BMP v Children's Guardian

Case •

[2015] NSWCATAD 201

•

02 October 2015

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BMP v Children’s Guardian [2015] NSWCATAD 201
Hearing dates:29 April 2015
Date of orders: 02 October 2015
Decision date: 02 October 2015
Jurisdiction:Administrative and Equal Opportunity Division
Before: ADCJ Hon G Mullane (Principal Member)
Decision:

1.The application by the Applicant for enabling orders filed 29 September 2014 is refused and dismissed;
2. Publication or broadcasting of the name or other identifying information of the Applicant or any witness is prohibited.

Catchwords: Working With Children Clearance – Application for Enabling Orders – Convictions - child pornography
Legislation Cited: Child Protection (Working With Children) Act 2012
Child Protection (Prohibited Employment) Act, 1998
Crimes Act 1900
Cases Cited: Commission for Children and Young People v V [2002] NSW SC 949
Category:Principal judgment
Parties: BMP (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
B Quinn (Applicant)
V Hartstein (Respondent)

  Solicitors:
Crown Solicitor (Respondent)
File Number(s):1510543
Publication restriction:Publication or broadcasting of the name or other identifying information of the Applicant or any witness is prohibited.

Reasons for decision

Introduction

  1. On 28 September 2004 Police raided the home of the Applicant’s parents, where he resided. The Police took possession of his computer, printed photographs and other items.

  2. The Applicant was arrested and charged that day with 3 counts of possession of child pornography under the then section 578B of the Crimes Act 1900. The first was in respect of 36 images depicting young females aged approximately 8 to 15 in various stages of undress and the second was in relation to 58 (mpg) movie files depicting young girls approximately aged 9 to 15 in various stages of undress. The third charge was for possession of child pornography being 400 to 600 movies on CD Roms depicting girls appearing to be aged in the range 9 to 15 years.

  3. Section 578B of the Crimes Act 1900 at the time of the offence provided as follows: -

578B. Possession of child pornography

In this section:

"child pornography" means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.

“Classification Board" means the Classification Board established under the Commonwealth Act.

"classified" means classified under the Commonwealth Act.

"Commonwealth Act" means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth.

"computer game" ,

"film" and

"publication" each have the same meanings, respectively, as in the Commonwealth Act.

"law enforcement agency" has the same meaning as in section 13 of the Criminal Records Act 1991, and includes a person or body prescribed by the regulations for the purpose of this definition.

A person who has in his or her possession any child pornography is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years (or both)

Nothing in this section makes it an offence:

for any member or officer of a law enforcement agency to have any child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under any Act or law, or

for any person to have any child pornography in his or her possession in the exercise or performance of a power, function or duty relating to the classification of such material conferred or imposed on the person by or under any Act or law, or

for a person to have in his or her possession any film, publication or computer game that is classified other than as RC.

Proceedings for an offence under this section:

are not to be commenced later than 2 years after the date of the alleged offence, and

in the case of a film, publication or computer game that is unclassified at the time of the alleged offence, are not to be commenced until the film, publication or computer game concerned has been classified, and

are to be dealt with summarily before a Local Court.

(4A) However, subsection (4) (b) does not prevent a person being arrested for, or charged with, an alleged offence against this section before the film, publication or computer game concerned has been classified.

It is a defence to a prosecution under this section to prove:

that the defendant did not know, or could not reasonably be expected to have known, that the film, publication or computer game concerned is or contains pornographic material involving a child under 16, or

that the person depicted in the material was of or above the age of 16 at the time when the film, computer game or publication was made, taken, produced or published.

In any proceedings under this section, a certificate issued under section 87 of the Commonwealth Act signed (or purporting to be signed) by the Director of the Classification Board (or by the Deputy Director of the Classification Board) and stating that the film, publication or computer game concerned is classified RC on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16 is prima facie evidence of the matter stated in the certificate.

A court that convicts a person of an offence under this section may order that any child pornography in respect of which the offence was committed is to be destroyed or otherwise disposed of as the court thinks fit.

  1. The Applicant had obtained the items from the internet using his home computer.

  2. The Applicant was convicted of the first 2 charges by a Magistrate in a Local Court Downing Centre, Sydney, on 8 September 2005 and sentenced to perform 250 hours of Community Services. The prosecution withdrew the third charge.

  3. The Applicant appealed the convictions to the District Court. On 14 July 2006. the convictions were confirmed and the sentences were reduced to 150 hours of Community Services.

  4. Section 578B of the Crimes Act 1900 has subsequently been repealed and replaced by other provisions.

  5. Nevertheless the conviction rendered the Applicant a disqualified person under the Child Protection (Working with Children) Act 2012 (“the Act”) and the Act, subject to provisions that will be referred to later, prohibits the Children’s Guardian from issuing a Working with Children Check Clearance to a disqualified person.

  6. For many years the Applicant had been employed as a teacher in a high school.

  7. In accordance with the requirements of the Act, the Applicant applied to the Children’s Guardian in August 2014 for a Working with Children Check Clearance. The Children’s Guardian notified the Applicant on 5 September 2014 that the application for a check clearance was refused because of the disqualifying offences. His employment was terminated when he was refused a Working With Children Check Clearance.

  8. The Applicant has since been working from home as a music teacher and wishes to be able to teach children. This was the hearing of the application of 29 September 2014 of the Applicant under s.28 of the Act for enabling orders requiring the Children’s Guardian to disregard the convictions and issue a check clearance.

The evidence

  1. The evidence before Tribunal comprises the following: -

  1. The Applicant’s Application filed on 29 September 2014 to the Tribunal annexing the refusal letter from the Children’s Guardian to the Applicant of 5 September 2014;

  2. The indexed bundle of documents numbered 1 to 14 filed on 8 January 2015 by the respondent Children’s Guardian;

  3. The Affidavit of the Applicant sworn 19 January 2015;

  4. The affidavit of a retired high school teacher who worked with the Applicant sworn 23 January 2015;

  5. The affidavit of the Applicant’s brother sworn 25 January 2015;

  6. The report Dr Stephen Allnutt of 27 January 2015;

  7. The Section 31 response from the Department of Family and Community Services received by the Children’s Guardian on 12 April 2015 and filed with the Tribunal on 20 April 2015;

  8. The Section 31 response from the Department of Corrective Services filed by the Children’s Guardian on 21 April 2015;

  9. Exhibit R1 comprising letters, emails and other documents provided by the counsel for the Applicant to Dr Allnut – on or before 27 January 2015;

  10. Oral Evidence by the Applicant on 29 April 2015;

  11. Oral evidence on29 April 2015 of the retired high school teacher who worked with the Applicant;

  12. Oral evidence of Applicant’s brother on 29 April 2015;

  13. Oral Evidence of Dr Stephen Allnutt on 29 April 2015;

  14. Exhibit R2 comprising of the letter from the Applicant’s counsel to Dr Allnut dated 7 December 2014;

  15. A letter dated 3 January 2014 from the Applicant’s counsel;

  16. A letter dated 3 January 2014 (sic) from the Applicant’s counsel to Dr Allnut;

  17. Letter dated 27 January 2015 from the Applicant’s counsel to Dr Allnut; and

  18. Section 28 of the Child Protection ( Working With Children) Act 2012.

The Relevant Provisions of the Act

  1. Section 4 of “the Act” provides:

“The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act”

  1. Section 6 of the Act provides that the person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.

  2. Subsection 18(1) of the Act prohibits the Children’s Guardian from granting Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified person is:

“a person convicted before, on or after commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,”

  1. Paragraph 1(1)(y) of Schedule 2 to the Act expressly provided at the time that an offence under Section 578B of the Crimes Act 1900 was a disqualifying offence.

  2. The Applicant was born on 5 September 1970. At the time of the offence he was 34 years of age and an adult.

  3. Section 28 of the Act provides:

(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:

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

the person’s clearance has been cancelled, because the person is a disqualified person.

(4) The Commission 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 Commission 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.

(9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.

  1. Section 30 of the Act requires the tribunal to consider the following matters in determining an enabling application under s.28:

  1. 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,

  2. the period of time since those offences or matters occurred and the conduct of the person since they occurred,

  3. the age of the person at the time the offences or matters occurred,

  4. 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,

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

  6. whether the person knew, or could reasonably have known, that the victim was a child,

  7. the person’s present age,

  8. the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

  9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,

  10. any information given by the Applicant in, or in relation to, the application,

  11. any other matters that the Commission considers necessary.

The seriousness of the offence with respect which the Applicant is a disqualified person

  1. The Applicant was convicted of two counts under Section 578B of the Crimes Act for possession of child pornography as at 8 September 2004. One of the offences was in respect of the 36 coloured printed photographs of young females aged approximately 8 to 15 years old at various stages of undress, which he had downloaded from the internet and printed out on photocopy paper. These were found in his bedroom. The other charge was for possession of 58 short (mpeg) movies depicting young girls aged approximately 9 to 15 in various stages of undress, which had been obtained from the internet and stored on the computer hard drive.

  2. The legislation provides for a maximum sentence of imprisonment for 2 years. The District Court fixed a penalty of 150 hours of community Service. The offence is serious in terms of the consequences for children depicted in child pornography. It is the purchasers and users of child pornography that fund the industry and thereby the exploitation of the children depicted and any serious long term adverse consequences for such children. However, as the Local Court held, the quantity of material was small and there was no evidence of the Applicant sharing it with others, showing it to others or selling it, and therefore it was at the low end of the range of such offences.

The period of time since the offences and conduct of the Applicant since the offence occurred

  1. It is almost 11 years since the offence occurred. The evidence does not disclose any subsequent charges or convictions. The Applicant in his affidavit swore that he has not downloaded any other pornographic material since 2000. That does not totally exclude the possibility of any other such offence having occurred. The Applicant has demonstrated poor credit in connection with other issues.

  2. The Children’s Guardian wrote to the Applicant asking for answers to a series of relevant questions for consideration in connection with his application for a Working with Children Check Clearance. He did not answer them.

  3. When the topic was raised at a directions hearing on 20 November 2014, notwithstanding the Applicant’s obligation under ss.28(5) of the Act for him to make full disclosure of all relevant matters, on his instructions his counsel told the tribunal he would not respond to the letter.

  4. The Applicant is now almost 45 years of age and at the Tribunal hearing he falsely denied that the second charge related to 58 short films. He conceded that he had said that he had downloaded the material from only one adult pornography site. It was put to him that that was false and he conceded that it was. It was put to him that he had downloaded from more than one pornography site and he denied this. He conceded that in Court he had accepted the images were of children. It was put to him that he knew it was illegal to download pictures of naked children with their genitalia exposed and he conceded that. Some of material showed the genitalia of the girl or girls.

  5. In his cross-examination, he purported that he printed 30 of the relevant photographs only because he had another 30 pages of photo quality paper and “I didn’t want to waste the photographs there so I used them all up”. And “I also wanted to see how long, how many copies one ink cartridge could actually make, and I think it’s around 35.” The Tribunal did not accept that evidence.

  6. He then said the he had not printed anything else since he printed the subject photographs and that he did that in 2000. He said that he then left it in a drawer beside his bed and “forgot they were there”. He had told the Police in interview that he had used them while he masturbated. The Tribunal did not accept that he “forgot they were there”.

  7. He purported that the 36 photographs he printed were printed “to test the printer” It was put to him that he told the Magistrate that he also printed pictures of beaches and surfer, and his response was that he could not recall. The Tribunal did not accept that, given the images, he printed them to test the printer.

  8. At the hearing before the Magistrate he testified that he didn’t know when he downloaded the photographs of the girls that it was illegal. He testified that the reason for printing them was “just to check copy quality”. The Tribunal did not accept that explanation.

  9. At the hearing before the Magistrate, when asked whether the nude photographs “caused sexual activity”, he denied the proposition. But when interviewed by Police on the day the warrant was executed, he told the Police that he occasionally looked at the photographs whilst masturbating.

  10. In his Affidavit of 19 January 2015 the Applicant denied having looked at the photographs whilst masturbating and he adhered to those denials in his cross-examination in the Tribunal. In the criminal proceedings before the Magistrate his denial of having admitted using the photographs for masturbation was not accepted. Nor does the tribunal accept it.

  11. In this hearing he denied that it occurred to him that the photographs were pornographic when he printed them. The Tribunal does not accept that.

  12. The Applicant admitted in cross-examination that he did not inform Dr Allnutt that he had printed the images of young girls. When asked why he hadn’t, he replied “I don’t know”.

  13. When it was put to him that he had told Dr Allnutt that he had sexual fantasies about Asian women over 25, he said that he was referring to Chinese and Japanese women and that it was ”because they have the same body shape as western girl about 14 or 15”. He told Dr Allnutt, though, he didn’t have fantasies about girls under 16. This was drawn to his attention when he was asked why he downloaded the photographs of such girls. He answered “because I thought it wasn’t pornographic”. The Tribunal considers this excuse to be a transparent falsehood.

  14. When asked why he downloaded pictures of naked girls under 18, he said, “it is part of European culture such nudism”. In his affidavit he said that his parents come from the culture that often frequented nearby nudist camps in Croatia. “My parents bought (sic) us up to understand that nudism was not evil. I came from very caring and loving family”. He then conceded that he doesn’t know whether looking at naked girls is part of that culture. And he also said that he didn’t know why he referred to nudity being part of European culture.

  15. He falsely denied having downloaded 58 short movies depicting child pornography. He falsely denied that he had such movies in his possession when the police conducted the raid.

  16. A pre-sentence report was prepared by Probation and Parole Service for the hearing in the Local Court. That report is dated 29 August 2005. In the report “he claimed that he only connected with one internet site on perhaps two occasions approximately 3 years ago and had forgotten that he had printed photographs and he had downloaded the materials from the site. [BMP] claimed that he had been curious and had not thought his actions were hurting anyone or illegal. He said he had never any sexual interest in children and had always acted in an appropriate way as a teacher. Further that he ‘should have known better’ and presented as apologetic, shamed and remorseful in regard to is actions.”

  1. In cross-examination at the Tribunal hearing, the Applicant said that he had accessed a pornographic site only once. When asked why he said it was twice, his answer was, “perhaps pressure”. It was put to him that he told the Police that he accessed the pornographic site about three times and paid $70.00. He responded “I can’t recall”. He then conceded that it could be true that he accessed a site 3 times and paid $70.00.

  2. In his application to the Children’s Guardian for a clearance he relied upon the fact that Section 578B had since been repealed and also on the ground: “there was no victim”. In his application to the Tribunal, one of the grounds he again relied upon was “there was no victim”. The Magistrate found in her reasons that the Applicant during the hearing was denying the offences and did not express any contrition, although he had expressed contrition and remorse to friends and family. The evidence before the tribunal established that although he had expressed contrition and remorse to family and friends and Dr Allnutt, Those of such people who gave evidence had not been told the full extent of his offences and by omission and misrepresentation, the Applicant had significantly minimised the facts.

  3. That was substantially so with Dr Allnutt. Before the tribunal it appeared the Applicant had not embraced the proposition that the children in child pornography are themselves victims of those who create such pornography and those who purchase or use it. He appeared to have no genuine empathy for the children. In re-examination a leading question was put to him by his counsel, referring to “the girl in the pictures”, “Today you see her as a victim?” to which he responded “No.” Then, only after a noticeable pause, he said “Yes”.

  4. The Tribunal concluded that he does not consider that the children portrayed in pornographic images are “victims”.

  5. The Police record indicates that in addition to the material subject to the charges, they located around 400 to 600 movies on CD-ROMs depicting girls that appeared to be in the age range of 9 to 15 and were in states of undress. Considering the volume of material, legal experts downloaded samples from number of the CD’s for submission to the Office of Film and Literature Classification Board for the purpose of obtaining a decision of “refused classification” (RC) to satisfy the Court that they were pornographic. But because of delays in that Board, the hearing date of the criminal proceedings arrived before the sample movies were considered by the Board so the Police on the hearing date withdrew the charge in respect of the movies as they had not yet been refused classification. The Tribunal is comfortably satisfied that those movies were pornographic, and would have been refused classification because of that.

  6. The Tribunal does not accept the submission by counsel for the Applicant argument that because of the presumption of innocence in Criminal law the Tribunal should not take into account the evidence in relation to the 400 -600 movies on CD Roms. These are not criminal proceedings. The withdrawal of the third charge does not create any issue estoppel in these proceedings. The evidence in relation to these films is relevant to the issue of whether the Applicant poses a risk to the safety of children.

  7. The evidence established that the search warrant was issued as a result of a multi-national initiative in conjunction with overseas law enforcement agencies where payments through an intervening entity for services from child pornography sites were used to locate the customers purchasing child pornography.

  8. Dr Allnutt, the forensic Psychiatrist instructed by the Applicant’s counsel to provide an assessment of the risk the Applicant poses to children, reported that the Applicant told him he had been looking at an adult pornography site and purchased pornography that the court later held was child pornography. Dr Allnutt continued, “At the time he made the purchase he said he didn’t think twice about what he was buying. He had not regarded them at the time as illegal images. He downloaded them onto his computer and stored them in his hard drive. He said he was using the older images for masturbatory purposes but denied using the younger images (that is, those that formed part of the conviction) for such purposes. The images were of naked girls, some fully clothed and some not fully clothed. He denied any intention at the time to download underage pornography. He said that had he been aware that they were illegal, he would have deleted them. He said that overall, out of a total of 36 images found on his computer, 10 were found to be of underage girls or images of girls who looked underage.”

  9. The reference to “naked girls, some fully clothed and some not fully clothed” was not explained. The statement that only 10 of the 36 photographs being of underage girls or girls who appeared to be underage is inconsistent with the police evidence and the findings of the courts.

  10. When asked by the police after his arrest what age he thought the girls were in the photographs, he answered “about 13”. At the hearing before the magistrate he said they appeared to be 16.

  11. The evidence reveals that the Applicant alleged he attended about 7 counselling sessions from the start of 2006. The counsellor was not identified and did not give evidence. Despite the adverse consequences for him of his offending behaviour, including termination of his career as a high school teacher, there is no evidence that the Applicant has sought any diagnosis, counselling, therapy or other help from a psychologist or psychiatrist or other relevant expert to address any interest in child pornography or any interest in sexual activity with children.

  12. The attitude of the Applicant to his offending conduct since the offences has been one of minimisation and denial. He has denied the offences; denied the material is pornographic; alleged that some of the “naked girls” in the printed images were “fully clothed’; claimed that some of them appeared to be 16 or over; denied he downloaded material from more than one pornography site; falsely alleged it was an adult pornography site; falsely alleged he only printed the images to test his new colour printer and later to see how many copies a cartridge would last; falsely alleged that he printed the whole 36 because he wanted to use up the rest of the photo paper; denied he had any sexual interest in the material; denied he had any sexual interest in children; purported his interest in pictures of nude or partly clad girls was attributable to European Culture and his family’s attendance at nudist camps in Europe when they lived there; failed to tell Dr Allnutt that he printed 36 of the pornographic images; denied he downloaded the 58 short movies; failed to tell Dr Allnutt of his conviction in relation to those; denied in cross examination that he had possession of those when the police conducted the raid; falsely swore in his affidavit there were only 9 of those; falsely swore in his affidavit in these proceedings that the conviction in relation to short movies was for only 9, when it was for 58; made no reference in his affidavit of 19 January 2015 to the charge or facts in relation to the third charge relating to 400 to 600 movies and the reason the charge was withdrawn; denied there was any victim of the disqualifying offences; denied he used the images of younger girls for masturbatory purposes; falsely stated that if he had known the images were illegal he would have deleted them; falsely alleged that only 10 of the 36 photos printed were of underage girls or girls that appeared to be underage; denied he knew when he committed the offences that the material was pornographic; has not admitted any need for professional help in relation to his use of child pornography and has not relied on any evidence from any expert he has consulted for therapeutic services.

  13. The tribunal is comfortably satisfied that any empathy he has expressed towards the children in the pornographic material is not genuine. The Tribunal also concluded that he is not genuinely remorseful about his conduct the subject of the disqualifying convictions.

The age of the Applicant at the time of the offences

  1. The Applicant was 33 years and 11 months at the time of the offences.

The age of the victim at the time of the offences and any matters relating to the vulnerability of the victim

  1. Clearly the victims of the offences were the children photographed in the pornography which the Applicant acquired. They were aged in the range 8 years to 15 Years. They were children. They did not have proper adult protection from such exploitation. They were extremely vulnerable.

The difference in the age between victims and the Applicant and their relationship (if any)

  1. The Applicant has no relationship with the victims. At the time of the downloading or printing of the material he was about at least 16 years older than the victims. At the time of the possession offences he was at least 19 years older than the depicted ages of the victims.

Whether the Applicant knew or could reasonably have known that the victims were children.

  1. Counsel for the Applicant in written submissions argued that “The victim was aged 13-15 years and therefore was not a child but a young person.” But For purposes of the Act section 5 defines “children” as ”persons under the age of 18 years”.

  2. There is evidence that the Applicant before the police raid had used his credit card to make payments for access to numerous pornography sites on the internet including “Adorable Teens” (2 subscriptions), “Child Rape”, “Beautiful Lolitas”, “Beautiful Age”, ““Children of God”, “”Best Lolitas on the Web”, “Real Lolitas Site”, “Fuckable Kids”, “Children Force to Porn”, “Lolita’s Home”, “Nudist Gallery” (3 subscriptions), “Russian Lolita Preteen” video, “Russian Preteen” (3 subscriptions), “Young and Innocent”, “Sweet Early Age”, “Tight Teasers”, and “Young Preteen”.

  3. It is a very serious conclusion, but the Tribunal is comfortably satisfied that the Applicant knew at the time of the disqualifying offences that the material depicted children who were under 16 or appeared to be under 16 and knew it was pornography.

The Applicant’s present age.

  1. The Applicant is now almost 45 years of age

The seriousness of the Applicant’s total criminal record and his conduct since the offences occurred.

  1. The Applicant has no convictions other than two disqualifying offences.

  2. The evidence indicates that the Police did not proceed with the charges in relation to the 400 to 600 movies on CD-ROMs because the samples of the movies had not been reviewed by the Office of Film and Literature Classification Board in time for the hearing.

  3. Since the offences occurred the Applicant’s employment as a music teacher at Catholic High School has been terminated. He had been employed there for about 9 years. In 2006 he purchased a franchise as a courier and worked in that business before selling it. Since then he has concentrated on teaching music from his home.

  4. There is no evidence of any complaints against him by pupils or past pupils or parents of pupils or of past pupils.

  5. In terms of his conduct since the disqualifying convictions, issues of his minimisation and denial about the offences, his lack of empathy towards the victims and his lack of genuine remorse about the offences have been referred to.

The likelihood of any repetition by the Applicant of the offences and the impact on children in any such repetition.

  1. The offence or conduct relevant here is the possession of child pornography. The obvious impact on children is that children are exploited as a result of the demand for child pornography by people who acquire it. There is a very real risk that the child victims through this activity will be involved in sexual activity and promiscuity when they are vulnerable and do not have reasonable adult protection and the maturity to properly recognise what is in their best short and long term interests.

  2. Involvement of a child in posing naked or in adult sexual activities may result in long term problems for the child in terms of promiscuity, relationships with peers, schooling and tertiary education, family relationships, self esteem, abuse of alcohol or other drugs, and serious emotional problems.

  3. The Applicant relied upon the report by Dr Stephen Allnutt, a forensic psychiatrist. Dr Allnutt concluded that the Applicant is “a low risk of future sexual recidivism, and this would include recidivism on the internet as well as touching children, as compared with other sexual offenders”.

  4. The conclusions in Dr Allnutt’s report are:

OPINION Re: Risk

In providing an opinion on risk of recidivism it is important for the court to be aware that the quality of expert opinion in this regard is limited, as the scientific foundation has limitations. Any opinion on risk of recidivism is more professional than scientific. Risk denotes a probability of a person in a particular risk group of committing a further offence rather than ascribing a particular trait or risk level to the individual. Risk fluctuates depending on changes in the person or their environment and thus re-assessment is required over time. The evidence suggests that risk assessment can place a person in a risk group with moderate accuracy. It is not possible to categorise the individual's risk level with reasonable clinical accuracy. In this the court is alone.

There is limited research on risk factors associated with increased risk for recidivism (reoffending on the Internet and offending by physically touching children) in individuals who are convicted of possession of child pornography. Given the nature of his conviction, I have chosen not to apply the Static-99 but I have chosen to be guided by the SVR-20'. The SVR-20 is a clinically guided risk assessment tool.

Factors associated with an increased risk for sexual recidivism that are present would include:

A history of multiple short-term non-committed relationships.

A relatively high sex drive.

Factors associated with increased risk of sexual recidivism that are absent in your client would include an absence of:

A diagnosis of sexual deviancy or paraphilia (the nature of his offending would not enable a diagnosis of paedophilia);

An absence of being the victim of child sexual abuse;

Having a major mental illness (such as schizophrenia, bipolar or mood disorder);

Having a substance use problem;

Suicidal or homicidal ideation; difficulties with employment;

Past non-sexual violent offences; past non-violent offences;

Past supervision failures;

A history of high density sexual offending;

Multiple offence types;

Physical harm to victims;

Use of weapons or threats of death;

Escalation in frequency or severity of sex offences;

Extreme minimisation or denial of sex offences;

Attitudes that support or condone sex offences.

Your client manifests capacity to make realistic plans.

He does not manifest negative attitudes towards intervention.

Synthesis

Overall, having regard to your client's history, there is no evidence of offending over a period of 10 years. This suggests that despite a high sex drive and multiple short-term relationships, your client has contained his sexual behaviour within social norms. He would fall into a group of sexual offenders at low risk of future sexual recidivism, and this would include recidivism on the Internet as well as touching children, as compared with other sexual offenders.

  1. The Applicant told Dr Allnutt that he has “a high sex drive”. He said he estimated he had 30 or 40 orgasms per week and could masturbate 4 or 5 times per day. Dr Allnutt concluded that the Applicant has “a relatively high sex drive”.

  2. There are concerns that arise on the face of Dr Allnutt’s report. The report includes numerous mistakes or falsities because of the Applicant minimising or denying facts:

“the images were of naked girls, some fully clothed and some not fully clothed He denied any intention at the time to download under age photography or pornography. He said had he be aware that they are illegal, he would have deleted them. He said that over all out of the total of 36 images found on his computer, 10 of them were found to be of underage girls or images of girls that looked under age”.

  1. Dr Allnut at page 4 of his report said the Applicant denied any fantasies involving children under 16 and at page 6 of his report states that the Applicant told him the images he printed were of girls “between the age of 13 and 16”, but the police evidence and the finding of the Magistrate was that they were girls between 8 and 15.

  2. The instructions and to Dr Allnutt from the Applicant omitted the facts that the convictions were in respect of possession of images of naked or partly naked girls, appearing to be in the age group of 8 to 15, including some images showing their genitals. They are also contrary to the fact that the Court found that all of the 36 printed images were child pornography.

  3. When it was put to the Applicant that he had told Dr Allnutt that he had sexual fantasies about Asian women over 25, he said that he was referring to Chinese and Japanese women and that it was ”because they have the same body shape as western girl about 14 or 15”. He told Dr Allnutt, though, he didn’t have fantasies about girls under 16. This was drawn to his attention in evidence when he was asked why he downloaded the photographs of such girls, he answered “because I thought it wasn’t pornographic”. The Tribunal did not accept this as a credible explanation, given the facts that he chose the images from an internet porn site, he printed them out on a colour printer some years before the police raid, he says he has not subsequently used the printer, and he kept the images in a drawer beside his bed for about 3 or 4 years until the police found them during the raid.

  4. The Tribunal is satisfied that the Applicant is sexually stimulated by pictures of girls in the age range of 8 to 15 years.

  5. The instructions to Dr Allnutt also ignored the fact that there was an additional conviction which was in respect of 58 short (mpeg) movie files depicting girls aged approximately”9 to 15 in various stages of undress”

  6. The instructions given to Dr Allnutt also did not refer to the 400 to 600 movies that Police obtained on CD-ROMs from his bedroom, alleged to be or include child pornography.

  7. When asked whether the Applicant mentioned that Police found 400 to 600 movies on CD-ROMs, Dr Allnutt answered “Not if that is not I my report”. It isn’t. Then when asked, he said that if there were 400 to 600 movies, that would not have changed his opinion. He said “the method is to regard all of the offences of the trigger to be a single offence”. He then said “relatively little weight should be given to additional incidents: the research and literature says that.”

  8. Dr Allnutt in cross-examination said that he relied on what the Applicant had told him, the documents that the Applicant provided, (through his counsel) and his clinical assessment of the Applicant. He said that he did not entirely accept what the Applicant had told him. (For instance what he had said about his conviction.) He said “I don’t think I accepted as necessarily truth that he had been to an adult site and got the material from there. The names of the sites were listed by the Police. He did not say he looked at child porn. I didn’t accept that he was looking at adult porn.” When asked whether he accepted that the Applicant had intended looking at child pornography, he eventually said “I accepted he was convicted of downloading child pornography and assumed he did it intentionally”.

  9. In his report Dr Allnutt said:

There is limited research on risk factors associated with increased risk for recidivism (reoffending on the internet and offending by physically touching children) in individuals who are convicted of possession of child pornography. Given the nature of his conviction, I have chosen not to apply Static-99 but I have chosen to b guided the SVR-20. The SVR-20is a clinically guided risk assessment tool.

  1. He did not give further reason or explanation for his preference for SVR-20.

  2. He said “minimisation and denial is a single risk factor amongst many”. But he did not mention minimisation and denial in his report. He did not make a finding that the Applicant had been minimising or denying.

  3. In answer to other questions in cross-examination he said that if the Applicant downloaded the material in 2004 and then viewed it once or twice per month it would still be clamped together when assessing future risk with SVR-20 and “with Static-99 you would add up the number of offences”

  4. Then he conceded “with child pornography there are no established tools. It may be completely different population to sexual offenders”.

  5. Applying SRV-20, Dr Allnutt lists on the last page of his report 18 items; 2 of which he says are present and 16 of which he says do not apply.

  6. When was put to Dr Allnutt that the Applicant had told the Police in the interview that he masturbated to the pictures once or twice per month from when he downloaded them in 2000 until 2004. He was asked whether the Applicant’s denial to him of masturbating to the images took on any different significance. Dr Allnutt said that if there was evidence of him masturbating to the images of the girls under 15 over a longer period than 18 months then he would probably be diagnosed as paedophillic. If there were girls over 13 then it would be different.

  7. He said it would depend what age is causing him to do it. He said the issue is whether the image of the child is pubescent or pre-pubescent. He said that the DSM5 says that paedophilia is life-long condition. It depends on the body type to which the person is attracted. A paedophile is interested in prepubescent children. He said that determination of whether a person is a paedophile requires an expert in that area and he does not have that expertise.

  8. Further in his evidence, he said that there was increased risk if the Applicant fell within DSM diagnosis for paedophile. He said that he would have difficulty in saying whether the risk was then “low”, “moderate” or “high”. But he thought that it probably would be “moderate”. He said that if the Applicant is diagnosed to have paedophilia, then he would recommend treatment. The evidence does not indicate that the Applicant has undertaken any treatment.

  9. Dr Allnutt said that the fact that the Applicant has not re-offended “seems to indicate he doesn’t need treatment, and if he has paedophilia, he’s managing himself.” He said that there are paedophiles in the community who never offend and some of whom seek assistance.

  10. Dr Allnutt was asked about the denials of the Applicant the material was pornographic, that it was offensive, and that he knew it was pornographic, He said that it was not extreme denial. Then he said “his denials were not extreme. He wasn’t saying ‘I did nothing’”. When he was also asked about the Applicant having a view that the children in the images were not victims, and whether that would be extreme denial, he replied, “that could go to his attitude. I’d need to explore that with him. It would raise concern” .

  11. He said he would be ambivalent whether the Applicant’s raising in his affidavit about nudism being accepted in his family and by his parents “went to attitudes that supported sexual abuse”. He said that it could have been said as a justification, but it could also just be a comment. He said he would be ambivalent about that. “It does appear that it was of some sort of justification for him being interested in pictures of children who were naked or semi-naked.”

  12. Dr Allnutt said that it could be meant to be an explanation of being brought up to say there was nothing wrong with sexual abuse or it could be an explanation is to how he came to have the problem. He said he could not decide what was intended. He said that some of these matters, including whether Applicant suffers from paedophilia or whether the Applicant did display extreme minimisation or denials of sex offences” may have wrongly been included by him in the list of factors absent in the Applicant’s case. Then he said that if such factors existed, “I’d put them in the third list: ‘ambivalent’”.

  13. It appears that what he was saying that notwithstanding such a factor being present, he would not put it in the list of factors present, which seems to be a departure from the model, which he did not justify.

  14. When he was asked then whether if the Applicant is a paedophile and has displayed extreme minimisation or denial of the offences had an attitude supporting sexual abuse that would change the risk. After pausing, he said that the method was crude but if featured those three additional factors were added, that would take the score to 5 out of 18 and the risk is “low” for any score below 6. He added “but it is a very crude measure”. He said “it is a matter for the adjudicator to take in account all other factors. If he falls into moderate group, he’s barely getting there.”

  15. He also said that it needs to be taken into account that he has been into a community for 10 years since the offence without any complaints. He said that it was particularly important to take it to consideration because even if the Applicant is a paedophile, it is a life-long condition and that supports more emphasis on the period without complaints. He said many people who suffer from paedophilia never offend.

  16. The tribunal does not adopt the conclusion of Dr Allnutt that the Applicant is a low risk to the safety of children; either by purchasing and using child pornography or by sexual assault of children. There are several reasons for that.

  17. The evidence does not explain why it is more appropriate to use the SRV-20 to use the Static-99.

  18. According to Dr Allnutt the population of men who use child pornography of girls 8 to 15 may be a different population to those who sexually abuse children, which is the population for which both the SRV-20 and the Static-99 were designed.

  19. There are also other cautions and qualifications Dr Allnutt has expressed as to the accuracy and reliability of the use of SRV-20 in relation to the Applicant.

  20. The evidence raises a serious issue as to whether the Applicant is a paedophile. Dr Allnutt’s evidence is that he does not have the expertise or the necessary information to give such a diagnosis. There is no expert opinion on that issue. Dr Allnutt has included such a diagnosis in the “absent” list in applying the SVR-20, rather than in the “present” list.

  21. Another factor is the question of denial and minimisation. Under the SRV-20 there is an issue of “extreme minimisation or denial of sex offences.” When Dr Allnutt wrote his report he was unaware of most of the relevant omissions, denials and minimisations in the information given to him by the Applicant or on behalf of the Applicant on his instructions.

  22. The ages of the children were older, only 10 of the printed images were of children under 16 or persons who appeared to be under 16 ( not 36), he was not informed of the second conviction being for the 58 short films and was not informed of the third charge (400 to 600 movies depicting girls in the age range 9 to 15) withdrawn on 8 September 2005 at the Downing Centre Local Court. There are also the numerous instances of denial or minimisation as referred to earlier in these reasons.

  23. The Tribunal concludes that contrary to Dr Allnutt’s report the Applicant may have demonstrated “extreme minimisation or denial of sex offences”, the details of which DrAllnutt was mostly not informed, so it appears that the evidence before the Tribunal may have justified that factor being found “present” when using the SVR-20.

  24. In addition, in view of his denials, his minimisations, his attribution of his interests in images of nude girls to his parents’ nudism and “European culture”, his lack of empathy for the victims and lack of remorse regarding the disqualifying convictions, it is possible, that he has attitudes that support or condone such sexual offences and, if so, that factor should be treated as “present” in the use of the SVR-20 too.

  25. It is arguable too that in the last 11 years the Applicant has demonstrated negative attitudes towards intervention as he has continues to protest his innocence and has chosen over the 11 years since his arrest to not undertake any serious therapeutic intervention, despite the arrest, his convictions and the loss of his career as a school teacher. If that constitutes “negative attitudes towards intervention”, it should also be found to be “present” in applying the SVR-20.

  26. Even if the SVR-20 is an appropriate tool and ignoring the other reservations that Dr Allnutt has expressed about its relevance and reliability there are real issues as to whether the Applicant is a paedophile, whether he has demonstrated “extreme minimisation or denial of the sexual offences”, whether he has attitudes that support or condone sexual offences, and whether he has shown negative attitudes towards intervention. If the answers to each of these questions is “Yes”, then the SVR=20 would produce a result of “moderate risk” rather than “low risk”.

  27. The Tribunal does not adopt the opinion of Dr Allnutt that the Applicant is only a low risk.

Any information given by the Applicant in, or in relation to, the application.

  1. In his affidavit the Applicant justified that he downloaded the subject 36 photographs in 2000 and then printed them later that year when he obtained a home colour ink printer. He said “at the time of printing the photos on the paper I did not think it was illegal”. He said that the images appeared to be of a person between 13 years and 16 years of age. He said in his affidavit “I am remorseful for committing the offence back in 2004, 11 years ago and I expressed that remorse to my work colleagues back in 2004 … “

  2. He testified that he has not been in any trouble with the Police before 2004 and had not been any trouble with the police since then. He said in that affidavit “It should be note (sic) that I had only ever downloaded one lot of images back in 2000 which included the pictures and pixels. I did not download any before this date or since this date”. In that affidavit he did not give evidence as to the source of the CD-ROMs containing movies.

  3. He conceded in his cross-examination that despite the requirement at the Section 28(5) of the Act for him to make a full disclosure of all relevant matters, when the Office of the Children’s Guardian wrote the letter of 20 October 2014 asking relevant questions he instructed his barrister he would not provide a response to the letter. When asked why he gave those instructions, he answered “I don’t know”. He did not give evidence in relation to 58 short movies containing child pornography which were subject to the second conviction. At the hearing he denied that he was charged in respect of 58 short movies. When it was put to him that that 400 to 600 movies were contained in the CD-ROMs that were found in his possession, he denied the proposition.

  4. He conceded that he had said that he downloaded movies from only one adult pornography site. When it was put to him that that was untrue, he answered, “Yes”. Then he denied that it was from more than one site. In cross-examination he also conceded that he knew it was illegal to download pictures of children naked with their genitalia exposed. When he was asked why he had referred to the fact that Section 578B was repealed in 2005, he answered, “I don’t know”. The question was repealed and he then answered “It was no longer an offence” (It was still an offence, because section 578B was replaced by another section.) He swore in his affidavit of 20 January 2015 then when he printed the photographs, “I did not think it was illegal”.

  5. A retired high school teacher, swore an affidavit in support of the Applicant. He had known the Applicant for about 11 years and worked with him in a catholic college where his duties included sport coordinator and organising extra-curriculum activities, including music. He said that the Applicant worked “in a most professional manner with both staff and students” He was not aware of any suggestion or allegation of any improper behaviour by the Applicant with children in his care. His awareness of the pornography found in the Applicant’s possession is limited to “36 images and 9 short movie files deemed child pornography” He gave the evidence at the hearing before Magistrate. He said in his affidavit that he had not seen the material in question “but they were described to me as nude pictures of the same girl, not pornographic and not involved in any sexual activities”. Presumably that description was given to him by the Applicant.

  6. The witness is a close friend of the Applicant and visits the Applicant’s home for family functions. The Applicant also enjoys the outings with the witness and his family. The witness testified that the Applicant “expressed deep remorse to me and sorrow for being in the possession of these items”. The witness expressed his opinion: “I think, that he genuinely thinks that what he had done is wrong”.

  7. The witness concluded his affidavit with a statement “I would not support the Applicant if I thought he was involved in any way in exploitation of young children. I had known him for more than 20 years and I know that this is not the way he thinks.”

  8. That witness was cross-examined briefly. He said that he has continued to socialise with the Applicant since 2005 and that he considers child pornography is exploitation of children. He said that the Applicant and his counsel informed him about the contents of the “movies and photos”. He was told that the photos were of the same girl and she was nude. He was told that the girl was in the age group of 13 to 15 years. He said that he has three daughters. He was referred to where he had in his affidavit that “the photographs were not pornographic”. Then he said that he had not been told photographs included depiction of genitalia. He was asked if he were told that would he still give an affidavit, and he answered “I wouldn’t have worded it that way”.

  9. In cross examination that witness said he had not been told the photographs included genitalia. He said he was told the children were aged 13 to 15 years.

  10. The Applicant’s brother swore an affidavit in support of the Applicant in the proceedings. He too is a high school teacher and has two children, a boy aged 13 and a girl aged 11.

  11. He said in the affidavit he is aware of the material of the subject of Police charges was of “images and about 9 short movies of less than 30 seconds each”. He said “There was only one download from the internet of this material. At the time he downloaded the material he informed me that he did not know it was an offence”. In fact there were 58 short movies from more than one download. The Tribunal is comfortably satisfied that the Applicant knew the material he was downloading was child pornography.

  12. The brother did not say that he was aware that there were 36 printed images, nor did he make any reference to the CD-ROMs with 400 to 600 movies. In cross examination he said he had no knowledge of the movies. He was asked if his brother had told him there was only one download and he answered, “no” and then “I don’t know for sure.” He was asked why he said that there was only one download and he said “I wanted to say what I was aware of”.

  13. The brother testified that the Applicant “was remorseful for committing these offence (sic) 11 years ago.” He also testified that the Applicant “has no history of any anti-social behaviour and he has resilient coping skills. There is no history of any childhood instability or abuse in the family”. He also said that his brother has no history of substance or alcohol abuse and “has a capacity for positive relationship bonds. He is open to change including learning from his mistakes.”

Any other matters that the Children’s Guardian considers necessary.

  1. In response to a request from the Children’s Guardian, the Department of Family and Community Services provided copies of relevant records in relation to the children of the Applicant’s brother. The documents produced and put into evidence by the Children’s Guardian relate to a report to the Department In 2005 that included an allegation that the reporter had been told by the children’s mother that the Applicant had been dismissed from his employment as a teacher because of child sexual abuse. The reporter expressed concern that the mother did not have concerns that the children spent time with the Applicant’s parents in their home, where the Applicant also resided.

  2. The identity of the reporter is not revealed in the redacted records. It appears that the reporter was working at a day care or kindergarten facility the boy was attending. The reporter reported behaviours of the child, including being withdrawn and drawing a picture of a man with a moustache and a penis. She reported that the Applicant had a moustache. The reporter expressed concerns that the boy may have been sexually abused.

  3. There was then a report March 2006 (apparently by the same person) referring to various behaviour of the boy which the person considered may be indicative of the child being sexually abused by his uncle. The person making the report alleged that the child was “currently seeing a psychologist” and “she is convinced that he being sexually abused based on her assessment …. and the reporter’s observation”

  4. In conducting an assessment of the report as regards the safety of both the children of the Applicant’s brother, the Department, it appears, did not interview the Applicant, or make enquiries of his former employer. The assessment in evidence is dated 1 May 2007 and so far as the documents reveal, the Department did not consider that there was material requiring it to take any action to protect the children of the Applicant’s brother.

  5. The documents did not include evidence that any person with expertise in diagnosing from a child’s behaviour and/or other matters whether or not the child has been sexually abused at any stage formed an opinion that there was any indication that either child had been sexually abused.

  6. Accordingly, the Tribunal is comfortably satisfied that the Department of Family and Community services had good reason to decide that there was not sufficient evidence to require further investigation of possible sexual abuse of the boy. The Tribunal therefore is not satisfied that the documents produced by the Department are relevant to the issue of whether the Applicant poses a risk to the safety of children.

Conclusions

  1. Section 5 of the Act defines ”Children” as “persons under the age of 18 years” The Applicant has never been convicted or charged for any offence against a child. There is no evidence that he has ever abused a child, whether physically, sexually or emotionally.

  2. In Commission For Children and Young People - v- V [2002] NSWSC 949 Young CJ in Eq, in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers, that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section:

"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42]

"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 `risk' with the words that follow, namely, 'to the safety of children' .”

  1. Subsection 28(7) of the Act imposes a presumption that the Applicant poses a risk to the safety of children unless the Applicant proves to the contrary. The Applicant has not on the evidence displaced that presumption.

Non disclosure

  1. Pursuant to Section 64 of the Civil and Administrative Tribunal Act 2013 the Tribunal is satisfied by reason of the nature of the allegations against the Applicant there should be an order prohibiting broadcast or publication of the names or other identifying information in relation to the Applicant and the witnesses.

ORDERS

  1. Accordingly the orders of this Tribunal are:

  1. The application by the Applicant for enabling orders filed 29 September 2014 is refused and dismissed;

  2. Publication or broadcasting of the name or other identifying information of the Applicant or any witness is prohibited.

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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: 02 October 2015

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Cases Citing This Decision

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FSQ v Children's Guardian [2024] NSWCATAD 302
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Statutory Material Cited

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Commission for Young People v V [2002] NSWSC 949