Chivers v Commissioner for Children and Young People and Child Guardian [2012] QCAT 441

CITATION: Chivers v Commissioner for Children and Young People and Child Guardian [2012] QCAT 441 PARTIES: Justin Luke Chivers (Applicant/Appellant) v Commissioner for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML205-11 MATTER TYPE: Childrens matters HEARING DATE: 14 April 2012 HEARD AT: Mackay DECISION OF: G Quinlivan, Presiding Member DELIVERED ON: 30 August 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. That the decision of the Commissioner to issue Justin Luke Chivers with a negative notice is set aside. 2. The Commissioner is to issue a positive notice and blue card to Justin Luke Chivers. CATCHWORDS: Childrens Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – where applicant issued with positive notice – where applicant charged with offence of using carriage service to menace, harass or cause offence – where positive notice cancelled and applicant issued with negative notice – whether protective factors outweigh risk factors – whether applicant represents a risk of harm to children – whether case is exceptional APPEARANCES and REPRESENTATION (if any): APPLICANT: Justin Luke Chivers represented himself RESPONDENT: Commissioner for Children and Young People -- 1 of 11 -- 2 and Child Guardian was represented by Ms Adele Noble REASONS FOR DECISION Background [1] Justin Luke Chivers is the applicant in these proceedings. He was issued with a positive notice and blue card under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) on 30 April 2010. On 14 July 2011 the Commissioner was notified by the Queensland Police Service that the applicant‟s police information had changed in that the applicant had been charged with an offence pursuant to the Telecommunications Act 1997. On 31 August 2011 the Commissioner received a further notification from the Queensland Police Service that on 10 August 2011 the applicant had been sentenced to a recognisance of $500 to be a good behaviour for a period of 12 months with no conviction recorded in relation to that offence. On 14 September 2011 the Commissioner received from the Queensland Police Service an updated criminal history in relation to the applicant that stated that the applicant had been convicted of one count of “using a carriage service to menace, harass or cause offence”. [2] Mr Chivers‟ eligibility to hold a blue card was reassessed under section 237(1)(b) of the CCYPCG Act and on 29 September 2011 the positive notice previous issued to the applicant was cancelled and a negative notice was issued to Mr Chivers for the reasons set out in the accompanying reasons document. [3] Mr Chivers seeks a review of this decision and applied to the Tribunal on 28 October 2011 seeking to set aside the Commissioner‟s decision and for his positive notice to be reinstated. Mr Chivers has been a volunteer and player in rugby league in his local community for the best part of 20 years and while most of his involvement has been with the senior rugby league club on occasions he has been asked to help out with junior rugby league games. [4] The application was heard on 13 April 2012. The relevant law [5] The CCYPCG Act gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commissioner‟s decision. When reviewing the decision, the options available to the Tribunal are as follows. The Tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. -- 2 of 11 -- 3 [6] The offence for which Mr Chivers was convicted is not considered a serious offence under the CCYPCG Act. The relevant provisions of the Act provide that where a person has been convicted of an offence other than a serious offence, the respondent, and upon review by QCAT, must issue a positive notice to the applicant unless satisfied that the applicant‟s case is an exceptional case in which it would not be in the interests of children to issue a positive notice. However, if the Commissioner is satisfied it is an exceptional case in which it would not be in the interests of children for the Commissioner to issue a positive notice then the Commissioner must issue a negative notice to the person. It is this issue that the Tribunal must consider in this case. [7] The CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if Mr Chivers‟ case is an exceptional case. These factors include the nature of the offence and charge, when it occurred, its relevance to child related employment and any court imposed penalty. [8] The CCYPCG Act does not define an exceptional case. However it is now well established that the individual circumstances pertaining to the case must be considered to determine whether the facts of a particular matter constitute an exceptional case.1 [9] The focus of the CCYPCG Act is the protection of children. It is intended to protect children from harm from persons working or volunteering in child related areas. Harm is defined in the CCYPCG Act to have the same meaning as given in s 9 of the Child Protection Act 1999. [10] The CCYPCG Act is to be administered under the principle that the welfare and best interests of a child are paramount. It is this principle that the Tribunal must apply. It provides that: “the paramount consideration in making a decision in relation to employment screening is a child‟s entitlement to be cared for in a way that protects the child from harm and promotes the child‟s wellbeing”. The Tribunal must also take this into account when determining this application. [11] The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities. The evidence [12] On 12 January 2012 the applicant provided a personal history document to the Tribunal. He provides details of an unremarkable childhood. He was born in Mt Gambier on 9 October 1977. He is the second of 4 children with 1 older and 2 younger brothers. By about 2003 the applicant had been living in Mackay for about three years and had started to get involved with the Magpies Rugby League Club. He was asked to become the ground announcer for the club and continued to hold that position until January 2012. In 2009 he was elected to the position of Vice President of the club, a position that he held for the next 2 years. 1 Kent v Wilson (2000) VSC 98. -- 3 of 11 -- 4 [13] There is no evidence that Mr Chivers has harmed a child during the course of his employment in any role throughout his life. [14] At the present time Mr Chivers is a 33 year old single man who currently resides with his parents and works fulltime as a storeman for a local hardware company. [15] In Mr Chivers‟ view he does not have any close friends but many acquaintances from work, football and the pub. He particularly identifies with some of the people he associates with at the football club as the most important people in his life. [16] Mr Chivers regards himself as being “painfully shy” when it comes to intimate relationships. He has had one long-term relationship that lasted for 12 months. In discussions with Ms Alana Bonnie, clinical psychologist Mr Chivers identified that he meets women using Facebook. With respect to his relationship with his work colleagues, Mr Chivers stated that, “some are good some not so good, like anywhere”. He has denied any history of relationship disputes or violence and was able to identify only 1 workplace that he experienced an interpersonal dispute that caused him to leave that position. [17] Mr Chivers‟ main source of social interaction and relationships is the Magpies Rugby League Club. He is proud to be involved with the club and in being the ground announcer. He wishes to continue his association with the club and as a result seeks to maintain his blue card and positive notice to work with children. He states that he would not be able to continue his work with the club and would lose a significant part of his identity without a blue card. [18] The circumstances surrounding the offence for which Mr Chivers was charged are set out in the court brief of the Queensland Police Service as follows: “On Tuesday 5 July 2011 the victim in this matter attended Mackay front counter in a distressed and upset state. The victim stated that on 2 separate occasions she had received a text message from another mobile phone number which she did not recognise. The content of these messages caused the victim offence and concern.” [19] When looking through the inbox of the victim‟s mobile phone, Police observed that on 20 June 2011 at 9:43am and on 1 July 2011 at 10:49am she had received a text message from a mobile phone. Both these messages wrote, “This message entitles the beholder 2 a nite of hot, passionate sex with me, do you accept or decline the offer”. [20] On 10 July 2011 Police were able to locate Mr Chivers at the sporting club and they transported him back to the station for questioning. During an electronic record of interview the applicant made admissions to sending the text message and stated that it was “a silly thing to do”. The applicant did not disclose where he got the complainant‟s number. The applicant did not appear to show any remorse for his actions. -- 4 of 11 -- 5 [21] Upon looking through the applicant‟s mobile phone police found hundreds of sexually natured text messages sent from the applicant‟s phone to other mobile numbers as well as sexually explicit photos of himself and sexual related video footage on his phone. [22] Mr Chivers‟ criminal history reveals that on 10 August 2011 he was charged with using a carriage service to menace harass or cause offence between 26 June 2011 and 1 July 2011. The evidence as set out in the reasons of the Commissioner indicates that no conviction was recorded but the offence was found proven and the applicant was ordered to be of good behaviour for a period of 12 months. The applicant was released on a $500 reconnaissance. [23] This criminal history is the only criminal history identified in relation to Mr Chivers. [24] A matter of concern to the Tribunal is the inconsistent versions of events presented by Mr Chivers since the date of the offence. [25] Mr Chivers initially advised the Commissioner on 15 September 2011 that he had informed police that he had “simply misdialled a couple of digits of a phone number and instead of the messages going to a mate‟s number they ended up going where they did”. In the psychological report of Alana Bonnie dated 20 February 2011, Mr Chivers reported that he made a “random text that got sent to a wrong number” however upon further investigation Mr Chivers conceded that he had identified the complainant on Facebook. In this regard he further indicated that he had participated in online flirtation with the complainant via Facebook that resulted in him sending the offending text message. [26] At the hearing Mr Chivers admitted that he identified the complainant on Facebook and that he engaged in online flirtation with her. By way of explanation Mr Chivers in his submissions stated that, “my own naivety with the legal system may have lead to me not bringing out the full story on occasions, also the time difference in each step of a process (police, court, commission, psychologist, QCAT) may have lead to some variations (or perceived different versions) of the story”. [27] The Tribunal accepts the Commissioner‟s submission “that the applicant‟s assertion that he coincidentally misdialled and sent a sexually explicit message to someone he had been flirting with online „beggars belief‟.” [28] In his oral evidence Mr Chivers made the following statements:  His aim in the police interview was to say as little as possible but he did acknowledge “that it was a silly thing to do” in relation to the incident.  He was trying to give police as little information as possible at the time but he believes he was honest with the police, the Commissioner and the psychologist. -- 5 of 11 -- 6  He acknowledged the different versions of events and said that the Facebook one was the correct one.  In relation to the online flirtation he did not bring any of the messages with him to the Tribunal but he thought that the process was consensual and that the complainant seemed ok at the time but in his words “what happened happened”. He repeated that he accidentally dialled the number of the person he had been flirting with.  He thought the complainant was interested but obviously she was not.  He acknowledged that she did not consent and that he did it totally off his own bat. He admitted that he did not consider how the complainant might feel and he did not consider how other people such as teenagers who might accidentally receive such a message would feel about it. He simply did not think about it at the time.  He still sends similar messages but he is more careful as to whom he sends them to.  He acknowledged that he continues to send similar messages to mates, family and friends.  He acknowledged that “sexting” is a problem which relates to social media.  He claimed that no one else has complained about receiving messages and acknowledges that it is possible that a young person may have received one.  In relation to the Court proceedings he admitted to pleading guilty and acknowledged that he did not dispute any of the facts and admits that he did not tell the police about the Facebook connection. [29] In support of his application Mr Chivers provided a reference from Mr Brendan Jones who is the President of the Magpies Rugby League Club. Mr Jones did not provide any evidence regarding his knowledge of Mr Chivers‟ criminal convictions other than to indicate that he was not aware of any. He expressed the view that Justin is a shy person and not intrusive. He said that on Super Saturdays Justin does his job in the announcer‟s box. In Mr Jones‟ opinion, Justin is a normal person around children but that he would need to be approached rather than it being likely that Justin would actually engage with children. He said that Justin would be around children every weekend during the season and that he has never seen anything of a concerning nature or questionable behaviour at anytime. In regard to the blue card being rescinded Mr Jones expressed the view that he knew of the Court case but was not 100% aware of what had occurred. He had some idea of the content of the -- 6 of 11 -- 7 messages being sent by Mr Chivers but was aware that none of the material related to anyone under the age of 18 years. [30] The applicant also relied upon evidence from Ms Alana Bonnie, clinical psychologist, in the form of a report dated 21 February 2012 and oral evidence provided to the Tribunal. [31] Ms Bonnie confirmed that she had primary experience in mental health; however she also did have experience with patients with forensic orders, patients who had committed child related offences and patients who had committed offences in general. [32] Ms Bonnie saw Mr Chivers for 2 consultations for over 60 minutes in length. [33] Ms Bonnie was asked about Mr Chivers‟ understanding of the impact of the messages sent by him to the complainant. She responded that Mr Chivers did not understand why the complainant was so offended as she had responded to him on Facebook and he had understood that the husband of the complainant had become quite upset after finding out about the text message and that is why the complainant went to the police. She said that Mr Chivers had shown some remorse and that he did not wish it to go further. She said that Mr Chivers did not feel that he had done the wrong thing and that it had been taken out of context. [34] In her report Ms Bonnie expressed the view that “Mr Chivers is a stable and active individual with a low risk of aggression to others. There is no evidence to suggest that Mr Chivers presents a threat to the wellbeing and safety of children therefore I believe he is currently suitable for child related employment.” Applicant’s submissions [35] In submissions to the Tribunal the applicant made the following significant points:  “Given that a witness and a psychologist have testified on the day which is also backed up by a psychological report that I am very suitable to work with children, I very much have to question whether an exceptional case exists here or not.”  As stated in the psychological report my own naivety with the legal system may have lead to me not bringing out the full story on occasions. At the time also the time difference in each step of a process (police, court, commission, psychologist, QCAT) may have lead to some variations (or perceived different versions) of the story.  I have testified that the issue of “sexting” is well and truly alive in the community and also adults as well as teenagers, but I think a court appearance and my case being splashed all over page 4 of the Daily -- 7 of 11 -- 8 Mercury on 11 August 2011 should drive home the message that my conduct was unacceptable and to learn from it.  The psychological sessions that I have attended were very beneficial for me as I gained insight from an impartial member of the Mackay community as to not only the events that happened last year but also as to my life experiences in general and it could be argued that this was definitely a step in the right direction as to rehabilitation, as to strategies the proliferation of mobile phones in today‟s society makes not owning a mobile phone virtually an impossibility so probably the greatest strategy that could reasonably be employed is even to double check numbers before sending messages whether they be sexual or non sexual.  I do remember testifying at the hearing that sending sexual related text messages could definitely be upsetting and distressing if it landed in the wrong hands depending on the mindset of the person at the other end.  Seeing that the complainant was a married woman yes I do understand that this could have been upsetting and distressing to her as to her marriage, maybe I have missed the chance to show some insight and express this earlier.  All material found was 18+ and was confirmed by a witness at hearing.  A point that needs to be made very clear is that sending sexual related text messages does not constitute a criminal offence on its own but to send them to people that aren‟t consenting or to random numbers does constitute an offence and this was confirmed by the Constables interviewing me on 10 July 2011.  As backed up by Alana Bonnie at hearing I have stated previously that sending sexual messages to children is wrong and also against the law so therefore I can conclude that I have never modelled that behaviour to children and never will as I have a nephew that is 15 years old and a niece that is nearly 1 year old. This is something that I feel very strongly about.  As to risk factor Alana Bonnie did point out at hearing that I was assessed as a low risk of reoffending in the long term and low to moderate in the short term so the risk factor as to reoffending is very minimal and should be taken into consideration. The Commissioner’s submissions [36] The Commissioner provided comprehensive submissions addressing all of the relevant issues in these proceedings. These submissions were of particular assistance to the Tribunal in reaching its decision. -- 8 of 11 -- 9 [37] The detail relating to the Commissioner‟s submissions are set out in the document provided to the Tribunal and will not be repeated here. In particular the submissions addressed the following factors:  The circumstances of the alleged offence;  The relevance to employment or carrying on a business that may involve children;  The applicant‟s evidence, especially the references provided, the inconsistent versions of events, the prospect of rehabilitation and/or strategies to address offending behaviour;  Insight and/or remorse on behalf of the appellant. [38] In her conclusion the representative for the Commissioner indicated that she relied on the totality of the material before QCAT and the reasons document accompanying the negative notice issued to the applicant. She submitted that the clear evidence in these proceedings demonstrated that the conduct constituting the recent offence was not an isolated incident. Further the applicant has demonstrated no remorse or insight into his offending contact. On the basis of her submissions and the totality of the evidence and an analysis of materials she submits that the QCAT can be satisfied on the balance of probabilities as to the following points:  The applicant as a blue card holder and through his child related employment and/or the conduct of a business involving children has occupied and if the positive notice were reinstated would occupy a position of trust and authority in relation to children in his care.  The applicant has submitted a version of events to the respondent and investigating police which is inconsistent with the version of events surrounding the offending that he has advised to the psychologist and which is now also inconsistent with the further version of events provided by the applicant at the hearing.  The applicant has not expressed insight in the affect of the offending on the complainant or the community at large. The Tribunal’s view [39] The Tribunal has very carefully considered the oral and written material before it. The Tribunal has also carefully considered the Commissioner‟s reasons for decision dated 28 September 2011 and the very comprehensive submissions provided by the representative of the Commissioner subsequent to the hearing of this matter. [40] In doing so the Tribunal has identified some potential risk factors and potential protective factors following the example of Commissioner for Children and Young People and Child Guardian v Maher and Anor (2004) QCA 492. -- 9 of 11 -- 10 [41] The potential protective factors for the applicant are:  Mr Chivers is a 34 year old single man who currently resides with his parents and works fulltime as a storeman.  He has been involved with the Magpies Rugby League Club for many years and has held the position of ground announcer since 2003. He does not have any history of relationship disputes or violence. He drinks alcohol socially and had denied any illicit drug use in the last decade.  He has no prior charges or convictions before the recent proceedings.  In the course of these proceedings he has acknowledged that the court appearance and publicity surrounding the court appearance has convinced him that his conduct was unacceptable and that he should learn from it.  He thinks that the psychological sessions he attended were definitely a step in the right direction as to his rehabilitation.  He acknowledges that sending sexually related text messages could be upsetting and distressing if they landed in the wrong hands.  He acknowledges that sending sexual messages to children is wrong and also against the law.  He appears to have strong positive relationships with community members. [42] The potential risk factors are:  The applicant continues to stress that sending sexually related material is not an offence on its own if the other party is consenting.  He does not currently appear to appreciate the seriousness of the deficiencies in his versions of what actually occurred.  He also appears to dismiss the role of the Commission in ensuring the ongoing protection of children in Queensland.  The ongoing minimisation by the applicant of his behaviour generally. [43] The Tribunal must also take into account matters listed the CCYPCG Act in deciding whether or not there is an exceptional case. [44] The Tribunal notes that the applicant‟s offence is not a serious offence under the Act. -- 10 of 11 -- 11 [45] The offence occurred on 5 July 2011 when a 33 year old female complainant attended the Mackay Police Station and reported that she had received 2 text messages from a mobile phone number that she did not recognise which was later identified as the applicant‟s number. [46] In relation to penalty the Tribunal notes that the applicant pleaded guilty to the offence and was convicted and ordered to be of good behaviour for a period of 12 months. The applicant was released on a $500 reconnaissance and there was no conviction recorded. [47] Apart from the report by Alana Bonnie there is no other information relating to the applicant‟s mental health. [48] Finally the Tribunal is able to consider anything else relating to the commission or alleged commission of the offence that it reasonably considers relevant. [49] The Commissioner considers that the applicant‟s case is one where it would not be in the best interests of children for him to be issued with a positive notice and blue card. On the basis of the material before the Tribunal the Commissioner submits that the original decision by the Commissioner to issue a negative notice to the applicant should be confirmed. [50] The Tribunal must take into account the positive references and report by Ms Bonnie and is satisfied that these indicate that the applicant has had a largely law abiding life. [51] The Tribunal is not totally satisfied about the applicant‟s insight and accepts that there is a level of minimising of the event. Nevertheless the Tribunal is satisfied that the applicant is sufficiently aware of the harm that his behaviour might cause to children that he will take sufficient steps to ensure that he will not be likely to involve children in any of the behaviour which he apparently continues to undertake. [52] The Tribunal has come to the view that on the balance of probabilities Mr Chivers does not represent an unacceptable risk of harm to children as a result of this behaviour. After considering the various factors in s 226 of the CCYPCG Act, the Tribunal is not satisfied that Mr Chivers‟ case is an exceptional one in which it would not be in the interests of children for him to have a blue card. [53] Consequently the Tribunal orders that the Commission‟s decision be set aside and a positive notice and blue card be issued to Mr Chivers. -- 11 of 11 --