BGX v Children's Guardian
[2014] NSWCATAD 173
•16 October 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BGX v Children's Guardian [2014] NSWCATAD 173 Hearing dates: 4 September 2014 Decision date: 16 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M W Anderson, Senior Member Decision: The application filed 24 April 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
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 91H(2) Crimes Act 1900 possessing child pornography-whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence-onus of proof-failure to discharge the onus of proof-EXTENSION OF TIME- application filed out of time approximately one month-extension of time to file the application for an enabling order granted pursuant to section 41, Civil and Administrative Tribunal Act 2013 - enabling order refused. Legislation Cited: Child Protection (Working with Children) Act 2012
Child Protection (Working with Children) Regulation 2013
Children and Young Persons (Care and Protection) Act 1998
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Family Law Act 1975 (Cth)
Interpretation Act 1987Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFX v Children's Guardian [2014] NSWCATAD 115
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 Limited [2010] HCA 32
R v Commission for Children and Young People [2002] NSWIRComm 101
Roberts v Balancio (1987) 8 NSWLR 436Category: Principal judgment Parties: BGX (Applicant)
Children's Guardian (Respondent)Representation: Counsel:
Mr Moir (Applicant)
Ms V Hartstein (Respondent)
Intercept Law (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 1410209 Publication restriction: Section 64 (1), Civil and Administrative Tribunal Act 2013-restricition on publication of information that will identify the applicant, any victims, witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
reasons for decision
The applicant, known by the initials 'BGX' for the purposes of these proceedings, filed his application for an enabling order in the Tribunal on 24 April 2014. The matter was heard on 4 September 2014.
An order was made at the commencement of the hearing of the proceedings under section 64 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
The applicant seeks an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 ("the Act") which will, if granted, 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 the Act. The enabling order would permit the applicant to work with children in any child-related work.
The respondent opposes the enabling order sought by the applicant BGX.
The Evidence
The documentary evidence provided behalf of the applicant and the respondent and received by the Tribunal is as follows:
(a) the application filed by the applicant himself on 24 April 2014 (Exhibit A1);
(b) a letter dated 8 April 2014 from the applicant's solicitors seeking a review of the refusal of the applicant's security licence, on the basis of not being a fit and proper person, which annexed three references, a report by Dr Westmore, forensic psychiatrist dated 9 May 2013, and the transcript of the Local Court dated 19 June 2013 (Exhibit A2);
(c) the respondent's bundle of material comprising 68 pages filed 5 August 2014 (Exhibit R1);
(d) a further bundle of documents comprising the statement of Plainclothes Senior Constable Bruce Cook dated 1 August 2014, filed 8 August 2014 comprising 215 pages, filed by the respondent (Exhibit R2);
(e) The curriculum vitae of Constable Mayer, Electronic Evidence Officer filed by the respondent (Exhibit R3);
(f) Letter from the respondent's solicitor filing the respondent's outline of submissions and a copy of a letter to the applicant from Corrective Services NSW dated 8 April 2013, filed by the respondent on 4 August 2014 and obtained pursuant to section 31 of the Act (Exhibit R4).
There was no objection maintained by either party to the receipt of this evidence by the Tribunal. There was an objection to a letter of reference obtained by the respondent but the reliance upon that document was not maintained and it did not form part of the evidence.
The applicant gave oral evidence and was cross-examined. Plainclothes Senior Constable Cook was cross-examined. Dr Westmore, the applicant's forensic psychiatrist, was also cross-examined.
The applicant was recalled to give some further evidence.
The Tribunal then received and was assisted by oral submissions in addition to the written submissions already provided.
A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.
A letter dated 25 February 2014 from the Office of the Children's Guardian to the applicant, which was annexed to the application filed 24 April 2014, identifies the disqualifying offence specified in schedule 2 of the Act. The letter also identifies to the applicant his rights to make an application to the Tribunal. The application sought an extension of time within which to lodge the application for an order. No issue has been taken by the respondent concerning the delay in filing the application, of approximately 1 month. The Tribunal has the ability to extend the period of time within which the application may be brought to the Tribunal. Section 41 of the CAT Act states:
"41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired."
Since the applicant sought an extension of time in the application filed on 24 April 2014, and no issue has been raised, the Tribunal determines that the application may be made even though the relevant period of time, 28 days after receipt of the notice dated 25 February 2014, has now expired. This is consistent with the guiding principle to be applied to practice and procedure in the Tribunal "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and is consistent with the objects and principles under the Act: section 36 of the CAT Act. There is no relevant prejudice to the respondent.
Relevant Legislative Provisions
The Act came into force on 15 June 2013. The 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.
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, regrettably, is no relevant definition of "child abuse" contained in the Act.
However, as has been observed by the Tribunal in previous decisions, and in particular BFX v Children's Guardian [2014] NSWCATAD 115 at [19]-[30], an offence of "child and young person abuse" has been created in section 227 of the Children and Young Persons (Care and Protection) Act 1998. The offence created by the section reads as follows:
"Child and young person abuse
A person who intentionally takes action that has resulted in or appears likely to result in:
(a) the physical injury or sexual abuse of a child or young person, or
(b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or
(c) the physical development or health of a child or young person being significantly harmed,
is guilty of an offence.
Maximum penalty: 200 penalty units"
In BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated 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."
This working definition was arrived at after considering the ordinary dictionary meaning of the words, combined with consideration of the various statutes including the definition contained in section 4 (1) of the Family Law Act 1975 (Cth).
The applicant was charged with an offence pursuant to section 91H (2) of the Crimes Act 1900, to which he pleaded guilty and on 19 June 2013 he was sentenced to a two-year good behaviour bond under section 10 of the Crimes (Sentencing Procedure) Act 1999. The offence is described in short form in the documents produced from the Local Court as "produce, disseminate or possess child abuse material". The good behaviour bond will expire in June 2015.
The offence with which the applicant was charged and to which he pleaded guilty is an offence referred to in clause 1 (1) (n) of schedule 2 of the Act, which is identified as a disqualifying offence. 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, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act. The applicant is relevantly for the purposes of the Act now an adult and was an adult last year when he pleaded to the charge.
The meaning of 'child abuse material' in the Crimes Act 1900 is as follows:
"91FB Child abuse material-meaning
(1) In this Division:
"child abuse material" means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.
(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
(d) the general character of the material (including whether it is of a medical, legal or scientific character).
(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4) The
"private parts" of a person are:
(a) a person's genital area or anal area, or
(b) the breasts of a female person."
The applicant wishes to work in the security industry or for government entities which require a working with children check clearance because the work involved will include providing security in places where children will be in contact with the applicant. The applicant previously worked in an area of government employment as a casual employee, which employment was terminated as a result of the charges concerning the offence to which the applicant pleaded guilty. This offence was considered an instance of behaviour which brought into question the applicant's professional behaviour and was combined with past errors of judgment, which he had previously been warned may lead to his termination of employment prior to these charges.
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."
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. There is no issue in this matter that the applicant wishes to engage in child -related work which requires a working with children check clearance.
Onus of proof
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.
Required Considerations
The Tribunal must consider the matters under section 30 of the Act when making a determination under section 28 of the Act. 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."
The Children's Guardian received information pursuant to section 31 of the from various government agencies. That information was tendered in evidence and referred to earlier in these reasons: Exhibits R1 and R4.
It must also be observed 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 Act.
The applicant is also required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act.
The Issues
The Tribunal is to determine whether the applicant has discharged the onus identified in section 28(7) of the Act and there is sufficient evidence to rebut 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.
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 provisions
The Tribunal may determine its own procedure in relation to any matter for which the CAT 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: sections 38 CAT 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.
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.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal is governed by the practice and procedure prescribed by schedule 3 of the CAT Act. This means that parties are entitled to be represented by a lawyer without first requiring leave of the Tribunal, and there are no costs awarded in proceedings under the Act heard in the AEOD. Additionally, a party aggrieved by a decision made under the Act may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and schedule 3, clauses 9, 15, and 17 of the CAT Act.
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].
Consideration of the Evidence
The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act. That evidence is now set out under each of the subheadings.
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 set out in his application filed 24 April 2014 the following grounds for the application:
"The disqualifying offence was a section 10 where I pleaded guilty to a technicality as I was not in a financial position to defend myself further. The court transcripts will show that the presiding magistrate accepts that there were no victims and in fact no real people involved at all. The matter was a result of myself, a [the position of the applicant's employment], being subject to a house robbery By my ex-girlfriend and her new boyfriend. The boyfriend is from a known criminal family, and He has an affinity with computers. He threatened to set me up for the crime and demanded money. I gave a statement to police whilst fatigued and stressed, to which a part of was taken Out of context. I am not, nor have I ever been a risk children [sic]." (Exhibit A1)
The offence with which the applicant was charged and to which he pleaded guilty is an offence carrying a maximum sentence of 10 years imprisonment. This length of sentence indicates that the offence is to be considered a serious one. The punishment received by the applicant is a two-year good behaviour bond. The transcript of the sentencing Magistrate's remarks are very brief. The Magistrate appeared to accept the submissions made by the solicitor for the applicant. In particular, it was submitted that there were no victims as a result of the appellant's behaviour. Additionally, the solicitor submitted that Dr Westmore was sent all of the material, but even though the appellant admitted to possessing some pornographic material on his computer, it was stressed in mitigation that this was adult pornography. It was submitted on behalf of the applicant that he was ignorant that possessing representations of children engaged in sexually explicit acts was an offence. The person who stole the computer drives on which the offending material was found, also physically threatened the applicant's mother. This was submitted to be a mitigating factor.
It was submitted on behalf of the respondent in the Tribunal that the record of interview which forms part of the evidentiary material before the Tribunal, identifies that the images represented young females and males ranging from 13 years engaged in various sexual acts. The applicant pleaded guilty to possession of the cartoon material, but not to the other images and videos which were stored on the computer hard drive.
It was also submitted by the respondent that the interview with the applicant's former girlfriend includes a description of a video download by the applicant of a naked 8-year-old girl. It was submitted that the computer hard drive analysis showed that there was a significant amount of child abuse material on the computer. If the applicant's contention that the material was placed there by another person to implicate him is correct, there is more material than necessary when a small amount would have been sufficient, and that material had been accessed at different times as recorded in the drives according to the expert analysis, the accuracy of which was not disputed. There were additionally numerous images of children not performing sexual activities on the hard drive. These matters are also relevant when considering the evidence of Dr Westmore.
According to the record of interview between the police and the applicant, he admitted to downloading on one occasion, in the presence of his former girlfriend, child material, or material which the applicant considered was "too close to the line": Exhibit R2 page 131. This confirms to an extent the incident reported by the former girlfriend.
The applicant also was questioned and described various types of pornographic cartoons, for example, Exhibit R2 at questions Q188-Q203, pages 140-141 and the answers in the record of interview. Relevantly, the applicant was knowledgeable about the Japanese school system and described that the characters drawn in the cartoons were children from "middle school" which he identified as 7 to 10 years of age: Exhibit R2, p141, Q200. (See paragraph [5](d) of these reasons).
The applicant was asked about other images of young children on his computer. The applicant responded that he also had 'nudist' images: Exhibit R2, p160, Q357-Q367.
The evidence contained in Exhibit R2, pages 170-197, is a detailed examination of the computer hard drives detailing the contents of those drives in terms of the type of child abuse material contained in them.
The respondent relies upon the analysis of the computer hard drives which shows, it was submitted, 1,013 pictures of interest, and 149 videos of interest in the samples. The Tribunal has not added all the numbers together, but accepts that the analysis is of about that magnitude and more accurately as set out in the Exhibit R2 which will not be reproduced here.
The Child Exploitation Tracking System (CETS) Scale is a rating system used to categorise the severity of pornographic images of children. The system is part of the international efforts by law enforcement agencies focussed on locating and removing children from abuse. The CETS scale ranges from 1 to 6 with the lower number identifying depictions of children with no sexual activity, who may be nude or partially undressed in sexually suggestive posing, explicit emphasis on genital areas, and solo urination. Level 2 represents non-penetrative sexual activity between children or solo masturbation by a child, in other words explicit sexual activity not involving an adult. Level 3 comprises non-penetrative sexual activity between children and adults with masturbation and other non-penetrative activity. Level 4 indicates penetrative sexual activity involving children, or both children and adults, including but not limited to intercourse, cunnilingus and fellatio. Level 5 of the scale depicts sadism or bestiality comprising sexual imagery involving pain, humiliation or animals. Level 6 comprises any animations, cartoons, drawings or computer-generated imagery depicting any of the CETS scale Levels 1-5: see Exhibit R2 page 204.
An analysis of the hard disk drives which were alleged to have been stolen from the applicant is summarised in the statement of Plain Clothes Senior Constable Bruce Cook in Exhibit R2, pages 1-6. This material is disturbing in relation to the large number of Level 2 to Level 5 CETS scale images and videos which included very young children engaged by adults in sadistic and sexually abusive situations more fully described on pages 5 and 6 of the statement. The existence of the cartoons and animations depicting material within Levels 1-5 means that there is also Level 6 material included in the hard drive.
This material in addition to those disturbing images and videos apparently also includes 2 video files viewed by the Senior Constable which he states depicted bestiality between an adult female and a horse and a dog. This material is classified as Level 5 on the CETS scale. This is not child abuse material but is neither heterosexual nor homosexual pornography and is seriously concerning in its content.
Dr Westmore gave evidence by way of his report and was cross-examined. In his report provided for the purposes of the Local Court proceedings, Dr Westmore stated:
"Of his sexual fantasies, these are predominantly adult based and heterosexual, although [the applicant] said he considers himself to be "bisexual", although he said he had had problems "dealing with that because of the abuse I experienced as a boy". He told me he was very open about his sexuality and not uncomfortable talking about any sexual topics or his sexuality. He denies any prepubescent sexual fantasies, although he acknowledges using the cartoon images for the purpose of sexual fantasies. He said some of these cartoon images may involve an adult woman having contact with a teenage boy. He said, when he was 19 he had sexual contact with a 45-year-old woman. [The applicant] described no difficulties with the cosmetic aspects all the function of his own genitalia ... Later in the interview, he told me that he was a nudist and he said he was very liberal and understanding in relation to sexual matters and sexual expression. (Page 3)...
[The applicant]'s longitudinal sexual history and his self-reported psychosexual history are not consistent with the diagnosis of paedophilia. ... [The applicant] does however report that some of the offending images could be considered by "objective people" to be representative of under aged people. (Page 6) ...
I think the offending images, which are, I understand, part of a Japanese comic book series, most likely reflect some fetish type behaviour in [the applicant] rather than being the reflection of his psychosexual orientation. (Page 7)...
[The applicant] was involved in a serious motor vehicle accident as a boy and that no doubt also impacted on his personality and psychological development. There are however no obvious long-term sequelae as a result of the accident. [The applicant]'s early life history/experiences are likely to have impacted on his evolving personality. As noted for example, he reports he was bullied at school and sexually abused as a boy around the age of 7. Despite that, he is unlikely to suffer a specific Personality Disorder, but there are some eccentricities noted in his history and clinical presentation and certainly a significant degree of "liberation" in relation to his sexuality. He is possibly somewhat a sexual extravert (sic). These are not necessarily psychiatric or psychosexual problems, but simply a reflection of that aspect of his character and personality.
He is clearly under some psychological stress at this time and he may periodically suffer symptoms of sufficient severity to warrant the diagnosis of an Adjustment Disorder. He would benefit from some counselling from a psychologist to support him through this difficult period in his life.
I think this man's risks of reoffending, based on his current history, are low to non-existent. I do not believe he suffers from paedophilia and he is finding the legal process and the threat to his employment to be particularly stressful and I think that will act as a significant deterrent to him acting inappropriately in the future. (Page 7)"
Dr Westmore was cross-examined and was asked about the usual psychometric tools used to assess risk by psychologists and psychiatrists, notably 'RSVP' and the 'Static-99' tools. Dr Westmore is more comfortable relying upon a proper clinical assessment than reliance upon the tools referred to, because, as the Tribunal understood his view, it is difficult to put risk reliably into a percentage figure. The clinician is dependent upon the truthfulness and the history provided by the patient which can then be verified by use of these tools, if considered necessary.
It was considered by Dr Westmore that the cartoons were more likely a fetish rather than a paraphilia. The risk of "hands off" reoffending rather than "hands on" is a possibility. It was acknowledged by Dr Westmore that the viewers of the "hands off" child abuse material leads to a market which encourages "hands-on" child abusers. The inability to diagnose or label the applicant's behaviour as paedophilia does not address the risk the applicant may pose to children by participating in the child pornography industry, or the risk he may pose more generally. It does not inform the Tribunal whether the possibility of reoffending behaviour re-emerging.
Most importantly, Dr Westmore agreed that if the applicant was accessing images of underage children for his sexual stimulation, then he would review his opinion concerning whether the applicant would be classified as meeting the criteria for a diagnosis of paedophilia and conduct a further review of the risk assessment. The risk would increase of returning to use that type of material, if that material were to be accessed for the purpose of sexual stimulation.
When the applicant was cross-examined he agreed that he used the material he downloaded for his sexual fantasies. The applicant also conceded that the content of the cartoon material was deviant from 'normality'. The applicant stated to the Tribunal that his understanding of the Japanese word which describes some of the cartoons "hentai" is 'pervert'. This was similar to his responses in his record of interview. The applicant showed a familiarity with the nuances of the abusive material which makes it difficult to accept that he did not know it was an offence to possess this material. It is reasonable to conclude that the applicant accessed the material which was found on his computer drive for the purpose of sexual stimulation. The applicant's knowledge of this genre of pornography appeared to be extensive. Dr Westmore's opinion must be reconsidered in the light of the applicant's statements in cross-examination.
Interestingly, Dr Westmore was of the opinion that many people who are exclusively "hands off" users/viewers of child abuse material, which tends to be video focused, tend to remain "hands off". Dr Westmore considered that many people start off with "hands off" behaviour and appear not to progress beyond that type of child abuse behaviour. Of course, others do so progress and the users of "hands off" material encourage actual abuse of children by creating a profitable market.
Dr Westmore was of the view on the material he was provided and the disclosure obtained from the applicant that the risks of the applicant accessing further material of this nature is very low due to the impact on the applicant of being charged and the loss of, and threat to, his employment. The deterrent component is there to reduce the applicant's risk. Additionally, although Dr Westmore agreed he could never say "never" in terms of the recurrence of offending behaviour, the risk of "hands-on" child abuse by the applicant, in his opinion, is negligible. This risk and the prediction of future risk is modified by the evidence of the applicant himself concerning the use which he made of child abuse material. The applicant appeared from his answers in the record of interview with the police and his cross examination to seek material for his sexual gratification which included images and video of very young people. The applicant has apparently not undertaken any form of self-development to address this particular aspect of his personality.
The applicant denied in his record of interview owning, downloading or viewing the child abuse photographs or videos identified in the expert analysis of the hard drives which were impounded and later destroyed. The applicant admitted to possession of the child abuse cartoon images by downloading them to his computer. At the time, the applicant repeated that he did not believe the possession of those cartoon images was an offence.
The applicant's former girlfriend and the extortionist provided electronically recorded interviews with the police. Those persons were not cross-examined during the course of the Tribunal hearing. Their evidence contained in the records of interview formed the basis for the charges to which the applicant pleaded guilty. They were not cross-examined during the sentencing hearing. The extortionist and the applicant's former girlfriend denied placing any additional material on the applicant's hard drives. The extortionist indicated that he could not access many of the files on the hard drive because they were password protected. Both the extortionist and the applicant's ex-girlfriend report viewing child pornography on the computer hard drive owned by the applicant. Those records of interview are contained within Exhibit R2. It should be observed that both of those people admit to having lied to police prior to giving their interviews. However, the evidence contained within the records of interview cannot be discounted for that reason alone.
The standard of proof in a criminal prosecution is "beyond reasonable doubt". There is some doubt that the applicant downloaded all the material which found its way onto the hard drives which were subjected to analysis for the purposes of criminal proceedings.
There was no doubt that the person who obtained the applicant's computer drives by theft was attempting to extort money from the applicant. Senior Constable Cook agreed that it was possible for the extortionist to have copied material into the hard drive owned by the applicant. Given the denials by both the extortionist and the former girlfriend, whilst that remains a possibility, it is more probable than not that the applicant downloaded the material. The proof of that, however, would not satisfy the criminal standard.
There is sufficient evidence to be satisfied on the balance of probabilities that the applicant downloaded more than the cartoon images, including images comprising pornographic and abusive images and videos. Some of those downloads comprised child pornography of the more serious variety.
The applicant has not acknowledged the seriousness of his behaviour and has repeatedly attempted to minimise the seriousness with which the representation of any child abuse is viewed by the law, the general community, and in an attempt to deny any moral culpability in the consumption of this material. This is clearly evidenced in the applicant's statement in Exhibit A1.
The offence which has caused the applicant to be considered a disqualified person under the Act is a serious offence when taken in isolation. When viewed in the whole of the surrounding circumstances and the applicant's attitude to the offence, the unrevised opinion of Dr Westmore provides less comfort to the Tribunal.
The period of time since those offences or matters occurred and the conduct of the person since they occurred
The offence which renders the applicant a disqualified person was most probably committed over a period of time, if the expert analysis evidence is to be considered accurate. The charges were laid on 27 December 2012 alleging that the applicant had in his possession the child abuse material between 6 January 2012 and 6 February 2012.
The applicant was sentenced to a two-year good behaviour bond on 19 June 2013.
Since the time of the offence and the sentencing of the applicant the applicant has not engaged in similar behaviour according to the material before the Tribunal.
The applicant has unsuccessfully sought to maintain his security licence by a letter to the Commissioner dated 8 April 2014. Annexed to the letter were 3 references and the report of Dr Bruce Westmore dated 9 May 2013. Also, the transcript of the Local Court was provided. The facts sheet provided to the Local Court Magistrate contained amendments reflecting admissions made by the applicant without a full contest in relation to the facts. Those matters do not bind the Tribunal's consideration of the whole of the evidence of the surrounding circumstances, because different standards of proof apply and the provisions of sections 91 and 92 of the Evidence Act 1995 do not apply.
The good behaviour bond imposed on the applicant will not expire until 2015. If the applicant reoffends he may be re-sentenced in relation to the offence.
The age of the person at the time the offences or matters occurred
The applicant was born on 5 August 1986 and therefore was aged 26 at the time of his sentencing on 19 June 2013. The applicant was aged 25 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
The victims depicted in the cartoons, photographs and videos range in age from 2 years of age to teenagers. The applicant conceded that the cartoons depicted persons from the age of 13 years.
The difference in age between the victim and the person and the relationship (if any) between the victim and the person
The difference in age ranges from 23 years to less than 10 years.
The applicant did not have a relationship with any of the victims.
Whether the person knew, or could reasonably have known, that the victim was a child
The applicant knew and could reasonably have known that the victims were children.
The person's present age
The applicant is now aged 28 years of age.
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred
The applicant has a conviction for a PCA offence when he was on his provisional license and his 'P' plates in 2008.
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The matters which have been previously referred to in relation to the seriousness of the offence are relevant in relation to an assessment of the likelihood of any repetition by the applicant of the offence to which he pleaded guilty. Those matters have been considered again in relation to this subparagraph of section 30(1) of the Act.
The applicant does not appear to accept any responsibility for his offending behaviours.
The written opinion of Dr Bruce Westmore is not accepted as accurate for the purposes of the Tribunal's determination given that he appears to have not been appraised fully of the applicant's use of all the material which he downloaded. The assessment of risk by Dr Westmore requires further assessment in light of Dr Westmore's oral evidence to the Tribunal that if the applicant was accessing images of underage children for sexual stimulation there would need to be a review as the risk would increase of him returning to using that type of material again.
The Tribunal could not on the evidence provided be satisfied that there will be not be a repetition of the offending conduct and behaviour. The impact on children of that behaviour if it remains "hands off" is the creation of market which will encourage "hands on" people to abuse children.
Any information given by the applicant in, or in relation to, the application
The applicant provided Exhibit A2 in addition to the application. The applicant gave oral evidence and was cross-examined.
The applicant conceded that he searched on the internet for pornography depicting young girls, and conceded that there would be pictures of naked children on his computer due to his interest as a nudist.
The applicant provided only information which he apparently considered would be exculpatory and has not acknowledged the seriousness of his offending behaviour.
Any other matters that the Children's Guardian considers necessary
The Children's Guardian submitted that the applicant was not charged with possession of the large number of other images of child abuse, but the likelihood that the applicant downloaded those images of sexual abuse of babies and young children creates a strong inference that the applicant constitutes a real risk to the safety and well-being of children, and in particular, a risk that they will be sexually abused.
Conclusions and Orders
In all the circumstances, and taking into account the considerations required under section 30 (1) of the Act, the applicant has not discharged the onus on him to the requisite standard of proof that he does not pose a real and appreciable risk to the safety of children.
As previously referred to in these reasons, the jurisdiction of the Tribunal is protective and not punitive.
The applicant has not acknowledged seriousness of the offence to which he pleaded guilty. The applicant has not to the knowledge of the Tribunal committed any further offences, but it has been a relatively short period of time since he received his good behaviour bond which will expire in June 2015.
The applicant is not in a stable relationship and is currently not in employment. These must constitute dynamic risk factors which Dr Westmore would have taken into account in any reassessment of the applicant's risk.
The behaviour of the applicant is beyond reasonable community norms and reflects an attitude to sexual behaviour which is threatening to the safety of children. The range of CETS scale classifications of the material found on the applicant's computer hard drives indicates that the interests of the applicant in viewing such material is not benign.
The applicant showed a familiarity with the nuances of the abusive material which makes it difficult to accept that he did not know it was an offence to possess this material. It is reasonable to conclude that the applicant accessed the material which was found on his computer drive for the purpose of sexual stimulation. The applicant's knowledge of this genre of pornography appeared to be extensive. These factors undermine the contentions of the applicant as to his naiveté and ignorance which the sentencing Magistrate appeared to accept uncritically. The admissions made by the applicant appeared to exemplify a normalisation of abusive behaviours which is concerning to the Tribunal.
The evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his offending behaviour. There can be no possible guarantee provided that the applicant will never reoffend, but there is currently insufficient evidence for the applicant to overcome the presumption that he poses a risk to the safety of children.
The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
Accordingly, the application for an enabling order pursuant to section 28 of the Act shall be refused and dismissed.
Orders
The order of the Tribunal is:
(1) The application filed 24 April 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
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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: 16 October 2014
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