Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293

CITATION: Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293 PARTIES: John Charles Drinkwater v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CSR233-09 MATTER TYPE: Children’s matters HEARING DATE: 23 February 2010 HEARD AT: Brisbane DECISION OF: Louise McDonald (Presiding Member) Nigel Collings (Member) DELIVERED ON: 23 February 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. That the decision made by the Commissioner for Children and Young People and Child Guardian made on 14 October 2009 that an exceptional case exists where it would not be in the best interests of children for a positive notice to be issued be SET ASIDE. 2. That the Tribunal substitutes the decision that the Applicant has demonstrated that no exceptional case exists in which it would not be in the best interests of children to issue a positive notice. 3. That a positive notice be issued under the s102 of the Act to the Applicant John Drinkwater forthwith. CATCHWORDS : Blue card, protective factors outweigh the risk factors, Tribunal satisfied that this is not an exceptional case in which it not in the best interests of children for a positive notice to be issued APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr John Charles Drinkwater RESPONDENT: Commission for Children and Young People and Child Guardian -- 1 of 10 -- REASONS FOR DECISION HISTORY OF PROCEEDINGS: 1 Mr John Drinkwater, hereafter also referred to as the Applicant was the subject of an application to the Commission for Children and Young People and Child Guardian for a volunteer blue card under s100 of the Commissioner for Young People and Child Guardian Act, hereafter, the Act. This document was received by the Commission on 3 December 2008. 2 On 15 October 2009 the Commission advised the Applicant in writing that a negative notice under s102 of the Act was to be issued on the grounds that Mr Drinkwater an exceptional case existed in which it would not be in the best interest of children to issue a positive notice. 3 The Applicant filed a form 1 Application for review of this decision with the Children Services Tribunal on 27 October 2009, under the provisions of s121(1) (a) of the Act. A Preliminary Conference was on 18 November 2009 and the matter was set down for hearing. The hearing of this review took place in Brisbane on 26 February 2010 under the newly established Queensland Civil and Administrative Tribunal. The Tribunal reserved its decision. 4 The Tribunal relied upon written documents contained in the Applicant’s file provided by both parties. Specifically, this included: 5 The Commission’s documents, included: • Application received 2 December 2009; • Applicants Criminal History from Queensland Police Service; • Court Briefs from Queensland Police Service; • Sentence Proceedings 29 July 2009 Transcript from Ipswich District Court; • Parole Order; • Correspondence from Corrective Services including; • Contact Summary; Program History; Case notes from Maryborough Correctional Centre education Interview, Advice to Sentence Management Education Review Report; Psychologists Report dated 7/1/08; Parole Board Assessment Report dated 9/5/08; Parole Assessment Report dated 19/5/08; Progress Report from Alternatives Consulting Psychologists dated 13/11/08; Statement of Attainments from Australian Agricultural College; Transitions Program Summary; Psychologist Report dated 7/1/08; Offender management Review. • Point System, Reasons, Negative Notice; • Documents returned under Notice to Produce to Department of Community Safety: Corrective Services. 6 Mr Drinkwater filed an additional statement accompanying his application dated 15/1/10. He gave oral evidence. He called Father Bob Woolner and Father Frank Phillips as witnesses on his behalf. APPLICABLE LAW: 7 The Application commenced under the auspices of the Children’s Services Tribunal and was heard under the Queensland Civil and Administrative Tribunal Act, (the QCAT Act). The Tribunal is empowered to consider -- 2 of 10 -- applications for review made under s 121(1) (a) of the Act afresh, taking into account new material, s20 QCAT Act. The application is to be decided upon its merits. 8 After reviewing the decision, the Tribunal may under s24 of the QCAT Act: Confirm or amend the decision; or set aside and substitute its own decision; or set aside the decision and return it to the original decision maker. The Tribunal is limited by s271 QCAT Act to the powers the CST would have held under s38 of the CST Act. 9 Where an Applicant has a not been convicted for a serious or disqualifying offence, positive notice must issue under s102 (3) of the Act, unless under s102 (4) an exceptional case exists in which it would not be in the best interests of children to issue a positive notice. 10 While exceptional case is not defined in the act, a number of discretionary considerations are to be considered under s 102A of the Act. The Tribunal of course is bound primarily by the paramount principle that all decisions are to be made under the principle that the welfare and best interests of children prevail. 11 S102 A requires consideration of the following factors in determining whether an exceptional case exists: If the Commissioner is aware that a person has been convicted of an offence, she must have regard to the following – (a) in relation to the Commission, or alleged Commission, of an offence by the person – whether it is a conviction or a charge; and whether the offence is a serious offence, and if it is, whether it is an excluding offence; and when the offence was committed or is alleged to have been committed; and the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and in the case of a conviction:- the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under sec. 126 C, the court’s reasons for its decision; (b) anything else relating to the Commission, or alleged Commission, of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person. 12 Case law has given further assistance in interpreting whether an exceptional case exists. It is a question of fact and degree1 and is to be determined on the facts of the individual case. Consideration of the non- conviction charges has been held to be relevant to evaluating the risk of future harm. 23 In Commissioner for Young People v Maher and Anor4 endorsed an approach which balanced protective and risk factors to determine whether an exceptional case existed. 1 Re Imperial Chemicals Industries Ltd Patent Extension Petitions [1983] 1 VR1 2 Chief Executive of Department of Child Protection 2008 WASCA171. 3 Kent v Wilson [2000] VSC 98. 4 [2004] QCA 492 -- 3 of 10 -- 13 The Tribunal must be satisfied that an exceptional case exists on the civil standard of proof, being the balance of probabilities. Briginshaw v Briginshaw & Anor (1938) 60 CLR 336, applied Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. EVIDENCE: 14 Mr Drinkwater’s criminal record carries convictions for Aggravated Assault and Unlawfully entering a dwelling house in 1986; (hereafter, “the 1986 offences”) and Extortion, Attempted Arson and Wilful Damage in 2004, (hereafter, “the 2004 offences”). For the earlier offences he was fined $1000 and placed on a good behaviour bond. For the latter he was ordered to spend 6 years in jail. He served approximately three years of his sentence, being released on parole in 2008, for the balance of his sentence. 15 The circumstances of the first conviction are noted in police records that Mr Drinkwater walked into a school for deaf children and pressed an umbrella against a frightened 18 year old supervisor of the school. Mr Drinkwater advised the Tribunal that he had no recollection of the event, where he was or why he was there. He recalled drinking heavily with work colleagues after a long shift and walking home but had no other recollection of the event. He asserted that it was expected that alcohol affected memory and “You don’t remember what you do when you are drunk. “ He had no recollection of the events but stated, “if someone says you did it, you must have”. He reflected on the incident by saying he made a fool of himself. 16 The circumstances around his 2004 offences relate to a series of incidents where Mr Drinkwater was said to have thrown petrol bombs at an occupied house, made threats to extort $50,000 from a business associate of his business partner including, dousing the complainants car with petrol and threats light it if the money was not forthcoming. Further threats were made about seeing the complainants adult daughter if monies remained unpaid. 17 Mr Drinkwater continues to maintain his innocence of these offences, and has done so consistently during his three years in jail for these offences and thereafter. He states that he blames his business partner at the time who has absconded to Indonesia. He stated to the Tribunal that his “guilt was by association”. He told the Tribunal that he is appealing his conviction, but has withdrawn his application pending raising sufficient funds to have the voice recordings analysed. His wife’s enquiries in this regard indicate that US sources will charge him $30,000; while two Australian sources can do this for $20,000. 18 Mr Drinkwater blamed his poor representation at trial for his conviction on circumstantial evidence, claiming his barrister failed to call crucial witnesses, and to lead evidence of his alibi, despite not giving the police a statement of his alibi. 19 The Tribunal cannot go behind the District Court’s finding and must treat the convictions as they stand. 20 In the face of his position of innocence he claims that he cannot feel remorse, because he did not commit the crime. He presented evidence that he “felt for” the victims, knowing it would be traumatic, and it was not an event he would like to have happen to him, but he did not wish to dwell on it because it -- 4 of 10 -- would make him sad and unhappy and he needed to move on for his sake and others. He protested that he could feel sorry for the victims, but should be in a position to “walk away without being traumatically scarred forever”. After several questions on the issue of insight, Mr Drinkwater ultimately gave the following statement in relation to the extortion and attempted arson: If it happened to me I would have been scared. I would have moved, I would have tried to distance myself. It is not nice for someone to try to burn your house to the ground. I can’t think of anything worse. 21 He reflected on the 2004 offence saying: that it was not a way to do business. He claimed that he would seek legal means to recover the debt, including small claims court and other jurisdictions, and to write of the debt. He claimed in the past he has written off debt. 22 When pressed to convey his understanding of the impact of the 1986 offence, he indicated that he believed that the victim would feel scared and uncertain of who was coming towards her. 23 Mr Drinkwater described himself as a person who did not put up with fools. He believed that he tried to do the right thing by people and tried to help people generally. Bob Woolner gave evidence that he was a known to be a private person, genuine, caring, and reserved. 24 The Applicant gave the Tribunal a brief summary of his background. The Applicant grew up in Bundaberg with his father mother and younger sister. His parents are still together He gained print trade qualifications at TAFE and University, as well as completing Master craftsmanship. He is qualified to work in newspaper and print industries. 25 He indicated that he had throughout the years been involved in Scouts, Jaycees and Rostrum, and organising the Harvest Festival in Bundaberg. He married in 1988, and divorced his first wife in 1995. There was one child of the marriage, James. James initially lived with the mother, and then came to live permanently with the Applicant at age nine. The Applicant gave evidence that this occurred because the mother stated ”the child was of no use to her.” The child is now aged nineteen and living with the Applicant. Mr Drinkwater remarried in 2004 to his current wife, Lina, who is of Indonesian/ Chinese descent. He stated that his wife has remained supportive of him throughout the process. The Tribunal noted her absence as a support person or witness in proceedings. 26 Father Bob Woolner gave evidence that this was a stable and supportive relationship. 27 Father Phillips gave evidence that he knew the Applicant for 18 months and sees Mr Drinkwater’s family regular through church and considers that he has a stable relationship with his wife and son. 28 In 1995 Mr Drinkwater established his business manufacturing cleaning products. The second wing of his business involved promotional coupons, and it was this business where-upon he met the business partner he alleges was involved in his offences. 29 Mr Drinkwater gave evidence that he was an active participant in his local church, the Anglican Parish of Algester. He undertakes mowing and -- 5 of 10 -- maintenance for the church facilities, and attends the premises approximately two or three days of each week. 30 Since his release from prison in 2008 he has had limited employment opportunities. He stated that he had temporary contracts no more than two weeks duration in truck driving and distribution. He plans to sell his cleaning business and stock and considers that this will be likely to fund the voice analysis for his appeal for his conviction. 31 A typical day for the Applicant involves driving his wife to the bus for her full time work each day, doing his emails, general household and garden maintenance, and his volunteer work at the church. 32 He stated that he sought the blue card as it was church policy to require office bearers to hold blue cards. His work with the church brings him into contact with children through his potential presence in a facility occupied by children, but supervised by other adults, including the day care centre. 33 He understood that an exemption could be sought from the Bishop should he ultimately fail in this application. 34 He stated that he drink a half a bottle of wine each week, being a moderate drinker. He advised that he had been a heavy drinker in his younger years, around the time of the first offence, but because in the interim he held a heavy vehicle licence requiring nil blood alcohol concentration, he now drinks in moderation. 35 He maintains friendships from his contacts in Jaycees and stated that he sees them on a regular basis. Beyond this his social network is largely based in associations from the church. He gave evidence that he would seek out support in a stressful situation from Father Phillips, and Woolner and his local doctor. 36 He has received business counselling through Alternatives Consulting as part of his parole conditions. This has focused on alternative means of debt recover; and appropriate ways to conduct business. He has not breached parole conditions. 37 In jail there had been incidents which required Mr Drinkwater be moved between Correctional Centres. The Applicant explained that his bed had been firebombed in one instance. He explained to the Tribunal that he believed these events occurred because of the poor supervision at the Numinbah facility, and he did not believe he had done anything to contribute to attacks upon him. He thought a group of “druggies” may have taken a dislike to him because he had a short work day in the sewerage facility, and had also refused to assist “druggies” with their applications for parole. Mr Drinkwater held strong views about drug addict’s value to society stating to one user in prison that he did not deserve to be in society. 38 Both Fathers Woolner and Phillips gave evidence that they considered Mr Drinkwater posed no risk to children. Father Woolner has observed the Applicant closely over approximately ten years. Both priests are also confident of the Applicants innocence of the charges suggesting that they are inconsistent with the character they have observed. Both priests had accepted Mr Drinkwater’s version of the facts which suggested that his defence let him down at trial. -- 6 of 10 -- 39 Father Woolner who led the Applicant through counselling in relation to the breakdown of his first marriage rejected the assertion that Mr Drinkwater had a tendency to blame other and fail to accept responsibility for his actions. 40 Father Woolner gave evidence that the Applicant had been consistently active as a volunteer within the church for many years. 41 Both priests indicated that there was no exemption available from the bishop and that the alternative was an ex –officio appointment to the church executive. It appears that Mr Drinkwater misunderstood this. 42 The Corrective Services Psychologists Report dated 28 April 2008 and parole board’s report assessed him as no risk to the community. It stated at page 5: there does not appear to be any information which suggest that he would be an unacceptable risk to the community should he be granted parole/ While he does not take responsibility for offending behaviour and thus has limited ability to demonstrate insight and remorse for these actions, he has acknowledged errors of judgement in the events leading to his incarceration and has articulated appropriate strategies to assist him in avoiding similar circumstances in the future…” DISCUSSION OF THE EVIDENCE: 43 The Tribunal has considered matters within s 102A. The Tribunal Notes that the Applicant holds 5 convictions, none of which are excluding offence or serious offences within the meaning of the Act. The first two of these offences were committed 24 years ago; the latter cluster of offences was committed six years ago. The penalty imposed by the court was serious: 6 years imprisonment, reflecting the judge’s stated concern that he was a willing participant in crimes which had significant impact on his victims. 44 The Tribunal has no information in relation to reasons why the court imposed a fine for the 1986 offences. 45 The circumstances of the 1986 offences are of concern to the Tribunal, being an assault which took place in a school when the Applicant was drunk. 46 The circumstances of the 2004 offences concern the Tribunal being the destructive and inherently dangerous method chosen to solve problems. The offences although not directly related to children do project the Applicant as being a poor role model and risks modelling morally compromised methods of dealing with presenting concerns. 47 The sentencing remarks of Richards suggest that the Applicant was a willing participant in the offence which had a terrifying effect upon the victims. They suggest that the Applicant was aware that the house was occupied at the time of throwing petrol bombs. 48 Commission submitted that the evidence suggested that an exceptional case existed. They observed that Mr Drinkwater continued to maintain a version of events which was inconsistent with the guilty verdict for arson and extortion offences. They argued that Mr Drinkwater had demonstrated no insight into the gravity of his offences and had not accepted responsibility for offences in 2004 or 1986. -- 7 of 10 -- 49 The Commission emphasised the sentencing judge noted that he has failed to cooperate with the police; and questioned why he failed to provide the police with information about his alleged alibi. 50 They argued that he continued to show no remorse for his offences, and his own evidence suggests he chooses not to dwell on the past. They submitted that he did not have sufficient insight into the harm caused. 51 They argued that his reflections on offences portrayed a failure to acknowledge his responsibility and impact upon the victims. 52 Mr Drinkwater submitted that he had to cope everyday with the effect the offences had on the victims and would do so for the rest of his life; but he could not dwell upon it and needed to move on for himself and his family. 53 He submitted that he co-operated as best he could with police at the time. 54 He re-iterated that Corrective Services did not perceive him as a threat to the community; and his witnesses confirmed this. 55 The Tribunal noted that the Applicant appeared reluctant to offer much detail into his personal history. His witness Bob Woolner confirmed that Mr Drinkwater was a private man. The commission suggested that tendency suggested that the Applicant would not seek assistance when it was needed. This suggestion was not born out in the evidence provided by Fathers Phillips and Woolner who believed that the Applicant sought counsel regularly from them. Father Woolner indicated that this had become approximately fortnightly by email since his move to Victoria. 56 The Tribunal considered that Mr Drinkwater’s reflection on the offence of 1986 displayed limited insight into the victim’s experience. The circumstances of the offence concern the Tribunal because the offence occurred in a residential school for deaf children and although the victim was not a child, the circumstances around the Applicant being in a school in an intoxicated state is cause for concern. The Tribunal also views the Applicant’s reluctance to provide details around the events of this offence with concern. The Applicant, although pleading guilty to the offence, appeared to blame his alcohol induced state without explanation for his intentions in being in this school. He did however, show some insight into the impact upon the 18 year old victim. However, the Tribunal noted that he did not appear to consider the vulnerability of the deaf school children in the vicinity of his attack, or the serious concern around his reasons for being there. 57 Although the Tribunal is concerned about the circumstances of this offence, the Tribunal notes that this offence was 24 years ago, and the Applicant maintained a clear record until the offences of 2004. 58 The Tribunal considered that Mr Drinkwater demonstrated a pattern of blaming others for events that had occurred, and a consequent absence of ownership of personal responsibility. The Tribunal observed this in Mr Drinkwater’s reflections on the 1986 offence, the trial of the 2004 charges where he claims his legal defence were negligent despite him not taking statements to police about his alibi; the police were responsible for not asking him about his alibi; and Corrective Services were responsible for violent tensions that occurred within the jail between he and other inmates. -- 8 of 10 -- 59 Nevertheless Mr Drinkwater was able to demonstrate some insight into the effect of the offences on the victims of each offence. 60 He also discussed alternatives to violent methods of problem solving, relating to the small claims jurisdiction for debt recovery. He explains that he would exhaust legal options resolve subsequent business disputes. 61 The commission submitted that the Applicant is currently under the scrutiny of parole conditions and as such he has not been tested in any tendency to break the law. 62 The Commission submitted that Mr Drinkwater has been shown to maintain his own counsel, having not contacted his identified supports upon his 2004 and as such would be unlikely to seek out key supports. 63 The Commission submitted that the harm posed to children in this matter was not physical, and specified that the nature of the risk that Mr Drinkwater posed to children was a total lack of insight into the effects of his actions, and a tendency to not acknowledge his responsibility. 64 The Tribunal agreed with the Commission’s observations of Mr Drinkwater but was not convinced that this of itself posed a risk to children. Certainly, the Tribunal consider his lack of awareness and tendency to blame others are risk factors. 65 The Tribunal found other risk factors in a degree of employment instability in his current circumstances, although at the same time, this has removed him from the field of his recent offending. 66 However, according to the test in Commissioner for Young People v Maher and Anor 5, these risk factors are to be balanced against protective factors. 67 The Tribunal finds that Mr Drinkwater is known to have a stable relationship and supportive family. 68 The Tribunal finds Mr Drinkwater to have longstanding associations with his church, and has been an active volunteer for many years. He is held in high regard by the former and current Parish priest of his church. Father Woolner has known him for ten years, with frequent and regular opportunities to observe him with children and has confidently stated that he considers that he is of no risk to children. 69 He is connected with the community through this church association, and frequently under observation. 70 His reluctance to provide details into his personal history may suggest that he is a private man. This was confirmed by Father Woolner, who at the same time indicated that he would seek his counsel. The Tribunal was satisfied on the evidence of Fathers Woolner and Phillips that he would seek the support of his priest in times of trouble, despite not having done so when arrested in 2004. 71 He is a moderate drinker. He has had lengthy periods without offence. He has received regular business counselling as part of his parole. 5 ibid -- 9 of 10 -- 72 The Corrective Services Psychologists Assessment prior to his release assessed that he was not an unacceptable risk to the community. The Tribunal considers that although this is stated in general terms, does include children. 73 He has had business counselling and was able to identify non violent methods of problem solving. 74 These protective factors weigh heavily. 75 The Tribunal was particularly concerned by the circumstances of the 1986 offence, and the Applicants failure to give details about this. However, the offence was 24 years ago, and there have been no offences of a similar nature since that time. 76 Although the circumstances of the 2004 offences raise concern about the Applicant’s method of problem solving it is considered that he has sufficiently demonstrated to the Tribunal that this is likely to be a one-off offence, and has participated in rehabilitation counselling and gained knowledge of alternative methods of debt recovery. 77 It is the Tribunal’s view that the protective factors outweigh the risk factors. The Tribunal is therefore satisfied that this is not an exceptional case in which it not in the best interests of children for a positive notice to be issued. That being the case, the Tribunal requires that the decision to issue a negative notice be set aside, and be substituted with a decision to issue a positive notice, as no exceptional case exists. 78 In doing this, the Tribunal does not go behind the finding of the District Court, nor make any comment in relation to the Applicant’s guilt or otherwise. The Tribunal’s focus remains the paramount interest of the welfare of children; and considers in this matter, protective factors outweigh the risk. -- 10 of 10 --