A v Commissioner, New South Wales Commission for Children and Young People

[2000] NSWADT 151

CITATION:	A -v- Commissioner, New South Wales Commission for Children and Young People [2000] NSWADT 151
DIVISION:	Community Services Division
PARTIES:	APPLICANT A RESPONDENT Commissioner, New South Wales Commission for Children and Young People
FILE NUMBER:	004009
HEARING DATES:	11/10/2000
SUBMISSIONS CLOSED:	10/20/2000
DATE OF DECISION:	11/02/2000
BEFORE:	Hennessy N (Deputy President); Brennan D - Member; Mason J - Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Pavlovic -v- Commissioner of Police [1999] NSWADT 117 Prevato v Miszalski (1986) 19 A Crim R 330
REPRESENTATION:	APPLICANT In person RESPONDENT I Bourke, barrister
ORDERS:	An order declaring that the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr A in respect of the offence of "Assault female under 16 years of age with an act of indecency" for which he was convicted on 13 January 1955.

Background

1 This is the first application to this Tribunal for an order under the Child Protection (Prohibited Employment) Act 1998 (the Act). The Act, which commenced on 3 July 2000, makes it an offence for a person who has been convicted of a serious sex offence to apply for, undertake, or remain in child related employment. It is also an offence for an employer to commence employing or continue to employ such a person in child related employment. (See s 6 and 8 of the Act.)

2 In these reasons we refer to the applicant as “Mr A”. In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person to whom any proceedings before the Tribunal relate. (Administrative Decisions Tribunal Act 1997 s 126(1).) Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant’s name and to delete any other information which could lead to his identification.

3 On 25 August 2000 Mr A filed an application with the Tribunal seeking a declaration that the Act should not apply to him in relation to the offence of indecent assault for which he was convicted in 1955. Without such a declaration, Mr A and his employer may have been committing an offence if Mr A remained employed as a driver transporting children with disabilities to and from school.

4 On 29 August 2000 the Tribunal stayed the operation of the Act pending the determination of the matter, on condition that an adult approved by his employer accompany Mr A at all times during working hours when he is in the company of children.

Jurisdiction

5 Sub-sections 9(1) and 9(2) of the Act gives the Tribunal jurisdiction to make an order declaring that the Act is not to apply to a person in respect of a specified offence. Those sub-sections state that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
(2) A relevant tribunal is:
(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.

6 The test that the Tribunal must apply when deciding whether to make such a declaration is set out in s 9(4) and s 9(5) of the Act:

(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.

7 Pursuant to s 9(9), an order may be made subject to conditions.

Issues

8 The questions which the Tribunal must ask itself in relation to these proceedings are:

· has Mr A been “convicted” of a “serious sex offence” within the meaning of the Act?
· is Mr A in “child-related” employment?
· taking into account the factors set out in s 9(5), does Mr A pose a risk to the safety of children?

Evidence

9 The following documentary evidence was before the Tribunal:

· a summary of the criminal history of Mr A which included his conviction for the offence of “Assault female under 16 years of age with an act of indecency” by a Court on 13 January 1955. The sentence recorded is “Offence admitted. Committed to an institution for 12 months suspended on entering recog. 20 pounds good behaviour for 12 months.” There are three other offences recorded on Mr A’s record, namely two offences for prescribed concentration of alcohol on 20 October 1969 and 27 March 1973 and one conviction for unseemly words on 1 March 1977;
· a letter from Mr A to the Tribunal dated 7 September 2000 explaining the circumstances of these offences, his employment and personal history;
· a character reference relating to Mr A from a Doctor;
· an employment reference relating to Mr A; and
· references from two other people.

10 Mr A gave oral evidence that he is employed by an organisation which supports students with special needs. His job is to transport students to and from school and to sporting and other activities. He said that there is always someone else with him, however that person’s job is to supervise the children, not to supervise him.

11 Mr A is now 62 years old. Although he wrote in his application to the Tribunal that he was 17 years old when he was convicted of indecent assault, he agreed with the Tribunal’s calculations that he must have been 16 when the incident occurred and the same age when he was convicted. The court records indicate the female victim was less than 16 years old. Mr A’s recollection is that she was not much younger than him at the time.

12 Mr A gave evidence that while he does not wish to lessen his culpability “he was guilty by association and did not take part in any aggression on the female, and did manage to deter the other person and to stop the assault.”

13 Mr A submitted several character references including one from his employer which stated, in part, that:

During his time of employment, Mr A has undertaken all of his duties in a most professional manner. . . . Mr A displays a positive rapport with both staff and students and is highly regarded by the entire school community. I have always known Mr A to be honest and hard working and I would not hesitate to employ him in the future.

Reasons and Decision

14 The first issue is whether Mr A been “convicted” of a “serious sex offence” within the meaning of the Act. The Tribunal raised this issue at the hearing. The respondent provided a useful written submission following the hearing which canvassed these issues. Mr A was not represented, but was provided with a copy of the submission and was given the opportunity to respond.

15 Under s 5(1) of the Act a “prohibited person” is defined as meaning “A person convicted of a serious sex offence . . .” The word “convicted” is defined in s 3 as including:

“A finding that the charge for an offence is proven even though the court does not proceed to a conviction.”

16 In this case, Mr A admitted the offence and was committed to an institution for 18 months, with that committal being suspended on his entering into a recognizance to be of good behaviour for 12 months. As he was a juvenile at the time, he was dealt with under the Child Welfare Act 1939. It is not apparent from the information before me whether this was a summary offence or was merely determined in a summary manner, but in either case, the Court had power under either s 83(1)(c) or s 83(2)(d) of the Child Welfare Act 1939 to commit Mr A to an institution. Section 83(3) of that Act gave the Court the power to make such an order “without proceeding to a finding of guilt.” If the court dealt with the young person under that sub-section (as they apparently did in Mr A’s case), s 83(4) of the Child Welfare Act 1939 gave the court the power to suspend the order of committal upon the child or young person entering into a recognizance.

17 The issue is whether Mr A was “convicted” of an offence under the Act when the Court did not make a finding of guilt. The definition of “convicted” under s 3 of the Act includes a situation where “an offence is proven even though the court does not proceed to a conviction.” The respondent submitted that the intention of the legislature was to “catch” not only those persons who received a “conviction” in the formal sense, but also people who were dealt with under the former 556A of the Crimes Act 1900, and children and young persons sentenced “without proceeding to a finding of guilt” under s 83(3) of the Child Welfare Act 1939. In the respondent’s view, this interpretation is consistent with the purpose of the legislation which is to prohibit people who have committed serious sex offences from working in child related employment.

18 We agree with the respondent’s submissions on this point. While Mr A was not found guilty of the offence, he admitted the offence and a penalty was imposed. There is no difference in substance between finding that a charge is proven and a defendant admitting the offence. Under s 83(3) of the Child Welfare Act 1939 a court does not have to make a formal finding of guilt before proceeding to sentence the person for the offence. Consequently the ordinary meaning of “a finding that the charge for an offence is proven” includes the situation where an offence is admitted and the defendant is sentenced. (See also Pavlovic -v- Commissioner of Police [1999] NSWADT 117)

19 It must also be established that the offence for which Mr A was sentenced was a “serious sex offence.” Such an offence is defined in s 5(3)(a) of the Act to include:

“an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more . . .”

20 The offence was committed in New South Wales. We agree with the respondent’s submission that it appears from Mr A’s criminal history that the offence for which he was sentenced was one under s 76 of the Crimes Act 1900. The question is whether that offence was one that was “punishable by penal servitude or imprisonment for 12 months or more.” Section 76 states that:

Whosoever assaults any female and, at the time of, or immediately before or after such assault, commits any act of indecency upon or in the presence of such female, shall be liable to imprisonment for three years, or, if the female be under the age of sixteen years, to penal servitude for five years.

21 The female in this case was under the age of sixteen. The respondent’s argument was that the phrase “punishable by” in the definition of “serious sex offence” is to be interpreted according to its ordinary grammatical meaning. The ordinary meaning of the phrase is “capable of being punished by” or “able to be punished by”. Regardless of the penalty that was actually imposed, it was the respondent’s submission that as long as the penalty specified in the Act met the definition, then the offence is a “serious sex offence.”

22 This interpretation is supported by several cases including Prevato v Miszalski (1986) 19 A Crim R 330 at 339, where Wilcox J said:

The requirement of the article is that ‘the offence is . . . punishable by a punishment not less severe than imprisonment . . for two years.’ In other words, the offence must, in law, be able to be punished by such a term. Such an interpretation not only accords with the natural meaning of the words but is sensible in application.

23 We agree with this interpretation. There is no doubt that had Mr A been an adult at the time, the offence would come within the definition of a “serious sex offence” under the Act.

24 In the respondent’s submission, the fact that Mr A was a juvenile at the time of the offence and was therefore dealt with under the Child Welfare 1939, does not take the offence outside the definition of a serious sex offence. In their view it is the offence provision itself (in this case s 76 of the Crimes Act 1900) that must be considered when determining whether an offence was “punishable by . . . 12 months or more” and not the various sentencing options that might be available in the case of certain categories of offender.

25 The alternative view is that because Mr A was a juvenile, the Tribunal must be satisfied that Mr A could have been subject, under the Child Welfare Act 1939, to penal servitude of 12 months or more. While the respondent did not accept this view, they submitted that it makes no difference in this case because where a young person is charged with a summary offence, s 83(e) allows the court to “deal with the child or young person according to law.” In other words, Mr A could have been sentenced to penal servitude for a term of five years under the Child Welfare Act 1939.

26 We find in these circumstances that the offence for which Mr A was “convicted” was “punishable by penal servitude or imprisonment for 12 months or more” both under the Crimes Act 1900 and under the Child Welfare Act 1939. Consequently there is no need to decide whether we are confined to a consideration of the terms of s 76 of the Crimes Act 1900 when determining whether an offence was “punishable by . . . 12 months or more.”

27 The second issue is whether Mr A is in “child-related” employment as defined in s 3 of the Act. The relevant parts of s 3 are as follows:

"child-related employment":
(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised:
(xvi) employment on school buses,
"employment" means (subject to the regulations):
(a) performance of work under a contract of employment . . .

28 There was no dispute that Mr A was performing work under a contract of employment. Mr A gave evidence that he was not directly supervised, although there is always someone present with him when he is transporting children. Consequently Mr A is in “child related employment.”

29 The final issue is whether, taking into account the factors set out in s 9(5), Mr A poses a risk to the safety of children. The offence is indecent assault, not rape. Mr A gave a short explanation of the circumstances of the offence which we accept. In these circumstances, the offence cannot be described as falling within the most serious category.

30 Mr A was 16 years old at the time of the offence and the female was less than 16. While Mr A cannot recall exactly how old she was, he said she was “not much younger” than him. The Tribunal has no other evidence of the age of the female concerned, nor any way of obtaining that evidence.

31 Mr A’s only other criminal convictions are two drink driving offences and one offence of using unseemly words. There has been no convictions since 1977.

32 Mr A provided several favourable character references including one from his employer.

33 Another relevant factor is that the offence was committed approximately 45 years ago. Given the fact that this offence is not one of the most serious kinds of sex offences, Mr A’s young age at the time, the small difference in ages between Mr A and the female, the lack of any relevant criminal record, the lengthy time since the offence and the favourable reference from his employer, the Tribunal is confident that Mr A does not pose a risk to the safety of children.

Orders

34 The Tribunal makes the following orders:

An order declaring that the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr A in respect of the offence of “Assault female under 16 years of age with an act of indecency” for which he was convicted on 13 January 1955.

35 The order is not subject to any conditions. Pursuant to s 9(10) of the Act Tribunal will notify the Commissioner of Police of the terms of the order.