ADV v Commission for Children and Young People
[2012] NSWADT 8
•20 January 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: ADV v Commission for Children and Young People [2012] NSWADT 8 Hearing dates: 26 September 2011 Decision date: 20 January 2012 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member Decision: The Act is not to apply to the applicant in respect of the offences of aggravated indecent assault committed on June 2008, subject to the following conditions:-
(i) The applicant shall not practice clinical nursing involving children under the age of 18 years
(ii) The applicant shall give a copy of this order to the Chief Executive Office or Clinical Director of any hospital or medical practice in which he works.
Catchwords: Declaration that applicant not a prohibited person with conditions. Legislation Cited: Commission for Children and Young People Act 1998
Child Protection (Prohibited Employment) Act 1998Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commission for Children and Young People v IK & Anor [2005] NSWSC 136
Commission for Children and Young People v UR [2007] NSWSC 1099; 173 A Crim R 300
Commissioner for Children and Young People v FZ [2011] NSWCA 111
Department of Family & Community Services & LH Re. R [2011] NSWSC 551Category: Principal judgment Parties: ADV (Applicant)
Commission for Children and Young People (Respondent)Representation: Counsel
B Brassil (Applicant)
G Moore (Respondent)
Crown Solicitors (Respondent)
File Number(s): 114022 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
REASONS FOR DECISION
The applicant, who in these reasons will be referred to by the pseudonym, ADV, applies to the Administrative Decisions Tribunal for an order under s 33I of the Commission for Children and Young People Act 1998 ("the Commission Act"). ADV is a " prohibited person having committed a serious sex offence ", namely the offence of two counts of aggravated indecent assault, which were at the time of the convictions in 2008, offences contained in s 61M (1) of the Crimes Act 1900. Unless the order ADV seeks is granted, it will be an offence for him to apply for, undertake or remain in child related employment (s 33C of the Commission Act). The respondent, NSW Commission for Children and Young People, opposes the application.
Applicable legislation
The definition of ' children ' as provided in s 3 of the Commission Act means persons under the age of 18 years.
Section 33J(1) of the Commission Act provides that an order should not be made unless the Tribunal '' is satisfied that the person the subject of the application does not pose a risk to the safety of children ". This test is in similar, but not identical, terms to the corresponding provision in the repealed Child Protection (Prohibited Employment) Act 1998 ("the CPPE Act").
The test under the CPPE Act was considered by the Supreme Court (see, for example, Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476; Commission for Children and Young People v IK & Anor [2005] NSWSC 136; Commission for Children and Young People v UR [2007] NSWSC 1099; 173 A Crim R 300).
Some assistance on the application of s 33J(1) of the Commission Act can be gained from these previous decisions applying the test under the CPPE Act. However, care should be given in applying the principles developed to deal with different, albeit similar, legislative provisions. There was no equivalent in the CPPE Act to s 32 of the Commission Act. The CPPE Act did not provide for the "safety and welfare of children to be paramount consideration" .
Young CJ (in equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 considered the meaning of the word "risk" in s 9(4) of the CPPE Act. His Honour adopted Haylen J's analysis in R v Commission for Children and Young People [2002] NSW IR Comm 101. Haylen J said that s 9(4) was focused on:
"Not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights."
( Commission for Children and Young People v V [2002] NSWSC 949 at [22]:
With respect to the content and scope of ' risk ', his Honour held at [42] that "risk" in the context of s 9(4) meant a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child "... one must link the word 'risk' with the words that follow, namely, 'to the safety of children'.
The relevant provisions of the Commission Act came into effect on 2 January 2007 by operation of the Commission for Children and Young People Amendment Act 2005 . This legislation inserted the requirement in s 32 that in determining applications such as these, the Tribunal is required to give paramount consideration to the safety and welfare of children, and in particular, the need to protect them from abuse. The safety and welfare of children is therefore of paramount importance in the implementation of the Commission Act, however, it is not the sole matter to be considered: Commissioner for Children and Young People v FZ [2011] NSWCA 111 per Young JA at 68.
By the order of this tribunal, the parties were to file and serve supplementary submissions with respect to the operation of s 32 of the Commission Act.
Mr. Brassil for the applicant in his written supplementary submissions stated that the " balancing exercise " described by his Honour Young CJ in CCYP v V , is the appropriate process both " before and after the addition of the sections to the Act ". What I comprehend Mr. Brassil is submitting, is that the addition of s 32 to the Commission Act does not in any way alter the task to be undertaken by the tribunal as characterised by his Honour Young CJ in Commission for Children and Young People v V 2002] NSWSC 949; 56 NSWLR 476 and his adoption of the analysis of Haylen J in R v Commission for Children and Young People [2002] NSW IR Comm 101, i.e. that in determining applications for exemption under the Commission Act that a " balancing exercise " is required with the need to jointly protect children and employees and to preserve reasonable civil rights.
Mr. Moore, counsel for the respondent, referred the Tribunal to the Report to the Honourable Carmel Tebbutt MLC, Minister for Youth, presented on 19 November 2004 entitled Review of the Commission for Children and Young People Act 1998 and the Child Protection (Prohibited Employment) Act 1998 . This report was prepared in accordance with s 53 of the Commission Act, which provides for the relevant Minister to review the Act as soon as possible, after five years from its assent.
At page 57, chapter 4.5.2 under the heading " Risk ", the report states as follows:
"Where a prohibited person makes an application for exemption, the tribunal considering the application can make an exemption order if it considers that the person poses no risk to the safety of the children. Caselaw has interpreted risk and the structure for making a decision about exemption, wholly or conditionally.
The review report sought opinion on whether risk and the level of risk considered relevant can be defined.
Young CJ considered the proper approach to determining whether a person should be exempted (completely or conditionally) from the operation of the prohibited Employment Act, as requiring a "balancing of protecting employees, protecting children from abuse and protecting reasonable civil liberties" (CCYP v V [2002] NSWSC 949).
In every application for exemption, there is tension between competing interests and the Review considers that some clarification here would be useful. In making a determination about exemption, there should be no doubt that the protection of children must be the primary consideration.
It is a principal of the Commission's Act that the safety, welfare and well being of children are the paramount consideration (s 10(a)). The Review has recommended the amalgamation of the Prohibited Employment Act with the Commission's Act and that the Object of Part 7 to protect children by promoting child-safe and child-friendly organisations, by prohibiting certain persons from working in child-related employment and by assisting employers to recruit suitable people by providing background checks. Together, the principal and amended Object should be put beyond doubt that the protection of children is the paramount consideration in making determination"..
As a result of the review, the Commission Act and the CPPE Act were amalgamated and ss 31 and 32 of the current Commission Act were enacted.
The respondent submits that by the addition of s 32 that, less emphasis can be given to the balancing exercise referred to by Young CJ in CCYP v V [2002] NSWSC 949 to the protection of employees and civil liberties. Whilst I do not agree that the exercise of the discretionary task subsequent to the inclusion of s 32 involves matters of emphasis , I do consider that the amending legislation does provide a positive requirement that in the exercise of my discretion under the legislation, the safety and welfare of children in protecting them from child abuse is the paramount consideration. That does not mean of course, that an applicant's civil liberties and fundamental rights to seek employment are to be absolutely disregarded.
Counsel for the respondent referred the Tribunal to case law considering " paramount consideration ". I was referred to Department of Family & Community Services & LH Re. R [2011] NSWSC 551 at [40]-[44] a decision in respect of an application for adoption of a child. At [43] and [44], his Honour Hallen AsJ said:
"[43] Judicial statements as to the meaning of paramount consideration abound. The thrust of Australian authority is that "paramount" means "overriding". In the Marriage of Kress [1976] FLC 90-126; In the Marriage of H [1994] FamCA 132 [1995] FLC 92-599 (at 81,974). The word does not indicate exclusivity".
[44] Lord McDermott in J v C [1070] AC 668, at 710, said that the words "paramount consideration":
...must mean more that that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."
Section 33J(2) provides that it is to be presumed that the applicant poses a risk to the safety of children, unless the applicant proves to the contrary. The applicant is seeking relief by declaratory order and, as in the normal case, the party seeking the declaration has the burden of proof, this being a necessary element of the declaration sought. As such, the applicant assumes the legal burden and the evidential burden of rebutting the presumption that he poses a risk to the safety of children. The evidence for the purposes of that rebuttal must be of sufficient cogency to persuade this Tribunal of the non-existence of the presumed fact of the applicant posing a risk to the safety of children.
In deciding whether or not to make the declaration sought by the applicant, the Tribunal is not to make an order unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. There, Dixon J said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
The exercise of the Tribunal's jurisdiction is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61].
In deciding whether or not to make an order, the Tribunal must take into account the matters outlined in s 33J(3) as follows:
33J Matters to be considered in determining review applications
(1)...
(2)...
(3)In deciding whether or not to make an order in relation to a person, the Commission or 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 period of time since those offences were committed,
(c) the age of the person at the time those offences were committed,
(d) the age of each victim of the offences at the time they were committed,
(e) the difference in age between the prohibited person and each such victim,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the prohibited persons present age,
(h) the seriousness of the prohibited persons total criminal record, and
(i) such other matters as the Commission or tribunal considers relevant.
The circumstances of the index offence
The agreed facts disclose that at the time of the offences in June of 2008, the victim was a 13 year old girl. The applicant was 30 years of age and was the stepfather of the victim. The applicant was married to the victim's mother and they also, at the time of the offences, had one male child, who was four years of age.
The assaults occurred in June of 2008 whereby on the first occasion, the victim was asleep in her bed and sometime around 5.00am or 6.00am, she awoke to find the accused lying in bed with her and touching her inappropriately.
On the second occasion, some three to four days later, the victim was again asleep in bed when she awoke to find the accused standing next to her bed and she felt the accused touch her inappropriately.
Some time after, the victim had informed her mother of what occurred. When confronted by his wife, the applicant admitted the offences. He expressed contrition and he left the family home. He was arrested later that month when he was taken to the police station. He pleaded guilty to the criminal charges at the earliest possible opportunity and he was sentenced to 12 months imprisonment which was suspended on entering a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999.
Evidence before the Tribunal
I have had regard to the application filed by the applicant. I have had regard to the submissions prepared by the applicant's legal representative, Mr. Brassil. I have further had regard to the material exhibited by the applicant when these proceedings were heard. This exhibited material included a report dated 25 September 2011 at the hand of Reverend Dr. Peter Powell from the Pastoral Counselling Institute at Northmead. Dr. Powell is a registered psychologist in New South Wales. He is a clinical member with the Commission for Children and Young People to treat adult sex offenders. He conducts programmes for male sex offenders. In the preparation of this confidential report, Dr. Powell notes that he reviewed his previous report on the applicant and also reviewed a report prepared by Dr. Katie Seidler. The report of Dr Seidler was prepared for the purpose of these proceedings. Dr Powell notes that the applicant was assessed in 2008 as suitable for the sex offender treatment group, that he attended group sessions and participated fully for approximately 13 months, when he then left the group in consultation with Dr. Powell due to the long distance he needed to travel and work commitments.
Dr. Powell opined in his report that the applicant's work in the group up until that time was very satisfactory. Dr. Powell noted that in a meeting with the applicant on 19 September 2011, the applicant expressed a genuine desire to " address the issues being put to the tribunal and to continue his strong commitment to his social obligations and healthy living ". Dr. Powell noted that the applicant would benefit by further consultation. It was planned to follow recommendations in Dr. Seidler's report to meet and plan an ongoing program.
Dr. Powell's clinical assessment suggested that the applicant can continue to be a valuable member of society and function safely as a nurse at the relevant hospital. Dr. Powell opined that the applicant " has put in place appropriate boundaries around any access to children and adolescence under the age of 18 and has been proactive in maintaining safe behaviour. He recognises that the current stress has pushed him towards some of his previous emotional behaviours but has not resulted in any regression towards desiring sexual contact with children or adolescents ".
Dr. Powell also opined that the applicant's offence needs to be " individually assessed in context rather than be seeing as an ongoing trend towards offending. There is no evidence that he is a current risk to children and adolescents ".
Dr. Powell considered the applicant's prognosis as positive as long as he continues to address his anxiety about attachment and intimacy.
Exhibit "2" was correspondence from the Western NSW Local Health District from August 2011, advising the applicant that a temporary project role has been made available for him for a period of 6-8 weeks to continue to work pending the review of his prohibited status.
Exhibit "3" was correspondence from the Greater Western Area Health Service in March of 2009 identifying the provisions imposed upon the applicant's continuing employment.
Exhibit "4" was correspondence from the Chief Executive of Western NSW Local Health District ("the Chief Executive") to the Commissioner for Children and Young People dated 31 August 2011. This correspondence purported on its face to be a response to the respondent's request under s 14A of the Commission Act. Section 14A empowers the commission to require a government agency to provide to the commission information relevant to an assessment of whether a person poses a risk to the safety of children. The notice is not included in this response. By this correspondence the Chief Executive advised that the applicant was employed by the former Mid-Western Area Health Service commencing on 21 October 2001 as a casual registered nurse working within health services in NSW, that as a result of the convictions for the index offences, the applicant was placed on the NSW Health Service Check Register and was prohibited to work unsupervised with children under the age of 18 years, and that whilst employed at that health service, the applicant's nurse unit manager, who was aware of the applicant's reportable convictions and supervision requirements, supervised the applicant on a day-to-day basis. The Chief Executive further stated that this additional supervision had been provided on a temporary basis, in order to comply with the Commission of Children and Young Persons Act 1998 however the level of supervision provided to the applicant was not sustainable in the long term. The Chief Executive noted that during this time, the performance of the applicant's clinical duties has been satisfactory and he enclosed a position description.
The Chief Executive further advised that in March 2011, the health service campus was located next to a particular hospital campus and in that new facility, the surgical unit and the women and infants units were located within the same corridor with no isolation between the units, that nursing staff within all units of the facility were actively encouraged to provide support in situations of staff assist, duress and rapid response and that on occasions, they may be asked to work within other units or areas of the facility and have swipe card access to all clinical areas. They may also be required from time to time to treat patients that are under the age of 18 years within the surgical unit and that as a registered nurse, the applicant would be required to practice independently and interdependently, assuming accountability and responsibility for his own actions, that it was not possible to continue to provide constant supervision to the applicant in the performance of his duties as a registered nurse, nor was it possible to guarantee that he would not work with children or adolescents. As a result of these factors, and considering the serious nature of his conviction, the Chief Executive advised that the health service would consider that ADV would impose a greater risk than average to the safety of children.
The applicant relied upon the material he presented on his sentencing for the index offence. This material included reports of Anna Robilliard, Forensic Psychologist dated 11 August 2008 and the report of Dr. Peter Powell dated 24 September 2008. I take those reports into account.
Before the Nursing and Midwives Tribunal, the applicant relied upon a further report of Dr. Peter Powell dated 22 December 2009, a report from W. John Taylor dated 3 April 2010, and a report from Ms. Anne Young dated 12 October 2009. I take those reports into account.
Dr Anna Robilliard in August of 2008 concluded:
"The applicant is fully aware of his obligations to the court and he is highly motivated to comply with any conditions that are imposed. He is also motivated to commit to treatment for himself and for his family.
He has the practical support of his family of origin and he also has a few friends who are offering assistance.
The applicant is aware of the limitations these charges may impose of his future employment and he has resolved to seek appropriate alternative employment in the short term that will allow him to continue supporting himself and his family and that will accommodate his therapy".
Reverend Dr Peter Powell in September 2008 undertook a Static 99 and SONAR assessment to calculate the risk factors with respect to the applicant's sexual recidivism. Dr Powell opined that on the available information as at the time of assessment, the applicant was at a low risk of sexual offending. Dr Powell stated that the applicant's greatest current risk at that time was "compulsive sexual behaviour with pornography and alcohol rather than sexually abusing again ". Dr Powell at that stage recommended the treatment in the institute's group program.
A report was prepared by a Senior Specialist Psychologist at the Community Offenders Services, NSW Department of Corrective Services dated in October of 2009. The summary of contact disclosed that the applicant had been on probation for the aggravated indecent assault charges and that he has kept all appointments and has been willing to talk about his problems. It was further noted that the applicant " admitted that he had committed the offences however; initially he was discounting the sexual intent. Over time, he has moved to admitting sexual intent and has been able to identify thoughts, feelings and behaviours that are part of his offence cycle including viewing pornography, treating women as sexual objects, poor communication with others, isolating himself, consuming excessive alcohol and having sexual thoughts about his stepdaughter ".
The report further stated that the applicant " was struggling to come to terms with what he did, the ramifications of what he did and the implications that this had for his stepdaughter, his ex-partner, his own son and stepson, as well as for himself . He has suffered from feelings of depression and his employment has been a positive factor in helping him cope ".
John Taylor, Clinical Forensic Psychologist in his April 2010 report gave the following summary and opinions:
"The offences occurred at a time when he was experiencing emotional difficulties........ He admitted that he had been viewing a good deal of adult pornography on the internet and feels that this preoccupation with this was a significant factor which contributed to his offending behaviour. The results of actuarial analyses indicate that he has low risk of general recidivism, violent recidivism and sexual recidivism.
I also consider that he has very good prospects of rehabilitation....... Is highly motivated to continue with his nursing career....... There seems to be little evidence, apart from his previous convictions, to suggest that he would be at a risk of reoffending if he is allowed to continue with his nursing career. I base this opinion on test results, the actuarial analysis regarding recidivism and particularly comments that he made concerning his undergoing treatment in the sexual offenders program.
He seems to understand the nature of risk factors that could make him vulnerable to reoffending and also has insight into factors concerning relapse prevention. He has demonstrated maturity and motivation in relation to his rehabilitation".
The applicant relied upon the Nurses and Midwives Tribunal decision dated 15 September 2010 dismissing the two complaints lodged by the Health Care Complaints Commission against the applicant.
There was dissent amongst the members of the Nurses and Midwives Tribunal on the issue of the impositions of conditions with respect to one of the complaints. 2 members of the Tribunal determined that conditions be imposed on the further practice of applicant such that he not practice clinical nursing involving children under the age of eighteen years. The tribunal by majority found they were not satisfied that the applicant was not a person of good character at the time of the presentation of evidence in the proceedings before the tribunal, that is in April of 2010. The tribunal made this finding in spite of the serious criminal offences to which the applicant pleaded guilty, as the positive aspects of his present character outweigh the gravity of his past offences.
The tribunal was satisfied that the applicant had not engaged in any misconduct prior or to or since the offences.
The tribunal was comfortably satisfied that the applicant's misconduct was properly viewed as an isolated episode and uncharacteristic of the applicant's normal qualities and character.
The tribunal was further comfortably satisfied that on the evidence before it, that the applicant had successfully identified and addressed the motivation for his conduct through extensive counselling and group therapy and had developed effective strategies to prevent any re-emergence of it. The tribunal further determined that the applicant was otherwise a good father, stepfather and husband, as evidenced by the positive evidence of his wife in spite of the offences.
The applicant was cross-examined. Under cross-examination, the applicant confirmed that between 2001 and 2008, he had been employed as a nurse and worked in all areas of a hospital. He stated that in 2008, as a result of his conviction for the index offences, he was suspended for a period of nine months. In 2009, the applicant returned to work at a surgical ward. As a part of a condition of his employment in March 2009, he was not to work unsupervised with children under the age of 18 years. That condition operated until August of 2011. The applicant at the time of the hearing of the proceedings was working in a project role which did not involve working with children. The applicant gave evidence that due to a restructuring, the hospital will no longer be able to provide supervision to him with respect to any work with children under the age of 18 years, that the surgical ward is classified as child-related. He stated that if was not able to work as a nurse, he might work with the mines. The applicant indicated that he wished to remain working as a nurse.
In response to questions about the offences in 2008, he says that there was a number of factors that led to his offending, including unresolved issues with respect to his upbringing, difficulties with his current marriage, suffering from depression, very limited activities in his life and his use of pornography had desensitised him and led him to committing the offences. He stated that the consumption of alcohol had not been a part of the first offence.
He stated that he had a good relationship with his wife that she resided in the matrimonial home, that whilst there had been no property settlement, he expected there would be and that there would be no possibility of he and his wife getting back together.
The applicant stated that he wasn't seeing the victim of the offence, that he does not have contact with her, and that he picks up his son from the matrimonial home. He is currently single. He has not been seeking a relationship.
The applicant stated that he consumes alcohol sometimes after work and on the weekends having between six to ten beers that his alcohol use has increased because of the stress of these proceedings.
He stated in his cross-examination that he is very worried about losing his job and that he is very stressed at the moment. He stated that as a response of the recommendations contained in Dr. Seidler's report that he again contacted Dr. Powell from the Pastoral Counselling Institute.
In response to a question regarding his accessing pornography, the applicant stated that he had been accessing pornography over the last four to six weeks over the internet watching for 10-20 minutes.
He stated he would accept a condition to continue receiving treatment from Dr Powel. He stated that he had informed Dr. Powell of his increasing use of pornography.
He stated that if the hospital asked him to work with children and adolescents in the future, he would certainly tell the hospital that he would not be able to do so. He said that he did not consider that he was in need of supervision and that he does not feel that he is a risk to children in the community.
The respondent tendered a bundle of documents produced pursuant to s 58 of the Commission Act. This bundle of documents included the report of Dr. Katie Seidler dated 3 August 2011, the Order and Reasons for Decision (dated 15 September 2010) and transcript of proceedings in the matter of the Applicant v The Nurses & Midwives Tribunal of NSW dated 20 - 22 April 2010 and material received from the Department of Corrective Services pursuant to a s 14A Commission Act request.
Expert Evidence
By her comprehensive report dated 3 August 2011, Dr Seidler opines that the applicant is at a low risk of re-offending. Dr. Seidler recommended that the applicant continue to be prevented from nursing under aged children or working in paediatrics specifically. She noted that the " usual safety guidelines that are in place within the nursing industry will likely suffice in assisting the applicant to work safely as a nurse, continue supervisory support with his nursing unit manager who was aware of the applicant's restrictions is appropriate and important and I would also recommended that the applicant has regular contact with Dr. Peter Powell from the Pastoral Counselling Institute in relation to risk management".
Dr. Seidler stated that "the applicant remained socially isolated. He continues to drink too much and at time gives in to his urges to view pornography - these needs to be managed better" .
Dr. Seidler recommended that the applicant have regular sessions with Dr. Peter Powell of the Pastoral Counselling Institute for maintenance in relation to his relapse prevention. She recommends at a minimum that these sessions occur every six months, but ideally in the short term, three monthly sessions would be more appropriate.
In forming her opinion, Dr. Seidler had regard to the agreed facts with respect to the index offence, the application for the review of prohibited employment status, the documents from the Nurses and Midwives Tribunal, specifically Forensic Psychologist, Ms. Robilliard's report in August of 2008, Dr. Powell's material, Ms. Young's material and Mr. Taylor's material.
Dr. Seidler under cross-examination confirmed that the contact by the applicant recently with Dr. Powell had addressed the recommendation raised in her report.
She maintained her opinion that the applicant was a low risk of re-offending and that it was not appropriate for the applicant to work in paediatrics or in any other capacity where he might be alone or able to develop close relationships with young females over a period of time.
The rationale she provided for maintaining that position was firstly as a form of encouragement to the community that there is some confidence in the applicant managing his risk and secondly as a mechanism for the applicant to avoid the biggest risk factors for him.
She confirmed that the biggest area of concern was if there was an opportunity for the applicant to develop any ongoing relationship with a young person, which would allow any sort of emotional attachment or closeness.
Dr. Seidler confirmed that the applicant was at the time of the offences in an unhappy marriage, suffering from stress at work, was socially isolated, evidenced difficulty in his own upbringing, accessed large amounts of pornography, and engaged in excessive alcohol consumption. She stated that with respect to the level of alcohol consumption that alcohol is disinhibitive and that in the circumstances, other factors become significant.
She confirmed it was prudent to restrict the applicant from working in paediatrics.
In re examination by Mr Brassil, Dr Seidler agreed that familial sex-offenders are much less likely to pose a risk of reoffending outside their familial context. She confirmed that with respect to the applicant, developing connections with young people over time is a risk factor that should be avoided.
With respect to the supervision of the applicant in the workplace, she stated that she was not suggesting supervision in the workplace should be "someone looking over his shoulder" - not necessarily daily monitoring. She confirmed that the stresses in the applicant's life are situational and that the long-term risk factors are factors that need to be addressed and that he has improved in all of those domains. She said that there is a risk present but is currently well managed. She agreed that the applicant was an intelligent man and he recognises what he has to do.
Risk I ndicia - Section 33 J (3) Factors
I now turn to the consideration of the section 33J(3) factors. Section 33J(3)(a) and (b) deal with the seriousness of the offence with respect to which the applicant is a prohibited person and the period of time since that offence was committed.
In 2008, the applicant was convicted of two counts of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900.
33J(3) (c) The age of the person at the time that offence was committed.
The applicant was 30 years of age.
33J(3)(d) The age of each victim of the offences at the time they were committed.
The victim was 13 years of age.
33J(3)(e) the difference in age between the prohibited person and each such victim.
17 years.
33J(3)(f) whether the person knew or could reasonably have known that the victim was a child.
The victim was the applicant's stepdaughter who was residing in the home with the applicant and his wife and their young child. Consequently, the applicant knew that the child was 13 years of age.
33J(3)(g) the prohibited person's present age.
The applicant is 33 years of age.
33J(3)(h) the seriousness of the prohibited person's total criminal record.
This is the only matter on the applicant's criminal record.
33J(3)(i) Such other matters as the Commission or Tribunal considers.
Findings and Conclusions
It falls to ADV to rebut the statutory presumption that the applicant "poses a risk to the safety of children" (see ss 33H(7), 33J(1) and 33J(2)).
The index offence is the only evidence of the applicant having acted in an inappropriate way in relation to a child or young person. These offences are very serious offences. The applicant's conviction for two counts of aggravated sexual assault upon his then 13-year-old stepdaughter is a serious breach of trust.
The applicant has caused a serious abuse of his position of trust with respect to his stepdaughter and also with respect to his wife, his stepdaughter's mother. His stepdaughter was a vulnerable person due to her age and due to the nature of the familiar relationship between her and the applicant.
The applicant explains his criminal behaviour as occurring within the context of significant stresses in his life involving the deterioration of his marriage, the effect of viewing pornography and the excessive consumption of alcohol.
There is little doubt that the applicant has expressed considerable contrition and remorse with regard to his offending behaviour and it would appear that he has genuine and appropriate insight as to the effect his behaviour has caused his stepdaughter. He began treatment with the Pastoral Counselling Institute within weeks of his offending being disclosed. He participated in the group treatment program for over 13 months and by all accounts, it would appear that this treatment was highly beneficial, particularly, as identified by Dr. Seidler, in allowing the applicant to understand himself better, identify the antecedence to his offending behaviour clearly and confront previously unresolved issues.
The applicant attended sessions with Ms. Young through the NSW Probation and Parole Service during the period of his 12-month bond.
The applicant identified to Dr. Seidler that through his treatment, he had developed a relapse prevention plan addressing his unhappiness, his loneliness and his use of pornography. Dr. Seidler formed the view that it appeared that he developed a reasonable relapse prevention safety management plan in order to cope with the risk that contributed to his sexual offending behaviour.
The medical evidence available to the Tribunal that was relied upon by the applicant in the criminal proceedings and also in these proceedings suggests that the applicant is at low risk of reoffending and there is no evidence of him committing any offences such as these in the course of his clinical practice. However, not all of the expert evidence in relation to the applicant was unqualified. Not surprisingly, all the experts could not state that the applicant would never offend; only that the risk of re-offending was low.
The applicant has evidenced a continued positive engagement and compliance with recommendations. This is evidenced by his re-engaging with Dr. Powell with the Pastoral Counselling Institute after such recommendation from Dr. Seidler in her August 2011 report.
As indicated earlier, the applicant has been assessed as opposing a low risk of a reoffence as he is engaged in offence focused intervention, which is giving him the skills to manage his risk safely in the community. However, as noted by Dr. Seidler in her August 2011 report and confirmed by the applicant in his own evidence before this tribunal, he remains socially isolated. He continues to drink too much and at times gives in to his urges to view pornography. At the time of hearing, he gave evidence that due to the in stress of these proceedings and concern of loosing his job his alcohol consumption had increased and he had been accessing pornography over the preceding 4-6 weeks.
Dr. Seidler again opined that with respect to his workplace and other activities, this risk the applicant poses can be well managed and in her opinion, the usual safety strategies should apply. She does not believe it is appropriate for the applicant to work in paediatrics or any other capacity where he might be alone or able to develop close relationships with young females over a period of time.
In the circumstances, I am not satisfied that ADV has successfully rebutted the presumption that he does not pose a risk to the safety of children. The offences were committed a relatively short length of time ago and, in circumstances where the expert evidence is such that the element of risk is recognised and present, I am not of the opinion that sufficient time has elapsed to provide an opportunity for the applicant to show that the relapse prevention program that the applicant has put in place, is satisfactory such that, I can be comfortably satisfied that the appropriate mechanisms are available to the applicant, both professional and personal to prevent the further reoccurrence of the events which led to the commission of the offences.
The applicant admits that he is engaging in behaviours - accessing of pornography, increase in consumption of alcohol and social isolation - which contributed in the past to his offending behaviour. I note the very real and appropriate contrition and remorse expressed by the applicant and I am fully aware of the very favourable observations made and opinions expressed by those report writers relied upon for the purpose of these proceedings. However, having regard to the paramount consideration for the safety and welfare of children in protecting them from child abuse means that the applicant has not rebutted the presumption that he does not pose a risk.
Having decided that ADV may poses a risk to the safety of children, it is necessary for me to consider whether conditions could be imposed under s 33I(6) to reduce any risk that he might present.
In light of the evidence, I have formed the view that conditions could and should be imposed to reduce the risk that the applicant might present. I am aware that the imposition of conditions of supervision may mean he is restricted in the range of areas of employment in his chosen profession. The applicant should be aware of the operation of s33i (5) Commission Act regarding the availability of further order after a period of 5 years.
OrderS
Accordingly, I make the following orders:-
(a) that the Act is not to apply to the applicant in respect of the offences of aggravated indecent assault committed on June 2008, subject to the following conditions:-
(i) The applicant shall not practice clinical nursing involving children under the age of 18 years
(ii) The applicant shall give a copy of this order to the Chief Executive Office or Clinical Director of any hospital or medical practice in which he works.
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Decision last updated: 20 January 2012
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