Bli v Children's Guardian

[2015] NSWCATAD 48

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BLI v Children’s Guardian [2015] NSWCATAD 48
Hearing dates:	3 March 2015
Decision date:	19 March 2015
Before:	J Anderson, Senior Member
Decision:	The Applicant’s application for an enabling order is refused.
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order - working with children check clearance – disqualified person – disqualifying offence was a conviction in 2007 of indecent assault – subsequent and prior offences – no further convictions since 2009 – whether Applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus not discharged
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998 (repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal 2013 Crimes Act 1900
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949
Texts Cited:	BLI (Applicant) Children’s Guardian (Respondent)
Category:	Principal judgment
Parties:	BLI (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Harstein (Respondent) Solicitor: Care Legal (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1410451
Publication restriction:	Pursuant to subsection 64(1) of the Civil and Administrative Tribunal Act 2013, the name of the Applicant and the name of the any other person that would identify the name of the Applicant is not to be published or broadcasted without the leave of the Tribunal.

Reasons for decision

1. The Applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an enabling order, pursuant to section 28 of that Act, declaring that he not be treated as a ‘disqualified person’ so that he can be granted a working with children check clearance under the Act. The Applicant is seeking a clearance so that he can reside in his parent’s home and have unsupervised contact with his child.

2. The Applicant is a ‘disqualified person’ by reason of this conviction of the offence of assault with act of indecency, contrary to section 61L of the Crimes Act 1900. The Applicant was convicted of the offence on 26 June 2007 in the Woy Woy Local Court. The Court sentenced the Applicant to 12 months’ imprisonment, which was suspended upon the Applicant entering into a bond to be of good behaviour and be subject to the supervision of the NSW Probation Service and in relation to drug and alcohol issues.

3. The Applicant was 19 years old at the time of his disqualifying conviction. He is now 26 years of age and works as a carpentry form worker. He has a baby daughter. He is also the father of a three year old son of whom he only recently became aware following the child’s removal from the care of his birth mother. The child is currently in the care of the Applicant’s parents pursuant to an order under the Children and Young Persons (Care and Protection) Act 1998 made by the Children’s Court on 18 August 2014. Under that order, the Applicant’s parents, who are the child’s authorised carers, undertake to not permit the Applicant to have unsupervised time with the child or to reside or sleepover at their (the parent’s) home until the Applicant has produced a clear Working with Children Check. Previously, the Applicant resided with his parents in their home.

4. Section 10 of the Child Protection (Working with Children Act) 2012 provides that an adult person who resides at the home of an authorised carer must hold a working with children check clearance or have made a current application to the Children’s Guardian for a clearance.

5. In 2014, the Applicant made an application to the Respondent for a working with children check clearance. On 18 July 2014, the Respondent refused to grant him a clearance, as required under subsection 18(1) of the Act because of his disqualifying offence.

6. On 20 August 2014, the Tribunal received the Applicant’s application for an enabling order. The Applicant is seeking the order so that he can return to reside at his parents’ home and also to have unsupervised contact with his son.

7. There is no dispute that the Tribunal has jurisdiction to hear and determine the Applicant’s application for an enabling order: see subsection 28(3) of the Act.

8. What was at issue at the hearing was whether the Applicant had discharged his onus to rebut the statutory presumption, in subsection 28(7) of the Act, that he poses a risk to the safety of children. It was the contention of the Respondent that the Tribunal could not be so satisfied and the making of the order sought was opposed.

9. At the conclusion of the hearing on 3 March 2015 I reserved my decision. I have now considered all the material before the Tribunal and for the reasons set out below, I am, on balance, at this time, unable to find that the Applicant has discharged his onus in rebutting the statutory presumption. I have made this finding, as I am not persuaded the Applicant has sufficient insight into his criminal offending conduct or has taken sufficient steps to mitigate the risk of re-offending. At the same time, I accept the Applicant is not seeking to undertake child related work. However, this alone does not satisfy the requirements of the Act in order to make the order sought (i.e. in effect, grant the Applicant a working with children check clearance to work in child-related work).

The evidence

10. The Applicant tendered into evidence in support of his application the following documents:

1. Applicant’s Statement dated 29 October 2014;

1. Children’s Court Order dated 18 August 2014;

2. References by the following persons:

1. Dr JC dated 29 August 2014;

2. Ms JW, the Applicant’s former partner dated 20 August 2014;

3. Mr PN, the Applicant’s brother in law dated 27 August 2014;

4. Ms KG, the Applicant’s current partner dated 29 September 2014;

5. Mr AL and Mrs TL, the Applicant’s parents dated 30 October 2014; and

6. Mr PG, the father of the Applicant’s current partner dated 27 February 2015.

11. The Applicant also provided a criminal history as well as a psychological risk assessment report dated 5 January 2015, prepared by Ms Miriam Wyzenbeek, Clinical and Forensic Psychologist, for the purposes of these proceedings.

12. The Applicant and Ms Wyzenbeek each gave oral evidence at the hearing and were cross-examined by counsel for the Respondent.

13. The Respondent tendered into evidence bundles of documents comprising copies of the Applicant’s criminal record, relevant court files, police records and documents produced in response to other enquiries made by the Respondent to various bodies, including the Department of Family and Community Services, NSW Police, Corrective Services, and the Applicant’s employer.

The Working with Children legislative scheme

14. Section 4 of the Child Protection (Working with Children) Act 2012 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.

15. Subsection 8(1) of the Act prohibits a person from engaging in ‘child-related work’, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children’s Guardian for the relevant working with children check clearance.

16. The term ‘child-related work’ is broadly defined in section 6 of the Act. While it is unnecessary for the Tribunal to determine whether the person seeking a working with children check clearance was engaged in or proposes to engage in ‘child-related work’, I note that section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for the purposes of the Act.

17. Subsection 18(1) provides that the Respondent must refuse an application for a clearance where the Applicant is a disqualified person by reason of having been ‘convicted’ of an offence falling within Schedule 2 of the Act.

18. Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time (see section 23 of the Act in regard to the grounds on which a clearance can be cancelled or suspended).

19. Subsection 28(1) of the Act makes provision for a ‘disqualified person’ to make an application to the Tribunal for an enabling order.

20. Where such an application is made, section 28 also provides the following:

28 Orders relating to disqualified and ineligible persons

(1) …

…

(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 … 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.

(9) …

21. 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 [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

‘What one is looking for is 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.’

22. The former Administrative Decisions Tribunal construed the meaning of ‘risk’, as it appeared in subsection 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word ‘risk’, has a similar meaning in the current Act.

23. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. It is in the following terms:

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.

24. Finally, the jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

Consideration of the s30(1) factors

25. Set out below is the evidence and my findings in regard to the section 30(1) factors.

(a) The seriousness of the Applicant’s disqualifying offence

26. The disqualifying offending conduct occurred on or about 14 September 2006. The victim of the offending was a woman aged 18 years. The circumstances surrounding the offences are set out in a statement of agreed facts tendered to the Local Court on sentencing following the Applicant’s guilty plea to that offence, as well to an offence of assault occasioning actual bodily harm which relates to the series of events in which the disqualifying offence arose.

27. The agreed facts indicate that the victim was at a Leagues Club with a group of friends, and had been drinking and dancing. Later in the evening, she was asked to leave the Club due to her level of intoxication. She proceeded to wait on the Club’s front steps for a taxi to convey her home. The Applicant was escorted from the Club by security personnel and joined the victim on the Club’s steps. They did not know each other before the evening in question. They engaged in conversation before the victim indicated she was no longer prepared to wait for a taxi and instead would walk home.

28. The victim commenced walking, and shortly afterwards observed the Applicant walking a short distance behind her, indicating, amongst other things, for her to “wait up”. The victim ignored the Applicant and continued walking. The Applicant continued to yell out to her. The victim became frightened and walked faster before starting to run. She yelled out to the Applicant to leave her alone, however, the Applicant continued to yell and swear at her. The victim ran up a property’s driveway and hid in bushes. The Applicant continued to follow the victim, stating: “Where are you, you fucking slut” and “Okay, I’m coming to get you”. The Applicant, having located the victim in the bushes, stated; “There you fucking are”, and “Why are you doing this? Are you alright? You’re being an idiot: I’m just trying to help you, you fucking dog”. The victim told the victim to go away and leave her alone, and attempted to move away. The Applicant fell on top of the victim, pushing her backwards on her back and striking her on the nose causing bleeding. The victim was crying and telling the Applicant to get off and to get away, indicating she wanted to go home. The Applicant asked where she lived and offered to take her home. He proceeded to put one hand on the victim’s chest, and lifted her dress with the other hand. He then touched the victim on the genital area. While this was occurring, the victim asked the Applicant to get off her and leave her alone and was trying to push him off her and kick him. The victim was subsequently able to push the Applicant off her and remove herself from him, during which she injured herself on a retaining wall.

29. The victim ran back to the Club and met with friends who she had contacted using her mobile phone. While doing so, she was followed by the Applicant who was shouting at her and calling her a “fucking dog”. Police were called to the Club. The Applicant denied any involvement. The victim did not make a complaint, indicating that nothing had happened and that she just wanted to go home. The following day the victim attended a police station and made a statement in relation to the events of the previous night. She indicated to police that she did not make a complaint at the time as she was fearful and believed the Applicant may have known where she lived. The victim attended hospital and was treated for her injuries, which included grazing to her nose, forehead, wrist, elbow, knee, and shoulder and bruising to the back of her neck.

30. The Applicant was subsequently arrested. He did not agree to a police interview and was charged with the offences of Indecent Assault and Assault Occasioning Actual Bodily Harm. He pleaded guilty to the charges at the earliest possible opportunity.

31. In the Applicant’s written statement dated 29 October 2014, he states he met the victim while at the Leagues Club and that they were both drunk. He states he remembers her exposing her breasts on the dance floor, but has no recollection of the events after that time.

32. He states that it was reported he and the victim left the club together, and that the victim changed her mind and wanted to walk home alone. He states it was reported that he followed the victim, yelled at her, grabbed her in the bush, pulled her dress up, pulled her panties down, and inserted his finger into her vagina. The Applicant also stated “The victim sustained a few minor injuries. She gave different accounts of what had happened. One of them was that I punched her on the nose. In other statements she said she fell. There were no witnesses to the alleged assault in the bush. The police relied upon the statement by the victim”.

33. At the Tribunal hearing, the Applicant adopted in full his statement dated 29 October 2014. He did not seek to make changes to it. He was cross-examined by Ms Harstein for the Respondent.

34. When asked specifically about the disqualifying offence and why, in his statement, he made reference to the victim exposing her breasts; he initially said because that is what had happened. However, he also said that he may have been informed about it by his friends. He said the events in question were like “a big blur”, due to an alcoholic blackout, and that the last thing he can remember is being inside the club. He said that he had never experienced anything like it before and when the police had told him what had happened he was completely “blown away”, and it was like a bad dream. The Applicant denied trying to apportion blame to the victim, stating that he doesn’t blame her at all, that he is completely in the wrong, and it makes him sick to the stomach that he could have done that.

35. When put to him that the victim suffered nightmares as a result of the offence, yet in his statement he had characterised her injuries as minor, the Applicant said that it was a major injury, that he is not trying to mislead the Tribunal, and that he didn’t know what to put down in his statement when compiling it with his previous solicitor. The Applicant denied he was trying to suggest the offence was less serious than it was, he feels terrible about what happened, and wants to put it behind him. In re-examination he said by “minor injuries” he meant the victim’s physical injuries, such as bumps, bruises and grazes.

36. The Tribunal finds that the disqualifying offence was a serious offence. It involved violence, both physical and sexual, and was committed in the context of the victim’s objections, and fears for her safety.

(b) The period of time since the disqualifying offence was committed

37. It is now almost 8.5 years since the disqualifying offence occurred.

(c )The age of the Applicant at the time the disqualifying offence was committed

38. The Applicant was 19 years of age at the time of the offending conduct. He is now 26 years of age.

(d) The age of the victim and matters relating to the vulnerability of the victim.

39. It appears that the victim was 18 years of age at the time of the offence. The victim had not known the Applicant before the evening in question. The victim had been consuming alcohol and had been asked to leave the Club due to her level of intoxication. Although she had previously been with friends inside the club, the victim was on her own outside the premises when approached by the Applicant. It was late at night and she wanted to go home. She had indicated to the Applicant frequently during the events of that evening that she wanted him to go away and that she just wanted to go home. In a victim impact statement, the victim states she sustained a broken nose and injury to her knees and wrist, which caused her a lot of pain. Her nose was still painful at the time of making the statement, some 9 months after the injury occurred. She states that as a result of the events, she was unable to sleep at night and had nightmares. She states she thinks about what happened all the time and that she had moved back home to live with her mother. In a victim impact statement by the victim’s mother, the victim’s mother stated that the events had caused her daughter and the whole family a great deal of distress and worry.

39. In his statement dated 29 October 2014, the Applicant refers to the offence occurring in close proximity to various shops and services. He also mentions the presence of a man from whom he states the victim did not seek assistance. Those statements, in the Tribunal’s view, are concerning. They suggest that the Applicant has minimised the specific vulnerability of the victim by suggesting that she could have prevented the offence occurring, or at the least, obtained assistance from a third party. His reference to the victim exposing her breasts in the club is also troubling. Again, it implies a belief that the victim may hold some responsibility for the events that occurred. The Applicant’s answers in cross-examination on this topic did not, in the Tribunal’s view, adequately address or refute the implications raised by his statement.

(e) The difference in age between the victim and the Applicant and the relationship between them

41. It appears that there was one years’ difference in the ages of the victim and the Applicant. As indicated previously, the victim had not known the Applicant before the evening in question.

(f) Whether the Applicant knew or could reasonably have known the victim was a child

42. The victim was an adult, having attained the age of 18 years.

(g) The Applicant’s present age

43. The Applicant is now 26 years of age.

(h) The seriousness of the Applicant’s total criminal record and his conduct since the disqualifying offence.

44. The Applicant has a relatively lengthy criminal history, commencing in 2004 when the Applicant was a child. In addition to driving offences and an offence of possession of suspected stolen goods, in 2005, the Applicant was charged with common assault on a child, which was subsequently dismissed following a Youth Conference. The circumstances of that matter was that the Applicant punched the victim in the face, following verbal exchanges several weeks earlier where the Applicant attempted to frighten the victim and the victim had made racial taunts. In cross examination, the Applicant said it was an altercation when he and the victim both got a little bit violent and that there was not a big difference in age between himself and the victim.

45. In 2006, the Applicant was convicted as a child of destroy or damage property in respect of which he was required to enter into a good behaviour bond for a period of 6 months.

46. On 26 June 2007, the Applicant was convicted and sentenced in respect of the disqualifying offence. The Pre Sentence Report prepared by the Probation and Parole Service indicates that at the time of the offence the Applicant was using cannabis on a daily basis and on the night in question had consumed about 14-15 alcoholic drinks which he said caused him to have an alcoholic blackout. The report states: “Although he reports having previously consumed similar amounts of alcohol, he says he had not previously suffered a blackout. The offender does not regard his alcohol use as being problematic”. The Service did not recommend supervision on the basis that the Applicant did not recognise a need for intervention in regard to the offence or his alcohol use. The Service also noted the Applicant declined to make himself available for periodic detention or community service because of work commitments.

47. In relation to the disqualifying offence, the Applicant was sentenced to 12 months’ imprisonment, suspended on condition that he enter into a bond to be of good behaviour for a period of 12 months, and be subject to the supervision of the Probation Service in relation to drug and alcohol issues. Corrective Service records indicate that upon the commencement of the supervision and his entry into the Service, the Applicant “Appears indifferent to allegations”, stating “Me not knowing what I done can’t say anything”.

48. On 21 November 2007, as part of the Applicant’s supervision, Ms Narci Sutton, Psychologist, assessed the Applicant. She stated: “He has developed a rationale that allows him to minimise any responsibility for the offence, even responsibility for what he does when he is drunk. He told me that the victim had made it all up to get out of trouble with her boyfriend – which of course gives (the Applicant) permission to keep on getting drunk”. The Applicant was assessed on STATIC-99 testing as being a moderate-high risk of sexual offending on the basis of his youth and the fact he had not been in a live-in relationship for more than 2 years, and because the victim was a stranger. Ms Sutton, however, opined that the offending was more to do with his state of intoxication than with deviant sexual arousal. She indicated that the major risk factors are his alcohol abuse and associating with persons who also abuse alcohol. Ms Sutton suggested that he must attend alcohol and drug education and should be tested. She stated: “….I don’t really have much hope that he will modify his behaviour, except with counselling, age and responsibility. On the positive side he seems to have a good work ethic, a supportive family and basically good intentions”.

49. Following his conviction and sentence on 26 June 2007 for the disqualifying offence, the Applicant had further contact with the criminal justice system, resulting in following convictions:

50. On 18 February 2008, the Applicant was convicted of charges of destroy or damage property and resist officer in execution of duty in relation to events that occurred on 24 December 2007 (some 6 months after being sentenced for the disqualifying and whilst subject to the good behaviour bond). The charges arose after the Applicant was observed by police to be writing graffiti on a wall in the city. He was apprehended by police, however, he broke free and started running through the city, knocking over pedestrians in his attempt to evade police. The Applicant was fined $200 in respect of the property damage offence, and ordered to enter into a good behaviour bond for 12 months, to undergo and obey any directions arising from, psychiatric/psychological counselling; and to undertake educational development or drug and alcohol rehabilitation.

51. In his statement dated 29 October 2014, the Applicant said he does not remember the circumstances arising from his conviction for resist arrest. He states he believed the destroy/damage offence related to graffiti he did in Woy Woy public pools (though the facts indicated the offending occurred in the city). He said he did not attend counselling and rehabilitation because he worked 6 days per week.

52. On 31 March 2008, the Applicant was sentenced in relation to his failure to comply with the bond to be of good behaviour which had suspended his custodial sentence for the disqualifying offence. The Applicant was sentenced to 12 months’ periodic detention with a non-parole period of 6 months, with release subject to supervision.

53. Corrective Service records indicate that during the period of his supervision, the Applicant’s compliance with appointments was problematic and he continued to consume alcohol. The records specifically note the Applicant “engages in binge drinking on weekends, up to 12 schooners of full strength beer. Does not appear to consider this problematic R/V 11/03/08 Continues to binge drink despite alcohol related reoffence which constitutes break of s12 Bond". It appears that the Applicant was reluctant to participate in alcohol and drug intervention, including a relapse intervention program, citing work commitments.

54. At the conclusion of the supervision period in February 2009, Corrective Services records indicate Mr La Rosa complied with the terms of the bond. However, it is noted “Supervision with this Service was noted to be on a superficial level with attendance and compliance noted to be at times unsatisfactory due to failures to report and a reliance on others to ensure he attends for interview. Mr (BLI) verbally expressed that he has gained an insight into negative effects of binge drinking was having on his life”.

55. The Applicant continued to commit further offences. On 23 July 2009, the Applicant was convicted and sentenced for the offences of assault officer in execution of duty (x2), drive with low range PCA, destroy or damage property, aggravated deposit litter, remaining on enclosed land without lawful excuse, and refuse/fail to comply with direction.

56. The offending relates to incidents that occurred on three separate dates:

1. On 8 March 2009, the Applicant was involved in a brawl on a train while intoxicated. Transit officers were attempting to stop the brawl when the Applicant struck one of the officers in the mouth area with his elbow, causing the officer’s lip to bleed. Police were unable to interview the Applicant due to his level of intoxication. In his statement dated 29 October 2014, the Applicant said that a transit officer grabbed him because he was arguing with someone on the train who he pushed away. Under cross-examination, the Applicant said he was on a train coming back from Mardi Gras festivities and was wearing a funny looking hat. He said an individual teased him about his hat resulting in a verbal disagreement. The Applicant said a transit officer put his hand on his (the Applicant’s shoulder) and his reaction was to push it away. He denied a full brawl occurred, characterising it as an altercation with another individual. Under further cross-examination, the Applicant admitted he has tried to minimise his conduct, and that he was drunk at the time of the offence.

2. On 5 May 2009, the Applicant was driving a vehicle when he failed to react to stationary traffic and collided with a vehicle in front of him. He was charged with low range prescribed concentration of alcohol. In his written statement, the Applicant stated that he didn’t realise he was over the limit as he didn’t consume much alcohol on that day, and that it was an honest mistake. Under cross-examination, however, he admitted that he caused the accident as a result of being affected by alcohol.

3. On 4 July 2009, the Applicant, in the company of others, attended a gathering at a private home to which he was not invited. Police arrived and twice directed the Applicant and his associates to leave the premises. The Applicant threw a bottle of beer which landed on the footpath. The Applicant returned to the premises, despite being asked to leave a number of times by the tenants, and threw a bottle of beer across the room. The Applicant knocked the victim’s computer over and stomped on it, causing damage. The Applicant was subsequently arrested and taken to a police station. He was not interviewed due to his level of intoxication. Whilst there, the Applicant removed his penis from his pants and urinated in the station’s dock. While about to depart the police station, the Applicant spat on the chest of a police officer. Under cross-examination, the Applicant admitted he gate-crashed a party despite being directed away, kept returning, threw a beer bottle across a room, and that his actions were as a result of being drunk.

57. In relation to the offending detailed at (1) (2) and (3), the Applicant was sentenced to 3 months’ periodic detention, followed by a further 8 months with a non-parole period of 6 months, with release subject to supervision. He was fined a total of $1,150 and ordered to pay compensation of $500.

58. Corrective Services’ records indicate that shortly before his sentencing on 23 July 2009, the Applicant initially refused to sign documents in relation to his suitability for periodic detention or community service, indicating that it was too much hassle including work, and that he wanted to “risk it”. However, he did subsequently sign the documents shortly before sentencing occurred. A Pre Sentence Report indicates that during interview “the Applicant displayed insight into the effects of alcohol abuse and the negative influence it has on his behaviour. He stated that he now moderates his alcohol intake following his prior intervention and supervision with this Service; however he still presents as immature and lacks responsibility for his actions by minimising his behaviour”.

59. In cross-examination, the Applicant agreed that for years his parents had counselled him about his alcohol use, including in 2008. Yet he continued to use alcohol, which was clearly a factor in the offences committed in 2009.

60. When questioned about his failure to attend for drug and alcohol counselling, the Applicant said the courts (or probation service) did not inform him they would be referring him for such counselling, and that was the reason he did not attend.

61. The Applicant has not been convicted of any offences since 4 July 2009.

(i) The likelihood of any repetition by the Applicant of the offence and the impact on children of any such repetition

62. In her report, Ms Wyzenbeek, Clinical and Forensic Psychologist, provides details of her assessment of the Applicant, and in particular, the risk of sexual re-offending and his risk to children. In reaching her conclusion, Ms Wyzenbeek took into account static risk factors (the Static 99 test) and dynamic risk factors (‘Risk for Sexual Violence Protocol’ (RSVP)) as identified during her assessment of the Applicant. The Static-99 is an actuarial risk assessment which measures static factors. The RSVP is a clinician-rated structured clinical assessment tool that explores static and dynamic risk factors, in additional to individual future needs that could reduce the risk of recidivism.

63. Ms Wyzenbeek indicated the Applicant scored 5 on the Static-99 test, which places him in the moderate-high risk category. Reasons for this include the fact he has not been in a live-in relationship with an intimate partner for at least two years, his index non-sexual violence (his conviction for assault occasioning actual bodily harm), his prior non-sexual violence (common assault offences), and that the victim in the disqualifying offence was unrelated and a stranger.

64. In conducting the RSVP assessment, Ms Wyzenbeek, considered that the following factors increase the Applicant’s recidivism risk:

1. Evidence of reckless physical coercion in the form of verbal aggression, intimidating behaviour and the use of physical restraint during perpetration of the sexual offending.

2. Possible minimisation as the Applicant claims he has no memory of the offending.

3. Historically the Applicant possessed limited self-awareness of the factors and processes that placed him at risk of offending.

4. Past issues with alcohol use, including binge drinking, including in the context of criminal offending.

5. Past problems with intimate relationships, including argumentativeness, infidelity and sexual offending while in a relationship.

6. Past association with negative influences.

7. History of non-sexual criminality.

8. History of non-compliance with good behaviour bonds and superficial engagement with supervision.

65. Ms Wyzenbeek stated severe minimisation is not necessarily problematic and can be a common response by people who are confronted with having done something wrong. However, of relevance is whether the minimisation impacts on the offender’s compliance with risk management strategies such as monitoring and supervision. Ms Wyzenbeek stated the Applicant has generally been apathetic towards monitoring and supervision, complying superficially at best, demonstrated by his history of breaching good behaviour bonds and requiring external motivation to attend interviews with his parole officer.

66. During his interview with Ms Wyzenbeek, the Applicant told Ms Wyzenbeek he believes that his drug and alcohol use, negative peer pressure, and immaturity contributed to his offending. The Applicant told Ms Wyzenbeek that he had not consumed alcohol for about 5 months. The Applicant also said he stopped using cannabis 6 years ago and had ceased associating with peers who are a negative influence, and his decision-making and values have matured. Ms Wyzenbeek noted “research indicates that many juveniles will “grow out” of offending as they mature and adopt prosocial lifestyles”. Ms Wyzenbeek noted the Applicant “appears to be currently managing these dynamic risk factors effectively. However, given that these factors were functionally relevant to the perpetration of his sexual and nonsexual offending, should he experience difficulties managing these factors in the future, they are considered likely to play a future role in future offending”.

67. Ms Wyzenbeek also indicated the Applicant has been able to establish and maintain stable intimate relationships with age-appropriate partners. She noted, however, that his offending occurred while in a relationship, and that argumentativeness, mutual dissatisfaction and infidelity were also present, which point to difficulties the Applicant has with resolving relationship issues. The Applicant told Ms Wyzenbeek that he is in a serious relationship with he considers strong, healthy and supportive. Ms Wyzenbeek indicates that should the relationship break down, the Applicant’s acute risk of reoffending may be increased.

68. Ms Wyzenbeek described factors that militate favourably to the Applicant, including the fact that he has not engaged in further or continuing sexual offending, the subject sexual offending did not involve psychological coercion, he has a moderate intensity sexual drive, he has respectful and age appropriate sexual relationships, and no evidence of an attitude that supports or condones sexual violence. She stated the Applicant does not appear to have a personality disorder or a mental illness, and he has a stable employment history. She stated there is no evidence of difficulties coping with stress, no history of child abuse or deviant sexual interests, no evidence of violent or suicidal ideation, and that the Applicant has an ability to plan and follow through with meaningful goals.

69. Ms Wyzenbeek stated that RSVP testing indicates the Applicant poses a low to moderate risk of sexual recidivism. Taking the static and dynamic risk factors together, Ms Wyzenbeek assessed the Applicant as presenting an overall moderate risk of sexually reoffending. She stated that if he were to reoffend, it would likely constitute similar conduct characterising the disqualifying offence, that is, with an adult female and while under the influence of alcohol, and would be unlikely to escalate to life-threatening violence.

70. Ms Wyzenbeek stated the Applicant’s “sexual offence seems to have been an isolated incident of sexual violence in that he has no prior or recent sexual offending history. In addition, (the Applicant) has not come to the attention of the criminal justice system since July 2009. Based on (the Applicant’s) history, there is no evidence of a particular risk to children and it is noted that he currently resides with his two month old daughter, has weekly supervised contact with his two year old son and regular contact with his step-siblings children without any concerns being raised”.

71. Ms Wyzenbeek assessed the Applicant’s current risk to children as being low. She stated that the Applicant “has not been charged with any offences since July 2009 and he reports intentionally changing his lifestyle in order to ameliorate his risks of engaging in crime. It is further noted that as an adult, he has not been charged with any offences committed against a child/youth and that he has maintained regular contact with children without any concerns being expressed”.

72. The evidence given by the Applicant during the Tribunal proceedings is detailed below. As will be seen, the information provided by the Applicant during his interview with Ms Wyzenbeek in certain respects is different from the evidence he gave to the Tribunal. When the Applicant’s evidence was put to Ms Wyzenbeek, she indicated that she would want to consider that new information in further detail. Ms Wyzenbeek was not able to say that her risk assessment results (and in particular the category in which she had placed the Applicant) would necessarily change, though she said it could possibly be higher depending on the Applicant’s stress and coping factors. Ms Wyzenbeek did, however, express the opinion that in light of the Applicant’s changed circumstances, the risk factors were now more acute. She also stated that the Applicant’s management of the risk factors are not as effective as what he had indicated to her. She stated that as a result of the presence of risk factors including alcohol use, the relationship break-up, and association with negative influences, there would appear to be an increased risk of offending. However, Ms Wyzenbeek said that future offending is likely to involve an adult female in circumstances similar to his disqualifying offence, and there is no indication he would commit an offence against a child. Ms Wysenbeek agreed that it can be detrimental for children to witness violence, and can be indirect victims. However, on the information before her, there was no indication of domestic violence or violence perpetrated in front of children.

(j) Information given by the Applicant

73. Since 23 July 2009, the Applicant has not been convicted of any further offences. The Applicant has been employed by his current employer for a period of 8 years, both as a trainee and as a carpentry formworker. His employer reports that the Applicant has not been the subject of any disciplinary action or notice of complaint. He states the Applicant is an asset to the company and for many years has been making the long journey from his home to his workplace and various sites.

74. The Applicant relies on references in support of his application. They include a letter from his former girlfriend, with whom he was in a relationship between 2004 and 2008. She states that during the 10 years she has known him, she has never seen or heard of him being violent, with the exception of the disqualifying offence. She further stated that on special occasions they would consume alcohol together, during which she observed no significant changes in his behaviour. She said that he is a caring and compassionate man who was adored by her young cousins, with whom they would spend time.

75. The Applicant’s brother in law states he has known the Applicant for 15 years during which time he has known the Applicant to be loving and caring. He said the Applicant has looked after his three children on many occasions and he is loved by the family. The Applicant’s brother in law states he has not witnessed the Applicant to be drunk.

76. The Applicant’s current partner has known the Applicant since 2011. She states he is a loving partner and father to their baby daughter. She states he has never verbally, physically or sexually abused her or indicated a tendency to do so.

77. The father of the Applicant’s current partner states the Applicant has spent a lot of time at his home, during which time he has found the Applicant to be polite and respectful, including to his daughter. He also states the Applicant is a loving and caring father.

78. The Applicant’s parents state that they are deeply saddened and disappointed about the Applicant’s conduct which led to his conviction for the disqualifying offence, which they state is “totally out of character”. They state the Applicant is a loving and caring man who now realises the consequences of his actions. They state that things have changed for the Applicant now that he is a father, a provider and a mature adult. They indicate that the Applicant and his partner visit his child at their home every Sunday and that the Applicant and his son have a special bond.

79. In his written statement and in his oral evidence, the Applicant said that his criminal offending occurred when he was younger. He stated that he is not the same person he used to be and that he has learnt to be a responsible man. He said that having children has meant that he doesn’t want to be the sort of person that he was when the offending occurred. He said he wants to work and save money so that he can support his family. He said that for the past 4 to 5 years he has not committed any further offences and he intends to keep it that way. He said that he doesn’t associate with the same people anymore and gets tested for drugs and alcohol (in the context of his employment).

80. In his written statement, the Applicant stated that he had experienced an alcohol blackout on only two occasions in total, which involved the combination of alcohol and some drugs, being marijuana and ecstasy. He had stated that he had stopped using drugs completely after these incidents (which occurred in the context of criminal offences). He did not report to Ms Wyzenbeek the use of any other illicit substances besides marijuana and ecstasy, which he advised Ms Wyzenbeek he had ceased when he was 19-20 years of age. However, under cross-examination, the Applicant conceded that he had used a combination of alcohol and drugs ”a few more times than that”, and the last time was in fact “a few years ago” (rather than around July 2009 as indicated in his statement and during his interview with Ms Wyzenbeek). In addition, despite indicating in his statement that the drugs he used were marijuana and ecstasy, when specifically questioned, the Applicant said that he had tried “most things really”, including gas and acid trip.

81. In addition, when interviewed by Ms Wyzenbeek on 17 December 2014, the Applicant had advised her that he had last consumed alcohol approximately 5 months earlier, and had acknowledged the link between his alcohol use and his offending. However, upon questioning by the Tribunal, it became evident that the Applicant is continuing to use alcohol. He said he typically goes out every second weekend with either his girlfriend or his mates, and he consumes about 5-6 drinks over the evening. He said that on the weekend before last, he went to a Leagues club with a mate. He admitted that mate, who he has known for 18 years, might have been present during the offences that occurred on the train in 2008 and at the party in 2009. (He said this friend has his ‘head screwed on’ and holds a job with the Railways).

82. Moreover, it emerged during questioning, that the Applicant is no longer living with his girlfriend and their baby daughter, saying that he “wasn’t really living with her properly”. Rather, he said that he doesn’t have permanent accommodation, is not paying any rent or board, and instead has been staying overnight with mates at their properties. This includes the mate he has known for 18 years, and another mate he has known for 20 years.

83. When asked about the status of his relationship with his girlfriend, the Applicant said he and his girlfriend were having a break. He said this was as a result of disagreements, mainly about parenting, and that it had been stressful. He said he last stayed overnight with his girlfriend and daughter about a week and a half ago. However, he also said that he was not sure whether he was in fact permitted to stay with his girlfriend and daughter because of the refusal of the Working with Children Clearance. He said they had not been in intimate relationships with other people and that he hopes that they can reconcile in the future and live in his parent’s home. He said that he and his girlfriend are sharing the financial responsibility of raising their baby daughter. He said he did not tell his girlfriend about his conviction for the disqualifying offence until the bar was put in place.

84. Ms Smith submitted that the Applicant was only 19 at the time of the disqualifying offence. She said life was quite different for the Applicant at that time as he wasn’t a father and he associated with other friends. A friend with whom the Applicant has a long friendship has his ‘head screwed on’ and a responsible job. Ms Smith stated the disqualifying offending and the subsequent offending have been against adults. There have been no incidents involving children, either directly or indirectly. Ms Smith referred to Ms Wyzenbeek’s opinion that the Applicant’s risk to children is low and that there is no indication that children are at specific risk. Ms Smith submitted that the Applicant is now a father of two children and works full-time, 6 days a week. She submitted that the Applicant’s life has changed and he wants to be a responsible parent. Ms Smith stressed the need to link “risk” with “the safety of children”.

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

85. The Respondent opposed the making of the order sought, and submitted on the evidence the Tribunal could not be satisfied that the Applicant had discharged his onus that he does not pose a risk to the safety of children. Ms Harstein submitted the Applicant has displayed no insight into his offending conduct or the harm caused to the victim. Additionally, he has not attended counselling and maintains he does not need to do so. Ms Harstein said that although the Applicant does not pose a risk of sexual offending involving children, he has nevertheless been assessed as a moderate risk to adults, and the risk is an acute one – made more so in light of the evidence that the Applicant continues to consume alcohol and is experiencing a break in his relationship. She said that while the risk to children is slighter less than when children are not direct victims, nevertheless there is a real and appreciable risk of children getting caught up in reckless violence. She said that in the past when the Applicant has been violent as a result of alcohol consumption, he has not cared who has been around him. She submits that in light of the Applicant’s substantial record of alcohol-fuelled crime which includes a violent sexual assault occasioning actual bodily harm, it is too soon to be satisfied that the Applicant poses no risk into the future to the safety of children.

Conclusions and Orders

86. The role of the Tribunal in this application is to determine whether the Applicant has discharged his onus and rebutted the presumption that he does pose a real and appreciable risk to the safety of children because of his past offending violent conduct. While the Applicant has not committed any further disqualifying offences of the kind of which he was convicted in 2007, he has committed a number of further offences, including those of a violent nature and in which alcohol has played a significant role.

87. Since 2009, there have been no further convictions for criminal offences. The psychological evidence indicates the risk to children is low. However, on all of the evidence before me, I am unable to make a finding that the Applicant has any real insight into his offending, and I am not satisfied that he has taken sufficient steps to mitigate the risk of further offending.

88. The Tribunal accepts that the Applicant’s motivation for obtaining a Working with Children check clearance is to enable him to reside in his parent’s home and also to have unsupervised contact with his three year old son. It is not being sought to enable him to gain employment which places him in contact with children. Indeed, he enjoys stable employment with his current employer and it appears he intends to continue to do so.

89. The Applicant expresses a desire to provide for his family, including his son and baby daughter. I do not doubt that his desire is a genuine one. It is evident he loves and cares for his family, and his parents are clearly supportive. He also enjoys support from his extended family, friends and employer, as detailed in the references tendered in support of his application. He very much wishes to be able to return to live in his parent’s home. Indeed, this appears to be a large factor is his application to the Tribunal. He has not, for example, taken steps to secure accommodation for him alone, or for him and his girlfriend and baby daughter. In this regard, I note there appears to be no legal barrier preventing him from doing so. Furthermore, his claim during questioning that he believed he may not be able to stay with his girlfriend and baby daughter due to the order of the Children’s Court and/or the Respondent’s refusal to grant him a Working with Children’s check clearance is not credible, and is inconsistent with the other evidence that he has been spending time, including overnight stays, in their company.

90. I am not satisfied the Applicant has taken sufficient steps to mitigate the risk of him relapsing into the circumstances out of which the disqualifying offending occurred. I also remain concerned about the Applicant’s minimisation of his offending conduct as detailed in his written statement dated 29 October 2014. Whilst giving evidence before the Tribunal some four months later, the Applicant has attempted to take a greater degree of responsibility for his actions and acknowledgement of the harm to the victim. However, his written statement, adopted in evidence in chief, remains troubling. In it, he shows little insight into the harm he caused the victim, and his statements suggest that he believes the victim was not a credible witness and may bear some responsibility for what occurred. In almost every aspect of the disqualifying offence he seeks to minimise and apportion blame elsewhere.

91. In addition, parts of the evidence given by the Applicant during the hearing were in stark contrast to the information he provided to Ms Wyzenbeek and in his written statement. Furthermore, the fact that this new information was only revealed upon questioning by the Tribunal is concerning. The Applicant did not, for example, volunteer important evidence such as the change to his accommodation and the status of his relationship in examination in chief when he had the opportunity to do, and in the context of his obligation in s28(5) to fully disclose to the Tribunal any matters relevant to the application. In this regard, I find it difficult to accept that the Applicant, in a period of only 4 months, has genuinely gained insight into his offending and the harm it caused the victim, especially in the absence of any treatment, counselling or specific education.

92. I also find it difficult to accept that the Applicant’s circumstances are now significantly different from the circumstances he was in at the time of his offending. Certainly, he is now a father of two children, and has 8 years of continuous and consistent employment. However, at the present time, he does not have stable accommodation and his current relationship is also not particularly stable. He continues to consume alcohol, including up to 6 drinks on a single occasion. Whilst he says this is not to the same degree as in the past, it occurs in situations including those which do not appear to be appreciably different from the circumstances in which his offending arose, that is, consuming alcohol in licenced premises with his mates.

93. In addition, the Applicant’s failure to properly address, or obtain professional help to address, the use of alcohol in the context of the disqualifying offence and other offences is significant. The Applicant maintains that he does not require counselling or rehabilitation, and has sought to excuse his failure to engage in such treatment because he does not believe he needs to, his work commitments have prevented him from doing so, or that the relevant authorities did not arrange it for him. In any event, given the fact that alcohol was present in the disqualifying offence and every other subsequent offence, his failure to address this aspect of his offending is of particular concern.

94. Consequently, having regard to the requirements of section 4 of the Act, I am not satisfied that the Applicant has discharged his onus as set out in subsection 28(7) of the Act. Hence, the appropriate order, at this time, is to refuse the Applicant’s application for an enabling order.

95. Finally, my findings are made in the context of the statutory provisions in the Act, which regulates those persons wishing to engage in child-related work. Whether the Applicant poses a real and appreciable risk to his child in the context of ongoing contact with his child remains a matter for the Department or the Children’s Court to determine, where different considerations may apply.

96. In addition, the Tribunal notes that Ms Wyzenbeek has recommended the Applicant undertake treatment and/or counselling. The Tribunal’s refusal on this occasion to grant an enabling order does not necessarily mean that with treatment and counselling, the Applicant will fail to do so in the event he makes a further application at some time in the future. That application, if made prior to the period prescribed in section 21(5)(a) of the Act, will be a matter for the Respondent to determine, on the information provided by the Applicant at that time, as to whether that application be permitted.

Order:

97. The Applicant’s application for an enabling order is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 19 March 2015