BGS v Children's Guardian

[2015] NSWCATAD 57

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BGS v Children’s Guardian [2015] NSWCATAD 57
Hearing dates:	5 November 2014 and 11 February 2015; last written submissions received 13 March 2015
Decision date:	27 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Anderson, Senior Member
Decision:	1) The application filed 22 April 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) is granted. 2) The Tribunal declares that the applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence under section 61E(1) of the Crimes Act 1900 (NSW).
Catchwords:	ADMINISTRATIVE LAW- Working with Children check clearance sought by way of an enabling order under section 28 of the Child Protection (Working with Children) Act 2012- disqualifying offence section 61E(1) of the Crimes Act 1900 (NSW), indecent assault of a 15 year old girl by the applicant in 1990- plea of guilty resulting in a finding that the offence was proved but, without proceeding to conviction, a conditional discharge to be of good behaviour- whether ‘conviction’ as defined in section 5 of the Child Protection(Care and Protection) Act 2012 applies- whether the applicant has proven he is not a risk to the safety of children- Tribunal not bound by the rules of evidence- consent adjournment to permit the applicant to obtain expert opinion- onus of proof discharged- application for an enabling order granted.
Legislation Cited:	Child Protection (Working with Children) Act 2012(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Commission for Children and Young People Act 1998 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Family Law Act 1975 (Cth)
Cases Cited:	AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69 BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 BFX v Children’s Guardian [2014] NSWCATAD 115 BKP v Children's Guardian [2014] NSWCATAD 207 BYR v Children’s Guardian [2013] NSWADT 310 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 LA v Commissioner for Children and Young People [2012] NSWSC 1454 Meissner v R (1995) 194 CLR 132 R v Commission for Children and Young People [2002] NSWIRComm 101 Roberts v Balancio (1987) 8 NSWLR 436
Category:	Principal judgment
Parties:	BGS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: A Bonnor (Respondent) Solicitors: Harbour Law (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410199
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW)-restriction on publication of information that will identify the applicant, any victim, non-professional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.

Judgment

Preliminary

1. ‘BGS’ is the applicant’s pseudonym used in these proceedings. The applicant filed an application for an enabling order in the Tribunal on 22 April 2014. Proceedings were conducted over 2 dates on 5 November 2014 and 11 February 2015. The parties provided written submissions to the Tribunal to assist in its determination, with the last submissions due to be received by 2 March 2015. The last written submissions were actually received on 13 March 2015 through no fault on the part of the solicitor, but dated 2 March 2015. No application for a further extension of time in relation to more submissions has been received and accordingly the Tribunal may now proceed to its determination, taking into account all the submissions.

2. As is the practice in these matters, due to the sensitive nature of information provided to the Tribunal, including the name of the victim and information that might lead to the identification of the victim, who was only aged 15 at the time of the relevant offence, an order was made at the commencement of the hearing of the proceedings under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), restricting publication of information which will identify the applicant, any victim, non-professional witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons: see also BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [3]; cf., section 7 Court Suppression and Non-Publication Orders Act 2010 (NSW).

3. The application is for an enabling order under section 28 (1) of the Child Protection (Working with Children) 2012 (NSW) (“the Act”) which, if granted, will be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in schedule 2 of the Act. The enabling order would, if granted, permit the applicant to work with children in any child related work.

4. The Tribunal has been informed by counsel for the respondent that the Office of the Children’s Guardian now neither supports nor opposes the application. The respondent concedes, as far as it is possible for the respondent to so concede, that there may be sufficient evidence in these proceedings for the Tribunal to properly grant the application for an enabling order. This is an appropriate concession in the circumstances of this matter, as will appear later in these reasons for decision. The initial position of the respondent was reserved, no doubt in order to see the evidence proffered by the applicant.

5. The Act requires the Tribunal to consider each of those matters contained in section 30 (1) of the Act when determining the application for an enabling order under section 28 of the Act, and no single factor is determinative of the determination: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [39]-[41].

6. The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

The Evidence

7. The documentary evidence tendered by the parties is as follows:

1. The application filed by the applicant himself on 22 April 2014 (Exhibit A1);

2. Affidavit of the applicant filed 4 November 2014 (Exhibit A2);

3. Psychological Report by Craig Baker dated 6 February 2015 (Exhibit A3);

4. Email instructions provided to Mr Baker on 4 February 2015 including documents provided for the assessment by Mr Baker (Exhibit A4);

5. bundle of documents collated on behalf the respondent including section 31 requests and documents surrounding the date of the offence and appearance in court filed 4 July 2014 (Exhibit R1);

6. bundle additional documents regarding inquiries made by the respondent concerning the applicant’s employment and volunteer work filed 30 September 2014 (Exhibit R2);

7. letter dated 3 October 2014 from the applicant’s employer to the respondent (Exhibit R3);

8. brief chronology prepared by respondent (Exhibit R4);

9. typescript of the police facts concerning the events on 30 November 1990 (Exhibit R5);

10. Static 99R Coding Form in relation to the applicant prepared by Mr Baker as part of his assessment of the respondent (Exhibit R6).

8. There was no objection to any of the material which became exhibits in the proceedings. The applicant gave oral evidence and was cross-examined. A character witness for the applicant also gave evidence on the first day of the hearing. Mr Baker, psychologist, was cross-examined on the hearing date on 11 February 2015. Written submissions were provided on behalf the parties and the Tribunal has been greatly assisted by those written submissions.

9. A statement contained in these reasons of factual matters, is a finding of fact based upon the evidence referred to in these reasons.

10. The applicant received a letter from the Office of the Children’s Guardian dated 27 March 2014 in response to his application dated 28 February 2014. The applicant was refused a working with children check clearance because he is a “disqualified person” as described later in these reasons. The application form filed with the Tribunal was filed on 22 April 2014: Exhibit A1; Exhibit R1. It is a requirement of the legislation that the application should be received in the Tribunal within 28 days after receipt of the decision contained in the letter from the Office of the Children’s Guardian.

Relevant Legislative Provisions

11. The decision of the Children’s Guardian referred to the offence under section 61E (1) of the Crimes Act 1900 (NSW), for which the applicant appeared in court on 20 August 1991 and pleaded guilty. At the relevant time this offence read:

“Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency upon or in the presence of the other person, shall be liable to imprisonment for 4 years.”

12. This is the equivalent of the current offence in section 61L Crimes Act 1900 (NSW). The maximum period of imprisonment for indecent assault has now increased to 5 years.

13. The applicant received the benefit of a recognizance pursuant to section 556A of the Crimes Act 1900 (NSW) (as it then was) without proceeding to conviction, to discharge BGS conditionally on his entering into a recognizance in the sum of $100, to be of good behaviour for a period of one year and to appear for conviction and sentence when called upon to do so at any time during that year: Exhibit R1. The applicant also ‘volunteered’ to perform unpaid community service work. The report to the court dated 20 August 1991 (that is, one year after the sentence was imposed) identified that the applicant undertook 24 hours community service “efficiently and with enthusiasm”: Exhibit R1. The applicant described this work in his letter attached to the application to the Tribunal (Exhibit A1) as that he was “sent" by the “community service board” to do community service at “an underprivileged kids camp”.

14. Despite the fact that no conviction was recorded, this charge and the sentence upon the plea of guilty entered by the applicant at the time, is treated as a conviction for the purposes of the Act. This is because of the definition contained within section 5 of the Act, as follows:

“ ’conviction’ includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

15. The offence with which the applicant was charged is an offence referred to in schedule 2 of the Act. The ‘indecent assault’ offence remains an offence under NSW law. Therefore the provisions of Schedule 2, clause 1 (1)(d) of the Act apply to make this a specified disqualifying offence and by reason of section 18 (1)(a) of the Act, the Children’s Guardian must not grant a working with children check clearance to a person convicted as an adult of such an offence: such a person belongs to a group of people referred to as “disqualified persons”, in the same section of the Act.

16. The Act came into force on 15 June 2013. The primary object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.

17. The safety welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act. There is no relevant definition of “child abuse” contained in the Act.

18. In BFX v Children’s Guardian [2014] NSWCATAD 115 at [29], after referring to some relevant matters to aid in the interpretation of the phrase, the Tribunal stated relevantly in this context as follows:

“The ordinary meaning of “child abuse” in section 4 of the Act taking into account its context in the Act and the protective purpose or objects underlying the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional, or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987.”

19. The applicant does not work in an area which requires a working with children check clearance since his usual occupation does not involve child-related work. However, it is apparent from the evidence of his character witness, Mr Apple (not his real name), given on 5 November 2014, that as part of the applicant’s involvement in a well-known and respected community organisation the applicant will be required to attend high schools to recruit for and operate the cadet training program. The applicant will have exposure to children over the age of 16 but under the age of 18. Relevantly, Mr Apple was aware of the reasons for the hearing in the Tribunal. In order to do this part of his socially positive community work the applicant will require a working with children check clearance.

20. An enabling order is therefore sought pursuant to section 28 of the Act which provides:

“28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an "enabling order"). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an "enabling order"). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person’s clearance has been cancelled,

because the person is a disqualified person.

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.”

21. A person is not permitted to engage in “child-related work” unless they hold a working with children check clearance: see section 8 of the Act. A child or children is/are a person(s) under the age of 18: section 5 of the Act.

Onus of proof

22. It can be seen from section 28 (7) of the Act that is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995 (NSW).

23. At the hearing on 5 November 2014 the applicant’s solicitor indicated that the applicant sought to obtain and to file a psychologist’s report which had not been prepared at that time. The respondent did not oppose an adjournment for that purpose. That report was subsequently obtained and is now an exhibit in these proceedings: Exhibit A3.

Required Considerations

24. The matters which are required to be considered by the Tribunal are set out in section 30 (1) of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [39]-[41]. Those matters are:

“30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(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,

(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,

(c) the age of the person at the time the offences or matters occurred,

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the person’s present age,

(h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

(j) any information given by the applicant in, or in relation to, the application,

(k) any other matters that the Children’s Guardian considers necessary.

(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.

Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.”

25. It is also clear that section 28 (8) of the Act provides that an enabling order may not be made subject to conditions. This is a departure from the predecessor legislation and the case law which emanated from the repealed Commission for Children and Young People Act 1998 (NSW).

Issues

26. The Tribunal must determine whether the applicant has discharged the onus identified in section 28(7) of the Act that there is sufficient evidence to rebut the presumption that he poses a risk the safety of children: section 28 (7) of the Act. The Tribunal will consider the totality of the evidence before the Tribunal in order to assess whether the presumption has been rebutted. In other words, the Tribunal will review the evidence provided by the respondent as well as the evidence provided by the applicant in determining whether or not the applicant poses a risk to the safety of children.

27. In determining whether the applicant does pose a risk to children it is accepted that the risk must be “a real and appreciable risk”: see BYR v Children’s Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).

Other relevant legislative provisions

28. The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal forms: section 38 Civil and Administrative Tribunal Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Where the Tribunal has a discretion to act on material which is rationally probative, subject to the rules of procedural fairness and other aspects of natural justice, the Tribunal must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

28. The restrictions imposed by section 91 of the Evidence Act 1995, therefore do not apply to the consideration of circumstances surrounding the offence for which the applicant has been sentenced after pleading guilty: section 38 of the CAT Act.

29. The submissions by the respondent identified that a plea of guilty constitutes an admission of all the elements of an offence: Meissner v R (1995) 194 CLR 132 at 157, per Dawson J:

“The appellant contends that endeavouring to persuade a person charged with an offence to plead guilty cannot constitute the offence of attempting to pervert the course of justice because an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence (citations omitted). But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud (citations omitted)."

31. As the Tribunal has also previously noted in the matter of BKP v Children's Guardian [2014] NSWCATAD 207 at [12]:

“It should be observed that Justice Dawson in Meissner's case was in the minority in the result because he would have allowed the appeal. The majority of the High Court Justices dismissed the appeal. Justice Brennan (as he then was), Justice Toohey, and Justice McHugh delivered a joint judgment and Justice Deane in a separate judgment came to the same conclusion. The real question it appears from that case was whether improper means were used by the appellant to persuade Ms Perger to plead guilty.”

32. The written submission of the respondent (at [21] and [22]) submits that the Tribunal is not a forum in which the question of guilt can be appropriately (re)examined, nor does it “fall to be determined”, nor can the finding be challenged: LA v Commissioner for Children and Young People [2012] NSWSC 1454. This is undoubtedly correct. For these reasons it is not permissible for the applicant to summons his victim in order to challenge those findings on the factual matters: ibid, esp. at [79], [80], [81]. The Tribunal agrees that the circumstances surrounding the conviction may be examined as appears mandated by section 30 (1) of the Act, and as permitted by section 38 of the Civil and Administrative Tribunal Act because the rules of evidence and particularly section 91 of the Evidence Act 1995 (NSW) do not apply, subject to the earlier limitations and qualifications expressed: i.e., at [28] of these reasons supra.

Consideration of the Evidence

33. The evidence received by the Tribunal is required to be considered under each of the subsections of section 30 (1) of the Act. That evidence is now set out under each of the subheadings which mirror the subsections.

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

34. The police facts to which the applicant pleaded guilty are as follows:

“On 30th November, 1990 [BGS], met [girl 1] and [girl 2] at [the Caravan Park]. [Girl 1] and [girl 2] accompanied [BGS] to his parents’ caravan. The defendant went inside the caravan to shower and [girl 1] and [girl 2] followed the defendant into the annex of the caravan and talked to him immediately outside the shower area whilst the defendant was showering. [Girl 1] and [girl 2] then accompanied the defendant to another area of the caravan, namely the lounge area, where the defendant dressed. [Girl 1] took the defendant’s wallet and did so with the intention of teasing the defendant. The defendant then bent over and gave [girl 1] a “love bite” to the left hand side of the neck. The 2 girls then went to the bedroom area to look in the mirror so as to see the effects of the “love bite”. The defendant followed them into the bedroom. The defendant then put an arm around each girl and they all fell to the bed. The defendant said “how about a threesome”. [Girl 2] left the bedroom area. The defendant kissed [girl 1] and rubbed his hands down her legs and between her legs. The defendant proposed sexual intercourse and [girl 1] refused. [Girl 1] then left. The defendant was cooperative with police.” (Exhibit R5)

35. The applicant states that he met both girls at the swimming pool and one of the girls was a neighbour of his parents. The applicant stated that he thought the victim was 17 years of age but did not know the age of the other girl. It is accepted that the victim was 15 years old at the time of the offence. The applicant agreed in his oral evidence that he gave the girl a “love bite”, but denied he suggested a “threesome”. The applicant agreed he suggested they have sex, but after she said “no” she left. The applicant described the incident in his oral evidence as a couple of people “mucking around”.

36. The applicant entered a plea of guilty to the charge. There was no necessity for any oral evidence and the sentence reflects a determination of the seriousness of the offence by the magistrate who heard the matter.

37. The applicant gave his evidence in the Tribunal in a credible manner. The Tribunal accepts that the applicant’s conduct may be considered at the lower end of the range of seriousness of the offence with which he was charged and pleaded guilty. There were no threats, violence or coercive behaviour. This incident is an isolated one in the applicant’s history. The behaviour was not premeditated and although there is an element of opportunism in the offending behaviour, there has been no repeat of such opportunistic criminal behaviour.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

38. The offence occurred approximately 25 years ago. The applicant has no other criminal history. There is no evidence of complaints, disciplinary proceedings or other transgressions relevant to the offence.

39. The applicant apparently applied to be the driver of a preschool bus in approximately 2010: Exhibit R1, Tab 6. The applicant told the Tribunal he was not offered the job and commenced work elsewhere. The police contacted the applicant because there was a concern that he may be working with children without a clearance under the predecessor legislation. When contacted by the police the applicant stated he was unaware he was deemed a “prohibited person”. The applicant did not subsequently apply for any other position requiring a clearance according to the records kept by the relevant authorities.

40. The applicant has been married to his wife for 17 years. The applicant met his wife at the same location where the offence occurred. The applicant has a daughter and one stepson. The stepson has 2 children born 2006 and 2010 who the applicant sees when his wife collects them.

41. The applicant has a long history with a community service organisation whose name is not relevant to these proceedings. The applicant has served the community well in this organisation. The applicant has been involved in this organisation for approximately 18 years and has been heavily involved since he first started. It is interesting to note that the applicant’s community service, for a different organisation, commenced as part of his volunteer work in 1991 following his guilty plea to the index offence.

42. The evidence from Mr Apple was extremely supportive of the applicant. He was an impressive witness who has known the applicant for approximately 4 years. During this time, there has been no instance of concern about his behaviour and work with the community organisation. The applicant gives up his own time to help others in the community. This witness has been the cadet coordinator. The cadet program with which the applicant would be involved if he is granted a clearance is a 5 day program that operates at 3 local high schools. The applicant would be involved only on one of those days, but may be involved on other days as required. There is usually more than one adult present with the high school students. Mr Apple is fully supportive of the application and explained that his actions have brought the applicant before the Tribunal to seek the enabling order and clearance.

The age of the person at the time the offences or matters occurred

43. The applicant was aged 21 at the time of the offence.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

44. The victim was aged 15 at the time the offence occurred. The victim was born in 1975. The full date of birth is in the material provided to the Tribunal.

45. The applicant thought that the victim was aged 17, apparently because she told him she was.

46. The victim went willingly to the caravan of the applicant’s parents with a friend, both of whom were involved in teasing the applicant, both of whom talked to him while he was having a shower. They both followed him into the caravan while he got dressed. The applicant described it as just “mucking around”. The victim exhibited some naïveté which is an indication of her vulnerability due to her age. The victim asserted her rights which the applicant appeared to accept without question.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

47. The difference in age is approximately 6 years. The victim and the applicant had only just met that day through a neighbour at the swimming pool.

Whether the person knew, or could reasonably have known, that the victim was a child

48. The applicant believed that the victim was aged 17. In those circumstances, the victim was a child pursuant to the definition in the Act. The applicant therefore knew, or could reasonably have known, that the victim was a child.

The person’s present age

49. The applicant is currently 45 years of age.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

50. The applicant does not have a criminal history apart from this offence. The matters previously referred to in relation to the conduct of the applicant since the offence occurred are relevant to this consideration.

51. The Tribunal accepts that the applicant’s conduct may be considered at the lower end of the range of seriousness of the offence with which he was charged and pleaded guilty.

52. As previously referred to in this judgment the applicant has engaged in very worthwhile and prosocial conduct since the offence occurred.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

53. Mr Baker has provided a risk assessment in his report dated 6 February 2015: Exhibit A3. This was the first assessment performed by Mr Baker for the purposes of proceedings such as this. Mr Baker is a registered psychologist and became an associate in 2014. Although the report is countersigned by a clinical psychologist registrar, the report and the opinions expressed in the report are those of Mr Baker. Mr Baker administered the Static-99R which is an actuarial forensic measure of relative risk for sexual offence recidivism. There are limitations to these risk assessments which Mr Baker acknowledged and he accepted the evidence given in BGW v NSW Office of the Children’s Guardian [2014] NSWCATAD 179 at [67] concerning the validity of these measures of recidivism.

54. It is submitted by the respondent at [44] that “Mr Baker impressed as conscious of his duties [to the Tribunal] as an expert, well read in current literature on relevant topics and conservative in his assessments.”

55. Indeed, it was apparent that Mr Baker had scored conservatively with the result that the applicant most probably poses a lower risk than the risk which was assessed by Mr Baker. In particular, the age of the applicant could have been scored -1 instead of 1. The scoring in relation to whether the applicant had known the victim previously was also incorrectly scored at 0 instead of 1, because the applicant and the victim met on the same day as the offence.

56. The scoring is therefore likely to be overall 1 point too high.

57. The assessment by Mr Baker is that the applicant falls within the ‘low-moderate’ risk category with a risk of reoffending within the next 5 years estimated at 3.1% in accordance with the actuarial tables that accompany the Static-99R coding rules.

58. The overall opinion of Mr Baker is that the applicant’s risk of reoffending should be considered as being “extremely low”.

59. In Mr Baker’s clinical assessment the applicant did not exhibit any thought disorders, behaviours or disorientation that would require treatment. At the time of the offence Mr Baker assesses that the applicant was not likely to have suffered from a clinical condition at the time of his offence. Mr Baker formed the opinion that the applicant demonstrated insight into his offending behaviour and lack of judgment and is remorseful that anyone could have suffered as a result of his poor judgment.

60. The respondent submitted that it is open to the Tribunal to accept Mr Baker’s opinions as to the applicant’s risk of reoffending and psychological profile. The applicant submitted that the opinion expressed by Mr Baker should be given significant weight.

61. If there was a repetition of the offending behaviour it would have a significant impact on children.

Any information given by the applicant in, or in relation to, the application

62. The applicant has provided information to the Crown Solicitor’s Office in response to a letter issued at the request of the Children’s Guardian. The applicant has provided his affidavit, references and a report by the psychologist Mr Baker.

63. It was submitted by the respondent that it would be open to the Tribunal to accept the applicant is a witness of truth, while taking into account the obvious interest he has on the outcome of the proceedings and in protecting his own credibility. It was submitted by the applicant that the information he provided was truthful and that he appeared genuine and credible. The Tribunal does not disagree with the submissions made by both parties in relation to the applicant’s credibility and the veracity of information that he has provided.

Any other matters that the Children’s Guardian considers necessary

64. The Children’s Guardian submitted that there was a discrepancy which remained unresolved in relation to the court file documents originating from the disqualifying offence contained in Exhibit R1.

65. Those documents allege that there was sexual intercourse between the victim and the applicant. The subsequent police facts to which the applicant pleaded guilty do not allege any sexual intercourse.

66. It is apparent from the documentation that there were 2 charges laid on 16 April 1991, which were replaced on 20 August 1991 with the one offence to which the applicant pleaded guilty.

67. In the absence of any further information there is little which turns upon the historical anomaly.

Determination

68. Remorse for offending behaviour is not on its own necessarily a mitigating factor in relation to risk. However, the remorse expressed by the applicant in relation to his behaviour, as recorded by Mr Baker in his report, is coupled with insight into that behaviour.

69. The applicant has not reoffended, is in stable employment, displays no evidence of deviant sexual or antisocial behaviour, has a prosocial outlook and network, and has no evidence of psychopathy. The applicant has been in a stable relationship for approximately 17 years with his wife, who attended court with him. The applicant has had no other long-term relationship. The applicant was a credible witness and impressed the Tribunal with his long history of accomplishments in the field of community service.

70. The Tribunal accepts that the applicant’s conduct may be considered at the lower end of the range of seriousness of the offence with which he was charged and pleaded guilty. There were no threats, violence or coercive behaviour. This incident is an isolated one in the applicant’s history. The behaviour was not premeditated and although there is an element of opportunism in the offending behaviour, there has been no repeat of such opportunistic criminal behaviour.

71. The overall opinion of Mr Baker is that the applicant’s risk of reoffending should be considered as being extremely low. The Tribunal accepts Mr Baker’s opinions as to the applicant’s risk of reoffending and psychological profile. The opinion expressed by Mr Baker is given significant weight.

72. In the circumstances referred to in more detail earlier in this judgment the assessment of the Tribunal, having regard also to all of the factors contained in section 30 of the Act, is that the applicant has discharged the onus of proof on the balance of probabilities that he is not a real and appreciable risk to the safety of children.

73. Therefore, the Tribunal makes the following declaration and orders:

1. The application filed 22 April 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 (NSW) is granted.

2. The Tribunal declares that the applicant is not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence under section 61E(1) of the Crimes Act 1900 (NSW).

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: 27 March 2015