Victorian Civil and Administrative Tribunal|2008-07-22|Before: Working J

The Applicant is 31 years old. He has applied under the Working with Children Act for an assessment notice. He has done this because he wishes to be able to work as a youth worker. Unfortunately for the Applicant the Department of Justice has refused to issue an assessment. This is because the Applicant was found guilty on 1 March 1996 of manslaughter. Manslaughter is classified under the Working with Children Act as a Category 2 offence. This means that the Secretary to the Department of Justice must refuse to give him an assessment notice unless the Secretary is satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to ten factors which are listed in s13(2) of the Working With Children Act 2005.

In this case the Secretary has refused to give the assessment notice, having decided that she was not satisfied that providing the assessment notice would not pose an unjustifiable risk to the safety of children. With the double negative removed, I take it that the Secretary's view is that granting the assessment notice would pose an unjustifiable risk to the safety of children.

The Applicant is entitled to seek a review of this decision of the Secretary before this Tribunal. It is this review of the Secretary's decision which is before me. The Working with Children Act does not specify the considerations which I should take into account in reviewing such a decision of the Secretary. This is the first application for review where the Applicant has committed a Category 2 offence. All other cases that have come before this Tribunal have involved Category 1 offences.

The difference between an application relating to a Category 1 offence and an application relating to a Category 2 offence is that the Tribunal is given jurisdiction under the Working With Children Act to deal with Category 1 offences in its original jurisdiction - that is, the Secretary has no power under the Act to issue the assessment, and a person seeking an assessment must ask the Tribunal to require the Secretary to give a positive assessment notice. In a Category 2 application the Secretary has a discretion to issue the notice if satisfied that she should do so. In this case, the Secretary has refused to exercise her discretion in the Applicants favour, and so in this application the Tribunal is sitting in its review decision - that is, it is reviewing the decision which the Secretary has already made, not acting as the primary decision-maker.

However, this distinction does not appear to lead to any practical consequences in the case before me. The matters which the Secretary needs to take into account in a Category 2 application appear to be exactly the same matters as the Tribunal has to take into account in considering a Category 1 application.

I wondered whether the fact that I was hearing a review of the Secretary's decision confined me to taking into account only those matters which were placed before the Secretary at the time of making her decision. However, the solicitor for the Secretary has confirmed to me that the Secretary is content for me to make a decision based upon the factors which were known to the Secretary at the time of making her original decision, but also taking into account the new evidence presented to me at the hearing of this application.

Therefore the principles which have been outlined in the cases already decided under this Act in dealing with Category 1 offenders may be applied to this case.

The Applicant carries the burden of satisfying me that the Applicant would not pose an unjustifiable risk to the safety of children. The Secretary opposes the application.

In 1995 the Applicant was 19 years of age. He had a very close and supportive family upbringing, had been active in sporting activities at school and after school and was completing an apprenticeship. However, he began drinking at an early age and also had become involved in taking amphetamines. He had been diagnosed with schizophrenia about five years before the incident, although his medical condition does not appear to have played any part in the events leading up to the incident itself. He was, however, as described in the sentencing remarks of the sentencing judge, a 'fairly socially isolated person, not closely connected with other youths, and consequently keen to be part of the group. Consequently you were extremely vulnerable to the effects of group psychology.'

The Applicant accepted an invitation to join a group of youths who were sitting at an outdoor venue in Frankston. He had not had any previous involvement with this group but was aware at the time that he joined them that they were intending to participate in a fight with another ethnic group in Frankston.

During the course of the night the Applicant, together with other group members, continued to drink. The ethnic group did not appear. However, by coincidence, a family group of a different ethnic background did ultimately make an appearance. They attended a nearby ice-cream shop to buy ice-creams. The group of which the Applicant was a part mistook them for the rival gang for which they had been waiting. After some preliminary heckling, a fight ensued.

In the course of the fight one of the members of the family group was attacked viciously by the group of which the Applicant was a part. The Applicant joined in. He, together with three other main offenders, punched, kicked and hit this man. As well as punching and kicking him, the Applicant hit him several times viciously with a stick whilst he was lying on the ground. During the melee, one of the other members of the group produced a knife and stabbed the man. Ultimately, the victim died of his stab wounds, although the pathologist's report indicated that he might just as easily have died of the injuries occasioned by the repeated kicking and punching inflicted by the four main offenders.

The investigating constable volunteered that the Applicant was not one of the ringleaders of the group. The Applicant and three other offenders were originally charged with murder but this charge was later reduced to manslaughter. The Applicant (and the other offenders) pleaded guilty to the charge. The Applicant was sentenced to five years imprisonment, of which he served three years in Pentridge prison before becoming eligible for parole.

The matters which I must take into account in deciding this application

Section 13 provides that the Secretary of the Department of Justice must refuse to give an assessment notice on a Category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children. It now becomes my task to decide whether this decision should be overturned. In making this decision I must take into account the factors set out in s13 (2). I will deal with each of these relevant factors in turn.

The nature and gravity of the offence and its relevance to child-related work.

The offence that I have described is indeed very serious. The taking of a human life must be one of the most serious offences contemplated by this legislation. The taking of a human life in such violent circumstances as I have described above adds to its gravity. The Applicant acknowledges the appalling nature of his offence. The Respondent submits that this should be my primary focus in coming to my decision. The Respondent points to the matters set out in the sentencing remarks of the sentencing judge. The Respondent particularly points out that if the victim had not been stabbed he may in any event have died as a result of the blows inflicted on him. The Applicant has conceded that he was an active participant in raining blows upon the victim. The Respondent says that the incident was of such a violent nature that its very violence may give it direct relevance to child-related work. How could a man who had committed such a violent act be entrusted with the care of children?

It is now over fourteen years since this offence occurred. The Respondent acknowledges this is a substantial time. However, the Respondent's submission was that the circumstances of the offence including its extreme violence diminish the lessening of its impact over time.

I have already indicated that the Applicant was sentenced to 5 years imprisonment for the offence of manslaughter. At the time the maximum sentence available for manslaughter was 10 years, so the sentence at one half of the maximum should properly be seen as a significant sentence.

The age of the Applicant at the time of the offence and that of his victim

Both the Applicant and his victim were aged 19 years at the time. The Respondent conceded that the Applicant was therefore quite young at the time of the offence but pointed out that he was an adult, being over 18 years of age.

The Applicant's behaviour since the time of commission of the offence

The Applicant has one offence prior to the manslaughter offence. On 18 June 1994 he was convicted of possessing and using cannabis and cultivating and trafficking cannabis and amphetamines. He has told me that this arose out of the fact that he was sharing a house with other drug users and the group were growing cannabis at the house. He has not sought to minimise this offence but I note that the penalty for the offence was a fine of $1,500 without conviction. I am prepared to conclude that this offence occurred in the circumstances he described and is not an indication of an established prior pattern of serious criminal activity by the Applicant.

As the sentencing judge noted, although the Applicant had been raised in a very supportive home environment, he had come under the influence of drugs and alcohol in his youth and had left school half way through year 11. He was completing an apprenticeship, and still living at home, at the time of the offence. His condition of schizophrenia clearly had impacted on his teenage years.

After being released on parole, the Applicant returned home to live with his parents, where he has lived ever since. His relationship with his parents, now good, evidently took some time to re-establish. The Applicant told me that after a serious argument with his family, he became extremely upset and unwisely tried to buy some amphetamines to calm himself down. The person he attempted to buy the amphetamines from was an undercover police officer. He was charged and convicted in February of 2002 of attempting to purchase amphetamines. This description of the circumstances leading up to the offence was not challenged by the Respondent and I note that the penalty recorded was a fine of $400 without conviction, so I conclude that the magistrate at the time accepted that this incident was not a serious one.

One positive outcome of his term of imprisonment was that the applicant received intensive treatment in Pentridge for his condition of schizophrenia. He received daily treatment for his schizophrenia whilst he was imprisoned. After he was released on parole he continued to be carefully monitored, attending three appointments a week for counselling by his parole officer, regular drug testing and access to a psychiatrist and care worker. This assistance appears to have been successful in reintegrating him into the community, and since his release from prison he has been diligent in taking medication which completely controls his medical condition. He was referred to his local general practitioner at the conclusion of his parole and he has seen his general practitioner every month since that time. A supportive letter from his doctor was tendered in this application.

Over this time, the Applicant formed a desire to re-establish his life by assisting teenagers who may be tempted to follow the lifestyle which had got him into so much trouble. He enrolled for, and ultimately completed, a qualification in youth work.

I heard evidence from the manager of a service for troubled youth, who met the Applicant when he undertook field training at his centre as part of his youth work qualification. The Applicant worked as a volunteer at the centre until he was prevented from doing so by the issue of the negative notice. I heard evidence from the manager that the Applicant has never tried to hide his involvement in the incident I have described, or his criminal conviction. He was described as being open and honest, both to the manager and to the committee of management of the centre. In the seven and a half years since the Applicant has been working with the centre the manager told me he had seen no sign of violence from him, and in fact there had been a lot of incidents at the centre which needed to be controlled, and the Applicant had handled those incidents in an impeccable way. He praised the Applicant highly and said that it was a great loss when he was forced to cease working at the centre because of the negative notice. The centre had been working towards giving the Applicant full-time employment at the time the negative notice was issued, and the centre would love to have him back. I also received written references from the acting President of the centre, and from his academic supervisor in his youth work course.

I also heard evidence from the Applicant's mother, father and younger brother. To recount all the detail of this evidence is, in my view, unnecessary. It would only identify the Applicant and his family. However, it is clear from this evidence that the Applicant comes from a wonderfully supportive family. None of the family has ever committed any criminal offences and indeed his father in particular has contributed an enormous amount to the community during the course of his career. They gave evidence that he has shown no trace of violence at home, either before the offence, or since.

The family was completely taken by surprise at the nature and seriousness of the offence committed by the Applicant in 1995. In their view the incident had arisen in part because of the Applicant's condition of schizophrenia, exacerbated by his overuse of alcohol and drugs at the time. His family gave evidence that he was very conscientious about taking his medication and that his medical condition is now very well controlled.

The Applicant has had a relationship with a young lady for two years and has fathered a child with her. Although he still lives at home he wants to be able to obtain full-time work so that he can set up a home for his girlfriend and child.

The likelihood of a future threat to a child caused by the Applicant

As I have outlined, the Applicant has made this application because he desperately wants to be able to work as a youth worker. He has completed a qualification in youth work. He has worked as a volunteer in a youth work facility for over seven years and is very highly regarded at that facility. He gave evidence that he decided to devote his career to helping young people so that they would not have to go through what he has gone through.

The Applicant's family confirmed the evidence of his devotion to youth work, and his desire to use his skills to influence young people to avoid drugs, alcohol, and violence.

The Respondent did not challenge this evidence, and I accept it. The Respondent's position was that notwithstanding this evidence, the enormity of the Applicant's crime must forever preclude him from being able to work with, or assist young people in the manner he so clearly wishes to do.

The Applicant comes before me as a man who has committed one extremely serious offence.

The Respondent has pointed me to the Minister's second reading speech at the time of the introduction of the Working With Children Act. The Minister said this:

'Developing the Working with Children Scheme has been an exercise in striking the right balance. Minimising the risk of harm to children is our priority. In achieving this, however, the government is aware of the need to ensure that all Applicants for an assessment notice are treated fairly, in accordance with the principles of natural justice. Also important is the need to create a scheme that does not bury employers and community organisations in red tape and responsibilities, and the need to create a scheme that does not discourage the volunteers that are so vital to Victoria's community.

The government considers that the Working with Children Bill meets these aims. It creates a scheme that balances these, sometimes competing, considerations but which is aimed squarely at improving children's safety.'

I have said in previous applications that the wishes of an Applicant, and any disadvantage to him in not being able to pursue the work he wishes to do, is very much a secondary consideration in applications under this Act. The need for children to be protected is the first and foremost consideration.

In my view, focusing my attention squarely on the need to protect children, this is a case in which there is no appreciable future risk to the safety of children from the Applicant. In fact, I have formed the positive view that it will be to the advantage of young people to have the benefit of interaction with a person such as the Applicant. The Applicant knows, not from textbooks, but from his own experience, the horror that can be caused by drugs and violence. I agree with the witnesses who gave evidence in this case that he is very well placed to assist young people who are at risk of developing violent behaviours or succumbing to the influence of drugs and alcohol. The evidence suggests that he has been successfully rehabilitated and is unlikely ever to take any action which will place any person, even more so a young person, in any danger.

This legislation is not designed to preclude any person with a serious criminal record from working with children under any circumstances. It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.

My assessment in this case, having heard all the evidence that has presented before me, is that there is no unjustifiable risk to the safety of children from this Applicant.

Accordingly, I order that the Secretary give an assessment notice to the Applicant.

MH v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514 (22 July 2008)

MH v Department of Justice

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MH v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514 (22 July 2008)