She considered that Mr Caple had changed his mindset regarding the use of cannabis after finding good therapists. Mrs Caple was unaware of Mr Caple’s ongoing use of cannabis since 2017. [36] Mrs Caple described Mr Caple as strong willed with outstanding will power, being sober for 18 to 20 years. He is a natural mentor and leader, and people are drawn to him and his personality. He is very patient. He has had a couple of issues of being ‘in the wrong place at the wrong time’ (with reference to Mr Caple’s two public nuisance charges in 2013 and 2015). She stated that Mr Caple knows he cannot get involved in that ‘stuff’ anymore. He is aware of triggers and of the community and his surroundings, and the impact of his actions on his family. She stated that as a result of his trafficking conviction, he has been unable to travel with her to the USA with basketball. This has affected his life. BCS Submissions [37] BCS considered that Mr Caple’s serious offence of trafficking cannabis and his history of other drug related offences, raises concerns about his ability to provide a protective environment for children. His 2017 drug offence suggests that Mr Caple continues to engage in drug use. By tipping off his neighbour about the presence of police, this shows that he associates with people manufacturing drugs and takes steps to protect unlawful activity. This behaviour is at odds with the protection of children who have a right to be cared for by persons not using drugs. [38] Mr Caple’s most recent offending and public nuisance charges were in response to conflict and disagreements, suggesting he may not have appropriate skills to deal with conflict in a non-violent manner. Whilst the Courts imposed non-custodial sentences to allow Mr Caple to rehabilitate, he has continued to offend. The Risk Factors [39] Mr Caple has not addressed his long-standing involvement with cannabis, which he continues to use and of which his supportive wife was unaware. He minimises his use of cannabis. His ongoing use of cannabis is a risk factor in assessing his ability to work with children. This is evidenced by him indicating that he teaches children what not to do; yet he continues to use an illegal substance. His use of cannabis and storage of cannabis cookies in the proximity of young people, shows his disregard for the vulnerability of young people, being the age group he proposes to work with, particularly when he considers that young people are drawn to him. This is evidenced by him mentoring his 18 year old cousin who lived in a bungalow with cannabis plants cultivated by Mr Caple, and with his children living five metres away from the bungalow. -- 7 of 10 -- 8 [40] Mr Caple referred to currently making better life choices in working with young people and positively influencing them, compared with his actions as a young man. He referred to being unfairly judged by his previous criminal history. However, he is insightless as to his ongoing use of cannabis and his most recent charge for possession of cannabis being one year ago. While he was ordered to attend drug diversion, it appears that he has not benefited from this program as he continues to use cannabis, despite his stated steps to remove negative influences from his life. [41] Ms Evans’ statement referred to the risk of Mr Caple re-offending having lessened greatly due to the alternative support he has in place and due to her belief that he has rehabilitated. Despite this, Mr Caple admitted to using cannabis while receiving alternate treatment from various health practitioners. [42] In his submission of 18 November 2009, Mr Caple stated, I have NEVER used drugs, although I stated “personal use for the cannabis charge”. I cannot stand drugs and what they do and have done to many, many families around the globe. I educated my own kids about drugs and affects on families by watching documentaries on television, talking to them and reading to them. [43] He does not acknowledge the negative affect which the ongoing use of cannabis may have on others. [44] Mr Caple gave a different version to the Tribunal of the cannabis trafficking conviction, being the use of cannabis for pain management. However, he was engaged in the sale of cannabis to friends. Mr Caple is prepared to use cannabis unlawfully, despite being offered prescription medication by his health professionals. His use of cannabis to address his pain suggests he remains vulnerable to return to using cannabis, if his pain is not fully addressed. He has no prescription for medical marijuana. [45] Mr Caple misled his referees (including his wife) who gave oral evidence and believed he last used cannabis at the time of his last charge in 2017, when he continued to use cannabis after that time. [46] Mr Caple has continued to use cannabis despite being aware it is illegal, and has done so in proximity to children by storing it in a refrigerator in his house, which his nephew frequents. [47] While in his life story Mr Caple referred to seeing many counsellors and psychologists through Court orders and in prison, to attending anger management courses, and while he has seen a psychologist four times in the past five years, he has continued to offend during this period. [48] While Mr Caple referred to his past actions being devastating and heart breaking, he had no insight into the future risks to his family from his ongoing use of cannabis. There is a clear and ongoing risk of him continuing to engage in the illegal use of cannabis, as he has continued to do so throughout the duration of his application for a review of the negative notice. As such, there is no evidence that he is living in a law- abiding manner. Mr Caple’s lack of insight and responsibility remain risk factors. -- 8 of 10 -- 9 Mr Caple’s Protective Factors [49] While Mr Caple referred to doing ‘further stupid things’ (growing cannabis plants), he stated that he is completely at peace with the world and wants to continue to better himself and be a role model to young people from his expertise in the health and fitness industry and boxing. His referees support his work with disadvantaged youth, and the steps he has taken to change his life. [50] Mr Caple referred to his criminal history based on his past decisions as affecting his life forever, and having stopped him from doing things in his life. The majority of his actions were alcohol fuelled from a young age. He acknowledges the effect of his past actions on his wife and children, including being unable to visit his son when he lived in the USA, and being unable to travel with his wife to the USA for basketball. [51] Mr Caple’s sobriety and his community involvement are commendable and impressive, as is his work with young people. Mr Caple showed remorse for those affected by his previous acts of violence when he was affected by alcohol, including the victims, their families, and the police. [52] Mr Caple’s relationship with his wife and family are protective elements. Mrs Caple has a strong attitude against the use of cannabis. [53] Mr Caple’s acknowledgement of his extensive criminal history and his strategies to deal with stress through his continued engagement with Ms Evans, has increased his tolerance of situations and reduced aggressive reactions. Conclusions [54] Mr Caple continues to use cannabis without his wife’s knowledge, and with a young child being around his family home. This is despite his ongoing sessions with Ms Evans. The Tribunal affords less weight to Ms Evans’ evidence in the absence of her qualifications in counselling or psychology. Further, Ms Evans is unaware of the full extent of Mr Caple’s criminal history. Despite his sessions recommencing with Ms Evans in July 2018, there is no evidence that Mr Caple’s response to conflict and his ongoing use of cannabis has been fully addressed through therapy. [55] Mr Caple’s actions in using cannabis show his disregard for the law and an inability to refrain from further offending behaviour. [56] Mr Caple was remorseful as to the effect of his previous offending on others. He focused on the impact on himself and his family, on his inability to travel to America to see his son and be able to travel to the USA for basketball camps, and the financial implications of his inability to work with young people. Despite this, he continues to earn an income in his business. Any hardship which Mr Caple may experience as a result of a negative notice, is not relevant in determining whether his case is exceptional. The Tribunal has not taken into account any benefit or assistance to young people from Mr Caple’s desire to share his passion about sport and martial arts if granted a blue card. Any financial hardship to Mr Caple and his family, is also irrelevant to the Tribunal’s considerations. [57] Mr Caple’s ongoing use of cannabis shows a pattern of illicit substance abuse over 27 years. His evidence shows his disregard for the law and his ongoing offending -- 9 of 10 -- 10 behaviour despite his relocation to Queensland, and his lack of insight into his behaviour. [58] While Mr Caple’s application referred to his ‘historical’ criminal history which is ‘spent’ and to his recent drug offence where no conviction was recorded, the Tribunal can take into account offences committed where no conviction was recorded, and criminal charges. His most recent re-offending was one year ago. [59] The transferability of a blue card means that if successful with his application, Mr Caple would have unfettered and unsupervised time with all children. The Tribunal takes into account as a significant consideration, the transferability of a positive notice across any area of child related employment. [60] The Tribunal is not satisfied that the protective factors outweigh the risk factors in this case, particularly given Mr Caple’s ongoing use of cannabis while engaging with young people. [61] For these reasons, the Tribunal finds that the risk factors are such that this is an exceptional case in which it would not be in the best interests of children for Mr Caple to be granted a positive notice. The Tribunal makes this finding given the consideration that the safety of children is paramount in the Tribunal’s determination of whether an exceptional case exists, and after taking into account the relevant legislation. [62] The decision of DJAG is confirmed. Decision [63] The decision of the Respondent that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue, is confirmed. -- 10 of 10 --