BPQ v Children's Guardian

[2015] NSWCATAD 148

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BPQ v Children’s Guardian [2015] NSWCATAD 148
Hearing dates:	22 June 2015
Decision date:	14 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member
Decision:	(1) The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of a conviction on 6 May 1985 in the Melbourne County Court under section 48(1) of the Crimes Act 1958 (VIC); and (2) The Children’s Guardian grant the applicant a working with children check clearance
Catchwords:	ADMINISTRATIVE LAW – whether the applicant poses a risk to the safety of children – assessment of risk
Legislation Cited:	Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1958 (VIC)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 The Commissioner for Children and Young People v IK [2005] NSWSC 1136 Commission for Children and Young People v FZ NSWCA 111 The Commissioner for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BPQ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: H Packer (Applicant) R Lee (Respondent) Solicitors BPQ (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410681
Publication restriction:	Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the applicant without leave of the Tribunal

Reasons for decision

Introduction

1. The applicant is a 50 year old man, who lives with his wife of 15 years and their 3 sons (aged 15, 13, and 9 years). The applicant has a daughter from a previous marriage, who herself has 2 sons (one is 2 years old and the other 6 months). The applicant describes a close-knit family of European descent.

2. The applicant works as a New Car Salesperson. He has been working for his current employer for about one month. Prior to that he was employed in a similar position for 15 years.

3. The applicant seeks an enabling order that he not be treated as a disqualified person under section 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and be granted a working with children check clearance under that Act.

4. By letter dated 12 November 2014, the Office of the Children’s Guardian notified the applicant that pursuant to section 18 of the Act, the applicant was not granted a working with children check clearance because the applicant’s criminal history includes a disqualifying record. This disqualifying record arises from a conviction entered on 6 May 1985 at Melbourne County Court for “Sexual Penetration with Child between 10 and 16 (VIC)” (the offence). The applicant pleaded guilty to this charge and was released on a good behaviour bond of $200 for a period of 2 years and a $1000 fine.

5. On 1 December 2014 the applicant lodged an application at the NSW Civil and Administrative Tribunal (the Tribunal) for administrative review of the decision to not grant him a working with children check clearance.

6. Since about 2006, the applicant has been involved in Scouting. Scouting is captured by the Act and by virtue of section 6 (1), and the applicant requires a working with children check clearance in order to continue his involvement with Scouting.

7. A hearing was held on 22 June 2012 in Sydney.

8. In addition to the documents, records, statements and references provided to the Tribunal, as well as other documentary material tendered on the day of the hearing, oral evidence was given by the applicant and Dr John Baron, Clinical and Forensic Psychologist, who assessed the applicant and provided a written report dated 29 May 2015.

9. An order has been made under section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication or broadcast of the name of the applicant without leave of the Tribunal.

Statutory Scheme

10. The object of the Act is to protect children by not permitting certain persons to engage in child-related work and by requiring persons engaged in child-related work to have working with children check clearances: the Act, s 3.

11. Section 4 of the Act provides that the safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.

12. Children are defined as persons under the age of 18 years: the Act, s 5.

13. The Act makes it unlawful for a person to engage in “child-related work”, unless they hold a “working with children check clearance of a class applicable to the work” or a current application has been made by the worker to the Children’s Guardian for a clearance: the Act, s 8.

14. Relevantly, child-related work is defined under section 6 of the Act to include “clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children”. Neither party disputed that volunteering for the Scouts is child related work.

15. Section 18 (1) of the Act provides that the Children’s Guardian must not grant a working with children check clearance to a disqualified person, which includes a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult. Neither party disputed that the offence results in the applicant being a disqualified person under the Act.

16. Section 28 (1) of the Act provides that on the application of a disqualified person, the Tribunal may 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.

17. Section 28 (7) of the Act provides that 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. In other words, the onus is on the applicant to rebut this presumption for an enabling order to be made.

18. The Tribunal’s jurisdiction under section 28 of the Act is protective and not punitive in nature: Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risk to children.

19. In displacing the presumption of risk to the safety of children, Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 cited Cooper JA who stated in The Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83] to [84] as follows:

It should also be noted that in paragraph 6 of the judgment the Tribunal clearly and correctly stated that the Applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.

This does not mean that in respect of each individual piece of evidence considered by the Tribunal it has to be satisfied to that extent. What it does mean is that at the end of the deliberations after having considered the totality of the evidence the Applicant has satisfied the Tribunal to the appropriate standard that he is not a risk to children.

20. His Honour Beech Jones J expressed some misgivings in relation to reference to the Briginshaw standard [at 29] with respect to disproving a negative assessment of the risk an applicant may pose to children in the future, particularly in the context of administrative review by a body that is not required to apply the rules of evidence (as is the case in this Tribunal). However it is clear that the test for this Tribunal is whether the applicant has met the appropriate standard that he is not a risk to the safety of children.

21. The word “risk” in the Act is construed to mean a risk that is “real and appreciable”. In BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Beech-Jones J cited with approval at [26] the following by Young CJ in Commissioner for Children and Young People v V [2002] NSWSC 949 concerning the word “risk” in the now repealed Child Protection (Prohibited Employment) Act 1998 (NSW):

What one is looking for is whether, in all of the circumstances, there is a real and appreciable risk in the sense of a risk that is greater that the risk of any adult preying on children. One, however, must link the word ‘risk’ with the words that follow, namely, ‘to the safety of children’: at [42]

22. Section 28 (6) of the Act provides that if the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant a person a clearance.

23. Section 12 of the Act specifies the class of clearances which authorises workers to engage in paid and unpaid child-related work, namely volunteers and non-volunteers.

24. Section 28(8) of the Act provides that an enabling order may not be made subject to conditions.

25. Section 27 (4) of the Act provides that an applicant must fully disclose to the Tribunal any matters relevant to the application.

26. Section 30 (1) of the Act provides the factors that the Tribunal must consider in determining an application under Part 4 of the Act (in this case an application for an enabling order and an order that the Children’s Guardian grant the person a clearance).

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.

Evidence

27. In support of his application the applicant provided to the Tribunal the following:

1. risk Assessment Report from Dr J H Baron dated 29 May 2015; (expert report)

2. statement of the applicant dated 3 June 2015 with attachments;

3. statement of a friend of the applicant dated 3 June 2015 with attached character reference dated 18 May 2015;

4. statement of a Scout Leader who knows the applicant dated 9 June 2015;

5. written submissions dated 20 June 2015;

6. Exhibits 1 to 4 tendered at the hearing including:

1. a Freedom of Information Request made by the applicant

2. a bundle of emails in relation to obtaining information about the offence from Victoria

3. a bundle of photos of the applicant and children in Scouting activities

4. a newspaper article about the Scouting group in which the applicant is involved including a photo of his two children.

28. The respondent opposed the applicant’s application for an enabling order and a working with children check clearance.

29. The respondent’s documents included the applicant’s criminal history and historical material that could be obtained from Victoria in relation to the offence. The respondent also provided written submissions and a copy of a letter from the Crown Solicitor’s Office to the applicant dated 19 December 2014.

30. In regard to the matters the Tribunal is required to consider, as set out in section 30(1) of the Act, I find as follows:

Seriousness of the offences with respect to which the person is a disqualified person

31. The applicant states that on the night in question, he was at home when his brother, and a friend of his brother, arrived at their home with two girls, one of whom became the victim. A short time later a friend of the applicant arrived with another male friend.

32. The applicant’s brother and his friend left. The applicant’s friend suggested they (the remaining three adult males) go for a drive with the two girls. The applicant states that the girls seemed to be around his age. The girls got into a car with the applicant’s friend, his friend and the applicant. One of the girls asked where they were going. The applicant’s friend said they were going to Seymour. This girl said she did not want to go and the applicant’s friend stopped the car and said she could get out if she didn’t want to go. She asked to be driven home but the applicant’s friend said he would only drive her home if she had sex with him. The girl got out of the car and was left on the side of the road.

33. The applicant describes the neighbourhood where they left this girl as “industrial”. The other girl opted to stay in the car but as they drove off she asked them to go back and pick her friend up. The applicant’s friend said they would do so only if she had sex with him. The girl agreed. The applicant’s friend pulled over and took the girl into some bushes. When they came back the friend of the applicant’s friend said “what about me?” The girl said “OK” and they went into the bushes and came back. When they came back the applicant said “what about me?” The girl said “I don’t want anymore”. The applicant said “you had sex with them”. The girl said “OK but only oral”. The girl and the applicant went into the bushes where the girl performed oral sex on the applicant.

34. The applicant’s friend drove them back to the applicant’s home where the girl is said to have had a shower and something to eat. Eventually the girl was driven home. Subsequently the girl’s mother made a complaint to the Police and charges were laid.

35. Counsel for the respondent made submissions highlighting the seriousness of the offence. The victim was placed under pressure and coerced into performing a sexual act on the applicant. The applicant knew it was wrong at the time and still committed the offence, which the respondent submits also goes to the seriousness of the offence.

36. The applicant in his statement says that the girls appeared around his age and at no stage did the victim appear frightened or upset.

37. However the applicant says he fully accepts that what he did was wrong and the fact that the victim was in a car with boys of his age and older, made her vulnerable. He says he is ashamed that the victim was under the age of consent. He says he knew at the time what he was doing was morally wrong but did not know at the time it was legally wrong. In his statement the applicant states that if something like that would have happened to his daughter and that age he would have been very angry.

38. The applicant pleaded guilty and was placed on a good behaviour bond of $200 for a period of 2 years and a $1000 fine.

39. In discussing the offence with Dr Baron in preparing the expert report, the applicant did express the opinion that although the girl was reluctant, there was no coercion on his part. However in his evidence at the Tribunal, the applicant stated he knew his conduct was wrong both now and at the time.

40. Dr Baron also notes in his report that he asked the applicant why he pleaded guilty if he thought the sexual activity was consensual. The applicant said to Dr Baron that he was advised by his solicitor at the time to plead guilty to carnal knowledge as a charge lesser than rape. The expert report states the applicant said “OK, she lied about her age. We’ll accept that. And it got sorted quickly”. And “I didn’t know I could fight it…And if I’d known then what I know now, I would have gone to court and fighted it…because she lied about her age”.

41. Whilst this appears to demonstrate that the applicant does not consider his conduct to have been serious and unlawful, Dr Baron notes in his report that when he asked the applicant about how he viewed the events in retrospect, especially in his role as a father communicating attitudes to his sons, the applicant responded “I shouldn’t have…she agreed to go for a drive..what we were doing wasn’t right…I felt that then. She came across as OK about it [the sexual activity] at the time but now I know it was wrong…my attitude has changed a lot since then.”

42. Dr Baron also reports that in further discussion about the circumstances of the offence, the applicant did show insight into the vulnerability of the girl’s situation of being alone in a car with three adult males, as well as the difference between “consent” and “compliance”. In this context he said in a recent discussion with his eldest son, he’d told his son that “consent has to be 100%”.

43. Dr Baron was questioned by Counsel for the respondent as to the extent that the applicant acknowledges the seriousness of the offence given the inconsistencies in the remarks made by the applicant noted in the paragraphs above. Dr Baron said that the applicant “unhesitatingly” said to him that the conduct was wrong. Dr Baron said the applicant showed insight into his behaviour and appreciated the girl’s vulnerability.

44. The respondent’s documents provide information from the Police Information Liaison Office Records Services Division in Victoria, which is the only other source of information about the offence. Whilst there are some minor differences between this information and the version provided by the applicant, I find that these differences are not material. I also note that the parties tried to obtain more information about the offence from the authorities in Victoria without success.

45. Both parties concede that the offence was serious. I find that the offence was serious as was the overall circumstances in which the offence occurred. The exact age of the victim is not known, but she was between the age of 16 years and 10 years of age. The exact age of the applicant’s friend and his friend is not known, but they were older than the applicant who was just over 19 years old at the time. I accept that the victim was in a highly vulnerable position being alone in a car with three adult males. Whilst the victim’s friend was allowed to get out of the car and there is nothing in evidence to suggest that the victim was not given the same choice to get out of the car, the choice seemed to be to stay in the car or be left in an industrial area at night. I find that the victim was placed under pressure to perform sexual acts in order to ensure her own safety and that of her friend.

46. I find that even if the applicant thought the victim was close to his age, she was young and in a highly vulnerable position. Based on the evidence available, I find that that is not likely that the victim was between 10 and 12 years of age. I find it is more likely that the victim was between the ages of 13 to 15 years old.

47. I find that not only did the applicant take advantage of this situation, but so did the other two men he was with and the applicant did nothing to prevent this from occurring. The fact the offence was committed with others and that the applicant did nothing to deter the others from having sex with the victim adds to the overall seriousness of the offence.

48. In considering all the material before me, I find however that the applicant demonstrates remorse and accepts full responsibility for his conduct that gave rise to the offence. I find that the applicant accepts the seriousness of the offence and that his overall conduct, as well as the conduct of two other men he was with, including the fact that he did nothing to prevent the conduct of the other two men, was wrong and unacceptable.

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

49. The offence occurred on 3 November 1984, some 30 years ago.

50. The applicant has not been charged with any similar offence.

51. There was an incident in 1986 when the applicant was about 21 years old that is referred to in the expert report in which he had bought a car but the engine blew up. The applicant states some of his friends encouraged him to burn the car to get rid of the debt by making a fraudulent insurance claim. When his parents found out about this they said he should go to the police and own up to it. The applicant says that about five people were involved but he took the blame and was convicted of “Attempt to obtain financial advantage by deception” and given a community based order to perform 150 hours of unpaid community work.

52. No other criminal conduct since that time was brought to the Tribunal’s attention.

53. The applicant provided in his statement and under examination at the Tribunal, evidence of his personal reformation since his young adult years and his wish to make a valuable contribution to the community. This was also referred to in some detail in Dr Baron’s expert report and in his evidence before the Tribunal.

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

54. The applicant was 19 years and four and a half months old at the time of the offence.

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

55. Despite attempts to ascertain this information, the actual age of the victim is not known. It is only known that she was between that age of 10 years and 16 years old.

56. The applicant states that at the time of the offence the victim appeared to be around his age on the basis of her appearance and conduct.

57. As I note above, it is not likely that the victim was between 10 and 12 years of age. I find it is more likely that the victim was between the ages of 13 to 15 years old.

58. The applicant accepts that the victim, being alone in a car with three adult males, put her in a situation of being vulnerable.

The difference in age between the applicant and the victim

59. The actual age of the victim is not known. I accept that it is likely that the victim was closer to the age of 16 years than 10 years. I find it is more likely that the victim was between the ages of 13 to 15 years old.

60. Therefore the difference in age is likely to have been between 4 and a half years and 6 and a half years.

61. Given the youth and circumstances of the victim, there was clearly an imbalance of power in favour of the applicant, and the victim was vulnerable and not in the position to withstand the pressures exerted upon her.

Whether the applicant knew that the victim was a child

62. The applicant states that he thought the victim was around his age and he did not consider her to be a child at the time of the offence.

63. He concedes that the victim was under the age of 16 years and was vulnerable because of the circumstances she was in.

The applicant’s present age

64. The applicant is 50 years old.

The seriousness of the applicant’s overall criminal history and the conduct of the person since the offence

65. The applicant has two recordings of a criminal conviction. In addition to the disqualifying offence there is a dishonesty offence for which he pleaded guilty in 1987.

66. I find that the overall conduct of the applicant since the offence has been characterised by attempts to reform his attitudes and behaviour and since 1987 the applicant has had no contact with the criminal justice system.

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

67. Dr Baron conducted a three hour clinical interview with the applicant as well as three psychometric assessments. Dr Baron states that the applicant’s risk of sexual recidivism was assessed by structured professional judgment, and included being guided by the list of empirically supported risk factors outlined Mann, Hanson & Thorton: “the Child Identification Scale” (2010). Dr Baron used these diagnostic tools to assess the potential risk factor of emotional identification with children.

68. Dr Baron’s summary of psychometric assessment concludes that “the picture that emerges is of a psychologically well-adjusted man, and there is nothing in the results that could raise concerns in relation to the matter before the Tribunal”.

69. Dr Baron concludes that the applicant is “not assessed as posing any appreciable risk to the safety of children. There is nothing available to me to suggest that his level of risk would be higher than the risk of any other well-adjusted male adult”. Further Dr Baron states that “The offence was thirty years ago, and there is nothing I have seen to indicate that he has behaved in a way that could pose a risk to the safety of children. Based on this risk assessment process, my opinion is that there are no indicators to suggest that [the applicant] poses a risk to the safety of children”.

70. During cross examination Counsel for the respondent probed Dr Baron as to the applicant’s preparedness to report the conduct of others that might put the safety of children at risk within the Scouting movement. Dr Baron’s evidence was that the applicant would act conscientiously and that he would be protective of other children as well as his own.

71. I find that, in all of the circumstances, there is no real and appreciable risk of a repetition of the applicant’s conduct that gave rise to the offence or any other conduct that would put the safety of children at risk that is greater than the risk of any other adult.

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

72. The applicant provided references in support of his application including from a Scout leader who has known the applicant since around 2006. In his statement he includes reference to the applicant disclosing to him the nature of the offence that prevented his from obtaining a working with children check clearance. He concludes that even with this knowledge, he hopes the applicant is able to obtain a clearance so he can continue to work in the Scouting movement.

73. At the hearing the applicant tendered photos of him with others at Scouting events. The applicant provides evidence as to the importance of his involvement with the Scouting movement, particularly in the context of him spending time with his sons. The applicant states “I have also felt strongly that I have been giving back to the community by my voluntary service. It has been a way of using my skills, talent and abilities to help children have opportunities that they otherwise would not get and to model and teach community service, resilience and leadership”.

74. I accept that the applicant is genuine in describing the importance to him of participating as a volunteer in the Scouting movement. I accept it has become an important aspect of his family life. I also accept that being a part of the Scouting movement has provided him with a sense of giving something of value back to the community. Although the applicant has asked that I take these into account, they are not relevant in assessing whether the applicant poses a risk to the safety of children.

Any other matter that the Children’s Guardian considers necessary

75. The respondent opposes the application. The Children’s Guardian correctly identifies to the offence as one that is serious as the victim was placed under pressure and coerced into performing a sexual act on the applicant. The applicant knew it was wrong but still committed the offence. Counsel for the respondent drew attention to some inconsistencies in relation to the extent of the applicant’s insight into his behaviour at the time of the offence as well as currently, including a suggestion that the applicant may still be trying to place some blame with the victim.

76. However I am persuaded by Dr Baron’s evidence, his expert report and the evidence of the applicant himself that the applicant does appreciate the seriousness of his offending conduct and that of the men he was with, and that what they did was wrong. I find that his attitude towards the offence and to the safety of children generally to be such that I do not believe that he would pose a real and appreciable risk to the safety of children.

Conclusion and orders

77. The disqualifying offence is a serious one. However it happened 30 years ago when the applicant was, on his admission, at a problematic stage of his life. Since that time he has taken steps to improve himself and apart from an offence in 1986, which he took responsibility for, he has had no other contact with the criminal justice system. No other complaints in relation to conduct akin to the disqualifying offence have been disclosed in these proceedings.

78. I find the applicant to be family-orientated and protective of his children. He struck me as genuine and I accept his evidence that he appreciates the seriousness of the disqualifying offence and accepts responsibility for it.

79. I find the evidence provided by Dr Baron at the hearing and his expert report persuasive. The conclusion he draws after psychometric testing and clinical assessment is that the applicant does not pose a risk to the safety of children.

80. On all the evidence I have had put before me I find that the applicant has displaced the presumption that he is a risk to the safety of children. I find that the applicant has established to the standard that is required, that he does not pose a real and appreciable risk to the safety of children. Accordingly the application should be granted.

81. I make the order that:

1. The applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of a conviction on 6 May 1985 in the Melbourne County Court under section 48(1) of the Crimes Act 1958 (VIC); and

2. The Children’s Guardian grant the applicant a working with children check clearance.

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

Registrar

Decision last updated: 14 July 2015