Bka v Office of the Children's Guardian

[2015] NSWCATAD 71

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BKA v Office of the Children’s Guardian [2015] NSWCATAD 71
Hearing dates:	19 December 2014
Decision date:	14 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The application for an enabling order is granted.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – disqualifying offence occurred in 1978 – 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 (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949.
Category:	Principal judgment
Parties:	BKA (Applicant) Officer of the Children’s Guardian (Respondent)
Representation:	Counsel: G Mahony (Respondent) Solicitors: BKA (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410349
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

1. 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.

2. The offence which brings the applicant within subsection 18(1) of the Act is that of the common law offence of rape, which is a disqualifying offence falling within Schedule 2 of the Act. For this offence, which will be referred to as ‘the index offence’, the applicant was sentenced to 6 years imprisonment dating from 23 June 1978 with a non-parole period of 2 years and six months.

3. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application.

4. 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 names of the applicant and his family as well as the name of the victim of the 1978 offence are not to be published without the leave of the Tribunal. To give effect to this order, the pseudonym BKA has been used for the applicant's name.

Evidence

Facts of the index offence

5. According to the police facts, the offence occurred in the early hours of the morning on 3 February 1978. The victim had accepted a lift in a panel van by one of the co-offenders who then parked the car in a paddock. Another co-offender pulled the victim into the back of the van and had forced sexual intercourse with her. BKA pulled the victim from the van, threw her on the ground, slapped her face and had sexual intercourse with her. The victim was then driven home and threatened with being killed if she told the police.

6. Apart from this offence, BKA’s criminal record comprises a stealing offence as a juvenile, a minor drug offence for which he was fined and several traffic offences, for which he also received a file. He has had no convictions since 1988.

BKA

7. In an affidavit prepared for these proceedings, BKA states that:

I had known the victim for approximately 12 months prior to the offence and had a sexual relationship with her. At the time of my crime I was young and had a bad attitude so would protest my innocence, even though I knew I was guilty. This continued until I came up for parole I continued to say I was not guilty.

In 1996 I had a life changing experience and became a Christian. It was at this time that through the help of my Pastor I looked at my past and began to fell guilt around things that I had done in my past. I looked at my rape charge and realized the seriousness of my actions and that I had actually done this and the impact that it must had had on my victim. I began to think also of the effect it had on her family, having four daughters of my own. I cannot change what has happened but I can make sure that it never happens again. I am truly sorry for the crime I committed and have tried to do the best I can to give back. I have no defence for my actions and make no excuse. I was told ‘no’ on that night and didn’t listen. I believe that after 36 years with no repetition of those behaviours and now being mature I would like to move on. I am not the same person I was back then.

8. BKA states that after the breakdown of his earlier relationship, he was a single father to his four children (including a step-daughter) who, at the time of the breakdown, were aged between 10 months and eight years. He remained a single father until his youngest daughter left home when she was 17 years old. He has since remarried and lives with his wife, her son, who is 10 years old, and her daughter who is 19 years old.

9. Since 1999, BKA has been working for a charity body where his current position involves assisting former prisoners to reintegrate into the community. In describing his passion for this work he writes:

If there is a positive to my past I believe that it helps in my work to show people with a criminal history that you can move on and change your life in a positive way and leave your past behind.

10. In oral evidence before the Tribunal, BKA agreed that prior to 1995, his had been a life characterised by anti-social behaviour which involved little respect for anyone apart from himself. He agreed that he had initially failed to take responsibility for the index offence. The culture of the outlaw motorcycle club of which he was a member, he said, involved never taking personal responsibility. He first took responsibility for the offence when he became a Christian in 1996. He told the Tribunal that he feels remorse for his actions and a sense of shame to be a ‘disqualified person.’

11. He acknowledged a prior history of alcohol and drug abuse and told the Tribunal that he has not touched alcohol for eighteen years.

12. In response to concerns that he may reoffend if his support networks should fail, BKA gave evidence that in the past, he has had a number of hurdles, including when his first wife left him to raise their four children. He described that as being a hard time during which he had little support. Despite this, he didn’t return to alcohol and has remained abstinent. He told the Tribunal that he ‘can’t envisage any situation to make me go back to the old situation.’ As part of his work, he comes into contact with what he calls the ‘outlaw culture’ and no longer finds it appealing. This, in itself, is a deterrent to any relapse in his behaviour. He agreed that he would consider counselling should he ever find himself at risk of reverting to his earlier behaviour. He cited his former colleague, who attended the Tribunal proceedings, as a particular support with whom he has weekly contact. He agreed that he continues to take anti-depressants as a means of dealing with workplace stressors. He told the Tribunal that there are no ongoing effects of a brain tumour he had removed in 2009.

13. He told the Tribunal:

In my whole life, I never hurt a child. I find child abuse abhorrent.

Employer references

14. In a short reference, BKA’s manager describes BKA as an intelligent, capable and dedicated man with an exceptional gift in working with men with addiction issues. As the reference does not deal with the index offence relevant to this matter or any consideration of BKA’s risk to children, the reference can carry only limited weight.

15. BKA’s former supervisor describes BKA’s criminal history in the following terms:

I am aware that he has a past, and an unenviable history of offending behaviour. Placing that in context, it would seem that there was a period of time in BKA’s early adult life where he associated with anti-social peers, and committed offences, of which I am aware of the nature and context. BKA has expressed what I would assess as being genuine and sincere remorse for those offences and, to my knowledge, now has a period of over thirty years since any negative contact or association with the criminal justice system, related to criminal behaviour or offending.

As is often the case with significant personal change, there are never any absolute guarantees however if a person remains committed to maintain change through actively pursuing strategies and actions that enable changes to remain concrete, then it may be said associated risk can be eliminated. BKA epitomises the example in person of that positive process.

Personal references

16. In her reference, BKA’s now adult daughter confirms that BKA had raised her and her siblings as a single parent and that she had never witnessed him being ‘violent or abusive towards anyone.’ She states that:

my dad has worked very hard to move on from the events in his past, we started going to church from when I was aged 12. It was at this time I saw my dad become involved in church and community and have a desire to help people that had come from a similar background.

17. In a letter to the Tribunal, BKA’s stepdaughter confirms that BKA raised her from the time she was a baby and continued to be her primary caregiver when her mother’s marriage to BKA ended:

As single father of 4 children I can honestly look back and say he did a great job, always putting us first and showing us unconditional love. He has always been a hard working, gentle man.

He has always been honest with us in all aspects, including his past, he had spoken to us in age appropriate terms during our childhood regarding his crime and goal time, he has always showed and told us the great remorse he felt. Violence is not something any of us ever witnessed in or outside of our home from our dad. He has always shown us unconditional love and treated us with respect. As a father he has always been a great role model to us all.

18. BKA’s former pastor writes that during the three years BKA attended his church (prior to his relocation for work):

there was not one concern presented to me by the community, nor did I witness (or even hear rumours of) any event or activity involving BKA of a violence or sexual nature. I therefore believe BKA presents no danger to society in any way.

19. In her statement to the Tribunal, BKA’s wife (and mother to a ten-year-old son who lives with her and with BKA) confirms that she is aware of the nature of circumstances behind her husband’s criminal conviction. She writes:

BKA is aware at his actions were wrong and he is not the same person now that he was then. If BKA was this same person, I would not be married to him nor would I permit my son to be [in] contact with him. BKA is someone whose change in behaviour is genuine. I am fully [convinced] that BKA is of no danger to any child or adult. I have never seen or heard of BKA conducting himself in a violent manner during the last 12 years.

Criminal History Record Check Assessment

20. A criminal history record check was prepared for BKA by his current employer in June 2014 and a finding made that BKA was a suitable person to be employed by the organisation. The assessment considered BKA’s criminal conviction which was found to have no bearing on BKA’s ability to perform his work. A note was made that, had the conviction been more recent and had there not been extensive satisfactory work performance, BKA’s exclusion from the organisation would have been ‘an outcome proportional to the type of conviction’.

Bill Warren, Clinical and Forensic Psychologist

21. Mr Warren prepared a psychological report for BKA for consideration by the Tribunal. Despite references to BKA being on the Sexual Offenders Register in the report, the Tribunal has received advice from the respondent that BKA’s name appears neither on the Sexual Offenders Register or the Child Protection Register.

22. Mr Warren conducted the following tests with BKA:

• the Personality Assessment Inventory (PAI) – According to Mr Warren, the results of the test presented the picture of a ‘relatively well functioning man, psychologically, with three scales above the cut-point signalling psychological dysfunction or impairment, being for drug use, anti-social activity and somatisation (pre-occupation with one’s physical health.)’ Mr Warren discounted these results on the basis of their reference to past behaviour and the changes in BKA’s present circumstances. According to Mr Warren, indicators of self-doubt and worry appeared to derive from the circumstances leading to these proceedings and the resulting uncertain future for work and income. Supplementary scales referred to by Mr Warren indicated ‘no particular life circumstances that significantly exacerbate risk of suicidal behaviour or violence.’ Mr Warren stated that BKA might be in the depressive disorder category which has as its signifiers of depressed mood, fatigue, lack of energy or drive and a possible increase in health worries.

• the Inventory of Offender Needs, Risks and Strengths (IORNS) – in light of the result of this test, Mr Warren found BKA’s general risk of reoffending to be Moderate.

• the Locus of Control Scale (LOCS) – According to Mr Warren, these results did not ‘raise particularly the matter of a diagnosis of a significant mood disorder.’

• the Vulnerable Attachment Style Questionnaire (VASQ) – according to these results, Mr Warren found that ‘there is nothing to suggest any insecurity in close interpersonal relationships and thus, again, low risk for significant depression.’

• the Direction of Interest Questionnaire (DIQ) - these results showed BKA to be a practical man with a conservative approach to life and a relatively strong conscience.

23. In light of the tests conducted, Mr Warren made the following conclusions:

Aside from some situational problems with mood and stress that may periodically attract a formal diagnosis of Adjustment Disorder, or possibly a longer standing Dysthymic condition, there is little in what I have to support that he has any significant formal mental health diagnosis of significance, particularly of significance to other people by way of risk and more so risk of sexual offences….There is nothing in this picture and from all that I have to implicate any risk to children or young people…Whatever risk of re-offending he may pose this would more likely be in terms of reverting to past anti-social activity, rather than a repeat offence of the incident that was the genesis of the present matter; particularly for a man of his now age and health. He is acutely aware of one particular risk, that is in relation to drug use, and should he relapse in this it would not likely see again the same offence that finds him on the subject register or another offence of the type that would have that consequence, again by reasons of lessons learned, age and stage of life and health factors.

24. In oral evidence before the Tribunal, Mr Warren agreed that the acceptance of responsibility by an offender for an offence and an insight into the triggers leading to the offence are good indicators for not re-offending. He gave evidence that BKA had now accepted responsibility for and felt genuine remorse about the index offence. In terms of re-offending, Mr Warren stated that the results of the tests administered to BKA did not show anything of concern in relation to reoffending.

25. Mr Warren agreed that BKA has strong community support, particularly from his Christian faith and his employment.

26. Should his support networks fall away, Mr Warren expressed the view that given his age, BKA would now be able to better manage himself than when he was younger. In the worst case scenario, if his stronger support networks, namely his faith and his employment were to fall away, Mr Warren stated that the risk would be that BKA may return to drug and alcohol abuse. He was of the view that BKA would be unlikely to return to involvement with any outlaw motorcycle groups.

27. In relation to the mental health care plan currently in place for BKA, Mr Warren was of the view that the plan was to address depression experienced by BKA as a result of particular stressors, namely workplace issues and his security of employment, rather than being a structural problem or function. Having regard to these issues, Mr Warren does not see BKA to be a danger to children.

Submissions

28. In light of the evidence before the Tribunal, the respondent neither opposes nor consents to the order.

29. Ms Mahony for the respondent agreed that BKA has conceded responsibility for the index offence and has shown significant remorse and insight into it. This, she submitted, is relevant in relation to the risks of future offending. She noted that BKA has been abstinent from alcohol for 18 years and that he now works with clients to re-integrate them into society after time in custody. Ms Mahony also noted BKA’s evidence that his ongoing contact with clients from outlaw groups makes him realise that he doesn’t want to go back to this lifestyle. Ms Mahony took the view that BKA’s evidence seems genuine and forthright and saw it to be significant that BKA has previously had support networks fall away (when his first wife left him to raise their four young children) and that rather than collapsing, he had instead managed the situation.

30. Ms Mahony agreed that there is no evidence that any of BKA’s children have ever come to the attention of FACS and accepted that it has been a long time since BKA last offended.

31. In his submissions, BKA asked the Tribunal to take into account the fact that he had been drug and alcohol free for a long time and the amount of time that had passed since he had committed the index offence. He told the Tribunal that being denied a working with children check clearance impacts upon the type of work he can do and that he finds the stigma of being a ‘disqualified person’ very difficult.

Findings and reasons

32. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by

1. not permitting certain persons to engage in child related work; and

2. requiring persons engaged in child related work to have a working with children check clearances.

33. 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.

34. 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.

35. 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.”

36. 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.

36. 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.

38. The applicant, BKA, was found guilty of raping a young woman on 3 February 1978. At the time of the offence, BKA was with two other co-offenders, one of whom also sexually assaulted the victim. According to his evidence, BKA had been in a sexual relationship with the young woman. In his statement to the Tribunal, BKA acknowledged his guilt, writing that ‘at the time of my crime I was young and had a bad attitude so I would protest my innocence, although I know I was guilty. This continued until I came up for parole I continued to say I was not guilty.’ BKA was sentenced to six years imprisonment with a non-parole period of two years and six months.

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

39. The index offence was committed on 3 February 1978, which is now over 37 years ago. In 1983, BKA was fined for driving an unregistered motor vehicle. In 1988, he was fined for being an unlicensed driver, for driving an unregistered motor vehicle and for administering a prohibited drug. There has been no other offending behaviour since then, a period of 27 years. Since 1996, BKA has been an active member of the church and since 1999, he has been employed by a charity body to assist homeless people and to work with former prisoners to transition back into the community. His current manager describes him as having an exceptional gift in working with men with addiction issues. A lengthy reference from his previous supervisor describes the positive change BKA has undergone in the years subsequent to his earlier offending behaviour.

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

40. At the time of the index offence, the applicant was nineteen years old.

(d) the age of the victim and any matters relating to the vulnerability of the victim,

41. The victim was seventeen years old at the time of the offence. Apart from her age, there are no details of any matters relating to her vulnerability.

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

42. The victim was two years younger than the applicant. In his statement, the applicant writes that ‘I had known the victim for approximately 12 months prior to the offence and had a sexual relationship with her.’

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

43. The applicant believed that the victim was nineteen years old at the time of the offence.

(g) the person's present age,

44. The applicant was born on 24 December 1958 and is now 57 years old.

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

45. As a juvenile, BKA was convicted of one count of stealing. Since the index offence, he has been fined for traffic offences and for the administration of a prohibited drug. There have been no further offences since 1988. BKA gave evidence that he has been abstinent from alcohol for 18 years and that his work in re-integrating offenders, including those from outlaw groups, back into the community furthers his resolve not to return to his earlier lifestyle. In his statement, he speaks of the importance of his Christian faith and his engagement in the church since 1996. The Tribunal agrees with Ms Mahony, for the respondent, that BKA’s evidence appeared to be both genuine and forthright, and that his ability to manage difficult personal situations, which has included raising four of his children as a single father, reflect his changed attitude towards life. The Tribunal accepts the evidence put forward in the references tendered for BKA that he is a devoted and caring husband and father and a capable and trustworthy employee who has a gift in working with homeless men and former prisoners.

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

46. Having conducted a series of psychological tests on BKA, Mr Warren spoke of the unlikelihood of BKA repeating the index offence, namely rape, particularly in light of his age and health. Mr Warren cited drug use as the one risk for BKA but noted that even in the case of such a relapse ‘[one] would not likely see again the same offence..or another offence of the type that would have that consequence, again by reason of lessons learned, age and stage of life and health factors.’ He noted the importance of BKA’s community support and gave evidence that BKA’s acceptance of responsibility and remorse for the offence were good indicators for not re-offending. He did not see BKA to be a danger to children.

47. On the evidence before it, the Tribunal agrees with the respondent that BKA’s acceptance of responsibility for the index offence, his significant remorse and insight into it, his abstinence from alcohol and his success in managing difficult situations without reverting to his earlier lifestyle are all strong indicators that a repetition by BKA of an offence similar to the index offence would be unlikely.

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

48. The Tribunal has taken into account the material provided by the applicant including his affidavit, a series of personal and work references and details of his Christian faith and ongoing work to reintegrate former prisoners and homeless people into the community.

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

49. The Tribunal has considered the submissions put forward by Ms Mahony and notes that the Children’s Guardian neither opposes nor consents to the order sought.

CONCLUSION

50. Having regard to all the above 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.

51. The reasons for this finding are as follows:

• The index offence occurred 37 years ago when BKA was a nineteen-year-old man in an outlaw group. The victim was a seventeen-year-old woman. BKA has since accepted responsibility for the offence and is remorseful for it. He has changed his lifestyle and has been abstinent from alcohol for eighteen years. He is an active Christian and works to transition offenders back into the community and to assist in homelessness;

• Since 1999, when he began to work with a church based organisation, BKA has never been the subject of disciplinary actions or a notice of complaint;

• The evidence before the Tribunal is that BKA is a committed and loving father who has never come to the attention of Family & Community Services;

• According to the expert opinion of the psychologist, Mr Warren, BKA is not a danger to children.

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 rape for which he was convicted on 23 June 1978.

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.

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

Amendments

29 July 2015 - Changes have been made to paragraphs 41, 42, 43, 45 and 51 of the decision.

Decision last updated: 29 July 2015