Secretary to the Department of Justice and Regulation

Abela v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 929

1. The decision of the respondent dated 22 November 2017 to give a negative Assessment Notice to the applicant under the Working with Children Act 2005 is affirmed.

1. Mr Abela creates the trenches which enable underground electrical cabling to be installed to portable classrooms at schools. Although the work takes place within school grounds, he rarely comes across children as students are required to stay well away from the construction site. Mr Abela is very well regarded by his employer, who wishes to continue to employ him. Nevertheless his employer also requires Mr Abela to hold a Working with Children Assessment Notice under the Working with Children Act 2005, ("the WWC Act") and this is problematic because Mr Abela has a serious criminal record. Because of his criminal record the Secretary to the Department of Justice and Regulation, ("the Secretary"), refused his application for an Assessment Notice on 22 November 2017.
2. The WWC Act establishes a screening process for those wishing to engage in child-related work. Applications made by individuals who have a criminal record are categorised as either Category A, B or C for the purposes of the WWC Act. Regardless of the categorisation, the safety of children is the paramount consideration when deciding whether or not to grant an individual an Assessment Notice under the WWC Act.
3. Once a Negative Notice has been given to an individual, it has significant consequences, making it a criminal offence for the individual to engage in child-related work including volunteer work. The individual is unable to reapply for a Working with Children check for five years, unless there is a relevant change of circumstances.
4. Mr Abela's application was a Category C application. It was so categorised because in 2011, Mr Abela committed offences of "traffic drug of dependence" together with other drug and dishonesty offences.
5. Mr Abela was sentenced to a 24-month Community Correction Order and a 6-month period of imprisonment, suspended for 24 months. He was, at that time, assessed as a low risk offender according to the Victorian Intervention Screening and Assessment Tool ("VISAT").
6. Unfortunately however, his offending continued into 2012. In due course, he was further sentenced - this time to a period of imprisonment of 6 years.
7. It was a significant sentence, but the offending was significant involving well in excess of $1,000,000 worth of stolen/dishonestly obtained property.
8. A pre-parole report, dated 16 December 2016, written by Ms Susan Brown succinctly summarises Mr Abela's background, subsequent fall from grace and prison journey:

Mr Abela was provided with a stable upbringing, had good educational opportunities and solid work history until the demise of a long-term relationship seven years ago. He struggled emotionally, with his life taking a downward spiral after he was introduced to methamphetamine. He is able to identify how his substance use lead to a lack of commitment to his work and resulted in his subsequent offending however at that time he did not care about the consequences. He has continued to receive positive support from his family and [new] partner, with his first child being born during his current sentence. As he has now been abstinent for over three years he is able to articulate the impact of elicit substance use on him and the people in his life that he cares about. He indicated an intention of maintaining his abstinence post-release and is keen to re-establish the pro social path he walked before he commenced using ICE.

1. Mr Abela now applies to this Tribunal to grant him an Assessment Notice. The hearing proceeded before me on 17 April 2018 at which time Mr Abela told me, consistently with the above report, that his offending occurred following a relationship break-up in which he self-medicated his subsequent severe depression through the use of illicit substances and fell in with a negative peer group. He gave evidence that he has changed, will not reoffend, or relapse into drug use.
2. The Secretary agreed that Mr Abela has made good progress since his release from prison, but submitted that it is too early in his rehabilitation, for me to conclude that Mr Abela is a suitable person to be given an Assessment Notice.

1. Section 26C of the WWC Act sets out my power to review a decision of the Secretary to give a Negative Notice on a Category C application.
2. Under s.26A(1) of the WWC Act, I must first determine whether in the particular circumstances it would be appropriate to refuse to give an Assessment Notice, having regard to any matters to which the Secretary must have regard under section 14(3) of the WWC Act.
3. I turn then to each of those matters in turn.

(a) the nature and gravity of the conduct and its relevance to child-related work

1. Whilst the offence of "traffic drug of dependence" was the triggering offence for the Category C classification, Mr Abela's other criminal history is equally relevant for the purposes of this application.
2. In summary, it consists of the following:

1. On 7 August 2012, Mr Abela was sentenced in relation to:

(a) five charges of theft, including motor vehicles, boats and a trailer;

(b) traffic drug of dependence;

(c) retention of stolen goods;

(d) possess amphetamine and possess methylamphetamine;

(e) possess a schedule 4 poison;

(f) dealing with property suspected to be proceeds of crime;

(g) transporting unauthorised explosives without approval;

(h) carry and possess prohibited weapons; and

(i) drive whilst authorisation suspended.

2013 criminal history

1. Mr Abela was subsequently sentenced, on 6 June 2013 in the Melbourne County Court, to a 6-year term of imprisonment (non-parole period of 3.5 years) for the following offences, several of which took place after Mr Abela was sentenced in 2012:

(a) theft (22 counts). The thefts included quad bikes, camping fridges and barbeques, a cash register, 300 aluminium blinds, trailers, lawnmowers, a printer, building tools, bathroom fittings, furniture, door furniture, Bobcats, a truck aluminium ramps, chains and ratchets, tray trucks, excavators, mesh collectible coins, truck tyres and rims;

(b) making counterfeit money;

(c) burglary (6 counts). The burglaries included sales yards where the locks were jemmied open; factories; sales fronts and holding yards;

(d) obtain property by deception;

(e) handle/receive/dispose of stolen goods (two counts). Mr Abela purchased hundreds of items in the nature of tools, building materials, tyres, computers and other electrical goods. He knew they were stolen; and

(f) deal property suspected proceeds of crime

1. For seven of the offences, Mr Abela was sentenced as a 'continuing criminal enterprise offender" which meant that he needed to be sentenced for those offences on the basis that the maximum penalty was twice that which normally applies which reflected the serious nature of the offences.

1. Mr Abela was re-sentenced to 8 months and 28 days imprisonment concurrent with his previous sentence for breach of his suspended sentence together with offences of:

(a) burglary;

(b) theft of a motor vehicle;

(c) drive whilst authorisation suspended;

(d) drive whilst unqualified; and

(e) use unregistered motor vehicle/highway

21 March 2014

1. On 21 March 2014, Mr Abela was resentenced for breach of the community corrections order and fined $500.
2. Mr Abela's offending was serious. In sentencing Mr Abela to a term of imprisonment, Her Honour Judge Cannon described his offending as "prolific and unconscionable". She noted that, although some of the offending was somewhat opportunistic, most of it involved a level of planning which resulted in him stealing significant items of significant value. She described Mr Abela as playing an active and important role with co-offenders in committing the offences. She noted that he stole items on a number of occasions which resulted in tremendous hardship to the owners.
3. Her Honour said:

In your disarmingly frank records of interview, you seemed consumed by your own needs and the viability of your business, rather than having any conscience about other people's livelihoods and their need to get ahead

1. Her Honour further noted that the nature and frequency of Mr Abela's offending over a 10-month period bore the hallmarks of him having become a professional thief. She noted that the abundance of items found by police at Mr Abela's stepfather's factory indicated that he had no apparent conscience in possessing items he knew or believed to have been stolen.
2. Her Honour also made reference to Mr Abela's earlier sentence on 7 August 2012. She noted that that appearance was prior to him going on to commit further offences of a like nature. She noted that, although he was given the benefit of a wholly-suspended sentence on 7 August 2012, as well as a Community Corrections Order, Mr Abela continued to commit offences.
3. The relevance of offending to child-related work is not always direct. Sometimes, as in this case, it is the magnitude of the offending that raises concern, it demonstrating a complete disregard for the rule of law. Drugs being trafficked find their way into the community. Children are the direct/indirect victims of drug trafficking and offences of dishonesty.
4. Individuals who are sentenced to lengthy periods of imprisonment are so sentenced because they pose a risk to the broader community, which includes children.

(b) the period of time since the applicant engaged in the conduct

1. Mr Abela's offending took place between 2011 and 2012. It is now some 6 years since he has offended. However, Mr Abela was incarcerated for 3.5 years of that time - he was only released on 4 January 2017. He remains on parole until 27 May 2019. Mr Abela has not yet had an unsupervised period of time in the community since his offending.

(c) in the case of an offence, whether a finding of guilt or a conviction was recorded for it; and (d) the sentence imposed for it

1. On 7 August 2012, Mr Abela was convicted and placed on a Community Corrections Order for a period of 24 months with conditions that he:

- perform unpaid community work - 200 hours - over 24 months;

- undergo treatment and rehabilitation - assessment and treatment (including testing) for drug abuse/dependency as directed; mental health assessment and treatment as directed.

1. Mr Abela was also convicted and sentenced to an imprisonment term of 6 months wholly suspended with an operational period of 24 months.
2. The sentencing remarks state that the sentence was imposed as an "opportunity for defendant to modify his behaviour".
3. He did not do so. His compliance with conditions of the Community Corrections Order was unsatisfactory and he committed further offences whilst on the order.

1. On 6 September 2013, Mr Abela was further sentenced to an aggregate imprisonment term of 6 years with a non-parole period of 3.5 years.
2. Given Mr Abela had a relatively brief criminal history, the sentence reflected the very serious nature of his offending.

(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct

1. Mr Abela was aged around 26 when he committed his first offences. He had seemingly lead a productive life before then. The ages of his victims are varied. It was not however suggested by the Secretary that children were direct victims of his offending.

(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it

1. The behaviour has not been decriminalised. The sentences imposed reflect the seriousness with which the community views Mr Abela's offending.

(g) the applicant's behaviour since he engaged in the conduct

1. Mr Abela co-operated fully with police and made full admissions in relation to his offending.
2. However, Mr Abela breached his Community Corrections Order and suspended sentence. The Corrections Victoria report dated 31 January 2013 states:

It would appear the community correction order has been of no rehabilitative benefit to him, nor has it acted as a deterrent from further offending.

1. Thereafter, during his term of imprisonment, there were further incidents, which demonstrated that Mr Abela was still using drugs even whilst undergoing sentence.
2. In March 2014, Mr Abela was found with unauthorised cash ($50) in his possession hidden under the innersole of his shoe.
3. In September 2015, Mr Abela gave a positive urine sample.
4. In December 2015, Mr Abela was found in possession of ICE.
5. In February 2016, Mr Abela again gave a positive urine sample.
6. At the same time and to his credit, during his incarceration Mr Abela participated in a broad range of rehabilitative programmes - relapse prevention, release-related harm programs and individual counselling. He was a very active participant in those courses which he described in favourable terms in his evidence. He felt that he had benefited from them and that they had helped him to reflect on the triggers that led to his offending.
7. During his incarceration Mr Abela was briefly on Lexapro for depression; however, he gave evidence that he ceased its use within six months. No current reports were placed before me specifically addressing this, although I was informed that depression is not a current issue for Mr Abela. There have been no other psychological/psychiatric concerns.
8. Mr Abela's parole has progressed well. A Corrections Victoria Assessment Report, dated 24 July 2017, was very positive saying that Mr Abela attends as directed and is a willing participant in drug and alcohol programs. He reported to the author that he will not use illicit substances again and that imprisonment was a strong deterrent for him. He also reported that he no longer had contact with negative peer influences and was motivated to stay out of trouble by his family.
9. Mr Abela's post-release drug tests have all been negative.
10. Mr Abela has maintained his strong work ethic. He is a qualified mechanic and at the time of his offending owned his own concreting and excavation business. At the time of his imprisonment he was working as a horse breaker. Since his release from prison, Mr Abela has been positively- engaged in the employment already discussed, undertaking trench work.
11. Since his release from prison Mr Abela has also re-engaged positively with his extended family. He is clearly proud in his role as a (step)-father.

(h) the likelihood of future threat to a child caused by the applicant

1. An initial parole assessment dated 2 September 2016 placed Mr Abela's risk of reoffending level as "high" although in due course this was, on 21 September 2016, modified to medium." The Secretary submitted that it was too early to tell what Mr Abela's risk of relapse may be and emphasised that Mr Abela did not give strong evidence before me about his relapse-prevention strategies.
2. The Corrections Victoria Treatment Readiness Questionnaire (CVTRQ) was however positive: indicating Mr Abela was motivated to change, had appropriate emotional responses to his offending and accepted responsibility for it. He showed a willingness to participate in further programmes.
3. The Secretary emphasised that whilst parole offers a protective mechanism against reoffending, if I were to grant Mr Abela an Assessment Notice there would be little external monitoring for most of the period of the Assessment Notice which lasts five years.
4. An Assessment Report dated 24 July 2017 written by Dr Lauren Gradstein, psychologist, and Carleigh Anderson, senior clinician, ("the Gradstein report"), usefully summarised the protective factors surrounding Mr Abela as well as potential triggers for reoffending, saying:

Mr Abela appeared to have been predisposed to offending by his desire to generate his self-worth from his popularity among his peers and capacity to earn a large income and reflect this to others...Mr Abela's offending behaviour appeared to be precipitated by his beliefs that he could generate a large income through criminal activity, that would not only enable him to support his drug use, but make him attractive to women. This was perpetuated by his use of methylamphetamine, which disinhibited his impulse control further and a belief that he was not harming others and thus lacked concern for the consequences of his actions.

Further offending is likely to occur in the context of experiencing rejection, substance abuse, anti-social peers and/or financial difficulties. Strengths for Mr Abela is that he has reported abstinence from methylamphetamine use since January 2017, has a stable job with a high income, has a stable relationship with his partner and child and is not associating with anti-social peers.

1. The risk of further offending is an important area to explore in the context of threat to children. The themes discussed in the Gradstein report were largely the same as those discussed at the hearing.

1. In his evidence before me, Mr Abela spoke positively of his relationship. He is a proud and devoted father.
2. However, at the time Mr Abela was sentenced to a term of imprisonment, he was in the same stable relationship. He was recorded as having a strong and positive relationship with his partner who was pregnant with their first child. He also had the responsibility of two stepchildren. The positive relationship and responsibility for stepchildren did not however prevent him from offending or regularly using drugs.
3. Mr Abela's partner has remained supportive. Whilst she and their children do provide a protective factor, the material nevertheless demonstrates the difficulty in placing too much weight on the relationship as a protective factor at this early stage.
4. As recently as November 2017, a Corrections Victoria case note says:

He continues to reside with his pregnant partner, son and two stepchildren and whilst he reported that their relationship is stable, he has at times been tempted to cheat on her with other women which he reported was troubling and concerning to him.

1. Such conduct may be indicative of Mr Abela falling into past habits. During his period of offending he described his triggers as enjoying popularity, having women around him and enjoying the attention he gained from having so much money.
2. Mr Abela was apparently referred to relationship counselling. It is unclear whether or not he attended. If the stability of his relationship is undermined by his conduct, then so is its protective quality. It was a relationship breakdown which Mr Abela says previously caused him to spiral into depression, drug abuse and offending.

1. Whilst it is commendable that Mr Abela has abstained from drug use for some time, he has previously had periods of abstinence, only to return to drug abuse.
2. Mr Abela told his psychologist, Ms Mynard, that he had used amphetamines, mostly speed and ICE, but also ecstasy since his teenage years.
3. The 2013 VISAT recorded that Mr Abela was using ICE twice weekly and had a drug-related debt. He said that he had been using ICE in various quantities between the ages of 25- 28.
4. In a Forensic Assessment Report dated 16 December 2016, Mr Abela also reported a history of amphetamine and methamphetamine use dating back to his teens with a period of abstinence of some years.
5. Whilst in prison Mr Abela had several positive drug screens and was found in possession of ICE and contraband. There were also accusations that he provided drugs to others.
6. His explanation for the relapse was that jail was very hard for him. He had however a very strong incentive not to use drugs in prison. The consequence was that he lost family visits.
7. It is premature, given Mr Abela's long history of substance abuse to find that he will not relapse into drug abuse.

1. Mr Abela gave evidence that he avoids his anti-social peers. He gave evidence that, when he meets old cronies, he implements strategies to deflect and makes up excuses to rapidly move away. Mr Abela described previously hiding his problems from his family. He said if he felt he were about to relapse or move towards antisocial peers, that he would call on assistance from those around him. He said that he would talk to his family or see his parole officer or his drug and alcohol counsellor.
2. The Secretary however emphasised the lack of supporting evidence from any of Mr Abela's family/counsellors/other supports about how he currently conducts himself. Although this evidence was lacking, I accepted Mr Abela's evidence that he does have some strategies in mind to address issues if he feels tempted to relapse.
3. Nevertheless, he will face challenges. Mr Abela's brother was only released from custody in late 2017. Mr Abela is, unsurprisingly, associating with him again and invited him to live at his home. Whilst Mr Abela is hopeful that his brother will not prove to be an antisocial influence, once again, that remains to be seen. It is premature to determine whether his brother will be a positive or negative influence on him in the future.
4. It was also noted in the corrections materials that Mr Abela's current partner previously used drugs herself and continues to maintain friendships with drug users. The potential for "negative peer influences" to re-emerge is therefore not an implausible one.

1. Mr Abela struck me as an individual who was motivated and capable of finding work. Since January 2017, Mr Abela has once again had a stable job. This is positive, however, stable employment has not previously prevented Mr Abela from offending. Work then, whilst often a protective factor, did not protect against Mr Abela's re-offending.

1. The likelihood of a future threat to a child caused by Mr Abela remains uncertain.
2. Whilst work and a positive relationship are protective factors in Mr Abela's life, they are less so in his case than is sometimes seen.
3. Whilst Mr. Abela does appear to be currently drug-free, it was only 2 years ago that he was still giving positive drug screens in prison. In the context of a long history of drug abuse, this period of abstinence is not long.
4. It is only time that will determine whether Mr Abela's rehabilitation is long-lasting or whether past behaviour will be repeated.
5. Mr Abela's offending was extremely serious.
6. If Mr Abela were to reoffend, it is likely, given his past history that his offending would be large scale offending. Whilst children may not be the direct target of such offending they would be likely collateral victims.

(i) any information given by the applicant in, or in relation to, the application

1. I read a letter and heard evidence from Mr Nicholas Masson who is the director of Laser Electrical, which is Mr Abela's employer. Mr Masson spoke in very favourable terms about Mr Abela. The business has a large contract supplying portable buildings to the Department of Education. Mr Masson gave evidence that all staff were required to hold a WWC Assessment Notice.
2. I also had before me very positive character material from Mr Robert Weightman, who is a co-worker and friend of Mr Abela; Mr Andrew Dunn, who is a site supervisor; and Mr Robert Sutcliffe who is a co-worker.
3. Another personal reference from Ms Emily Ramsay spoke positively of Mr Abela as a friend.

(j) any other matter that the Secretary considers relevant to the application.

1. I am ultimately satisfied that it would be appropriate to refuse to give an Assessment Notice to Mr Abela. The matters to which the Secretary must have regard under section 14(3) of the WWC Act are designed to be carefully weighed and balanced together and against each other to form a conclusion as to whether or not an individual should be given an Assessment Notice. I consider that Mr Abela is on the right track. I am nevertheless not satisfied that sufficient time has passed since he offended and re-entered the community to find that he will not reoffend and pose a threat to children. A complex range of issues led to his offending. It is unclear whether many of those issues are yet resolved.

26C (2) Reasonable person" and "any type of work" tests

1. Having reached the above conclusion, it is not really necessary for me to move to the other "tests" under s. 26C of the WWC Act. I will however briefly do so for the sake of completeness.
2. Section 26C(2) reads as follows:

(2) VCAT must determine that it is appropriate to refuse to give an assessment notice unless VCAT is satisfied that -

(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; or

(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

1. The Secretary contended that the reasonable person would want more time to pass before being confident that it would be appropriate to leave their child with Mr Abela whilst engaged in any type of child-related work. The Secretary stressed that the reasonable person would want proof that Mr Abela could remain on track in times of stress and that the passage of more time was required to show there would not be a drug relapse. The Secretary contended that the reasonable person may be concerned that Mr Abela is currently a parolee.
2. I agree. The reasonable person would agree with the observations of the sentencing judge that Mr Abela had, for a period, become a career criminal. The reasonable person would be concerned that his decline happened so quickly and on so grand a scale. The reasonable person would question whether the offending was in reality drug-related given the degree of planning required for some of it and would adopt the misgivings expressed by Her Honour Judge Cannon in sentencing at [111]:

I was told that the offending took place in the context of funding an expensive lifestyle-in particular imbibing ice on a daily basis. This would cost between 250 and $500 per day. As I have already mentioned, this is somewhat at odds with what you are telling Ms Mynard in that second report, where you were assessed during the time you are committing offences for which I now sentence you. Whilst it may be that you use the funds to finance drugs, I am not satisfied that this was the only motivation in any event. It appears that you were functioning fairly well in committing the offences such that if you were addicted to ice, which I am prepared to accept, it still did not seem to obstruct your capacity to burgle and steal.

1. The reasonable person would also be concerned about the complex issues which resulted in Mr Abela offending on so grand a scale.
2. This concern was reflected in the evidence. Mr Abela did not initially tell his employer about his offending because he thought it was difficult to tell somebody that he had stolen over $1 million worth of items and expect them to trust him. Mr Masson also gave frank evidence that had he known about Mr Abela's criminal history, without knowing the person, he would not have employed him. These reservations are not unreasonable. It is premature to say they are not unfounded.

1. Although he rarely, if ever, comes into contact with children whilst he is working, Mr Abela's employer requires him to have an Assessment Notice under the WWC Act because Mr Abela's work takes place at an educational institution. I fully accepted the evidence of Mr Masson that Mr Abela was a hard-working member of the team who has unique knowledge in his "civil operator" role.
2. The test I have to apply however is whether Mr Abela would be suitable to work in any kind of child-related work. At this early stage in his rehabilitation, I am not satisfied that he would be. I am not satisfied that it would be appropriate to expose children to an individual who quickly moved from being a positive member of the community to deep depression, heavy drug use, dealing in drugs and offending on a massive scale. Individuals with a long history of substance abuse coupled with significant offending need positive time to pass before the community can have faith that their working with children will be positive and that they will not be a negative influence.

1. Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give an Assessment Notice, VCAT must determine that it is appropriate to refuse to give the Assessment Notice unless it is satisfied that it is in the public interest to give the Assessment Notice.
2. Mr Masson gave evidence that the schools at which his company works, all require employees to hold Assessment Notices and that in those circumstances it is only practical to employ such individuals.
3. In his reasons dated 23 January 2018, for granting a stay of the Secretary's decision, Acting Deputy President Proctor expressed doubt at [17-18] about whether Mr Abela should be required by his employer to have an Assessment Notice.
4. Section 9(1)(b) of the WWC Act says:

(1) For the purposes of this Act, child-related work is work-

(b) that usually involves direct contact with a child.

1. Mr Abela's work, as I have said, does not usually involve direct contact with a child. It is in these circumstances unlikely that he would be precluded under the WWC Act from performing the work his employer requires of him. It is unfortunate that employers sometimes require their employees to have Assessment Notices even when they would not be so required under the WWC Act. The WWC Act was not designed to preclude individuals from working. Mr Abela is clearly very well suited to his work.
2. Mr Abela was realistic that he could find other work if he needed to do so. It was however his strong preference to continue to work with his current employer for the time being. I do however note that in a Corrections Victoria Assessment report dated 20 June 2017, he also stated that it was his intention to become self-employed within a 12-month timeframe.
3. There are others who could do the work.
4. There is not a compelling public interest in granting the Assessment Notice.

1. The offences Mr Abela committed were extremely serious. The combination of drug abuse, trafficking and offences of dishonesty on a grand scale combined to mean that the threat to a child if Mr Abela were to relapse and offend again is potentially significant.

1. I will affirm the decision of the Secretary dated 22 November 2017 to give a negative Assessment Notice to Mr Abela.