Launiuvao v Director-General, Department of Justice and Attorney-General [2018] QCAT 322

Working With Children (Risk Management & Screening) Act 2000 (Qld), s 225(1), s 225(2), s 226(2), chapter 8

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

I McCowie, Legal Officer, Department of Justice Attorney-General

[1] Mr Launiuvao is 26 years of age. His family is from Samoa. He is in the third year of his four-year Bachelor of Primary Education degree at the University of Southern Queensland, needing principally to undertake his practicum in order to compete his degree and become a teacher.

[2] He is also a devout Christian and a leader in his church, the Darra-Jindalee Catholic Church. He has been prominent as a youth leader in his church and within the Samoan community. For some time he has been active with youth generally, developing young sports-people, and supporting young people within the Samoan community.

[3] He was issued a blue card to participate in his community work on 2 November 2010, this card expiring on 2 November 2013 and not being renewed.

[4] To complete his teaching degree, and to offer his leadership to youth he requires a current blue card. The holder of a blue card is permitted to undertake regulated employment,[1] essentially working with children and young people.

[5] Mr Launiuvao was married in November 2017 and now has a child under the age of one year with his wife.

[6] He comes from a close-knit family: he is the eldest child; he has a twin sister, Nu'u and younger brothers Setefano and Alefosio.

[7] During 2012, when he was aged 20, he suspended his university studies for over two years to work in order to support his family. His father, the principal family breadwinner had been injured and was unable to support his family.

[8] On 17 October 2017 Mr Launiuvao applied for a blue card. On 30 October 2017 Blue Card Services, a unit within the Department of Justice and Attorney-General, responded to Mr Launiuvao requesting that, prior to it making a decision on the issue of a blue card, he make submissions to them concerning information Blue Card Services had received from police.

[9] Mr Launiuvao responded to Blue Card Services on 21 November 2017 with his submissions.

[10] On 29 November 2017 Blue Card Services wrote to Mr Launiuvao and the University of Southern Queensland notifying them both that Mr Launiuvao had been issued a negative notice and, as a consequence, had been denied the issue of a blue card.

[11] Mr Launiuvao now seeks the intervention of this Tribunal to revoke the negative notice, to issue a positive notice, and allow him to be issued a blue card.

Why was the Applicant issued a negative notice?

[12] Mr Launiuvao was denied a blue card in 2017 because he was charged in 2014 with three serious offences.

[13] These charges arose out of two events that occurred over a period of less than one hour on one day: the evening of 17 August 2014. As a result of what was alleged,

Mr Launiuvao was charged with one count of rape and two counts of sexual assault, all of which are serious offences as prescribed in the Working with Children (Risk Management and Screening) Act 2000 ('WWC Act').[2] Both female complainants were adults.

[14] The alleged offences were brought before the District Court in Brisbane before His Honour Chief Judge O'Brien on 19 April 2016. The Crown entered a nolle prosequi in relation to the rape charge; the two sexual assault charges were heard.

[15] In relation to the sexual assault charges Mr Launiuvao pleaded guilty and was sentenced to complete 240 hours community service within 12 months with no conviction being recorded.

[16] Mr Launiuvao completed most, but not all of the 240 hours of community service. He failed to complete the community service ordered because of an injury he claimed he incurred playing sport.

[17] For failing to complete the penalty of community service imposed he was brought before the District Court on 22 August 2017 where he was admonished and discharged.

[18] In assessing Mr Launiuvao's suitability for a blue card, Blue Card Services made the following observations:[3]

It is of concern that the applicant committed his sexual assault against the second complainant despite having interactions with the police concerning his initial assault against the first compainant. This raises concerns that the applicant was forewarned about his inappropriate behaviour, and was still unable to restrain his behaviour.

The applicant's offending raises serious concerns about his ability to maintain personal boundaries and engage in socially acceptable conduct. The nature of his behaviour is inconsistent with the behaviour expected of a person entrusted to provide a protective environemnt for children.

[19] Based on this background, and having formed the view that this was not an exceptional case,[4] Blue Card Services concluded that it was not in the interests of children and young people to issue Mr Launiuvao with a blue card at this time.

Mr Launiuvao was issued with a relevant notice refusing the blue card on

29 November 2017.

[20] The relevant provisions in the WWC Act are in ss 225(1) and (2):

(1) Subject to section 223 and subsection (2), the chief executive must issue a negative notice to the person if the chief executive is aware the person -

...

(c) has been convicted of a serious offence.

(2) If subsection (1) ... (c) applies to the person 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.

[21] Serious offences[5] for the WWC Act include rape and sexual assault as defined in the Criminal Code of Queensland.

[22] Being satisfied that there was police information that Mr Launiuvao had been charged and convicted of serious offences, Blue Card Services, on behalf of the chief executive, had to issue a negative notice unless this was an exceptional case.

[23] Section 226(2) of the WWC Act sets out the factors the chief executive is to take into account when assessing whether an application represents an exceptional case when an applicant has been charged or convicted of an offence. These are:

(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

(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.

[24] These factors are not exhaustive,[6] and will not necessarily be given equal weight in assessing an application.[7]

[25] In assessing whether the application by Mr Launiuvao was an exceptional case the factors in s 226(2) were considered by Blue Card Services. Sections 262(2)(b)-(d) are not relevant in this case.

[26] On the evidence available to it Blue Card Services was not satisfied that this was an exceptional case.

[27] The Tribunal has to determine whether the application by Mr Launiuvao is an exceptional case.

[28] The statutory provisions mentioned in paragraph [23] above are relevant in making this decision.

[29] What else should the Tribunal consider when assessing whether the instant case is an exceptional case? When considering the previously titled Act[8] to the WWC Act the Appeal Tribunal posited the following factors be taken into account:[9]

... rehabilitation from a previous proclivity of engaging in offending behaviour is only one aspect of the protective factors that would be necessary to be established in this case before a blue card should be issued. Remorse and insight are other aspects.

[30] Further, there are no restrictions that can be placed on a blue card upon a positive notice being issued by Blue Card Services. This means the holder of a blue card may engage in any form of regulated employment. Ram's Case also provides guidance when it comes to assessing the implications of blue card transferability and whether a matter is an exceptional case, when it says:[10]

It is also true that the Commission Act does not mandate that the Tribunal, on review, must consider the transferability of a blue card as being a relevant factor in determining whether there is an 'exceptional case' for the purposes of s 225. However that factor is relevant to consideration of the issue in s 225(2) that the decision maker must be satisfied that it would not harm the best interests of children for a positive notice to be issued. Issuing a positive notice means that the holder of a blue card may engage in any type of employment or business activity. Such a person could change employment or activity from one with a low incidence of involvement with children to one with a high level and intimate level of contact with children.

[31] As a result, the Tribunal has to be cognisant of the fact that a blue card holder may be in close and intimate contact with children and young people, irrespective of the original basis on which a blue card was issued, and any consequence this may have for their safety and well being.

[32] Background information concerning Mr Launiuvao has been described earlier. But there are a number of factors relevant to the original offending and his suitability as a blue card holder that were raised during the hearing.

[33] Mr Launiuvao has been charged with no criminal offences before or after the one day in which the offences disclosed above occurred. He has no evident criminal proclivities.

[34] Mr Launiuvao presented before the Tribunal as a credible witness of truth.

[35] At the time of the offending he was employed as a baggage handler at Brisbane Airport. At that time he had suspended his university studies for two years and undertaken this work in order to support his parents and siblings financially.

[36] Mr Launiuvao asserted that the company of the other baggage handlers was a bad influence on him and that they were generally undesirable company.

[37] He agreed that he was inebriated on the evening of 17 August 2014 when the events took place at Fortitude Valley. He agreed that he continues to drink occasionally, but asserted that alcohol makes him happy rather than aggressive.

[38] He said that when he faces life's troubles he now turns to the things he loves: his faith, his family, and '... I now turn for spiritual direction from priests and other leaders.'

[39] Prior to the charges in August 2014 his relationship with a girlfriend of long-term standing, four years, had broken down and they had parted. He believes that this had an adverse effect on his demeanour and, combined with other factors, led him to behave in ways that were uncharacteristic.

[40] He married in November 2017, is in a stable relationship with his wife, and now has a young child. He believes that he would not be involved in activities in the future that may compromise his family relationship.

[41] Mr Launiuvao denied to the Tribunal that he did any of the things for which he was charged by the police. He agreed that his conduct on that day in August 2014 may have been distressing for the women involved, but he says he was not aggressive towards them; he would not do that to a woman.

[42] He said that he was represented by a legal aid lawyer when the charges came before the District Court. He said he informed his lawyer that he wished to plead not guilty to the two charges of sexual assault being heard.

[43] He said to the Tribunal that he was advised by his lawyer that he may be believed in regard to one charge but that, facing two charges against separate women on the same night, the likelihood of being found guilty was high. He was advised to plead guilty and accept the earlier sentencing indication of community service with no conviction recorded. He accepted that advice and was duly sentenced with no conviction recorded.

[44] Mr Launiuvao stated that he did not complete the 240 hours of community service because he sustained an injury to his left shoulder playing rugby and that he continued to suffer pain from that injury for the following three years.

[45] Mr Launiuvao offered the testimony of four witnesses in support of his application: Stephanie Unger; Luisa Laughren; Nu'u Launiuvao; and Paotonu Joanus Launiuvao.

[46] Ms Unger is employed as a Project Officer - Student Formation with Brisbane Catholic Education. She met Mr Launiuvao in bible studies where she was a youth co-ordinator with their church in 2014. She has continued to maintain contact with

Mr Launiuvao and support him through his court processes.

[47] Ms Unger emphasised that her experience with Mr Launiuvao has been one where she has always felt safe and believes that he has always looked out for the interests of women and the vulnerable.

[48] She was surprised when Mr Launiuvao was charged. She gave strong evidence supporting her belief that Mr Launiuvao was a person to be trusted to supervise children and young people. She said she sees in him '... stability and self-worth'.

[49] Ms Laughren is the Youth Coordinator/Religious Worker with the Darra-Jindalee Catholic Parish, and a mother of 6 children. She has known Mr Launiuvao for

23 years.

[50] Ms Laughren opined that the break-up with his former girlfriend in 2014 affected him badly, that the work environment at the airport was toxic and adversely affected him, and that the the charges against him represented behaviour that was out of character.

[51] She credited him with insight: he has put the toxic work environment behind him; he was remorseful for his conduct; he has changed and is now a more responsible person.

[52] Nu'u Launiuvao is Mr Launiuvao's twin sister. While her fraternal relationship may tend to lend less weight to her evidence, she was supportive of her brother, and commented of him 'He is very respectful, that's how our parents raised us, he treats female friends as if they are his own sister.'

[53] Paotonu Joanus Launiuvao is the wife of Mr Launiuvao. Again, while the weight of her evidence has to be tempered by the closeness of her relationship with the Applicant, Mrs Launiuvao was supportive of her husband and reinforced that he was '... in a bad place ...' when the events of 2014 occurred and was remorseful.

[54] Even allowing for the closeness of the relationship involving some of the witnesses with the Applicant, it is noteworthy that all four were female and strongly supportive of the Applicant and spoke favourably concerning his treatment of women and vulnerable people.

[55] The Respondent's evidence comprised the Statement of Reasons referred to earlier and the final submissions tendered at the end of the hearing.

[56] The Respondent referred the Tribunal to factors that it called the 'protective factors' and the 'risk factors'.

[57] The protective factors raised by the Respondent include those mentioned specifically or by inference in the Applicant's evidence, above.

[58] The risk factors that the Respondent raised that speak against the issue of a positive notice are:

• (a) The Applicant's two convictions for the serious offence of sexual assault;
• (b) Both complainants were previously unknown to the Applicant, demonstrating his lack of any sense of appropriate boundaries;
• (c) The offending involved serious and unacceptable antisocial conduct reflecting adversely on the Applicant's ability to judge appropriate behaviours and exercise self-control;
• (d) Despite being cautioned by police, the Applicant went on to offend again further shortly afterwards;
• (e) The fact that the Applicant took to drinking and partying to overcome the period of trouble he endured in 2014 suggests that he might be at risk of returning to such behaviour in the face of future adverse circumstances;
• (f) That the evidence of the Applicant's witnesses unduly minimises the gravity of the Applicant's conduct;
• (g) That the Applicant did not complete the sentence of 240 hours of community service he was given by the District Court; and
• (h) The recency of the Applicant's misconduct.

[59] In assessing whether this is an exceptional case the Tribunal has to consider at least the following factors that are derived from the WWC Act and cases considered above:

• (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
  • (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;
  • (vi) 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.

• (b) The rehabilitation of the applicant from a previous proclivity of engaging in offending behaviour;

• (c) the remorse of the applicant;

• (d) the insight of the applicant; and

• (e) the fact that there are no restrictions that can be placed on a blue card.

[60] In relation to the charges against Mr Launiuvao, they were all serious charges within the meaning of the WWC Act.

[61] However, the evidence suggests the Applicant has no proclivity for engaging in offending behaviour. Indeed, the opposite: the alleged offending all occurred within the space of one hour, on one day, with no offending of any sort occurring before or after (the failure to complete the community service penalty excepted, not being completed by the Applicant for specific reasons).

[62] The offending occurred at a troubled time for the Applicant, against which the fact is that he was working for the purpose of financially sustaining his parents and siblings rather than studying.

[63] Despite the prima facie seriousness of the charges, the District Court was motivated to impose a sentence of community service with no conviction recorded. When

Mr Launiuvao's counsel raised probation, the learned Chief Judge remarked, 'He doesn't really seem to need that sort of supervision.'[11]

[64] Mr Launiuvao denied the offences took place to the police when questioned at the time, denied the offences took place to his counsel before the District Court, and, being reminded of his oath, denied before this Tribunal that the offences took place.

[65] It is not open to this Tribunal to re-open settled judgments of the District Court but, on the balance of probabilities, the evidence, taken as a whole, leads me to conclude that the offences did not take place. This has implications concerning the Applicant's insight into his 'offending'.

[66] While the Respondent argued that the offending was recent, there has been a period of four years since the date of the offending. There was no prior, and there has been no subsequent offending by the Applicant. The Applicant's life has changed profoundly since 2014, and he is now a settled, stable and mature person.

[67] There is ample evidence before this Tribunal that the Applicant was and remains remorseful. Not just for the personal calumny it has brought him, but because his alleged behaviour is contrary to the standards expected of him during his upbringing and his personal ethos.

[68] If the Applicant was not insightful, the easiest course for him would have been to agree that he has been duly punished and to seek to persuade Blue Card Services and this Tribunal that he has learnt from the experience and that it will not happen again. He chose, however, to present a consistent denial of the charges at all stages. This gives weight to the probability of the truth of the denial, and to the fact that he did so in the knowledge that this could be against his interests. This suggests he possesses insight and cannot state as true something he sincerely believes to be untrue.

[69] Even if the charges against the Applicant occurred as alleged, the complainants were adult females, not children, who themselves, according to the evidence before the District Court, were inebriated. The Applicant has been charged with no offence concerning children.

[70] His expressions of remorse, along with the candour with which he presented his evidence, including admissions as to his continuing social drinking and the importance of his extended family suggest he possesses sound insight. The fact that he sacrificed years of his youth to provide for his parents and siblings rather than serve his own interests attests similarly.

[71] Ultimately the only question facing the Tribunal is this: is this an exceptional case in which it would not harm the best interests of children and young people to issue a positive notice?

[72] I am satisfied to the relevant standard of proof that this is an exceptional case and it would not harm the best interests of children and young people to issue a positive notice to Fagu Andy Launiuvao.

[73] The Tribunal makes the following Orders:

• (a) The decision of the delegate of the chief executive (child safety) made on

  29 November 2017 to issue a negative notice and refuse to issue a blue card to Fagu Andy Launiuvao is set aside.

• (b) A positive notice is to be issued to Fagu Andy Launiuvao.

[1] Working with Children (Risk Management and Screening) Act 2000, Chapter 8, Part 1, and

[3] Statement of Reasons for the decision to issue a negative notice, dated 29 November 2017, page 5.

[6] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, 23.

[7] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, 53.

[8] Commission for Children and Young People and Child Guardian Act 2000 (Qld).

[9] [2014] QCATA 27.

[11] Transcript of Proceedings, District Court of Queensland, Indictment No 1782 of 2015, The Queen v Fagu Andy Launiuvao, 19 April 2015, pages 1-6.