Bachman v Public Safety Business Agency [2016] QCAT 104

CITATION: Bachman v Public Safety business Agency [2016] QCAT 104 PARTIES: Samantha Rayne Bachman (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML213-15 MATTER TYPE: Childrens matters HEARING DATE: 2 December 2015 HEARD AT: Brisbane DECISION OF: Member Guthrie DELIVERED ON: 7 January 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision made on 16 July 2015 to issue a negative notice to Samantha Rayne Bachman is confirmed. CATCHWORDS: CHILDREN – BLUE CARD – where person doing work at school canteens and providing homestays for children had held a positive notice – where that person had been convicted of a serious offence – where a negative notice was issued preventing that person working with children EXCEPTIONAL CASE – where review sought of decision to issue a negative notice – where evidence of risk factors and protective factors – whether not in the best interests of children for a positive notice to be issued Drugs Misuse Act 1986 (Qld) s 6 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, 6, 167, 225, s 226, Schedule 2, Schedule 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, 21, 24 -- 1 of 21 -- 2 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 FAA, Re [2006] QCST 15 GP v Commission for Children and Young People [2013] QCAT 324 Minister for Immigration and Ethnic Affairs v Agazio Daniele [1981] FCA 212 Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 APPEARANCES: APPLICANT: Samantha Rayne Bachman represented herself RESPONDENT: Represented by Ms K Heath, Officer of the Public Safety Business Agency REASONS FOR DECISION Background [1] On 13 November 2014, Ms Bachman applied to the Public Safety Business Agency (‘PSBA’) under the category “child accommodation services including homestays” for a blue card. She named a state high school as the organisation in her application. Ms Bachman requires a blue card to enable her to work in schools educating children about nutrition and to provide homestays, for periods of up to six to 12 months, for international students who have severe food allergies. [2] On 7 November 2014, Ms Bachman was convicted of supplying dangerous drugs within a correctional facility. She was sentenced to a term of imprisonment of six months, which was wholly suspended and a conviction was recorded. [3] At 19 years of age, she was convicted on 26 charges of aiding and abetting, obtaining property by deception and was sentenced to probation for two years and ordered to pay compensation. At age 21, she was convicted of a number of offences relating to prostitution. [4] The offence of supplying dangerous drugs within a correctional facility is categorised as a serious offence under the Working with Children (Risk -- 2 of 21 -- 3 Management and Screening) Act 2000 (Qld) (‘the Act’)1. On 16 July 2015, the PSBA decided to issue a negative notice to the applicant. [5] Upon receipt of the decision of the PSBA, Ms Bachman exercised her rights of review under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the matter proceeded to a hearing before the Tribunal on 2 December 2015. Legislative framework [6] As the offence of supplying dangerous drugs within a correctional facility is a ‘serious offence’ as defined in the Act2, a negative notice must be issued, unless it is an exceptional case in which it would not harm the best interests of children for Ms Bachman to be issued with a positive notice3. [7] The tribunal is required to make its determination based on the principles for administering the Act: that the welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.4 [8] The issue for the tribunal is to whether there is an exceptional case for Ms Bachman in which it would not harm the best interests of children to issue her a positive notice notwithstanding her conviction of a serious offence. [9] The Act does not define ‘exceptional case’. 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. What constitutes an exceptional case is a question of fact and degree.5 [10] In deciding whether or not there is an exceptional case for Ms Bachman, the tribunal must have regard to the following matters in s 226(2) of the Act: (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 1 “Serious offence” is defined in Schedule 7 which refers to s 167 which in turn refers to Schedule 2 which lists the offence of “supplying dangerous drugs” under s 6 of the Drugs Misuse Act 1986 2 S 6(2)(d) of the Drugs Misuse Act 1986 provides that an offence is one of aggravated supply if the offender is an adult and the person to whom it is supplied is within a correctional facility 3 S 225 of the Working with Children (Risk Management and Screening) Act 2000 4 s 6 of the Act 5 Commission for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 3 of 21 -- 4 (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 for the offence or not to make a disqualification order under section 357,the court’s reasons for its decision; (b) any information about the person given to the chief executive under section 318 or 319; (c) any report about the person’s mental health given to the chief executive under section 335; (d) any information about the person given to the chief executive under section 337 or 338; (e) 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. [11] The standard of proof upon which the tribunal must be satisfied that an exceptional case exists is upon the balance of probabilities. In Commissioner for Children and Young People and Child Guardian v Maher & Anor,6 the Queensland Court of Appeal adopted the submission that: …the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.7 [12] To determine this issue the Queensland Court of Appeal endorsed the approach of identifying and balancing potential risk factors and potential protective factors in considering whether the circumstances amounted to an exceptional case. [13] In GP v Commission for Children and Young People,8 the Tribunal observed that ‘[r]isk factors may vary according to the view of the Assessor, but most particularly will vary according to the identified facts.’ In considering risk in this context the tribunal is not concerned with what may be mere possibilities, but rather will require foundation in fact. The tribunal is looking at whether in all the circumstances, there is a real and appreciable risk. It does this as part of its consideration of whether an exceptional case exists. [14] The tribunal went on to state: The Act is not a statute intended to impose additional punishment on a person who has a criminal history. Rather, it is intended to put “gates” around employment to protect children from harm.9 [15] The tribunal is mindful that upon a positive notice being issued, there are no restrictions that can be placed on the blue card. That means the holder 6 [2004] QCA 492. 7 Ibid at [30] 8 [2013] QCAT 324. 9 Ibid [14] -- 4 of 21 -- 5 of a blue card may engage in any type of employment or business activity that requires a blue card. [16] The tribunal, in conducting a review of the decision of the PSBA, has the same powers as the Chief Executive in considering whether an exceptional case exists. The tribunal must make the correct and preferable decision by way of a fresh hearing on the merits.10 That means the tribunal must consider the material that was before the PSBA at the time it made its decision and any new material presented by Ms Bachman at the hearing11. [17] The tribunal may affirm the original decision, amend the original decision or set that decision aside and substitute its own decision.12 Evidence [18] The tribunal has carefully considered the documentary evidence before it, which includes the documents provided to the tribunal by the PSBA pursuant to s 21(2) of the QCAT Act, as well as the statement of evidence tendered by Ms Bachman dated 4 September 2015, and the contents of her application for review to the tribunal with its attachments. The tribunal heard oral evidence from Ms Bachman and her daughter, Ms Sherryn Hoy. [19] Included in the material before the tribunal was the Queensland Police Service (‘QPS’) court brief relating to the charge of supplying dangerous drugs within a correctional facility. The charge was that on 26 April 2013, Ms Bachman did unlawfully supply buprenorphine, a dangerous drug, to her son who was then and remains in a correctional facility. [20] The essential facts of the charge as stated in the court brief are: a) On 26 April 2013, staff from the correctional facility opened mail addressed to Ms Bachman’s son; b) Under the rear seal of the envelope, staff located an orange strip which appeared to be Suboxone. It is a pharmaceutical medication in which the active ingredient is buprenorphine which is a Schedule 2 dangerous drug. Inside of the envelope was a birthday card; c) Police checks showed that the name of the sender (not Ms Bachman) did not exist nor had any person by that name ever resided at the address stated on the envelope; d) A review of the prisoner telephone system (‘PTS’- Arunta) shows calls between Ms Bachman’s son and Ms Bachman. In the calls Ms Bachman and her son talk in code and appear to refer to the supply of the buprenorphine and its concealment. They also make mention of a birthday card; e) Subsequent drug analysis showed that the strip was buprenorphine. A finger print examination of the items seized identified finger prints on 10 QCAT Act, s 20. 11 The respondent did not adduce any new evidence at the hearing. 12 QCAT Act, ss 20 and 24. -- 5 of 21 -- 6 the rear of the envelope which were positively identified as belonging to Ms Bachman; f) On 20 August 2013, detectives attended Ms Bachman’s home address where she participated in a field electronic record of interview. During that interview she denied any knowledge of the supply of drugs into the correctional facility. She was shown images of the envelope and material seized, and stated that she had never seen them before. She stated that she had never handled the letter, or card, or its contents. g) At the conclusion of the interview, the defendant was issued a notice to appear in the Beenleigh Magistrate’s Court on 18 September 2013. [21] The PSBA put to Ms Bachman the record of her oral submissions to an officer of Blue Card Services on 10 September 2013.13 That document states that the officer asked about the circumstances relating to the charge and she advised that her son was incarcerated and she was approached by some men who asked her to send her son some mail. The officer asked who the men were and the following is recorded as Ms Bachman’s response:  You didn’t know them personally, but knew that they were once in prison with your son.  You felt threatened by the men and once they were gone you opened the envelope and there was a card inside.  You didn’t understand the words that were inside the card and thought it was code for something but didn’t find anything else in the card.  You were later made aware by police that the drug found was to stop heroin dependency and it was in the fold of the envelope.  Your son was “bullied and bashed” in prison. [22] It is further recorded that the officer asked Ms Bachman how she felt about the charge and the following is recorded as her response:  You felt “sickened, scared and angry”.  Your son had written a testimonial to state that you were not aware of what was in the envelope.  You stated, “my reputation is everything to me”.  You had a school plan to work at a policy level where you could make changes to school canteen menus to get rid of the “rubbish, chips and soft drink” sold at schools.  You were “disgusted” as this may affect your ability to do that. 13 PSBA-028 -- 6 of 21 -- 7  You are “anti-drugs and don’t even drink alcohol”.  When you confronted your son he said, “mum you have no idea what it’s like in here.”  You had spoken to lawyers and planned to plead not guilty.  You intended to give police a complete description of what the men looked like and tell them [where they were from]. [23] Ultimately, Ms Bachman did not give police any information about the two men who asked her to give the envelope to her son. She plead guilty to the charge. [24] Ms Bachman told the tribunal that she plead guilty for a number of reasons. She was fearful of repercussions both in relation to her own safety, and that of her son in the correctional facility if she provided any information about the two men to police. She said that her son, who has been in prison for seven years, had been beaten and otherwise abused in jail. Her son who is now aged 25 years remains incarcerated. [25] Ms Bachman said she was given legal advice that her plea of guilty would not jeopardise her blue card. She said that had she known that the decision under review would be made she would have reconsidered her position and may have spoken to police about how her own safety and that of her son might be protected if she provided information to police regarding the two men. She might then have decided to plead not guilty. Ms Bachman said she was advised that as her fingerprints were on the envelope and she would not go to jail, it was simpler to plead guilty. [26] The tribunal transcripts of proceedings relating to Ms Bachman’s appearance in the District Court on 7 November 2014 before Her Honour Kingham DCJ are before the tribunal. Ms Bachman was represented by Mr Kissick of Counsel and the Crown was represented by Mr Nardone. The transcript records that Ms Bachman plead guilty to the charge and the court was addressed by Counsel on the issue of sentencing. The tribunal also has before it Her Honour’s sentencing remarks. [27] Mr Nardone outlined for the court the basic facts of the offence and said that Ms Bachman was interviewed and denied knowledge of the letter, but then later provided police with a statement that she acted out of duress. It is also clear from the transcript that a schedule of facts had been prepared and was tendered to the court.14 [28] Her Honour asked Mr Kissick if he accepted the interpretation of the telephone calls, i.e., the PTS - Arunta calls (‘the Arunta calls). Mr Kissick responded that he did. Her Honour says that she asked the question because she had looked quickly at the material and it suggested that the argument about duress might still be maintained by his client. The tribunal 14 PSBA-011: Transcript 1-3 lines 29-32 -- 7 of 21 -- 8 considers it useful to set out the exchange between Her Honour and Mr Kissick in relation to the claim of duress and the Arunta calls. MR KISSICK: The word – not duress as a defence. But certainly a real lack of enthusiasm in being involved and some great concern for her son in – as an imprisonment and the people who brought the product to her, which I will touch briefly on. But the calls are clearly indicative of this – of arranging this event at that time. HER HONOUR: Okay. So then I take it that you are then taking issue with the statement towards the end of the schedule of facts. This claim of coercion does not sit with the content of the calls to and from prison to her son. MR KISSICK: Well I suppose to the extent that all they had was the calls and not face to face conversation. And the fact that I’m not relying on actual duress or actual coercion. I don’t think – I don’t think it matters particularly much. But clearly the phone calls are referring to this transaction. HER HONOUR: They indicate knowing involvement. MR KISSICK: That’s right. And that’s accepted.15 [29] In her evidence before the tribunal, Ms Bachman admitted posting the envelope but denied any knowledge that there were drugs inside the envelope. She also denied that the Arunta calls were coded telephone calls to arrange the transaction. She conceded that she had telephoned her son before his birthday and mentioned a birthday card. She could not say why her counsel made that concession as she had always maintained that her telephone calls to her son were completely innocent. [30] Ms Bachman told the tribunal that she was visited by two men who requested firstly, that she give them her son’s gym equipment and then asked her to hand the envelope to her son when she next visited him. When she queried them about the envelope she says they said words to her to the effect of ‘You don’t want any trouble do you?’ She felt threatened by them and regarded the situation as ‘suspicious’. As a result, she opened the envelope, located a birthday card inside the envelope, read it, and assumed that the men wanted her to give the envelope to her son so that the authorities at the correctional facility did not know that the person sending the card was communicating with her son. She thought the message in the card may have been some form of code. [31] Her evidence to the tribunal in that regard is in direct conflict with the concessions made by her counsel during the court proceedings. [32] The following exchange occurs later in the transcript16: MR KISSICK:… He son was getting into trouble and he was imprisoned and, your Honour clearly the Arunta tapes were meant to be a disguised conversation. So they’re not – not the full import of what occurred. She – in conference, although the matter was to sit for trial and she refers to, in a 15 PSBA-012 lines 1-18 16 PSBA 017-018 Transcript 1-9 lines 36 to 1-10 line 26 -- 8 of 21 -- 9 laymans term, duress or threat or pressure. She clearly – she accepted, and the Crown were notified earlier that that did not constitute a defence in law. She had clearly other avenues. But her son would often tell her about difficulties in prison when they would see each other face to face before he was moved to the …. correctional facility. And she was introduced to people who bought her this particular item and the best word is probably – particularly consistent with her generally very pro-social outlook on life – was reluctant acquiescence in being involved in what she understood to be an unlawful enterprise. … HER HONOUR: And this she understood to be for his use? MR KISSICK: She knows that he engages in this sort of drug use. I have no specific instructions. Your Honour, no doubt, is enquiring there as to whether or not this is a commercial product within – inside the prison. Certainly, in my discussions with her, she’s never sort of revealed an understanding of that. And it doesn’t seem though – seemed to have been impregnated into a strip and seemed to be of a – the strip, your Honour’s seen the picture of it – but it’s not – it’s not 18 pills, for instance, that Mr Perry had that might be readily understood to be able to be paid for a specific debt or have a particular value in jail, pill by pill. So I would submit that she wasn’t involved in any understanding of any commerciality involved in this. But this was really something she was doing for her son with a degree of – significant degree of reluctance. And I ask Your Honour to sentence her on that basis. Certainly he did talk about the threats and pressures that were upon him in jail, including violence. But – and that was the basis on which she engaged in this conduct. It’s not quite, in my respectful submission as serious as Perry, perhaps. So far as just the nature of the amount of the drug involved, primarily. In those circumstances then six months might be the upper limit. [33] In sentencing Ms Bachman Her Honour stated: I have sentenced you on the basis that I accept that, whilst you did this knowingly, you were reluctant and you did it out of some, I think, misguided sense that this would be of assistance to your son. Although you initially denied your involvement, as I said, you have entered a plea of guilty and that was indicated at a reasonably early stage. I don’t see you as a person who necessarily requires supervision in the community. That and your plea of guilty is what I have taken into account in suspending the sentence. 17 [34] Her Honour also said: There’s evidence before me about your activities in the community, particularly in child health through nutrition and women’s health as well. As I said you are tertiary educated and you have used your qualifications for community benefit and that suggests to me that, as it is said in the letters that I have received on your behalf, this is out of character: I accept that that is true. I should note that a number of those letters hint or refer to facts that aren’t established before me about being stood over. I want to make it clear on the record that I have not acted on the basis of those assertions. Certainly Mr Kissick did not ask me to do so. 17 PSBA 022 Transcript 3 line 1 -- 9 of 21 -- 10 The serious aspect of this sort of offence, though as you would understand, Ms Bachman having listened to the arguments that have been put before me, is the impact of drugs in prison. 18 [35] Her Honour goes on to say that deterrence is an important aspect of a sentence for that offence. [36] Ms Bachman told the tribunal that she did not consider that her son had a drug addiction. Further, she said that she considered that the drugs being supplied through the envelope were intended for some other person and not for her son. She said she has been unable to clarify those matters with her son, as since her conviction, she is banned from contacting her son. Again, Ms Bachman’s evidence to the tribunal was in conflict with what was presented to the Court. [37] When questioned about why she did not contact the police before posting the letter, Ms Bachman said that “things go on” and asked what could she do about it, if they knew her, and her address and they were going to bash her son. She couldn’t see that there was anything wrong enough to go to the police about, and she didn’t think about it that much. She wasn’t suspicious enough to go to the police. She also said that they had wanted the gym equipment and things like that go on with families on the outside. She said the last thing she expected was drugs to be in the envelope. She denied ever using drugs herself. [38] Ms Bachman’s evidence was that following that event, and given her conviction and sentence, she would go to police if she was again asked to provide a package to her son. She considered that, given the conviction, she might now get protection from police. [39] She also gave evidence that the quantity of the drugs was quite small and that her case was nothing compared to what goes on. She said it did not make sense for her to send the letter knowing that there were drugs in it. [40] It was put to her that, if she was concerned for her son’s safety in jail she could have spoken to the correctional facility or corrective services about her concerns. Ms Bachman said this had not occurred to her, she said she had not built a relationship with the correctional facility over time. She said that her son tells her to stay out of things and she does what he asks. If he had asked her for help she would have done so. [41] She said that after the offence, money intended for her son went missing in the mail. She said she contacted the facility about it but the matter was non investigated. She said she did not look at the prison system as having any authority but would trust the police more. Ms Bachman said that if the same circumstances presented themselves, she would find some way of dealing with the police and would ask about repercussions for her and her son before she gave the information. However, at the time, she did not think of raising that first. 18 PSBA 021-022 Transcript 2 from line 23 and 3 to line 7 -- 10 of 21 -- 11 [42] Ms Bachman also said she had known too many cases of women who were abused and nothing happened and they ended up killed so she did not trust that she could have done anything at the time, because she did not know about the drugs at the time. She said if it happened again, she would probably look at the immediate danger and move. She did not think the police would protect her 24/7. [43] Ms Bachman told the tribunal that after April 2013 she met with another man at a hotel at her son’s request. She did so to give him her son’s TAB card to settle a debt owed by her son. She said that her son is in isolation in prison and, since he has been in isolation, he does not have so much contact with the mainstream prison population. Since his move to isolation, she has not had any contact with people linked to her son. She said that she had moved address since the charge in 2013 and lives with her 31 year old son and his fiance. [44] Ms Bachman gave evidence that she feels safe now, although she is “sometimes paranoid”. [45] Ms Hoy said that her mother looks after her two sons each Thursday while Ms Hoy works. She said her mother did something wrong but is not a threat to children. Ms Hoy said she had not been shown the reasons for the decision of the PSBA nor had she seen the sentencing remarks of Kingham DCJ. She said that her mother regrets what has happened and she is highly embarrassed about what has occurred. [46] Ms Hoy said that they have all paid for their brother. She said, as a mother, she would probably do the same thing if she was asked to by her son. She said she would not like her own children to go to jail. She said her mother is amazing with children and is a good mother and grandmother. She said her mother is in a horrible situation. When asked what her mother’s strengths were she said that her mother had gone through with this and tried to clear her name and her son has put her through a lot. [47] Ms Hoy said she does not give her brother her address or visit him because of concerns that she may be contacted by people linked to him. About five or six years ago, she went with her mother on one occasion to meet people linked to her brother. She found this a scary experience and would not do it again. She said she knew that her brother had got her mother into situations over the years. She said she thought her mother freaked out, was worried for her brother and other children. Her mother knew her brother had been beaten in jail. [48] Ms Hoy said she doesn’t visit her mother’s house or take her children there as she is concerned that people linked with her brother know the address. Ms Hoy gave evidence which she later qualified that her mother was living at the same address as at the time of the offence. Later she said that her mother cared for her children at her (Ms Hoy’s) address, because she lives on the bayside and it is more convenient for her mother to come to her. Ms Hoy said her mother’s current address is not far from her previous one. -- 11 of 21 -- 12 [49] Ms Hoy said her mother was not a criminal. She said it was not a good situation for her mum and her mother is amazing. [50] Ms Bachman relies on a number of statements and letters from third parties which support her holding a blue card.19 Some of those statements allude to Ms Bachman having passed on the letter out of fear. Others do not refer to the charge or conviction. All otherwise speak highly of Ms Bachman’s character and some speak of the work she does in promoting wellness and wellbeing. Only Ms Hoy gave evidence. [51] The tribunal has evidence of Ms Bachman’s tertiary qualifications and articles and other documents regarding her work in the area of nutrition. Submissions [52] In her statement Ms Bachman states: I understand Blue Card concerns, However, it is my hope that the Tribunal will see my action as an isolated incidence and that there is no likelihood of this being repeated, none. I’d know better if there were a next time. To see the bigger picture and come to the conclusion that I am a fit and suitable role model to work with children now and in the future even though I have shown what has been coined ‘poor judgment’ in my actions relating to my case. Yes I did show poor judgment, however, it is my hope you do not see this as me being unsuitable to work with children. I have a charge that has been an extremely lenient one; others have been incarcerated for the same offence. Judge Kingham acknowledged and confirmed that my behaviour was extremely unusual and out of character. It was established that there was a ‘real lack of enthusiasm at being involved and some great concern for my son’s safety’. She also stated that I was a woman of strong character who used by skills for the betterment of humanity. Please do not see this incident as an inability to judge appropriate behaviour, I am very proactive as a person and pride myself on my behaviour and take my work very seriously. This is not a case of ‘blatant disregard for the law’ as has been suggested, but more a case of ‘poor judgment’ based on the situation I found myself in. … My charge has not changed my suitability to work with children; in fact it has ‘enhanced’ it, as it has given me a way of looking at how I would handle a situation differently. This now enables me to pass that wisdom on. The case of; if you are ever approached to do something you are unsure about, best to take time to look at all the possibilities before acting and ensure all are safe! 19 PSBA – 042 to 050 (inclusive) and 061 to 065 (inclusive) -- 12 of 21 -- 13 Although I am guilty of posting drugs to my son and hence now have a conviction against me…I have not changed as a person, I was fit to work with children before this and I still am. … I deeply regret I didn’t call the police when approached and I would certainly if approached again. … I am unable to continue with my work in school, to work with canteen staff and teach children, healthy snack preparations. Up until this all started I was literally consumed in getting health education to parents and children. …I hope to have this unfortunate situation behind me and move on in the direction I was before all this started, to teach healthy and raw food in schools and to host exchange students with ‘special needs’ when asked…. [53] Ms Bachman submits that the events of April 2013 were out of character. In support of that submissions she relies on the references provided by third parties, certificates of appreciation and her professional qualifications. She also relies on the following sentencing remarks of Her Honour: You’re a 54 year old woman; you were 52 when you committed this offence, which involved you supplying a dangerous drug buprenorphine I think it is – suboxone – to your son who was I’m not sure if he still is – but he was then in custody. Your son is a 24 year old. You are an intelligent, well educated woman. You have criminal history that I regard as not relevant in any way to the sentence I’m imposing today, and as Mr Nardone so fairly said, you indicated well before the matter was due to proceed to trial that would not be a trial. I take your plea of guilty into account in deciding to wholly suspend the sentence. There’s evidence before me about your activities in the community, particularly in child health through nutrition and women’s health as well. As I said you are tertiary educated and you used your qualifications for community benefit, and that suggests to me, as it is said in the letters that I’ve received on your behalf, this is out of character: I accept that that is true. I should note that a number of those letters hint or refer to facts that aren’t established before me about being stood over. I want to make it clear on the record that I have not acted on the basis of those assertions. Certainly Mr Kissick did not ask me to do so. [54] The PSBA identified a number of protective factors. Ms Bachman has numerous qualifications, a passion for health and wellbeing and has worked in the community to help others. She has a passion for working in schools and wants to continue teaching nutrition in schools. She requires a blue card to do so. She has the support of her adult children and is entrusted with the care of her grandchildren. [55] She is well regarded by members of the community and has a reputation which is important to her. -- 13 of 21 -- 14 [56] The respondent submits that the risk factors outweigh the protective factors. The PSBA submits that the tribunal cannot now go behind the conviction. The PSBA relies on the case of Minister for Immigration and Ethnic Affairs v Gungor20 and submits that where evidence has been given that goes to the elements of the offence, then the tribunal should consider itself bound by those facts, but can look at the circumstances surrounding the offence. [57] The PSBA submits that the version of the facts Ms Bachman asks the tribunal to accept goes directly to the elements of the offence and is materially and substantially different to what she asked the criminal court to accept. Her Honour Judge Kingham did not accept that she had been ‘stood over’ and it was submitted that there was insufficient evidence before the tribunal for it to find that that in fact occurred. While there are some written statements and references of third parties which allude to Ms Bachman being coerced into acting as she did, the PSBA submits that those statements are based on information provided to the third parties by Ms Bachman and to that extent the third parties’ statements are hearsay and should not be given significant weight. The same can be said for Ms Hoy’s evidence. The only direct evidence before the tribunal is that of Ms Bachman. No one else was present when she spoke with the two men. [58] The PSBA submits that Ms Bachman’s evidence regarding the Arunta calls is clearly inconsistent with what Ms Bachman’s counsel told the criminal court and upon which Her Honour Judge Kingham relied in sentencing her. [59] The PSBA submits that Ms Bachman’s evidence to the tribunal is an attempt by Ms Bachman to ameliorate any real culpability or responsibility for the offence to which she pleaded guilty. It was submitted that her current version of events is tailored to her understandable wish to have a blue card. It was also argued that this demonstrates a lack of insight into the nature of her offending which was a serious offence. [60] The PSBA submits that the recency of the offending is another risk factor. Ms Bachman’s sentence expired in June 2015. Despite Ms Bachman’s mature years and the large gap in her criminal history, the PSBA submits that insufficient time has passed for the tribunal to be satisfied that the offence was isolated in nature. [61] In relation to what is sufficient time since the offence, Ms Bachman said that she is now 55 years of age and she could not see what would be sufficient time in the circumstances. [62] The PSBA submits that another risk factor is that the offence in issue is the only such offence in her criminal history so that it is difficult to identify the triggers for the offending and strategies now in place to avoid similar circumstances occurring in the future. [63] The PSBA referred to Ms Bachman’s application for review to the tribunal in which she indicated that she acted as a mother to protect the welfare of 20 [1982] FCA 99 -- 14 of 21 -- 15 her son. It was submitted that this raises concerns that Ms Bachman would act out of character with children in her care, should similar circumstances present themselves again. [64] The PSBA submitted that given Ms Bachman’s evidence that she was “stood over” by the individuals who provided her with the envelope, the tribunal should find it difficult to accept, given Ms Bachman’s age and education, that she did not strongly suspect that there was something untoward in relation to the envelope. Her evidence to the tribunal was that she was suspicious that there could be a code in the card, and it is concerning that even despite those suspicions and her life experience, she chose to send the envelope. She gave evidence that she did not know what the code meant but still sent the envelope. [65] Further, the PSBA submits that there is a lack of willingness on Ms Bachman’s part to accept responsibility, and that there is insufficient demonstrable insight. She referred to feeling threatened but did not call police. She has not contacted any support groups or contacted corrective services regarding her son’s health despite her evidence that he had been repeatedly bashed and otherwise assaulted during his period of incarceration. It was submitted that a reasonable person would have contacted police or corrective services to express their concerns. [66] In response, Ms Bachman said she did not plead not guilty or raise the duress defence because she decided not to give police information about the men involved. She said she did not get correct advice regarding the implications for her blue card. She felt she had to plead guilty because, although the mail was not from her, she did post it to the jail. [67] Ms Bachman said that she had said things to her son and would help out if he wanted her to, but he had told her to keep out of it, including the circumstances where money had gone missing. She said she would be someone who would write letters about things that were concerning to her, but she had been told by her son to “butt out”. [68] With the exception of her daughter, none of those who provided letters, references and testimonials in support of Ms Bachman provided oral evidence to the tribunal, or were available for cross-examination. The PSBA submits that the tribunal should temper the weight that should be applied to these references for those reasons. [69] In respect of the references, Ms Bachman submitted that, while not all of the people who provided statements or references were aware of the offence, they show her standing in the community. [70] The PSBA submits that whilst Ms Bachman’s daughter spoke positively of Ms Bachman’s interaction with her grandchildren, again her evidence should be tempered as to weight as it is not impartial evidence. It was also clear from Ms Hoy’s evidence that she had not read the sentencing remarks or the reasons for the decision so that she does not have clear knowledge of the admission in relation to the Arunta calls. -- 15 of 21 -- 16 [71] The PSBA submits that the tribunal can take into account Ms Bachman’s evidence regarding having met with another man who knew her son after the offence in question. Ms Bachman in response said that the gentleman that she met at the hotel was a different circumstance as they did not come to her house and did not use words like, ‘you don’t want any trouble do you?’. [72] Ms Bachman said she hoped the tribunal would see that she is no threat to children. She said that the individuals who knew her son do not have her current address. Whilst her daughter does not want to be associated with her brother, so there is no threat by her brother that is her decision. Ms Bachman said that she is currently unable to contact her son due to the offence. She described her daughter as a ‘panic merchant’ and overprotective and said that it is more convenient that she cares for the grandchildren at her daughter’s home. Ms Bachman submitted that her house is not under threat now. She said that the men were probably back in jail and she did not feel uncomfortable at her current address. She did not feel threatened. [73] The respondent submits that it is not relevant to consider the harm that will be done to the applicant’s work as a factor to be taken into account in determining whether or not the circumstances in this case are exceptional. Further, it is not relevant to take into account any potential benefit to the community in Ms Bachman being able to continue with her work in the community involving children. The respondent otherwise relies on its reasons for the decision under review. Application of the Law and reasons [74] Pursuant to s 225 of the Act, the Chief Executive must issue a negative notice to the person if the Chief Executive is aware the person has been convicted of a serious offence. There is no dispute that Ms Bachman has been convicted of a serious offence and was so convicted on 7 November 2014. Section 225(2) provides that in that case, and the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a positive notice to the person. [75] Section 226 provides that if the chief executive is deciding whether or not there is an exceptional case for the person, and is aware that the person has been convicted of an offence, the chief executive must have regard to particular factors. [76] Turning then to a consideration of the matters set out in s 226(2) of the Act. The legislation emphasises that the approach of the tribunal to determining whether an exceptional case exists is discretionary rather than prescriptive. [77] The tribunal is not re-hearing the criminal trial and accepts without question Ms Bachman’s conviction. The allegations, findings and outcome of that proceeding provide the background against which the tribunal can evaluate the risks and protective factors. -- 16 of 21 -- 17 [78] The offence was committed in April 2013 with the conviction being recorded on 7 November 2014. Ms Bachman was sentenced to a term of imprisonment of six months, wholly suspended. The recording of a conviction and the length of the sentence reflects the seriousness of the offence. [79] The supply of drugs is serious. Ms Bachman’s son, at the time, was 22 years old. The supply of illicit drugs has the potential to impact the wider community, and both directly and indirectly the lives of children. [80] Ms Bachman desires the issue of a blue card so that she can conduct homestays and work in school canteens. The tribunal considers that the nature of the offence, the supply of drugs, is incompatible with offering homestays for children or working with children in schools. [81] The tribunal has also taken into account, in its entirety, the transcript of the proceedings in the Criminal Court on 7 November 2014. The tribunal notes that Ms Bachman was represented by Counsel in those proceedings and plead guilty to the charge. [82] The PSBA submits, based on the decision in Gungor’s case that the tribunal cannot go behind the conviction of the offence and should not accept Ms Bachman’s evidence in these proceedings insofar as that evidence goes to the elements of the offence as opposed to the circumstances around the offence. [83] In Gungor’s case, the Court said: While it stands, the conviction must be conclusive... When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed. [84] In Re FAA21 the Queensland Children Services Tribunal stated: The Tribunal is mindful that in taking a conviction into account it must accept that decision on conviction as conclusive and not go behind it, seek to retry the charge leading to that conviction, or proceed on a basis inconsistent with that conviction. [85] In Gungor’s case, the court cites the following passage from the joint judgment of Fisher and Lockhart JJ in Re Minister of Immigration and Ethnic Affairs v Agazio Daniele22: There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the 21 [2006] QCST 15, at [39]. 22 [1981] FCA 212. Gungor’s case refers to this passage but the tribunal could not identify it in the published version of Re Agazio Daniele. -- 17 of 21 -- 18 nature and gravity of the Applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. 23 [86] The tribunal is concerned that Ms Bachman’s evidence at the hearing was different to what was presented to the court because her goal is to convince the tribunal that a blue card should be issued. [87] Ms Bachman said that she was told that as her fingerprints were on the envelope she should plead guilty. However, it is clear from the transcript that her counsel conceded to the court that the Arunta calls set up the transaction. It is also clear that in sentencing Ms Bachman, Kingham DCJ did not take into account any evidence before her that was consistent with a claim that she acted under duress. Her Honour noted that such claims were inconsistent with the concession made in relation to the Arunta calls. While Ms Bachman maintained that she did not know why those concessions were made, the tribunal considers that counsel was acting on her instructions at the time he made those concessions. [88] The tribunal notes that Kingham DCJ regarded the offence as being out of character. In the tribunal’s view, Her Honour based that opinion on the references provided to the court, the lack of any previous such offences and Ms Bachman’s concession that she was supplying the drugs to her son, who had a drug addiction. [89] However, before the tribunal, Ms Bachman gave evidence that was directly inconsistent with what was presented to the court. In particular, she said that she did not consider that the drugs were intended for her son. She said that her son did not have a drug addiction. She said that she was not aware that the envelope contained drugs. [90] As the inconsistent evidence goes to the facts relied on by the court, the tribunal considers that it cannot now find that the facts on which the court sentenced Ms Bachman were incorrect. That means the tribunal finds itself bound to accept the facts as presented to the court, that Ms Bachman arranged the transaction with her son during telephone conversations prior to his birthday and she posted the envelope knowing that it contained drugs. Further, due to the inconsistent evidence, the tribunal has serious concerns about Ms Bachman’s credibility generally. [91] Even if the tribunal is wrong in that regard and Ms Bachman’s version of events to the tribunal was accepted, the tribunal would remain troubled by Ms Bachman’s actions. Ms Bachman’s evidence to the tribunal is that she felt threatened by the two men who came to her house. She was suspicious of the envelope they asked her to deliver to her son. Because of her suspicions she opened the envelope, examined the contents and considered that the message on the card may be code. She assumed that the person sending the card wished to communicate with her son but did not want the correctional authorities to know that they were communicating and that was why she was asked to pass on the card. Despite those suspicions and her acknowledgement that the communication maybe in 23 Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99 at p.7 -- 18 of 21 -- 19 breach of correctional services protocols at the very least, she did not go to the police with her concerns and posted the letter. [92] Her evidence raises concerns about Ms Bachman’s ability to make appropriate decisions if she were again faced with similar circumstances. [93] Despite concerns for her own safety and that of her son, she has not sought any advice or made any representations to correctional services or the police to ensure her own or her son’s safety. While she told the tribunal that she changed address after she was charged, but prior to the conviction, her daughter’s evidence was that her current address is very close to her old one. The tribunal was left unconvinced by Ms Bachman’s assertion that the men who came to her house are probably back in jail so that there should be no ongoing concerns regarding her contact with former inmates. Ms Hoy is fearful of people linked to her brother and does not want her address known to anyone connected with him, so much so that she has not provided her brother with her address and does not visit him. Ms Bachman described her daughter as a panic merchant. [94] The tribunal has also taken into account the recency of the conviction and expiration of the sentence. The tribunal considers that insufficient time has elapsed between the end of the sentence or indeed the conviction and the events leading to the conviction, for it to be satisfied that placed in a similar situation, Ms Bachman would not act in a similar way. [95] The tribunal also has concerns that Ms Bachman’s son remains in jail and since the events of April 2013 she has met with a person at her son’s request. [96] For the reasons expressed and the tribunal’s findings in relation to Ms Bachman’s credit, the tribunal is not satisfied to the appropriate standard that if presented with a similar situation Ms Bachman would not act otherwise than in accordance with her son’s requests. Further, based on Ms Hoy’s evidence, the tribunal considers that individuals connected with her son are likely to be able to locate Ms Bachman. [97] In the tribunal’s view, the reproduced sections of Ms Bachman’s statement and the submissions she provided to the PSBA show a failure on Ms Bachman’s part to adequately acknowledge the gravity of the offence. She focusses instead on her passion and desire to continue with her work in nutrition while denying any criminal conduct other than that she posted a letter. The tribunal considers that this shows a lack of insight into the gravity of the offence and her own conduct. [98] Based on those findings the tribunal identifies the following risk factors: a) Ms Bachman was convicted of a serious offence b) The offence related to the supply of drugs c) The recency of the offence and the end of Ms Bachman’s sentence d) The nature of the offence is incompatible with working with children -- 19 of 21 -- 20 e) The sentence reflected the seriousness of the offence f) Ms Bachman’s has a lack of insight into the seriousness of the offence g) There are no identifiable preventative strategies in place to prevent reoffending h) Ms Bachman’s son remains incarcerated i) Ms Bachman has met, since the offence with a man associated with her son. [99] The tribunal generally accepts that Ms Bachman has a number of tertiary qualifications. She has a keen interest in nutrition and, in particular, children’s nutrition. The tribunal also accepts that Ms Bachman has an interest in women’s health, both locally and internationally, and the tribunal understands that without a blue card she will not be able to continue to visit schools, to educate children on nutrition or assist in school canteens. Further, she will not be able to provide homestays for high school students with allergies who might be unable to find a suitable family placement given the concerns around their allergies. [100] All of her work is of benefit to the community and it is clear from the statements of her friends and colleagues that she is highly regarded. When she spoke of her work in the hearing her passion for her work and her commitment to it was obvious. The tribunal also accepts that her own children are very supportive of her. Her daughter trusts her to look after her children. [101] Based on those findings the tribunal accepts that there are protective factors in this case: a) Ms Bachman is an intelligent and mature individual b) The offence relating to the supply of drugs is her first such offence. c) Ms Bachman has no known drug history d) Ms Bachman’s professional reputation is very important to her. e) Ms Bachman is passionate about her work in the area of children’s nutrition f) Ms Bachman has a supportive family g) Ms Bachman is trusted by her daughter to care for her young children [102] The tribunal cannot be satisfied that, based on a consideration of Ms Bachman’s circumstances as set out in these reasons, involving both the risk and the protective factors, that this is an exceptional case in which it would not harm the best interests of children for the chief executive to issue a positive notice. It is an expectation that those issued with a blue card act in a way that protects children from harm and promotes children’s wellbeing. Ms Bachman’s judgement is, in the tribunal’s view, compromised based on her conduct leading to the conviction. Further, she has failed to demonstrate adequate insight into her lack of judgement and the wrongfulness of her conduct. -- 20 of 21 -- 21 [103] The decision under review is confirmed. -- 21 of 21 --