1. The decision of the Public Safety Business Agency to issue Cyrus Harry Peri with a negative notice is set aside and he is to be issued with a positive notice and blue card.

Blue Card - exceptional case - where applicant has charges and offences for manslaughter and assault - where applicant's violent behaviours have been alcohol fuelled - where applicant has self limited alcohol use - where protective factors outweigh risk factors - whether applicant's case is exceptional

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 22

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 360

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

HT v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 55

Re TAA [2006] QCST 11

[1] Mr Cyrus Peri is 33 years of age. He lives on the Gold Coast and works part time, combined with caring for his infant child. He wishes to obtain a licence to coach boxing.

[2] The Public Safety Business Agency which has responsibility for the issuing of positive notices and blue cards, issued him with a negative notice on 25 July 2014.

[3] Mr Peri seeks a review of that decision so he can obtain a licence to coach boxing.

[4] Mr Peri has a criminal history from 2003 until 2010. Most of this history involves public nuisance and assault charges. For most of these he was fined. He was charged with manslaughter in 2008 in New South Wales. He was found not guilty in 2010. Shortly after his acquittal he was involved in a violent fracas in Surfers Paradise. Most of his charges and offences arose from alcohol fuelled violence.

[5] As none of his offences are serious offences under the legislation, Mr Peri is entitled to receive a positive notice and blue card unless it is considered his is an exceptional case such that it would harm the best interests of children for him to have a positive notice.[1]

[6] The Tribunal is conducting a review of the merits of the Agency's decision by way of a fresh hearing.[2] The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) ('Working with Children Act'). This outlines what I have to consider in deciding if an exceptional case exists.

[7] The purpose of the review is to produce the correct and preferable decision.[3] The Tribunal may:

1. confirm or amend the Agency's decision;

2. set it aside and substitute its own decision; or

3. set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.[4]

[8] Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.

[9] I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.

[10] The Act's objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act.

[11] Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.

[12] Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.

[13] Evidence was given by Maria Dresganin a Detective Sergeant of Police, who works in Child Protection. She stated she had known the applicant for about 18 months.

[14] She said he trained her in boxing and fostered her interest. She referred to Mr Peri's positive attributes as:

• being a good role model;

• assisting others to train in his own time;

• having a passion for boxing;

• leading a healthy lifestyle;

• being devoted to his family and friends.

[15] Ms Dresganin stated that Mr Peri had told her about his past and had shown remorse. She said he had told her he was not proud of his past.

[16] She said she had never seen him be aggressive nor drink more than one alcoholic drink. She did not consider he posed any risk to children.

[17] Mr Peri provided a brief life history which revealed a somewhat disjointed childhood punctuated by a breakup of his parent's marriage, a house fire, being sent to live with relatives because of economic circumstances and a move from New Zealand to Australia as a young teenager.

[18] In oral evidence Mr Peri referred to a passion for boxing which he commenced around 1999 for three years and recommenced in 2013.

[19] He does not seek to minimize his criminal behaviour. He admits to alcohol being a factor in his charges and offending involving violence. He says he is remorseful. He says not a day does not go past when he doesn't think about the death of his friend in 2008 which led to the manslaughter charge.

[20] He advised the Tribunal he rejected an offer for counselling when he was on the manslaughter charge, because he said he could manage on his own.

[21] In relation to the 2010 incident in Surfers Paradise, he says he has little recollection because of his intoxication but says he didn't consider the serious 2008 incident when he was getting involved.

[22] He said he rarely drinks now as he trains every day and is in competition as a professional boxer. He advised he doesn't frequent pubs or clubs, is a family man and wants to act as a role model for children.

[23] He coaches adults in boxing at the gym where he trains.

[24] Mr Peri advised he has just returned to work three days per week after a period of being a stay at home father looking after his nine month old daughter. His previous employer of some 10 years had gone into voluntary liquidation.

[25] Mr Peri would like to open his own gym in the future.

[26] Mr Peri submitted that alcohol was the main cause of his problems in the past and he had reduced this significantly and became involved with good people.

[27] He reiterated he was not proud of his actions but had been successful in the past five years avoiding mistakes of the past. He submitted this was a significant amount of time given he was self treating.

[28] He advised he wants to help people lead a healthy lifestyle and puts in his own time in working at the gym with up to adults.

[29] He submitted that the elimination of alcohol reduced risk.

[30] In issuing a negative notice, the Agency considered Mr Peri's case was exceptional such that it would harm the best interests of children for him to have a positive notice. The Agency considered his criminal history in making its determination, as well as taking into account police information suggesting the applicant lacks the ability to manage his aggression or deal with situations of conflict in a constructive and non-violent manner.

[31] Mr Peri failed to provide the Agency with any submissions leaving its Executive Director unable to conclude that the triggers leading to his offending were no longer present. The Executive Director was also unable to gain any insight into the applicant's interaction with children.

[32] The Agency was concerned about Mr Peri's ability to be a positive role model for children given the circumstances of his offending and alleged offending.

[33] The Agency noted that alcohol may have been a trigger for the violent behaviour and that despite the 2008 manslaughter charge he continued to engage in violent offending in 2010.

[34] Following the evidence of Mr Peri and his witness the Agency conceded that the applicant had:

• a supportive partner;

• a responsible work history;

• a greatly reduced alcohol intake;

• demonstrated remorse and regret;

• many positive attributes as outlined by Mrs Dresganin;

• a large social network.

[35] The Agency remained concerned however that:

• insufficient time had elapsed since the last offence to be satisfied that Mr Peri has addressed the triggers for his aggression;

• the applicant has not undertaken counselling or rehabilitation and seems ambivalent towards this;

• it is critical that people seek help to assist them in addressing triggers;

• soon after being acquitted on the 2008 manslaughter charge in August 2010, he engaged in alcohol fuel violence leading to further offences;

• the applicant has insufficient tools to manage risk of indulging in alcohol;

• the applicant has failed in the past to consider non-violent means of dispute resolution, acting aggressively in complete disregard to the safety of others.

[36] The Agency submitted that the Tribunal cannot be satisfied that Mr Peri doesn't pose a risk to the safety and welfare of children, bearing in mind the paramount considerations in the Act. The Agency is seeking that its decision be confirmed, noting that any benefit to children from the applicant having a blue card is irrelevant as is any hardship to him from not having a blue card.

[37] I need to have regard to s 226(2) of the Working with Children Act in deciding if Mr Peri's is an exceptional case.

[38] I have noted the criminal history from 2003 until 2010 includes a variety of offences, the majority of which involve aggression as well as a charge for manslaughter, for which he was found not guilty.

[39] I consider his type of offending does have some relevance to child related employment.

[40] I have noted the penalties imposed.

[41] There are also other matters relating to the offences that are relevant including the involvement of alcohol, and the applicant's relative maturity at the time.

[42] Mr Peri does not seek to minimize his criminal behaviour. He seems genuinely remorseful about the death of his friend and his other alcohol fuelled offences.

[43] He presented as a honest witness and answered questions fully and without hesitation.

[44] His antisocial behaviour has been fuelled by alcohol. This does him no credit. He has recognised that he should stay away from alcohol. He acknowledged he had no strategies in place to reduce his alcohol intake after his bail conditions were lifted following the finalisation of the manslaughter charge.

[45] The Agency has concerns about his self regulation and the applicant's not seeking professional support to assist him with his drinking. Whilst this may have been desirable it seems to me that Mr Peri's situation is one where self regulation has been successful for the past four and a quarter years.

[46] To his credit he now drinks very little and only when he is not in training for a bout. He says he doesn't frequent hotels or clubs. I accept his evidence on these matters.

[47] He has not offended since the public nuisance and assault charges of September 2010. This passage of time is a factor I will take into account, but it will not be the only factor.

[48] In other matters before this Tribunal, the Agency and the Commissioner for Children, Young People and Child Guardian have asked the Tribunal to consider whether a person has developed insight.[5]

[49] In that matter the Agency stated as follows:[6]

... the importance of having appropriately developed insight into harmful behaviour cannot be overstated in an assessment where a history of negative behaviour exists. This was recognised by the former Children Services Tribunal in the published decision of Re TAA.[7] At [97] the Tribunal stated:

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependant on the adults around them having insight into their actions and the likely effect on children.

[50] Mr Peri has developed good insight and is very remorseful in my view.

[51] I will also take into account relevant risk and protective factors arising in this case following the example in Commissioner for Children and Young People and Child Guardian v Maher & Anor.[8]

[52] I consider the risk factors in this case are:

• a criminal history of alcohol fuelled violence;

• a lack of a counselling or alcohol rehabilitation regime;

• a narrow gap in time between being found not guilty in his manslaughter case and subsequent assault charges.

[53] I consider the protective factors to be:

• a supportive partner;

• the applicant's self imposed discipline to significant limit alcohol intake since September 2010;

• his social network;

• his positive work history;

• his insight into the impact of alcohol on his behaviour;

• his ongoing remorse for his alcohol fuelled violence;

• his commitment to fitness, coaching boxing and leading a healthy lifestyle.

[54] In my view these protective factors outweigh the risk factors.

[55] After taking all of the above matters into account, I have come to the view on the balance of probabilities that Mr Peri's case is not exceptional such that it would harm the best interests of children for him to have a positive notice and blue card.

[56] I will therefore set aside the Agency's decision and order that Mr Peri be issue with a positive notice and blue card.

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20.

[5] For example, HT v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 55.

[7] [2006] QCST 11.

[8] [2004] QCA 492.