Aka v Commission for Children and Young People
[2013] NSWADT 131
•07 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AKA v Commission for Children and Young People [2013] NSWADT 131 Hearing dates: 29 April 2013 Decision date: 07 June 2013 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member Decision: The Act is not to apply to the Applicant in respect of the offence of indecent assault committed in February 1994.
Catchwords: Declaration applicant not a prohibited person Legislation Cited: Commission for Children and Young People Act, 1998.
Child Protection (Prohibited Employment) Act, 1998.
Child Protection (Working with Children) Act, 2012 No. 51.
Child Protection (Working with Children Regulations 2012.Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 111
Commissioner of Children and Young People v VR [2012] NSWSC 1385
Commissioner for Children and Young People v BR [2012] NSWSC 1385
Commissioner of Children and Young People v V (2002) SC 949; 56 NSWLR 476:
CR v Commissioner for Children and Young People [2002] NSWIRComm 101
R v Commissioner for Children and Young People [2002] NSWIRComm 101
VR v Commissioner for Children and Young People [2012] NSWADT 83Category: Principal judgment Parties: AKA (Applicant)
Commissioner for Children and Young People (Respondent)Representation: Counsel
R Lee (Respondent)
Mr. Tunks (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 124017 Publication restriction: Section 126 of the Administrative Decisions Tribunal Act, 1997 applies.
reasons for decision
In 1995, the Applicant was convicted of one count of indecent assault pursuant to Section 61L of the Crimes Act 1900. The offence is punishable by a term of imprisonment of up to 5 years. Accordingly, the offence of indecent assault falls within the definition of serious sex offence for the purposes of the Commission for Children and Young People Act, 1998 ("the Act"). This is referred to as the 'index offence'. The victim was an adult. The offence was committed on 3 or 4 February 1994.
As a result of the commission of the above offence, the Applicant is a prohibited person and s. 33C of the Act applies such that there is an absolute prohibition on the Applicant engaging in child related employment without an exemption from this Tribunal.
Circumstances of the Index Offence
The following summary provides the circumstances of the index offence. The offence was committed between 2am and 4am in February 1994 in a residential unit block. The Applicant and another male had met the victim and another female at a bar earlier in the evening. The Applicant and the other male person accompanied the victim and the other female back to an apartment. The Applicant was intoxicated on the evening, as was the victim. The facts disclose that at one stage when the Applicant went to shower to 'sober up', he came out of the bathroom and the victim was passed out on a bed in the apartment. The applicant removed the clothing of the victim. He removed his own clothing and lay on the victim before the other male person removed him. The victim was unconscious at the time of the offence. The applicant attempted to encourage the other male person to 'join in' the activity.
The Applicant was charged with one offence of commit act of indecency under s. 61L of the Crimes Act 1900. This offence carries a maximum penalty of five years imprisonment for a person dealt with on indictment. The offence is capable of being dealt with summarily in the Local Court as it is a Table 2 offence under the Criminal Procedure Act, 1986.
Evidence before the Tribunal
The Applicant relied upon a report from forensic psychologist Tim Watson-Munro dated September 2012 and a number of character references from September 2012. It is apparent on the face of the references that the authors of those references were aware of the charge.
The Applicant was cross-examined.
The respondent relied a tender bundle containing the NSW Police Service material relating to the charging and conviction of the Applicant of the index offence.
The respondent tendered a report from Dr Katie Seidler dated 19 October 2012. Dr Seidler, a forensic psychologist, interviewed the applicant in her rooms on 17 October 2012.
Legal Principles
The legal principles applicable to the making of the declaration by this Tribunal are well known.
This Tribunal is not to make an order on a review application such as this unless it is satisfied that the person the subject of the Application does not pose a risk to the safety of children (see Section 33J(1) of the Act).
In any proceedings it is to be presumed, unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children ((see Commissioner of Children and Young People v VR [2012] NSWSC 1385 at [5]; Section 33J(2) of the Act). The presumption may be rebutted. However, the onus lies on the prohibited person to rebut that presumption (FZ v Commissioner for Children and Young People [2011] NSWCA 111 at [3].
The meaning of the word 'risk' is not a mere theoretical or possible risk arising from the fact of a previous conviction, but a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential. (See Commissioner of Children and Young People v V:R v Commissioner for Children and Young People [2002] NSWIR Comm 101 at [22]).
With respect to the content and scope of the risk, risk in the context of s. 9(4) means a real and appreciable risk, greater than the risk of any adult preying on a child (CR v Commissioner for Children and Young People [2002] NSWIRComm 101 at [42]). One must link the word 'risk' with the words that follow, namely for the safety of children (R v Commissioner for Children and Young People [2002] NSWIRComm 101 at [22]).
The vital question in proceedings such as these is whether the Applicant has proved on the balance of probabilities that he is of no real risk to children (see Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61]). The evidence for the purposes of such proof 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 (see VR v Commissioner for Children and Young People [2012] NSWADT 83 at [10]). This Tribunal is to exercise its jurisdiction protectively and not punitively (see Commissioner for Children and Young People v FZ [2011] NSWCA 111 at [61]).
In deciding whether or not to make an order in relation to a person, I am to take into account the following matters (see s. 33J(3) (a) - (i) of the Act):-
a) The seriousness of the offences for 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 person's age;
h) The seriousness of the prohibited person's total criminal record; and
i) Such other matters as the Commission or Tribunal considers relevant.
I will consider those matters in order.
The seriousness of the offences for which the person is a prohibited person
The offence of indecent assault is a serious offence. The subjective circumstances of the offence involve an attempt by the Applicant to engage in sexual relations with the victim in circumstances where the victim was unconscious due to the effects of alcohol. Adding to the seriousness is the urging by the Applicant for another person to join in.
The period of time since those offences were committed
The offence was committed on or around 4 February 1994. The period of time since the offence was committed is approximately 19 years.
The age of the person at the time the offence was committed
The Applicant was born on or around 24 February 1967. The Applicant was 26 years of age at the time of the offence.
The age of each victim of the offence at the time they were committed
The victim was approximately 25 years of age at the time of the commission of the offence.
The difference in age between the prohibited person and each such victim
The approximate difference in age between the Applicant and the victim is between 1 and 2 years.
Whether the person knew or could reasonably have known that the victim was a child
This factor does not apply as the victim was not a child at the time of the commission of the offence.
The prohibited person's present age
The Applicant is presently around 46 years of age.
The seriousness of the prohibited person's total criminal record
The index offence is the only entry on the Applicant's criminal record.
Such other matters as the Tribunal considers relevant
Dr Tim Watson-Munro states in his report that, "the offence occurred at a time of considerable emotional stress for the Applicant against a backdrop of working long hours, experiencing strains in his first marriage and a tendency to binge drink alcohol integral to his employment in the hospitality industry". The Applicant reported heavy drinking in his early twenties noting that it was problematic and occurred in a context of workplace pressure when he was head chef in a new restaurant. The Applicant identified his alcohol abuse as being problematic in his early years, adversely affecting his relationships and his capacity to maintain his work commitments and ultimately being intoxicated contributed to his sexual offending behaviour.
The Applicant was cross-examined. He was an impressive witness. He gave his evidence with conviction. He was forthright. He did not prevaricate and he made appropriate concessions. He stated that he required the exemption so that he could obtain work within the hospitality industry in the future. He accepted that the requirement for prohibited persons to be exempted from undertaking child related employment was something that he "totally understood". He accepted that the charge for which he was convicted was serious. He stated in cross-examination that he was attending AA and that he had been sober for many years. He recognised that at the time of the offence he had been binge drinking, suffering from depression and having financial difficulties. He considered that there was no possibility of him engaging in that sort of activity in the future because he simply does not drink any more. He said he did not want to live the life of an alcoholic. He knows that he cannot drink and that he has to be honest with himself and he did not consider that the stresses in his life were to blame. He considered his abuse of alcohol was to blame. He says that he does not really have very much memory of the evening and it is something that it is something of which he is not very proud.
The Dr Watson-Munro report confirms the contrition expressed by the Applicant in cross-examination. Dr Watson-Munro reports that at the examination he expressed considerable regret for his action on the night in question, which he thought to be genuine. Dr Watson-Munro identified that whilst the Applicant was highly intoxicated at the time he accepts full culpability for his behaviour.
Dr Watson-Munro noted that the Applicant was able to give a fulsome account of his behaviour and his life and was totally candid in discussing the various issues which have troubled him over the years. Psychometric testing focused on the issue of depression, which appears to be the primary driver behind his earlier substance abuse and indicates this is now a non-clinical issue for the Applicant.
I have had regard to the testimonials that were provided by the Applicant. These testimonials speak positively of the Applicant both as a father and as a hard working professional.
The Respondent relied upon the report of Dr Katie Seidler. Dr Seidler was very thorough in her assessment of the Applicant. Dr Seidler formed the opinion that the Applicant posed a low risk of reoffence with the most salient risk being alcohol abuse and relationship difficulty. She noted that the Applicant was now sober and had been for many years and that the offence was some 18 years ago and that the Applicant is able to manage his risk well and maintaining inherently pro-social routine which has benefited from his sobriety. Overall Dr Seidler was of the opinion that the Applicant poses a low risk of re-offence and that there is no evidence that the Applicant's risk will be different for different classes of children. In the context of the circumstances of this offence I asked Dr Seidler, given that the victim was not a child, did her view change with respect to this Applicant's risk with children. Dr Seidler's response was that there was no evidence that this Applicant posed any risk for children.
CONCLUSIONS AND FINDINGS
The Applicant has discharged the onus such that the Tribunal is satisfied that he does not pose a risk to the safety of children.
In making that determination, I have had regard to the following matters:
a) The evidence given by the Applicant of remorse and contrition and the evidence that the Applicant is otherwise a person of good character and this is the sole offence that he has been convicted of in his life;
b) The evidence of demonstrated insight into the offence and the ability to rehabilitate himself in regards to his alcohol issues; and
c) The length of time since the Applicant offended, the age of the Applicant and victim when the offence was committed and the expert evidence both of Dr Seidler and Mr Watson-Munro.
ACCORDINGLY, I MAKE THE FOLLOWING ORDERS:-
(a) It is declared that Division 2 of Part 7 of the Commission for Children and Young People Act 1998 does not apply to AKA in respect to the offence of indecent assault (s61L Crimes Act 1900).
(b) The Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales.
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Decision last updated: 07 June 2013
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