Cody v Director-General, Department of Justice and Attorney-General [2017] QCAT 413

CITATION: Cody v Director-General, Department of Justice and Attorney-General [2017] QCAT 413 PARTIES: Billy Cody (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) APPLICATION NUMBER: CML060-17 MATTER TYPE: Childrens Matters HEARING DATE: 13 October 2017 HEARD AT: Brisbane DECISION OF: Member Holzberger DELIVERED ON: 30 November 2017 DELIVERED AT: Brisbane ORDERS MADE: It is the decision of the Tribunal that: 1. The decision of the Director-General, Department of Justice and Attorney- General dated 14 February 2017 to issue a negative notice to Billy Cody is set aside. 2. The Tribunal substitutes its own decision that there is not an exceptional case within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). 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 WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – Blue Card – no conviction for serious or -- 1 of 7 -- 2 disqualifying offence – charge of dangerous operation of a vehicle while adversely affected by a intoxicating substance – existence of an exceptional case APPEARANCES: APPLICANT: Billy Cody RESPONDENT: Director-General, Department of Justice and Attorney-General represented by Ms Marunda. REASONS FOR DECISION [1] Billy Cody has applied to the Tribunal for a review of a decision of the Director-General, Department of Justice and Attorney-General (the Director-General) to issue a negative notice under section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) because an exceptional case exists and as a result it would not be in the best interests of children for a positive notice to be issued. [2] The review is not a review of the Director-General’s decision making but rather a rehearing on the merits. Its purpose is to produce the correct and preferable decision.1 [3] The object of the Act is to promote and protect the rights, interests and wellbeing of children by screening persons who are employed or wish to be employed working with children.2 The decision maker must consider that the welfare and best interests of children are paramount.3 [4] Unless the Director-General, and in this case the Tribunal in its shoes, is satisfied that an applicant’s case is “an exceptional case” a positive notice must issue.4 [5] In Mr Cody’s case this issue is a conviction recorded against him on 12 June 2014 for dangerous operation of a motor vehicle causing death of one person and the grievous bodily harm of another while adversely affected by an intoxicating substance. For the purposes of the Act that offence is not a “serious” offence5 although the parties acknowledge its seriousness in the ordinary sense of the word. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 2 The Act, s 5. 3 The Act, s 6. 4 The Act, s 353. 5 The Act, s 167. -- 2 of 7 -- 3 Background [6] Mr Cody says with the benefit of hindsight he has been suffering from depression and social anxiety since he was about 10 years old, largely as a result of his relationship with his father. [7] He had no insight into his condition at that time. Neither, his mother Mrs Vicki Cody said in evidence, did his parents. [8] He considered suicide on a number of occasions since the age of 10, more and more seriously as he got older. He said he would commit suicide if things did not improve. [9] After leaving school in 2011 with an OP2 he enrolled at university in an engineering course which he greatly disliked. His issues with his father became worse. He said in evidence that by August 2012 there was “no hope left” and he decided to end his life. [10] On 11 August 2012 he stole of quantity of Tegretol from his mother. He googled the effects of overdosing on Tegretol and determined that it would result in complete organ failure. [11] On 12 August 2012 he drove to Noosa and went to the beach where he ingested about 70 Tegretol tablets with a quantity of alcohol. He says and I accept that he expected to die on the beach. [12] He says, and again I accept, that he has little or no recollection of what occurred next. He accepts that he returned to his motor vehicle and in an apparent attempt to commit suicide by driving into a tree collided with two vehicles causing the death of one person and serious injury of another. The first, he says, he was aware that he had been in an accident was when woken from an induced coma in hospital some days after the accident. He was not aware of the death or injury of the other parties for some days after that. [13] On entering a plea of guilty on 12 June 2014 he was convicted and sentenced to 5 years of imprisonment with a recommendation that he be eligible for parole after 11 December 2015. [14] He was released from prison on parole in January 2016. His parole period ends in August 2019. [15] After from release from hospital he was treated by a psychologist, Geoff Topping, who then referred him to Dr Harper, psychiatrist who provided a pre-sentence report at the sentencing hearing. Dr Harper diagnosed Mr Cody with autistic spectrum disorder. [16] Mr Cody worked as a high school tutor for Fruition Tuition for 18 months prior to his sentencing. He began tutoring primary school children for Coding Kids in 2016 until the decision under review. -- 3 of 7 -- 4 [17] Mr Cody continued his treatment with Geoff Topping until his imprisonment, seeing him fortnightly initially and less frequently as he progressed. Since his release he has seen Mr Topping infrequently as a condition of his parole. Both he and Mr Topping agree that the need for regular treatment has passed, further treatment is necessary only if Mr Cody feels he needs it and that the stress management techniques that he has used and successfully employed are adequate. [18] Mr Cody discontinued use of low dose antidepressants prescribed by his doctor after consultation with and the consent of his doctor during his period of imprisonment. Is this an exceptional case [19] The term “exceptional case” is not defined in the act. Each case must be determined on its own facts and circumstances. The accepted approach for the Tribunal is to identify and weigh up risk factors and protective factors.6 [20] Regard must be had to the mandatory considerations contained in section 226(2) of the Act but the Tribunals consideration is not restricted to those matters. [21] It is not in dispute and I am satisfied that: a) Mr Cody was convicted of dangerous operation of a motor vehicle causing death or grievous bodily harm whilst under the influence intoxicating substance on 12 June 2014; b) The offence is not a serious offence for the purpose of the Act and accordingly is not a disqualifying offence; c) The offence was committed on 10 August 2012; d) Mr Cody was sentenced to five years imprisonment with a recommendation for parole after 18 months; e) No disqualification under section 357 of the Act has been made; and f) No information or report pursuant to section 226(2)(b)(c) or (d) has been given to the Chief Executive. [22] Included in the materials filed with the application by Mr Cody was a copy of the transcript of his sentencing hearing. [23] Mr Cody provided statements from his psychologist, Geoff Topping, his mother Vicki Cody, his employer Emily De la Pena and a co worker Andrew 6 Commissioner for Children and Young People and Child Guardian v Maher and another [2004] QCA 492. -- 4 of 7 -- 5 Cupper. Each of those witnesses also gave oral evidence and was cross examined. Protective Factors [24] In written submissions on behalf of the Director-General it is suggested that the following protective factors exist: i) The applicant expresses remorse for his offending behaviour and insight into the underlying cause or factors for his behaviour. ii) The applicants offending appears to be an isolated incident and has no other entries on his criminal record. iii) The applicant sought professional assistance after the accident and after he was released from prison from Mr Geoff Topping, psychologist, in order to manage his mental health; iv) The applicant’s referees speak positively of the applicant’s character, his work ethic, his decision making with respect to working with children and other positive interactions.7 [25] To those protective factors I would add a demonstrated ability to self manage his condition and make sound decisions under difficult and stressful situations. Risk Factors [26] The Director-General also identified in written submissions a number of risk factors that I summarised as follows: a) Mr Cody’s offending behaviour recklessly endangered the safety of others and that he undertook that behaviour with knowledge of the possible consequences. Specifically he chose to drive after consuming alcohol and drugs; b) Poor mental health and suicidal tendencies are likely to affect his ability to prioritise the needs of children and make appropriate decisions; c) The consequences of his offending was serious; d) The sentence suggests the court felt Mr Cody required ongoing supervision; e) Mr Cody’s expression of remorse lacks insight and is self-centred. He lacks awareness of the risk his behaviour poses on others; 7 Respondents outline of submissions, paragraph 22. -- 5 of 7 -- 6 f) His offending behaviour is recent and insufficient time has passed to assess whether his treatment effectively addressed his mental health issues; g) Despite suffering depression and anxiety from age ten Mr Cody did not seek assistance and insufficient time has passed to demonstrate that he would seek assistance if it was required. [27] Dealing with those in the same order: a) I accept Mr Cody’s evidence that he does not recall getting into his car before the accident or consciously making a decision to drive. Obviously it was one possible outcome of his chosen method to commit suicide but can hardly be seen as a rational decision. Dr Hanger is quoted in sentencing remarks as confirming that Mr Cody was “seriously suicidal… he did not think he was good enough to be in this world” he made his decision on that day and the previous day suffering from an undiagnosed mental health condition. It cannot be seen as indicative of his decision making ability if that condition is being effectively treated; b) I am satisfied on the evidence of Mr Cody and Mr Topping that Mr Cody’s autistic spectrum disorder is being effectively treated and managed since diagnosis even under the particularly stressful events of the last five years; c) It is acknowledged that the consequences of his offending behaviour were serious, in fact disastrous, however that is not relevant to his current ability to make sound decisions and exercise appropriate judgement; d) Sentencing principals are different from the principals which apply to this application. There is no element of punishment or deterrence in this decision; e) I note that the period of imprisonment to which Mr Cody was sentenced was significantly less than that imposed in the comparative sentences provided to Her Honour. I further note that Mr Cody was released immediately after the recommended date for eligibility for parole; f) While the offending behaviour may be relatively recent, the events which have occurred in Mr Cody’s life since have severely tested the effectiveness of his treatment and his ongoing emotional and mental health. Mr Cody was 18 years old at the time of his offence. He was hospitalised as a result of the accident, was made aware of the horrific consequences of it, was diagnosed with autistic spectrum disorder, dealt with insurance and police enquiries, was charged for an offence which he must have known would result in a period of imprisonment, was sentenced and served 19 months in prison and subsequently released on parole to attempt to restart his life. For much of that time -- 6 of 7 -- 7 he self managed his condition without medication with the approval of his doctor and psychologist. I am unsure that the passage of further time is required to determine the effectiveness of that treatment; g) It hardly surprising that from ages 10 to 18 Mr Cody was not aware of his condition. Once diagnosed he has accepted treatment and demonstrated an ability to manage his condition under extreme circumstances. I was impressed by Geoff Topping’s evidence. He says that, “Mr Cody is largely self-managed requiring little psychological intervention but is confident that Mr Cody will seek intervention if required. He assess his condition as stable and “that his risk of harming children because of reckless or dangerous behaviour is very low”.8 There is medical or psychological evidence to the contrary. [28] No risk specific to children is asserted here. It appears to me that the risk identified in the original decision is risk to society generally from Mr Cody’s reckless or dangerous behaviour as a result of his condition or otherwise and that children as members of society also suffer that risk. For the reasons identified above I am satisfied that any risk of such behaviour has been minimised by the treatment he has received and the self management techniques he has learned and applied. [29] The only evidence before the Tribunal which relates specifically to Mr Cody’s interactions with and decision making ability and judgement in relation to children, particular his work as a tutor, is overwhelming positive.9 [30] I am mindful of the fact that the issue of a Blue Card is not subject to limitation or conditions and is not restricted to Mr Cody’s current role as a tutor. I am also mindful of the fact that the sole focus of the decision must be the welfare and protection of children and the impact of the decision on Mr Cody is not an appropriate consideration. [31] For the reasons above I do not consider this to be an exceptional case. A positive notice should issue. Orders 1. The decision of the Director-General, Department of Justice and Attorney- General on 14 February 2017 is issue a negative notice to Billy Cody is set aside. 2. The Tribunal substitutes its own decision that there is not an exceptional case within the meaning on section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). 8 Geoff Topping report 2 March 2017. 9 Statement of Andrew Cutting; statement of Ms De la Pena, -- 7 of 7 --