BGI v Office of Children's Guardian
[2014] NSWCATAD 149
•19 September 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BGI v Office of Children's Guardian [2014] NSWCATAD 149 Hearing dates: 20 August 2014 Decision date: 19 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: The applicant's application for an enabling order is granted.
Catchwords: ADMINISTRATIVE LAW - child protection - working with children clearance check - disqualified person - disqualifying offence occurred in 1972 - by reason of offence presumed to be a risk to children - whether applicant has discharged his onus to establish the contrary Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Prohibited Employment) Act 1998
Civil and Administrative Tribunal Act 2013
Commission for Children and Young People Act 1998
Crimes Act 1900Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: BGI (Applicant)
Office of Children's Guardian (Respondent)Representation: Counsel
J Ghabrial (Applicant)
R Lee (Respondent)
Legal Aid NSW (Applicant)
Crown Solicitor (Respondent)
File Number(s): 1410162 Publication restriction: Section 64(1), Civil and Administrative Tribunal Act 2013 - Restriction against publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
reasons for decision
Introduction
The applicant is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 ('the Act') and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.
The offence which brings the applicant within subsection 18(1) of the Act is that of carnally knowing of a girl under the age of 16 under s71 of the Crimes Act 1900 (as that Act applied in 1972). This offence is a disqualifying offence falling within Schedule 2 of the Act. The applicant was fined $200 by the Court and entered into a bond to be of good behaviour for a period of twelve months. A copy of the details of the offence and the good behaviour bond are contained on file.
The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a working with children check clearance is dated 5 March 2014. In his application for review to this Tribunal, which was filed on 1 April 2014, the applicant stated that he received this notification on 10 March 2014. Accordingly, the applicant has applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act.
There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and the victim of the 1972 offence are not to be published without the leave of the Tribunal. For this purpose the pseudonym BGI has been used for the applicant's name and the pseudonym BZD for the victim's name.
Evidence
The respondent and the applicant have both placed material before the Tribunal.
Attached to his application for review, the applicant wrote a lengthy letter to the Tribunal to explain 'how I found myself in this situation.' He also attached a photo both of himself and of the victim around the time of the index offence.
In his letter, the applicant wrote, in part:
I was at a licence nite club..when my best mate turned up with his girlfriend and her sister BZD...She came onto me that nite. I had no idea how old she was and it was my first time and I found out later she had been active since the age of 12 years old which I was told some shocking situations she was involved in even when we were so called boyfriend, girlfriend, she was active behind my back.
I like to point out that I did not know the law at this time and I wanted to go to England to play soccer ...but things changed after that night at Eastwood.
The day we went to court I remember clearly the judge asking BZD if she had sex before, she reply 'yes' he then asked how many times, she reply 'I can't remember'. Her parents didn't want me charged, it was the system.
I was charged in 1972. In 1975 I took up nursing...During that 4 years of nursing I was involved with looking after kids and adult wards and during my time in maternity I was involved with looking after our first lady having triplets for the hospital and having one of the triplets named after me...Since my nursing training I have held a security licence....Also held a taxi licence and for 10 years I had a pizza shop.. employing 15 young kids...Also I ran Little A's and coached a girls under 10 netball team.
So for 38 years of working with children my record did not affect me. In fact I did not know it was still around and if I did back then I would have applied to clear my name then... And now some 42 years after the charge - I cannot get work...I have 2 daughters aged 16, 18 years. They know I am a mess but don't know why.
Also attached to his application for review are the applicant's curriculum vitae and a series of work references attesting to his professionalism as a worker. Two personal referees declare their awareness of the applicant's conviction and note that, to their knowledge, the applicant has never had any problems with children. In her reference, the applicant's ex-wife writes that she 'couldn't have asked for a better father for my daughters; he compassionate, patient and a great role model. He has always been there for them and has always put them first in his life.'
A psychiatric report for the applicant by Dr Stephen Allnutt dated 6 August 2014 was provided to the Tribunal in support of the application. In his report, Dr Allnutt provided the opinion that the applicant:
does not manifest active symptoms of a mood, psychotic or anxiety disorder. There is no evidence of cognitive impairment or a substance abuse or dependence disorder.
He does not suffer a personality disorder.
On both clinical and actuarial assessment, [the applicant] presents as an individual who falls into a group of individuals at low risk of future sexual recidivism. Notable is the absence of evidence [of] sexual recidivism since the index incident despite opportunity.
In an affidavit filed on 18 August 2014, the applicant provided further details in relation to the circumstances of the offence:
I was 17 years of age when I first met BZD at a licensed club.. I was with my best mate and his girlfriend and her sister BZD also joined us. We did not meet at a 'church dance', which is what BZD told the Court in her evidence on 15 September 1972.
BZD and I had sexual intercourse on that first day that we met. But she did not tell me beforehand that she was 14 years of age....I did not know how old BZD was when we first met. It was not until we had been seeing each other for a time and we became boyfriend and girlfriend that one day she told me that she was only about 14 years of age. I remember being surprised to hear that, because she looked very mature to me and we had met in a licensed club, which would normally indicate she should be over the age of 18.
I honestly did not know at that time that having a sexual relationship with a girl aged 14 was a criminal offence. She was my girlfriend. We were in a relationship at the time. I honestly did not think we were doing something wrong at the time....I was young and naïve and really liked her..When I was interviewed by the police officers in August 1972, it was the first time I realised that my relationship with BZD was against the law.
On the day in Court, I pleaded guilty straight away for the offence of carnal knowledge; and several months later I was given a Good Behaviour Bond for 12 months.
Since that conviction, I have not committed any criminal offence against children; as a matter of fact I have no criminal conviction other than the one in 1972.
As a grown man, and one who has children of my own, I obviously know what is wrong and what is right now and have done so since my experience with BZD, the police and the Court back in 1972. I am repulsed by people who commit any kind of offences against children of any age; whether a child or a teenager under 18 years of age.
With regard to my criminal record, I have not committed any criminal offences at all since my offence involving BZD. I note that there was an incident [in] 1993 for which the NSW Police have stated that I was listed as a suspect for an assault at a hotel...What happened was an intoxicated patron wanted to force his way into a private function...Because of this patron's disruptive behaviour, I had to take action to prevent him from disrupting the private function. Once the police properly investigated and understood what had happened, they did not charge me with anything.
Some time in 2011, I received a notice that I was prohibited to work with children due to my conviction recorded in 1972. I have never received anything like this since my offence in 1972... Before that time in 2011, I had not been prevented form working in jobs that involved working with or around children as a result of my conviction in 1972. I had been employed by various employers over the previous 38 years without any complaint or incident, including working as a trainee registered nurse, where I had worked with children under the age of 16 for many years without a single incident or problem.
I have not been able to work since 2012. I have applied for several jobs but all unsuccessful due to my conviction record in 1972. For example, a school was willing to employ me as a cleaner, but working with children check precluded me from doing so. On another occasion, I was accepted to work as a Santa Claus at a shopping centre, and the employer even invited me to go overseas... to do the same, but again working with children check stopped me from doing this job. Further, as a very good bus driver, currently I cannot drive a bus to pick up children.
If permitted to work again, I would like to work with children who have disabilities, using my previous various experiences including my nursing skills to help them. I can also be a school bus driver, or an assistant supporting the sports activities. But I really need to work. It has been financially difficult to survive since losing my ability to work.
Included in the bundle of documents filed for the respondent in this matter are the results of a search made of records held by Family and Community Services in relation to the applicant's two children. No records were found for either child.
A check for the applicant's criminal history made on 3 March 2014 discloses only his 1972 conviction for the carnal knowledge of a girl under the age of 16 years. NSW Police advise that as at 9 January 2012 there had been no Restraining Orders or Apprehended Violence Orders for the applicant. The only entry for the applicant in the COPS database lists him as a suspect for an assault of a fellow patron at a hotel in1993 but notes that no charges were laid in respect of the matter.
Contained on file is a copy of the record of interview which took place on 11 August 1972 between the applicant and the investigating officer in relation to the 1972 offence. In this interview, the applicant admits to having sexual relations with BZD. In answer to the question, 'did you know she was only 14 years of age before you had relations with her, the applicant replied 'yes.'
In her statement, BZD stated that she was born on 31 January 1958, that she had met the applicant at a church dance on 18 March 1972 and that they had sexual relations the following week. Her mother provided a statement declaring that BZD was her youngest child and that she had been born on 31 January 1958.
On 3 November 1972, the applicant pleaded guilty to a charge of unlawfully and carnally know a girl under the age of 16 years and was bound over to be of good behaviour for a period of twelve months.
On 12 December 2011, the applicant completed an application for a review of prohibited employment status under s33H of the Commission for Children and Young People Act 1998. Following the refusal of this application on the basis that he was precluded from making such an application under s33G of that Act, which is now repealed, the applicant wrote to the Commissioner for Children and Young People to explain his circumstances. In part he wrote:
My best mate set me up with [ ] who he was going out with her sister. She was my first sexual experience and as we became girlfriend and boyfriend I found out a lot more and its because of [what] I was told is the main reason I feel hard done by... the stories go on and on and that's why I feel hard done by that after 37 years I cannot clear my name, therefore if there is anything or anyone I can see or do please let [me] know.
In oral evidence before the Tribunal, the applicant spoke of the positions he had held requiring him to care for and supervise children. These included working as a general nurse on maternity and children's wards and as a psychiatric nurse with responsibilities for child and adolescent patients. As the owner of a pizza shop, he employed a number of staff members under the age of 16 years. He has also held voluntary positions as a girl's netball coach.
As a disqualified person, he has been unable to take up a position as a bus driver. He had similarly been unable to accept a position as Santa Claus which would have involved work both in Australia and Saudi Arabia.
The applicant described the victim as his first girlfriend and gave evidence that he had enjoyed a good relationship with her parents. At the time of his arrest, he had been planning to travel to the United Kingdom to play representative soccer. His conviction and a subsequent sporting injury prevented this from happening. In cross-examination, the applicant told the Tribunal that he hadn't been aware of the illegality of his conduct and that if he had been, he didn't think he would have embarked upon a sexual relationship with the victim. He tendered a photo of the victim of the time of the offence as evidence of her physical maturity. Contradicting what was said by the victim in evidence, the applicant told the Tribunal that he had met the victim at a nightclub and not at a church dance. Because they had met at a nightclub, he had assumed the victim to have been older than fourteen. In later evidence, he conceded that he had continued having a sexual relationship with her once he discovered that she was, in fact, only fourteen years old.
He told the Tribunal that the victim was already sexually experienced when he met her. Upon the refusal of his application to review of prohibited employment status, he admitted writing a letter to the Commissioner for Children and Young Person in which he described the victim's sexual history. In cross-examination he explained that he had written the letter because he felt 'hard done by' in light of the fact that he was still being penalised for an offence that had occurred thirty-eight years earlier.
The forensic psychiatrist, Dr Stephen Allnutt, prepared a report in relation to the applicant. In his report dated 6 August 2014, he gave the opinion that the applicant
does not manifest active symptoms of a mood, psychotic or anxiety disorder. There is no evidence of cognitive impairment or a substance abuse or dependence disorder. He does not suffer a personality disorder.
In relation to the applicant's risk of recidivism, Dr Allnutt provided the following opinion:
Factors associated with increased risk of sexual recidivism that are currently present would include problems with self-awareness - he has not considered the original offending in great detail however this is understandable given the duration of time and his age at the time of the offending and does not cause me significant concern.
Factors that are associated with increased risk of sexual recidivism that are absent would include: evidence of psychological coercion in regard to the original offending; other history of sexual offending; evidence of minimisation or denial of his offending, attitudes that support or condone sexual offending, significant difficulties in his capacity to cope with stress that would increase his risk of sexual offending, a history of being victim or child abuse, a diagnosis of sexual deviance or paraphilia, a diagnosis of an antisocial personality disorder, a diagnosis of a mental illness, any substance abuse problems, a history of violent or suicidal ideation, significant difficulties with capacity for intimate relationships, significant difficulties with capacity for non-intimate relationships, difficulties with capacity for treatment planning or supervision.
According to the Static-99 [applicable to individuals who are convicted of child related sex offences] he scored 0 - had he been a subject on whom the Static-99 was based, he would fall into a group of individuals at low risk of future sexual recidivism.
On both clinical and actuarial assessment, [the applicant] presents as an individual who falls into a group of individuals at low risk of future sexual recidivism. Notable is the absence of evidence [of] sexual recidivism since the index incident despite opportunity.
Having regards to [the applicant's] age and his financial circumstances, not being able to be employed would in my view have a significant and negative impact on his mental state and his psychosocial circumstances.
In oral evidence before the Tribunal, Dr Allnutt was asked to consider the applicant's affidavit which was affirmed on 14 August 2014. Having considered the affidavit, Dr Allnutt told the Tribunal that it did not change the opinions set out in his earlier report. When asked about the significance of the applicant's contradiction of part of the victim's statement, namely, that they had met at a nightclub rather than a church dance, Dr Allnutt stated that, given that the applicant still accepted that the offence had occurred, it was not relevant to the case and so would not alter his opinion in relation to the applicant's risk of recidivism. When asked about the significance of the applicant's statements about the victim's sexual history and her lack of supervision by her parents, Dr Allnutt stated that whilst this could be seen as the applicant blaming the victim for the offence and minimising his own offending behaviour, it could also be interpreted as simply contextualising the offence. On either view, it would not change either his opinion about the applicant's risk of recidivism or the applicant's Static-99 score. He also noted that the risk of recidivism declines over the age of 60, which is the current age of the applicant.
In submissions to the Tribunal, Mr Lee advised that the respondent would be taking a neutral position in relation to the application's request for an enabling order.
Findings and reasons
The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by
(a) not permitting certain persons to engage in child related work; and
(b) requiring persons engaged in child related work to have a working with children check clearances.
Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse is the paramount consideration in the operation of the Act.
For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which makes provision for applications for an enabling order. Subsection 28(7) provides that where an application for an enabling order is made, "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of the children." That is, in this application, the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to children.
The meaning of the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant:
whether, in all 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. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children."
The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the (now repealed) Commission for Children and Young People Act 1998 to have the same meaning. The Tribunal is of the view that the same meaning applies to the word "risk", as it appears in the current Act.
Subsection 30(1) of the Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1).
(a) The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.
The applicant was found guilty of the offence of carnal knowledge. There is no suggestion that force or threats were involved in the act of intercourse. At the time of the offence, the victim, who was fourteen years old, and the applicant, who had just turned eighteen, were girlfriend and boyfriend. Their relationship began in March 1972 and ended in July 1972. Although the applicant denies being aware of the victim's age on the night he met her, he admits finding out a short time after they started seeing each other. He admits having regular sexual intercourse with her between March 1972 and July 1972.
The Tribunal accepts the submissions by the respondent that the features of the case that make the offence a serious one include the fact that the applicant became aware of the victim's age in the course of their relationship and continued to have sexual intercourse with her. The fact that the applicant may not have known his behaviour was illegal does not detract from the fact that the victim was a child at the time of the offence.
(b) the period of time since those offences or matters occurred and the conduct of the applicant since they occurred,
The index offence was committed on 29 July 1972, which is now over 42 years ago. There has been no other offending behaviour either before or after this time. In the opinion of Dr Allnutt, the applicant has a low risk of reoffending.
(c) the age of the applicant at the time the offences or matters occurred,
At the time of the index offence, the applicant had just turned eighteen. He had been in a relationship with the victim since he was approximately seventeen years and eight months.
(d) the age of the victim and any matters relating to the vulnerability of the victim,
The victim was born on 31 January 1958. At the time of the index offence, namely 29 July 1972, she was fourteen years and six months. Other than her age, there is no evidence of further vulnerability of the girl at the time.
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
The applicant was approximately three years and six months older than the victim at the time of the offence. The applicant and the victim had been a relationship since March 1972, when she was fourteen years old and he was seventeen years old.
(f) whether the person knew, or could reasonably have known, that the victim was a child,
In evidence before the Tribunal, the applicant stated that he was not aware of the victim's age when he first met her. By the time the index offence occurred on 29 July 1972, however, he admits being aware that the victim was fourteen years old.
(g) the person's present age,
The applicant was born on 10 July 1954 and is now 60 years old.
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
Before the index offence, the applicant did not have a criminal record. Since the index offence, he has not committed any further offences nor has he been the subject of any application for an apprehended violence order or restraining order.
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
According to the assessment conducted by Dr Stephen Allnutt, the applicant presents as an individual who falls into a group of individuals at low risk of future sexual recidivism. The applicant is the father of two daughters who, according to a statement provided by the respondent, have not come to the attention of Family and Community Services. Since the index offence of 1972, the applicant has had substantial involvement with children both in a supervisory and therapeutic capacity and there is no indication that he has ever acted inappropriately in this capacity. On the evidence before the Tribunal, there is very little risk of any further offending behaviour by the applicant.
(j) any information given by the applicant in, or in relation to, the application,
The Tribunal accepts the evidence before it that in the 38 years following the index offence, the applicant was able to work with children, without incident, in several capacities. The Tribunal accepts that as a general and psychiatric nurse, the applicant had substantial responsibilities for the care of children and young people, some of whom had physical and mental disabilities or ongoing mental health problems. There is no evidence before the Tribunal to suggest that the applicant ever behaved inappropriately in this role. The Tribunal also accepts that during the time he owned a pizza shop, the applicant employed and supervised a number of staff members under the age of sixteen. The Tribunal accepts that the applicant has been an active participant in his community having coached a girls' netball team.
In relation to the one incident listed on the COPS incident sheet, the Tribunal is satisfied that the incident did not involve a child nor did it involve any sexual allegations. The Tribunal accepts that the incident, which occurred in 1993, involved the alleged assault of a patron of a hotel who was attempting to gain access to a private function. There is no evidence that the applicant was ever charged as a result of the incident.
(k) any other matters that the Children's Guardian considers necessary.
The Tribunal has noted the respondent's concern that, in focusing on the victim's sexual history, the applicant may have been trying to minimise his responsibility for the index offence. In this regard, the Tribunal also notes the views of Dr Allnutt that the intention of the applicant may have simply been to contextualise the offence. The Tribunal accepts that the applicant pleaded guilty to the index offence and has, at no point, ever denied that the offence took place. The Tribunal accepts the evidence provided by Dr Allnutt that, even if the applicant had been attempting to minimise his own responsibility, his risk of recidivism remains low.
CONCLUSIONS
Having regard to all these factors, the Tribunal is satisfied that the applicant has discharged his onus, as required under subsection 28(7) of the Act, and has displaced the presumption that he poses a risk to the safety of children.
The reasons for this finding are as follows:
- Although the index offence involved a fourteen year old child, there was no force or coercion involved and the offence occurred in the context of an ongoing relationship;
- At the time of the index offence, the applicant had no criminal record. Since the index offence, the applicant has not been convicted of any further offences;
- The applicant has a strong record of supervising and caring for children and young people as a nurse, a coach, a father and the owner of retail premises. There is no evidence that he has ever acted inappropriately in any of these capacities;
- According to Dr Allnutt, the applicant's risk of recidivism is low. The fact that he is now sixty years old further decreases his risk of recidivism.
ORDERS
(1) The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offence of carnal knowledge for which he was convicted on 3 November 1972
(2) Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the Applicant a Working with Children Check Clearance.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 19 September 2014
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