BG v Commission for Children and Young People

[2003] NSWADT 56

CITATION:	BG -v- Commission for Children and Young People [2003] NSWADT 56
DIVISION:	Community Services Division
PARTIES:	APPLICANT BG RESPONDENT Commission for Children and Young People
FILE NUMBER:	024011
HEARING DATES:	02/10/2002
SUBMISSIONS CLOSED:	10/02/2002
DATE OF DECISION:	03/19/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In person RESPONDENT M Higgins, barrister
ORDERS:	1. Application is dismissed ; 2. The applicant may make a further application for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 at any time prior to five years from the date of this decision in respect of voluntary employment only; 3. A copy of these orders to be served on the Commissioner of Police, NSW Police Service.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 In 1988 the applicant was convicted of two counts of indecent assault upon a child under 16 years of age. This offence constitutes a "serious sex offence" as defined by the Child Protection (Prohibited Employment) Act 1998 ("Child Protection Act") and, by the operation of s 5 of that Act, the applicant is a "prohibited person." The Child Protection Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. The applicant seeks a declaration under s 9(1) of the Act which, if granted, would mean that he would not be prohibited from working in child-related employment. The respondent opposes this application.

2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act") makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the applicant or anyone referred to in the proceedings (other than the experts). The applicant is referred to in these reasons by the pseudonym, "BG". The official copy of the orders provided to the parties will include the name of the applicant.

Relevant legislation

3 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Act is not to apply to that person. Section 9(1) provides that, on the application of a prohibited person, a relevant tribunal may make an order declaring that the Child Protection Act is not to apply to the person in respect of a specified offence. Section 9(2) defines a relevant tribunal to include the Administrative Decisions Tribunal ("the Tribunal"). Orders made under s 9 may be made subject to conditions: s 9(9).

4 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account in deciding whether or not to make an order under s 9:

(a) the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(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,
(d1) the prohibited person's present age,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.

5 Section 9(8) provides that if the relevant tribunal refuses to make an order, the prohibited person is not entitled to make an application for an order under this section in respect of that offence, until after the period of five years from the date of the tribunal’s refusal, unless the tribunal otherwise orders at the time of refusal.

6 Section 9(7) requires that the respondent is to be a party to any proceedings for an order under s 9 and may make submissions in opposition to, or support of, the making of the order.

Section 9(4) and the meaning of "risk"

7 As noted s 9(4) of the Child Protection Act mandates that an order may not be made under s 9 unless the Tribunal considers that the applicant does not pose a risk to the safety of children. The onus lies with the applicant to show, on the Briginshaw standard, that s/he is not a risk to children.

8 The meaning of the word "risk," for the purpose of s 9(4) was recently considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR 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 [at 22], R v Commission for Children and Young People [at 104].)

9 Young J held that the meaning of "risk" in s 9(4) was that "in the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child." [42]. That test is now binding on the Tribunal.

10 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering the issue of risk. He dismissed the argument put for the appellant commissioner that it was not permissible to impose conditions in order to lift the applicant over the risk threshold. He held [at 46] that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make a person "who would otherwise pose some risk to children into a applicant who does not pose a real unacceptable risk to children".

The Index offence (s 9(a), s 9(a)(1), s 9(b), s 9(c), s 9(d))

11 In 1988 the applicant was convicted of two counts of indecent assault upon a female under 16 years. He was convicted and sentenced to 300 hours of community service.

12 The victim, the applicant’s stepdaughter, Child A, was seven years old when the offending conduct first commenced. When charged the applicant was 35 years of age.

13 The police facts sheet, which was tendered in evidence in this Tribunal and in the sentencing court, sets out the details of the offences to which he pleaded guilty. The first offence occurred when Child A was seven years old. The applicant got into bed with her, removed her pants, rubbed her on the back and stomach and put his penis between her legs. The second incident occurred when she was ten years old. On that occasion the applicant chased Child A as part of a game, threw her into bed, lay on top of her and rubbed her with his penis. The applicant did not admit to having penetrated the child and his pleas were accepted on that basis.

Evidence given in proceedings

14 Before the Tribunal was the statement given by Child A to police following her disclosure of the incidents. The allegations set out in that statement were broader than those set out in the police facts sheet. In her statement, Child A alleged that the offending conduct commenced when she was about five years old and continued for a period of five years. She further alleged that on one occasion he attempted intercourse and often masturbated to ejaculation in her presence.

15 In evidence before this Tribunal the applicant conceded that the two incidents for which he were charged were not the only acts of a sexual nature that he had committed in respect of his step daughter. (The applicant was issued with a certificate under s 128 of the Evidence Act.) He attested that the allegations set out in Child A’s statement were broadly accurate but he denied attempting intercourse or ejaculating in the presence of Child A.

16 The applicant conceded that at the time of the incidents he believed that he had a sexual relationship with Child A and he attributed his actions (in part) to his poor relationship with his then wife. He said he now recognises that at the time he (wrongly) saw his relationship with Child A as having an adult dimension. He said he recognises that he had abused his position of authority and he alone was entirely responsible for his offending conduct.

Applicant’s Age (s 9(5)(d1))

17 The applicant is now 50 years of age. The course of conduct which he admitted therefore concluded about 15 years ago.

The applicant’s total criminal record (s 9(5)(e))

18 The applicant has no criminal history apart from the matters which are the subject of these proceedings.

Other matters as the tribunal considers relevant (s 9(5)(f))
Psychological Evidence

19 The applicant was interviewed and assessed by psychologist, Christopher Lennings, at the request of the respondent. A report prepared by Dr Lennings, dated 29 April 2002, and a supplementary report of 6 May 2002, were tendered in these proceedings. In addition Dr Lennings gave oral evidence. The first report detailed the methodology employed in assessing the applicant, namely: actuarial, structured clinical and clinical testing. Neither party challenged the method of assessment employed or the data employed to make that assessment.

20 The Static-99 test used by Dr Lennings as the basis of his actuarial assessment, attempts to predict sexual recidivism by weighting key "static" variables such as the offender’s age, past offending history and history, and factors surrounding the prior offence/s. Using this measure, Dr Lennings found that the applicant fell into the low risk category, out of three possible classifications: low, low-moderate or high. His static score was nil. This low score, explained Dr Lennings, was attributable to the fact that the applicant had only one index offence (two counts), no prior convictions and he had no male, stranger or acquaintance victims.

21 Dr Lennings reported that structured clinical assessment placed the applicant in the low- medium risk group. This assessment measure suggested that the applicant continues to show features of disorganised personality that are worrying but, according to Dr Lennings, probably do not reflect a high risk of sexual abuse.

22 Based on these three assessment methods Dr Lennings concluded that the applicant did not appear to represent a high risk of recidivism for sexual abuse. He stated that he had some confidence with this low risk rating given that the results of the actuarial and structured clinical assessment cohere, and, in his view these are generally the most reliable indicators of future risk. However he qualified his opinion, noting that he had concerns with the applicant’s low level of personality organization, revolving around relationship problems, difficulties in experiencing appropriate levels of intimacy and trust in relationships. On the basis of these and other factors (most noticeably the applicant’s high levels of libido) Dr Lennings concluded that a degree of risk might remain. While Dr Lennings was of the opinion that the applicant might warrant an exemption, he considered that certain supervisory conditions might be appropriate. In his view direct or continuous supervision was not warranted, as the applicant has not revealed predatory or opportunistic behaviour in the past; his offences were based on the inversion of the role of child for parent.

23 Following receipt of his report the respondent’s legal representative contacted Dr Lennings and asked him to reconsider his assessment in light of additional material. That information included two psychiatric reports. In the first, written in 1989, the treating doctor stated that the applicant reported he had a very poor relationship with his parents. The second, written in 1992, noted that the applicant reported, " he fell in love with his step daughter...we used to have a sexual relationship...we fondled each other..."

24 Dr Lennings considered this new material significant. He stated that the applicant had not reported at interview that he had a poor relationship with his parents. According to Dr Lennings, the 1992 report in particular the reference to a sexual relationship with Child A, revealed "that the applicant had a greater degree of cognitive distortion towards his step daughter than he revealed to me."

25 From this Dr Lennings concluded that the applicant’s risk of mental illness, psychological stress and unstable relationships was greater than he had first appreciated. Accordingly he revised his structured clinical assessment from medium-low to medium-high. [The applicant’s actuarial and clinical scores remained unchanged.] Given this change, Dr Lennings said he had less confidence that the applicant represented a low risk but conceded he had some difficulty with accurately assessing risk. While acknowledging that intra-familial offenders continue to have the lowest recidivism rates of all sexual offenders, Dr Lennings recommended, in light of the applicant’s personality disorder and psychological vulnerability, caution should be exercised. He hypothesized that if the applicant formed another disastrous relationship and had unmet intimacy needs his level of risk could increase. It was his opinion that if this combination of circumstances was to recur, it is more likely that the children of his partners, rather than any children with whom he had only fleeting contact, who would be at risk. He recommended that if an "exemption" were to be granted considerable attention ought be given to the issue of supervision through appropriate conditions.

Submissions

26 The applicant seeks a declaration without conditions. He says he needs an unconditional order for two reasons. First, so that he can pursue employment without restriction and second, so he can fully participate in his daughter’s amateur sporting activities.

27 He concedes without reservation that his conduct in respect of Child A was entirely inappropriate but argues that this was one-off offending and does not of itself establish a propensity to re-offend. In support he points to his otherwise unblemished criminal history, the absence of any other complaints about his conduct towards children and the passage of time since the offences occurred. He says, in effect, that he acted as he did because of a combination of factors which will not be repeated. Further I understand him to submit that greater weight should be placed on Dr Lennings’ first report, which assessed him as being of low risk.

28 The respondent submits that the Tribunal cannot be reasonably satisfied that the applicant does not pose a risk to children for the following reasons: first, the conflicting evidence given about the index offences indicates that the applicant not gained any real insight into the offence [the admissions made by the applicant in the second day of hearing were much broader than those given at the stay proceedings]; second, in Dr Lennings’s opinion the applicant continues to abrogate responsibility for the offence, blaming his wife, in part, for his conduct; third no evidence has been adduced that the trifecta of factors identified by Dr Lennings as largely responsible for his offending conduct, have been appropriately addressed.

29 In any event, the respondent submits that the applicant has failed to establish that he in fact needs an order under s 9(1). There is nothing in his employment history and or training to indicate that he is qualified or likely to find employment working with children.

Findings and Conclusions

30 The key issue to be determined is whether the applicant poses a real and material risk to children and, if so, whether this risk can be reduced to one of no material significance by the imposition of appropriate conditions.

31 I deal first with the respondent’s submissions that the applicant has not demonstrated any real need for an order under s 9(1). The likelihood of an applicant obtaining (or remaining in) child related employment will generally be relevant when deciding whether to grant a stay application or impose conditions under s 9(9). However where the application is for an order under s 9(1) without conditions, in my view, the prospects of the applicant obtaining child related employment in the future, is an irrelevant consideration. If the Tribunal is satisfied that an applicant does not present a relevant risk in any child related employment, an unconditional order should be granted irrespective of whether from a practical point of view such order may be of little utility. It is a fundamental principle of our constitutional system that, absent statutory or some other legal mandate, the executive and the judiciary may not interfere with the liberty of the subject. To argue that a legal restriction is no practical disadvantage to someone and therefore ought not be disturbed is no answer to the constitutional objection.

32 It is uncontroversial that the index offences are most serious in nature. As conceded by the applicant his actual conduct was more far more serious than the conduct which formed the basis of his convictions.

33 Section 9(5) of the Child Protection Act makes clear that the index offence is but one factor, albeit highly relevant, to be taken into account in assessing risk. That the offence/s which caused the applicant to become a "prohibited person" may be extremely serious in nature is not of itself fatal to an application made under the Child Protection Act. Section 9(5) requires that the tribunal take account of other factors, such as the seriousness of the applicant’s total criminal record, the relationship between the applicant and the victim/s, the time since the commission of the offence/s and other factors the tribunal considers relevant such as the applicant’s psychological and psychiatric diagnoses and prognoses.

34 The applicant contends that the absence of any further offending (or complaints) is highly relevant and establishes that notwithstanding the serious nature of his conduct, he no longer represents a risk to children. He says this view finds support in Dr Lennings’s first report.

35 As would be expected the applicant sought to discredit Dr Lennings’ second report and contends that the discrepancy between the two can only be explained by Dr Lennings being pressured to provide an assessment more in line with that of the respondent. The applicant complains, in effect, that Dr Lennings tailored his evidence to suit the respondent.

36 It is to observed that in his second report Dr Lennings fully discloses that he had been contacted by the respondent and asked to reconsider his (then) favourable assessment. In his subsequent revised report he properly sets out the new material put before him, some of which he dismisses as having little relevance to his assessment. It is to be noted that Dr Lennings declined to take into account an allegation specifically raised by the respondent, which if accepted, may suggest that the applicant’s aberrant behaviour was not confined to Child A.

37 The Supreme Court Code of Practice for Expert witnesses requires an expert to give the court a full and frank opinion, irrespective of the views or interests of their client. The expert’s first duty is to the court (or tribunal) not to their client. Dr Lennings appeared to me to be entirely independent of either party, as a good expert witness undertakes to be, and the conclusions he reached on the basis of the fresh evidence put before him were entirely rational and in accord with commonsense. While I can understand how the applicant has reached his own conclusions, I see no objective basis for the complaint.

38 There is a conflict in the evidence about what was said by the applicant to Dr Richardson in 1992. The applicant claims that the history recorded by Dr Richardson is incorrect. I think it is unlikely, given the passage of time, that the applicant would have any clear recollection of what he told Dr Richardson. While it is certainly true that incorrect histories may be taken by doctors, and interpretations often have to be made by doctors of what they have been told, and these interpretation are summarised and reduced to note form, commonsense suggests that the notation of a history which is directly contrary to that reported by a patient would be relatively infrequent.

39 I think it more likely than not that the history given then was as reported in the medical records and not as claimed by the applicant a decade later in the stress and strain of a legal case. Whether or not the applicant had a poor relationship with his parents is not something the Tribunal can determine with absolute certainty, but I am satisfied that a history of that poor relationship was given by the applicant and think that, absent any cogent evidence to the contrary, and taking into account all the other circumstances of this case, that it is a credible piece of evidence that the applicant in fact had a poor relationship with his parents. For all the above reasons, I do not accept the applicant’s contention that Dr Lennings’ second report is to be disregarded.

40 While Dr MacFie’s 1989 report noted that the applicant received treatment in 1983 and 1984, this was for depression and anxiety and of course predated the index offences. There is no evidence before me that the applicant has received psychological treatment, therapy or counselling to enable him to deal with the set of circumstances identified by Dr Lennings as risky. If they were to recur, there is nothing but the passage of time to suggest that the applicant would not behave in a similar fashion.

41 While I accept that the applicant regrets his action the material before me indicates that he has not developed any profound insight into the reason for his conduct. Despite his claims before this Tribunal to the contrary I believe that Dr Lennings has correctly identified that he continues to part explain away his actions on his wife’s alleged failure to show affection and Child A’s apparent willingness ( in his eyes ) to sexually engage with him. Secondly, his denial that there may be deep-rooted issues to do with his parents’ treatment of him as a child, which one may confidently presume had on-going effects, suggests that he both lacks insight and any determination to gain it.

42 I turn now to the expert evidence. In his second report Dr Lennings concedes that he has considerable difficulty in assessing the applicant’s level of risk. He states that when the fresh material is considered with the material considered in his first report he has considerably less confidence in his original assessment which placed the applicant at the low end of the scale. While the new material before Dr Lennings led him to question his original assessment, it is apparent from both the first and second reports that Dr Lennings places significant weight on the fact the available research reveals that intra-familial offenders have the lowest recidivism rates of all sex offenders.

43 As noted the applicant scored nil on STATIC 99, an assessment tool considered to be one of the more reliable guides in assessing recidivism among sex offences. This result, of course, is based on a premise that the offence was a one-off incident and was confined to the facts set out in the police statement of facts. When the additional evidence, including the applicant’s own admissions, is taken into account, the STATIC 99 score becomes meaningless from an evidentiary point of view. A one-off incident has an entirely different character from a course of conduct sustained for years. Commonsense suggests that a person who commits one offence alone is far less likely to repeat that type of offence than someone who commits that type of offence repeatedly and over a lengthy period.

44 On Dr Lennings’ evidence, which I accept as plausible and cogent, the applicant poses something more than a low risk of re-offending in certain circumstances. The applicant has not provided evidence which significantly contradicts or brings into question Dr Lennings’ assessment.

45 Having taken into account all the material before me I am not comfortably satisfied that the applicant has discharged the evidentiary onus of establishing to the Briginshaw standard that at this point in time he does not pose a real and material risk to children in any child-related employment.

Conditions

46 Having found that the applicant may represent a material risk to children in general terms, can that risk be reduced to insignificance through the imposition of conditions? Dr Lennings recommends that if the Tribunal forms the view that an order is warranted, the applicant should at all times be required to work with a responsible adult.

47 In respect of paid employment I decline to make any order with conditions. I have before me no submissions or evidence which would assist me to formulate appropriate conditions.

48 In respect of voluntary employment the applicant tells the tribunal he needs an order so that he can fully participate in his daughter’s sporting activities. He gave uncorroborated evidence about the type of activities in which he would be involved. If accepted this evidence would suggest that he would be working closely at all times with other adults. This would be a relevant factor to take into account in determining risk. It may be that certain conditions, if imposed, would mitigate or reduce the risk to children to an insignificant level but, again, I have no independent evidence or submissions before me which provides a satisfactory basis for the making of a conditional order and I decline to do so.

49 It is to be noted that the applicant was self-represented. He did not present any independent evidence about the type of activities he would be involved in respect of his daughter’s sporting activities. It may be that had such evidence been before the Tribunal a set of conditions could be formulated which would lift the applicant over the risk threshold. Accordingly I direct that he be allowed to make a further application to this Tribunal within five years in respect of voluntary employment.

Orders and Directions

1. Application is dismissed;
2. The applicant may make a further application for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 at any time prior to five years from the date of this decision in respect of voluntary employment only.

3. A copy of these orders to be served on the Commissioner of Police, NSW Police Service.