Victorian Civil and Administrative Tribunal|2013-05-22

The applicant and victim in this matter are a married couple and were both residing at the same address at the time of the offence. At approximately 730pm on Monday, the 4th of January, 2010, the applicant arrived home after being at a friend's house. He had been drinking but was not obviously affected by alcohol. The applicant and victim became involved in a verbal argument during which the applicant grabbed the victim with both hands by the throat for several seconds. The victim began to choke and hit the applicant across the face causing him to let go. The applicant then grabbed the victim's right hand and squeezed it into a fist and forced it into his own face before the victim managed to free her hand. The applicant and victim then continued the verbal argument for a further ten minutes before a comment made by the victim sent the applicant into a rage. The applicant grabbed the victim with both hands and threw her to the ground. The applicant then kicked the victim in the left leg and side approximately six times with his bare feet. After the victim got to her feet, she continued to argue with the applicant who then charged at the victim and again grabbed her by the throat with both hands, squeezing harder than he had previously. The applicant said, "I'm going to kill you". Believing she would be killed, the victim twisted the applicant's ears causing him to release his grip. Both were in the kitchen at this time and the applicant then took a steak knife from a knife block and, with the knife held in front of him approached the victim. The victim briefly thought she would be stabbed but the applicant told her to take the knife and stab him. The applicant then put the knife down and punched himself four or five times in the head with his own fist. This time regarding money. The accused then went into their bedroom and returned with $130 in notes. He then grabbed the victim onto a couch. The applicant then knelt on top of the victim and forced the plastic bag into her mouth cutting the underside of her top lip. The applicant momentarily got off the victim who remained on the couch but a short time later, he got on top of the victim and again grabbed her by the throat with both hands. The applicant again threatened to kill the victim and squeezed hard enough for the victim to gag for breath the accused then released his grip of the victim and went into another room. As a result of the assault, the victim received bruising to her left leg and left hand and general soreness to her side and threat.

At no time did the victim give the applicant permission or cause to assault or otherwise touch her.

He was convicted of both offences and sentenced to an 18 month Community Based Order on the threat to kill charge and four months imprisonment, suspended for 12 months on the charge of recklessly causing injury. It appears that he has completed both of his Community Based Orders satisfactorily.

VQB sought treatment and counselling from a number of quarters. He attended a men's behaviour change group conducted by Mitchell Community Health during the course of 2010 and was referred by his treating general practitioner to Dr Christopher Corcos, consultant psychiatrist. In a letter written to the general practitioner, Dr Corcos said that he did not believe that VQB was suffering from Bipolar Disorder. The doctor continued:

The reality, I'm afraid, is messier and harder. VQB has a cluster B personality disorder, principally with narcissistic and antisocial traits. He gives a clear history of childhood conduct disorder, and, as Robbins showed decades ago, a third of those boys grow up to become psychopathic adults. There really is no need to invoke any other psychiatric diagnosis at this time, indeed the principle of occam's razor tells us not to.

In the course of considering VQB's application, a delegate of the Secretary made telephone enquiry of Dr Corcos. Dr Corcos in the course of that conversation described himself as having treated VQB for 'complex traumatic stress disorder. Another term for it is personality disorder with narcissistic traits.' Dr Corcos had attributed this disorder to trauma in childhood with a violent alcoholic father 'and a mother who was emotionally overwhelmed'. The parents 'split when he was eight. He never had secure parenting and grew up not knowing what normal boundaries were.' Dr Corcos agreed that there was always a risk that VQB would engage in violent behaviour in the future. The doctor said he would be surprised if any such behaviour were severe 'he's been taking great care not to do that. I think he takes care to remain in control.' He felt that VQB could give valuable guidance to young people with whom he might work 'because he had been through trauma'. He added, 'on the other hand, if he got too close to an older kid, he'd have to manage the anger and stuff, but I don't see him seriously hurting any one.' Dr Corcos said that all the violent behaviour of VQB had been directed towards adults and therefore, for child-related work 'he probably is suitable'.
Dr Ian Bell is a clinical psychologist who continues to provide counselling and treatment to VQB. In his most recent report he was supportive of VQB's application for a positive assessment under the Working With Children Act. He said he had worked with VQB for four years since he had been referred to Dr Bell by his general practitioner, Dr Geeth Venkatran. Dr Bell said that in that time he had found VQB 'consistently willing to confront his issues honestly and to take on board advice, information and specific strategies in order to address change'. He noted the treatment that VQB had had from Dr Corcos, from a Christian counsellor, Gary Heraud and a Ms Miller and Mr Wilson from Mitchell Community Health and from people in his church congregation, New Horizons Church in Whittlesea.
Dr Bell said:

I consider that VQB has achieved very significant change as a result of diligent application. His understanding of his own vulnerabilities is very clear and he has demonstrated over time that he is now able to well compensate for these.

It is highly significant that his wife supports the appropriateness of his current request.

Dr Bell was critical of the process in which delegates of the Secretary made telephone contact with referees. He said he preferred to express his views in the form of a written report.
The Secretary's representative also made contact with Ms Susan Miller who is the co-facilitator of the men's behaviour change program conducted by Mitchell Community Health Service. Ms Miller said that she had not had the opportunity of observing VQB interacting with children but did not favour his receiving a positive assessment because she 'would have concerns based on his volatility to stressful interpersonal events'. She was sceptical as to the degree to which her Services' program had modified his behaviour. She said VQB 'was not somebody who seemed that malleable'. Dr Bell was particularly critical of that last comment.
Another referee was Mr Aaron Kelly, youth and young adults pastor at New Horizons Church in Whittlesea. He believed that VQB was suitable for a positive assessment, commenting:

Our young kids, particularly our youth, really enjoyed joking around with him. He's very easy for our young people to relate to and get along with and have never shown, in the two years I've known him, a hint of anger or violence or abuse to young people, or anyone in general. I wouldn't have any hesitation in giving him a working with children check.

Senior Constable Greg Lappin of Victoria Police based in VQB's home town was supportive of a positive assessment for VQB, commenting :

I can say this. Since those incidents, [the incidents referred to above] he is still with his partner. He has done an outstanding job in terms of bettering himself through counselling. He is involved with a church and I haven't had any dealings as far as the police side in the last three years.

Mr Shane Lepp, a senior pastor at the New Horizon's Church Whittlesea, told the Secretary's delegate, that to his observation VQB behaved 'fine' towards children. He said 'the teenagers really like him and appreciate him'. Asked whether VQB was suitable to work with children 'totally unsupervised', the pastor remarked 'I'd have to say, I'm not sure'. He commented generally 'I suppose the main thing is he hasn't hidden the challenges he's got with anger and he's working to resolve those issues in his life'.
VQB continues to take daily medication in the form of Cymbalta.

VQB relied upon the comments of the various referees and practitioners. He said he continues to improve his situation. In correspondence with the Secretary he said that he continues to enhance his understanding of his vulnerabilities and to achieve 'small victories' in modifying his behaviour.
He is active in his local church and sponsors disadvantaged children in Senegal and Zambia through his church. He says that he now has a good relationship with his second wife and his stepchildren. A positive assessment is essential to enable him to undertake his voluntary work with his local church. He believes that his paid employment may in future, though not at present, require him to obtain a positive assessment under the Act.
He wrote to the Secretary at length, describing the traumatic childhood which he lived. He made particular mention of the tragic suicide of his much loved elder brother. He said that at that time he engaged himself in suicidal ideation.

The Working With Children Act 2005 categorises working with children checks into some three categories, based on the criminal history of an applicant. The present application falls within what is described as 'Category 2' by Section 13 of the Act. The 2010 matters fall within Category 2 for the purposes of the Act in accordance with Section 13(1A)(b) as being 'violent offences' referred to in Clause 2 Schedule 1 to the Sentencing Act 19891.
The conviction for making a threat to kill in 2007 likewise falls within the realm of Category 2. The conviction in the year 2000 for unlawful assault falls into none of the three categories.
As to Category 2 applications, Section 13(2) provides as follows:

(2) The Secretary 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, having regard to -

(a) the nature and gravity of the offence or alleged offence and its relevance to child related work; and

(b) the period of time since the applicant committed, or allegedly committed, the offence; and

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and

(e) the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and

(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and

(g) the applicant's behaviour since he or she committed, or allegedly committed, the offence; and

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

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

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

Whilst the conviction in the year 2000 does not in itself render VQB's application a Category 2 application, it is a proper matter for the Secretary to have considered under paragraph (j) of Section 13(2) and for this Tribunal to consider on review.
I should also note an amendment to Section 13 adding an additional sub-section (3) as follows:

(3) In satisfying himself or herself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Secretary must be satisfied that -

(a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any type of child-related work; and

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

A similar provision directed specifically to the Tribunal was added at the same time as Clause 102(2) of Schedule 2, Victorian Civil and Administrative Tribunal Act 1998.

For reasons which I gave following argument at the outset of the hearing, since this review application was filed after the commencement of these new provisions on 31 December 2003, they apply to the Tribunal's determination on review: Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 cf Section 14(2) Interpretation of Legislation Act 1985; Maxwell v Murphy [1957] HCA 7; (1956) 96 CLR 261.
The same legislative package added a sub-clause (3) to Clause 102 of Schedule 2 of the Victorian Civil and Administrative Tribunal Act 1998 with respect to matters under the Working With Children Act 2005 as follows:

(3) Even if the Tribunal is satisfied under subclauses (1) and (2) that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Tribunal 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.

For similar reasons, that provision applies to the present application.
Mr Devlin who appeared as counsel for the Secretary, reminded me of my own decision of last year TKM v The Secretary to the Department of Justice [2012] VCAT 1905 at [25] where I said that in a proceeding such as this, the precautionary principle applied. Therefore, in the case of doubt, the application should be rejected.

Mr Devlin sought orders that the Secretary's determination should be affirmed. He described the history of the matters referred to above and to the reports and comments of the counsellors and practitioners to which I have made reference above. He stressed that the events of 2013 were relatively recent. He contended that VQB's progress should be applauded but that it was premature to conclude that there had been a permanent improvement in his conduct such that, in accordance with the tests laid down by Section 13 of the Act, it could be appropriate to give a positive determination to him. He submitted that, whilst great strides had been made in modifying VQB's conduct on his own account of events, one could not be wholly confident that there would not be a regression. He referred to the following passage in a telephone interview between VQB and the Secretary's delegate:

That's the big one. I believe I'm in a really good place. I voluntarily attend a men's church accountability group, fortnightly. We support each other in a godly way. I'm not ashamed to name my struggles now. I've got a good support network around me at church. On my dark days, I can ring somebody at church or one of the guys from the Men's Behaviour Change Group. Before, I always felt I was on my own. I look at the bible and see what God thinks of me. I'll put on some worship songs. And I've got a good church that backs me 100%.

Mr Devlin noted that the violence in VQB's life was part of a continuing pattern and was still so recent that one could not confidently say it was entirely in the past.

A man may be guilty of grave wrongdoing and may subsequently become a man of good character.

In Re Davis [1947] HCA 53; (1947) 75 CLR 409, 416.

Likewise, a man in VQB's unhappy circumstances may be able to escape the consequences of a traumatic childhood and be accepted as a person who, without any undue concern, may be trusted to engage in child- related work, as that expression is defined in the Working With Children Act 2005. Can one conclude that VQB has managed this achievement? Certainly, many people who are well acquainted with him are supportive of his application, most notably clinical psychologist, Dr Ian Bell. It remains the case however, that he has been diagnosed with a significant psychiatric disorder for which he continues to receive medication. He continues to require a support group to cope with his 'darker days'. His last and perhaps most serious brush with the law for violent offences is in the relatively recent past. In those circumstances the Secretary was well entitled not to be satisfied that giving him a positive assessment 'would not pose an unjustifiable risk to the safety of children'. The burden of persuasion is cast upon an applicant in a Category 2 application. In addition to sub-clause (3) of Clause 102 of Schedule 2 of the Victorian Civil and Administrative Tribunal Act, sub-clause (2) of the same clause postulates a similar test for the Tribunal as Section 13(3) postulates for the Secretary, in these terms:

(2) In satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Tribunal must be satisfied that -

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

This sub-clause and its companion sub-section in the Working With Children Act requires the application of an objective standard based upon the views of a reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
VQB was eloquent in arguing his case. He was refreshingly candid, avoiding any attempt to gloss over or make light of the seriousness of the events in his past. Nevertheless, the overall caution which the whole of Section 13 of the Working With Children Act requires in making these determinations as reinforced by the new provisions added with effect from 31 December 2012, lead me to the view that striking a proper balance between society's interest in taking a cautious approach for the protection of children and young people against the legitimate interest of persons who have encountered brushes with the law to re-establish themselves fully in good standing in society leads to the affirmation of the Secretary's negative assessment.

VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 (22 May 2013)

VQB v The Secretary to the Department of Justice

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Judgment (43 paragraphs)

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VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 (22 May 2013)