BPT v Children’s Guardian

[2015] NSWCATAD 134

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	BPT v Children’s Guardian [2015] NSWCATAD 134
Hearing dates:	13 April 2015
Decision date:	30 June 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Molony, Senior Member
Decision:	BPT’s application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is dismissed.
Catchwords:	CHILD PROTECTION – working with children check clearance – application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 – presumption that applicant a risk to children – presumption not disproved – application for enabling order dismissed
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013. Crimes Act 1900
Cases Cited:	Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	BPT (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: S Lee(Respondent) Solicitors: BPT (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410691
Publication restriction:	Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal.

REASONS FOR DECISION

1. An order was made on 12 February 2015 pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal.

2. The applicant, known by the initials “BPT” for the purpose of these proceedings, seeks an enabling order under section 28(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) which will, if granted, be a declaration that he not be treated as a disqualified purpose person for the purposes of the Act. While the applicant is seeking a clearance so that he can train nippers at his local surf club, the enabling order would permit him to work with any children in any volunteer child related work.

3. The Children’s Guardian refused BPT’s application for a volunteer working with children check clearance on 12 November 2014 on the basis that he had a disqualifying conviction for sexual intercourse without consent, contrary to section 61I of the Crimes Act 1900. He was convicted of that offence on 12 May 1998 and sentenced to 3 years imprisonment with a non-parole period of one year.

4. BPT filed his application for an enabling order in the Tribunal on 3 December 2014. I heard the application on 14 April 2015 and made orders regarding the provision of submissions from the parties with respect to the status of certain information provided by the Queensland Police Service, and the provision of a clean copy of the information, by 5 May 2015.

5. At that hearing BPT represented himself, while the Children’s Guardian was represented by Mr S Lee.

The evidence

6. The applicant tendered into evidence in support of his application the following material:

1. BPT’s affidavit sworn 18 March 2015.

2. Three personal references relating to BPT.

3. Parenting orders made by the Federal Magistrates Court of Australia with respect to BPT’s children.

4. Various versions of a psychological report from Dr Mark Millic assessing BPT’s risk to children in the light of his criminal record. The latest of these is dated 12 April 2015.

7. The Children’s Guardian relied on bundles of material obtained from a number of government departments and individuals under s 31 of the Act. These were obtained from:

1. The NSW Police.

2. The Court of Appeal and the District Court.

3. The Department of Corrections.

4. The Queensland Police Service, including a letter dated 13 April 2015 with attachments.

5. The Sex Crimes Squad.

6. BPT’s local Surf Lifesaving Club.

7. The Department of Family and Community Services.

8. Dr Mark Millic.

9. Mr Rodney Ward, clinical psychologist.

8. The Children’s Guardian also tendered a letter from the Crown Solicitor to BPT dated 9 January 2015 requesting information, and BPT’s reply.

9. BPT gave evidence and was cross-examined, as was Dr Mark Millic.

10. The Children’s Guardian made written and oral submissions, and BPT made oral submissions. Subsequent to the hearing the Children’s Guardian has provided a clean copy of information provided by the Queensland Police Service in its letter of 13 April 2015, together with submissions as to the status of that information.

11. BPT did not take advantage of the opportunity I had given him to make submissions on the status of the information provided by the Queensland Police regarding a conviction recorded against him in 1999. Rather, he wrote requesting an adjournment of the proceedings so that he could:

1. Seek to tender the report referred to in paragraph 9 of his affidavit references to which were successfully objected to by the Children’s Guardian; and,

2. Seek evidence to rebut the information provided by the Queensland Police which he did not believe accurately set out the circumstances leading to his conviction for wilful exposure in 1999.

12. At the hearing two sentences referring to the contents of a report referred to in paragraph 9 of his BPT’s affidavit were struck out on the application of the Children’s Guardian, on the basis that the report they referred to was not in evidence. BPT indicated that he agreed with the decision to strike out. This is the same report that BPT sought an adjournment of the proceedings to procure, after the hearing had finished and while the decision was reserved. I declined to grant that adjournment. BPT had the opportunity to tender the report referred to in paragraph 9 of his affidavit at the time of the hearing, or to seek an extension of time in which to do so. He did not do so, but instead agreed to references to that report in his affidavit being struck out. He had received advice as to how that document could be obtained well before the hearing. That opportunity has now passed.

13. The correctness or otherwise of the information provided by the Queensland Police was a live issue in the proceedings, as was whether the information provided by the Queensland Police was equivalent to a “fact sheet ”in New South Wales. At the commencement of the hearing BPT sought and was granted an hour to read and consider this and other material that had been served on him the night before. At the end of that period he told me, when asked, that he had had the opportunity to read and consider the documents. He did not seek an adjournment or indicate that he wished to obtain further evidence regarding his 1999 conviction in Queensland. He said he was in a position to deal with the material. It is now too late to do so after the hearing has been completed, and the decision reserved.

The legislative scheme

14. The Act regulates who can engage in child-related work by requiring that they have “working with children check clearances.” 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.

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

16. The term ‘child-related work’ is broadly defined in section 6 of the Act. It is not necessary for the Tribunal to determine whether the person seeking a working with children check clearance was engaged in, or proposes to engage in, ‘child-related work’. “Child related work” has a wide meaning. Section 6 of the Act provides, among other things, that a person who engages in work for or in connection with religious services involving direct contact with children is engaged in “child-related work” for the purposes of the Act. So too is work in clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children :see subsection 6(2)(d) of the Act. This includes, among others, work as a coach or team manager: see clause 7(2) of the Child Protection (Working with Children) Regulation 2013. The Act contemplates two classes of working with children clearances; namely “volunteer- authorising workers to engage in unpaid child-related work”; and “non-volunteer – authorising workers to engage in paid and unpaid child-related work”: see s 12.

17. Section 13 requires that an application for a clearance be made to the respondent.

18. Section 18 provides:

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) 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,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence

19. Section 5 of the Act defines “conviction” as including a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

20. There is no dispute that the offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 is an specified in Schedule 2 of the Act and that the Court’s finding of guilt of these offences makes the applicant a ‘disqualified person,’

21. Section 22 of the Act provides that a working with children check clearance ceases to have effect five years after it was granted, unless it is cancelled or suspended under s 23 prior to that time.

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

(4) The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An Applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to … grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

(9) …

23. The meaning of the word ‘risk’ was considered, by Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word ‘risk’ as it appeared in the former Child Protection (Prohibited Employment) Act 1998:

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

24. Those remarks are equally applicable to the word ‘risk’ as it appears in the Act.

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

30 Determination of applications and other matters

(1) The Tribunal must consider the following in determining an application under this Part:

(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g) the person’s present age,

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

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

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

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

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

The index offence

27. On 8 May 1998 BPT pleaded guilty in the District Court to sexual intercourse without consent on 19 January 1997. On 12 May 1998 BPT was sentenced to three years imprisonment for that offence, with a minimum term of one year commencing 8 May 1998. The Court recommended that he have alcohol counselling.

28. The circumstances of the index offence were discussed in the Judge’s sentencing reasons. These set out that the applicant and a friend attended a party on the night to the proceedings. So too, did the victim and her husband. The night was long and those attending became intoxicated. BPT was “significantly affected.” At some stage, early in the morning, the victim’s husband took her home, put her to bed, and then returned to the party. His Honour commented that, “She was very tired and to some extent affected by alcohol.”

29. BPT was waiting on a lift from his friend as the party ended. He went back to the victim’s home with her husband, where they sat outside, drinking, while waiting for his lift to arrive. His friend arrived soon afterwards and joined them. His Honour’s sentencing remarks continued –

The prisoner asked to use the toilet twice in short succession. He was no doubt aware after his first visit to the toilet that the victim was sleeping in her bed, as the door was open. On the second occasion the husband decided to play a trick on the prisoner by letting off a cracker in a pipe under the toilet.

The victim in a deep sleep, became aware that she was being penetrated. It is not clear precisely at what stage this awareness commenced, because it is, apparent that she was in a very deep sleep, but it seems likely that it was just before the cracker went off. She thought she identified the prisoner as her attacker, both from his blond hair and from a blue shirt that he was wearing.

Almost immediately afterwards, in an upset state she complained to her husband that something amiss had taken place and the prisoner and the [friend] were ordered to leave the premises immediately.

30. When the cracker went off, BPT got up and fled from the victim’s bedroom, pulling his pants up as he went. He joined the victim’s husband, and his friend, outside, where they laughed about the cracker. Shortly after the victim appeared, and asked her husband to get rid of them.

31. A complaint was made to Police by the victim on the day of the offence. A rape kit was completed. Police interviewed BPT about the offence on 21 January 1997. He denied committing the offence. In the course of a record of interview conducted on that day BPT told Police that he had been drinking ”non-stop all night” and “drinking quite considerably.”

32. His Honour observed that –

“… there is evidence that earlier that in the morning two events had taken place which may tend to reveal the state of the prisoner’s mind at the time. [Name] whose party it was, was dozing in her bed when she heard her bedroom door open and I quote from her statement “I didn’t hear the door shut, so I looked over and I saw [BPT] crouched low to the floor, he was naked. I looked at him and said “what are you doing?”, he stood up and looked surprised and said, “Oh, wrong room.

About an hour and half later, about 8 o’clock, the prisoner was then at another home and the is evidence from [Name] that the prisoner “had come out of the blue from behind me and kissed me on the mouth.” She objected immediately.”

33. Later His Honour said of BPT –

“Both the pre-sentence report and Dr Leeuwin's report confirm that he is an empathetic and concerned for others. Both hint that there may be a problem with excessive consumption of alcohol. He claimed to the probation officer that he had no recollection of committing the offence. He is described in that report as co-operative, intelligent, highly motivated, and he does not possess a pre-disposition for violence or alcoholism. Dr Leeuwin, the psychiatrist, excludes sexual deviation.

I am satisfied in this case the prisoner's intoxication resulted in him acting quite out of character. I accept that it is highly unlikely that he will ever appear before the courts.

.A victim impact statement reveals that the victim and to some extent her husband have been profoundly traumatised by this invasive crime.   The victim had to wait for over a year before knowing of the prisoner's intention to plead

guilty.   It is a troubling document. In that document she asks "What punishment can possibly fit the crime?".

Whilst the prisoner is said to appear to accept responsibility for his behaviour, he states that he cannot understand why he would have done such a thing. This to my mind seems somewhat clinical and demonstrates a lack of insight into the awful affect his acts have had upon the victim.”

34. BPT was charged some months later after the results of DNA testing were obtained.

35. In his affidavit BPT explained that he decided to plead guilty in the District Court because –

“…after considering that the victim would need to be cross examined in a court room in front of a jury I could not put the victim through any more suffering so I admitted responsibility and with deep remorse I pleaded guilty.”

36. BPT initially sought to appeal the severity of his sentence to the Court of Appeal, but subsequently abandoned his appeal.

37. In cross-examination he had no recollection of the kissing a female on the mouth earlier in the evening.

38. There is no suggestion that a child was the subject to BPT’s sexual behaviour at the time of the index offence.

Consideration of the s 30(1) factors

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

The seriousness of the Applicant’s disqualifying offence

40. The maximum penalty for sexual assault is 14 years imprisonment. BPT had no prior convictions when he pled guilty to the index offence. The sentence BPT received of 3 years imprisonment reflects the seriousness with which the Court viewed the circumstances of BPT’s offence, given his unblemished prior record. In his affidavit BPT acknowledged that his offence was “extremely serious.”

The period of time since the disqualifying offence occurred

41. The offence occurred in January 1997, eighteen years ago.

The age of the Applicant at the time the disqualifying offence was committed

42. At the time of the offence BPT was aged 28.

43. The victim was aged 32 at the time of the offence. To BPT’s knowledge she had been taken home tired and somewhat intoxicated. She was sleeping in the privacy of her own bedroom when BPT, who was there as a guest, entered her room and sexually assaulted her. She woke to find that she was being penetrated.

The difference in age between the victim and the Applicant and the relationship between them

44. The victim was four years older than BPT.

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

45. The victim was not a child.

The Applicant’s present age

46. BPT is now 46 years old.

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

An allegation made in 1996

47. In his affidavit, at paragraph 10, BPT outlined an event that occurred in 1996-

There was an incident in 1996 where I was working, delivering a computer to a client’s house where there were a bunch of mixed gender teenage school students I estimate to be 15 to 17 years old seated on the road where I needed to park directly opposite my clients home. I beeped my car horn to indicate I needed to park where they were, they gestured profanities and swore at me, I returned the gestures and profanities from my car and they moved off. Later I was questioned by the Police at an interview at the Warilla Police station and the Police told me that a bunch of teenage kids said I was masturbating in my car. I gave my version of the events, The Policeman came back to my place of work where I showed the Policeman an invoice, he took a copy which had the clients address and signature, nothing further happened.

48. Police records show that in March 1996 three girls reported seeing the driver of a parked vehicle, who was wearing a shirt and tie, but no pants, masturbating. They reported this to their school and had statements taken by a deputy principal. Their description of the offender was described as “poor,” but they did provide the vehicle registration number. As a result BPT was identified as a “suspect.” Police records indicate difficulty in speaking with him, with the outcome of inquiries unknown.

49. The only thing to connect BPT with this alleged offence is the registration number of the vehicle. In cross examination he indicated that he believed the girl’s version of the events to be malicious. On the evidence before me I am not persuaded that he was masturbating at the time.

Wilful Exposure in Queensland in 1999

50. BPT agrees that on 19 January 2000 he was charged at the Southport Magistrates Court in Queensland with wilful exposure contrary to s 4(1)(g)(iv) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). His evidence was that this occurred after he had been caught urinating at night on an unlit, walking track to the beach. He pleaded guilty to that offence and was fined with no conviction recorded.

51. This is to be contrasted with the facts of the matter as outlined in the Court Brief provided by the Queensland Police. It shows that the person charged had the same name and date of birth as BPT. The facts of the alleged offence matter in the Court Brief are as follows:

“About 12:58 AM on Friday, 31 December 1999 Police from Surfers Paradise Station Attended The Esplanade Surfers Paradise where a male person, now known as the defendant, had been detained by a security officer and a member of the public. Police spoke with the complainant [name] who was with her for children.

The complainant told police she returned to her car about 12:25 AM on Friday, 31 December 1999 which was parked in 45° parking along The Esplanade Surfers Paradise. The complainant had placed her four children inside the car. As the complainant entered the driver’s seat she saw the defendant standing in front of her approximately 55 m away on a wooden walkway that was perpendicular to The Esplanade footpath and is adjacent to car park spaces.

The defendant had no shirt on, and his shorts were around his ankles. The defendant was standing naked and masturbating himself in front of the witness. The defendant was doing this with his right hand. Witness started her car, turned her lights on and saw that the defendant was still facing her and continued masturbating with his right hand. The witness reversed her car out from the parking space into The Esplanade, and drove a short distance south from the defendant. She met with an acquaintance [name] and told him what she had seen.

[The acquaintance] was given a description of the defendant and his clothing and with the assistance of the security officer began to walk north along The Esplanade. The defendant was seen approximately 24 m north of the walkway and he was asked to stop by [the acquaintance] and the security officer. The defendant ran towards the beach and the security officer and [the acquaintance] followed him and detained him on the beach and return him to The Esplanade. Police were called and arrived at 12:58 AM.

The defendant was taken to the Police Post at Surfers Paradise and interviewed for this complaint. The defendant denied being the person identified for this offence. He made some admission about being at the beach stating he intended to go for a swim. At the time he was detainee had no costume or a towel in his possession.

The interview was recorded in police notebook be 144400 from pages 149 to 155. The defendant signed each page of the recorded conversation. The defendant was taken to the Surfers Paradise Police Station and microcassette interview was conducted where he simply adopted the written notes verifying the accuracy of same. The defendant was given a notice to appear for this offence.”

52. The Police Brief states that BPT was aged 31 at the time of this offence, and had no prior convictions. Under the heading ‘Result Date Finalised’ it shows the date “19/1/00” and bears the following notations –

“NCR C/F $150 i/d 5days

(illegible)

S12    TTP 1 month”

The Children’s Guardian submits, and I agree that this notation is consistent with the court outcome as advised by the Queensland Police, namely –

‘NO CONVICTION RECORDED

CONVICTED & FINED $150

IN DEFAULT IMPRISONMENT 5 DAYS

TIME TO PAY 1 MTH”

53. BPT gave evidence that whilst he had pled guilty to a charge of wilful exposure, the events described in the Police Brief did not relate to him. Indeed, he said that he was fully clothed when urinating, and did not masturbate. He agreed that he had told Police that he was going for a swim, but denied that this was said in an effort to explain why he was nearly naked. He said that when he pled guilty he believed he was acknowledging that he had urinated in public.

54. It is important to note that BPT was legally represented at the hearing at the Southport Local Court.

55. In his affidavit BPT set out his version of these events at para 11 –

“There is one other incident in December 1999. It was at Surfers Paradise holidaying with my then wife and step son, it was late in the evening after 11pm. I was on my way to my motel and was busting to go to the toilet, I could not find a toilet facility so I stepped into an unlit walkway where I thought no one was there and urinated against the bushes, the next second I had someone yelling and screaming at me and I was grabbed by a security guard. I was questioned by the Police and charged because there were some people walking up from the beach into the path where I was. I can not describe the people or know how many of them there was because I never saw them, it was dark. My intention was certainly not to arouse shock or offend anyone. This incident was heard in court, I remember that the Magistrate reduced the charge to urinating in public and no conviction was recorded.”

56. When asked during cross-examination what he meant by the charge being reduced by the Magistrate, BPT failed to respond beyond asserting that he had been convicted of urination in public only. The records of his conviction however, indicate that he was convicted of the charge originally laid against him, without modification or amendment.

57. In my view the Queensland Police Brief to the Southport Local Court is the best evidence before me of the details of the offence of wilful exposure to which BPT pleaded guilty on 19 January 2000. BPT’s assertions that he did not plead guilty to the conduct there described are insufficient to persuade me that the description in the Police Brief is wrong.

58. I therefore conclude that on 19 January 2000 BPT was convicted of wilful exposure, involving him masturbating before a woman and her four children in a car. I consider this a highly relevant offence for the purposes of assessing his risk to children. The fact that the offence took place in front of children is of considerable concern. I also observe that it is apparent that BPT has made a number of inconsistent statements concerning the events of that night (e.g. in his affidavit he said he was returning to his motel whereas he told Police he was going for a swim). This reflects adversely on the reliability of his testimony.

Allegations of sexual abuse on separation from his first wife

59. BPT was married in March 2002. There are two children of that marriage which ended when BPT and his first wife separated in 2007. They were divorced in 2010. BPT has since remarried.

60. In the course of proceedings relating to the care and control of the children of BPT’s first marriage, accusations were made that BPT and his (now) wife had sexually abused his daughter. A risk assessment was conducted by the Department of Family & Community Services which concluded, among other things –

“There is no information held by the Dept to suggest that [name] or her siblings have been placed at risk in the past by either parent.

61. BPT said that the Federal Magistrates Court ordered an “actuarial rating, recidivism and child risk assessment.” It is apparent that from the final consent orders made in those proceedings that an independent children’s lawyer was appointed in to represent the children’s interest, and that the orders made provision for BPT to have regular overnight contact with his children.

62. All the evidence before me points to the allegations that BPT and his present wife sexually abused his daughter being without foundation.

Information given by the Applicant

BPT’s evidence

63. As already noted BPT filed an affidavit in which he set out details concerning his personal circumstances in which he addressed issues relevant to an assessment of his risk to children.

64. BPT is married and has regular access to his children. He and his second wife separated for nine months in 2014, but have since reconciled. He sought psychological counselling from Mr Rodney Ward in that time, and both he and his wife have been attending a relationship counsellor.

65. BPT said that participating in training nippers at the local surf club had been an important part of his involvement with his children. They would all go the club to practice and train each weekend, and to board training during the week. It was an activity the children and he enjoyed, and could participate in together. He had applied for a working with children check clearance because he “thought it was the right thing to do and it was a long time” since his offence. He has not participated in any child related activities since the check clearance was refused. If an enabling order is not made he will reluctantly have to withdraw from involvement in the surf club.

66. BPT said that he was also involved in a running and a social group. He has a number of close friend who are aware of his convictions. He explained that he runs his own business and is presently studying for a degree part time.

67. With respect to the index offence BPT explained that he “was drinking excessively and of a diminished capacity at the time and feel that this was certainly a contributing factor.” In his affidavit he said that nowadays, he never drinks so that he cannot drive, and that he has never had a drink driving offence. He explained that his daughter has a condition which means she may have to be taken to hospital at any time: as a consequence he never drinks so much that he cannot drive.

68. In cross-examination BPT was asked about his present drinking habits. He said that he drinks up to three drinks a night, usually beer, or scotch. On social occasions he drinks no more than one drink an hour, but never enough to prevent him driving. It was put to him that he had told Dr Millic, who prepared a report relied on by BPT, that he only drank on social occasions and that this was a lie. He denied lying to Dr Millic.

69. BPT’s attention was then drawn to Mr Ward’s notes, who had recorded that BPT said he was drinking three drinks of beer or scotch a night. It was put to him that this was inconsistent with what he had told Dr Millic about his drinking. BPT denied lying to anyone about his drinking.

70. It is clear that he did not tell Dr Millic and Mr Ward the same thing about his drinking.

71. BPT relied on a support letter from Mr Rodney Ward, his treating psychologist, dated 9 December 2014. It said –

“Thanks for considering this support letter on behalf of BPT, a 46-year-old male who was self-referred to explore his relationship patterns, drinking patterns, communication style whilst in relationships and expressing his emotions.

At this stage we have collaboratively decided to discontinue treatment, as BPT and I believe he has reached his therapeutic goals. BPT is now reporting more social engagement (surf dub, running group), clearer communication with his partner in their relationship and safer drinking patterns. He is now attending couples relationship counseling with Relationships Australia. BPT was a reliable and consistent client who always attended his sessions and appeared well suited to psychotherapy. Could you kindly consider this correspondence with any decision making process.”

72. In the course of his evidence BPT said that concern about his drinking patterns was not among his reason for consulting Mr Ward. He said his drinking patterns are unchanged since the time of the referral to Mr Ward. Mr Wards’ references to his drinking were made following a request from BPT that he include a reference to his drinking in the letter. BPT said he made his request because he knew his drinking would be an issue.

73. I asked BPT a series of questions relating to his drinking at the conclusion of his evidence. He told me that he drinks up to three drinks, three to four times a week. There are times when he does not drink at all, sometimes for up to a month

74. I drew his attention to what he had told Mr Ward about drinking 3 drinks a night, and asked him how I could reconcile that with what he had just told me. He agreed that there was a contradiction. He could not tell me when he had last abstained from alcohol for a month.

75. What BPT said about his drinking varied from person to person and from minute to minute.

76. One of the central points made by BPT was that the victim of his index offence was an adult female, and that he had no interest in or attraction to children. While it is correct that the victim of the index offence was an adult, the evidence relating to the wilful exposure charge in Queensland shows BPT engaging in unlawful sexual conduct in the presence of children.

References

77. BPT also relied on three references from persons who were aware of his 1997 conviction. These were from:

1. A female friend, with two girls, who regards BPT as an important and trusted family support.

2. An employee with three daughters, who described BPT as “a man of decency” who is extremely dedicated to his family. He and his daughters “always felt comfortable” in BPT’s presence.

3. The local surf lifesaving club captain who commented on BPT’s participation in the club who did not believe BPT “any risk to children in the club or anywhere else.” In his letter he commented that BPT “is always mindful of the time and how much alcohol he has had.”

78. There was no indication in any of these letters that the authors were aware of the circumstances relating to the wilful exposure offence in Queensland. As a consequence, I decline to place any significant weight on them. The wilful exposure offence is BPT’s second sexual offence, and can be seen to paint his sexual impulses, and his ability to control them, in a different light. Without the authors of the references being aware of the circumstances of that offence their opinions are not to be relied on.

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

79. In support of his application relied on a report dated 12 April 2015 from Dr Mark Millic, a Clinical, and Forensic Psychologist. BPT provided Dr Millic with:

1. The Police facts relating to his 1997 offence.

2. The Police Sex Crimes Squad records relating to the allegation from 1996 and the 1997 offence.

3. The Court outcomes for the wilful exposure charge, but no details of the offence.

80. Dr Millic took a history from BPT and his wife, and undertook psychometric testing of BPT.

81. Dr Millic proffered the following opinion –

“BPT poses no significant risk to children or young people. His risk to children and young people is about the same as that of members of the general public because of the time elapsed since his 1997 and 1999 offences. Additional protective factors are his enhanced self-monitoring, prosocial lifestyle and satisfactory psychological health. Apart from an allegation against him made to police in 1996, there is nothing in BPT's history to indicate unhealthy sexual interests towards, or violent tendencies towards, children and young people.

BPT's low risk of offending is supported by research investigating the effect of the passage of time on risk of reoffending. Bushway et al (2011), found that amongst a mixed group of young offenders in Holland, the risk of offending was the same as that of the general population after approximately ten years crime-free. They add that "in line with previous studies focusing on young, first-time offenders, we find that it takes approximately 10 years before offenders age 12-26 years with no prior convictions start to resemble their never-convicted counterparts. Older offenders with no prior crimes begin to the Agency look like non-offenders after 2-6 years" (p. 52).

Blumstein & Nakamura (2009) also found a steep decline in risk of offending with time elapsed since the offence, as is illustrated in Figure 1b on page 337 of their report:

…

Blumstein & Nakamura conclude that, in terms of risk, young property offenders start to resemble non-offenders after 4.2 to 4.8 years clean while young violent offenders start to resemble non-offenders after 7 to 8 years clean (2009, p. 344).

Hargreaves and Francis (2013) found that English and Welsh juveniles who had committed a sexual offence arid remained crime free for seventeen years were no more at risk of offending than the general population.

Given this evidence, it is safe to grant Mr Parker a working with children clearance.

82. It is to be noted that BPT was 28 when he committed the index offence, and some two to three years older when the wilful exposure offence occurred. The relevance of statistics relating to young offenders and juveniles to BPT’s circumstances was not explained by Dr Millic and is not clear to me.

83. In cross-examination Dr Millic said that the reference to BPT’s enhanced self-monitoring in his report referred to the fact that BPT is a “reformed drinker,” who is aware of the risk that drink poses to him, as was evidenced by its role in the index offence. As a consequence, Dr Millic said that BPT limits his drinking to “one an hour on social occasions.”

84. It was put to Dr Millic that BPT had recently undergone a course of psychological treatment with Mr Rodney Ward following which BPT reported, among other things, “safer drinking patters” compared to his consumption of a bottle of scotch a week, three glasses nightly, at the start of that treatment. Dr Millic acknowledged that this was inconsistent with what BPT had told him, but “not at a level that would pose a risk to children.” He explained that he was reliant on what BPT and his wife told him about BPT’s drinking. BPT’s concealment of his actual alcohol consumption did not cause Dr Millic concern, as it is usual for people to minimise their alcohol consumption. While it lead him to place less weight on information provided by BPT, it did not change his overall conclusion.

82. An earlier version of Dr Millic’s report, dated 1 April 2015, was filed in the proceedings. In it, under the heading “Criminal record,” Dr Millic wrote:

“I had available to me a copy of the Police Facts of BPT's 1997 offence.

I also had available to me BPT's NSW Police Force — Sex Crimes Squad record. There is an entry for 1996, when he was a person of interest, and one for the 1997 offence, Sexual intercourse without consent.

BPT explained that in 1997 he was at a party where he and the victim of the offence (one of his friends) had consumed too much alcohol. BPT said that the woman's husband found them in bed together. BPT said that he regretted the harm he had caused the victim, and since that time he has been very careful never to place himself in a similar situation.

BPT's Queensland criminal record has a charge for "wilful exposure" for which no conviction was recorded. He explained that he was urinating in a public place at the time.”

86. When the course of events outlined in the Police brief relating to the wilful exposure charge were outlined to him, Dr Millic commented that

“It appears that [BPT] has minimised his offence. This causes me concern in relation to my assessment.”

87. It is important to observe that those facts reveal that BPT exposed himself, while masturbating, to a women and her four children in a car. The ages of the children is not revealed. This is evidence of BPT performing a sexual act in the presence of children, whereas an adult was the victim of his index offence.

88. Dr Millic’s attention was drawn to inconsistencies between what BPT told him about the events leading to the sexual intercourse without consent charge, and the true facts of that event. Dr Millic said that BPT had provided him with his version of the facts, before Dr Millic had seen the Police brief. He agreed that a comparison of the two version revealed inconsistencies that showed BPT was attempting to minimise the seriousness of the index offence.

89. It is apparent that BPT did not tell Dr Millic the truth about his drinking, about the circumstances relating to the wilful exposure offence, and about the circumstances of the index offence. While this can all be explained as an attempt to minimise the seriousness of each of those individual issues, collectively they seriously distort the true picture of BPT’s present circumstances, and create real difficulty in assessing his risk of reoffending and his risk to children. Dr Millic acknowledged this with respect to BPT’s distortion of the circumstances relating to the wilful exposure charge. As a result real doubts exist as to the reliability of Dr Millic’s risk assessment.

90. BPT’s minimisation of the circumstances of the index offence to Dr Millic (being found in bed with a female friend, by her husband, after a party at which they got intoxicated) raises real concerns as to the quality of BPT’ s insight into the seriousness and criminality of his conduct on that night. His willingness to distort the distasteful truth of those events, even when dealing with his own forensic psychologist, is of concern when assessing his risk to children.

Any other matters that the Children’s Guardian considers necessary

91. The two major issues that the Children’s Guardian asked me to have regard to under this heading are BPT’s drinking habits, and his lack of candour (i.e. his credit).

92. The Children’s Guardian submitted that BPT’s alcohol usage was central to any risk assessment, as it had played a central role in the index offence. This is a view with which BPT agreed in his affidavit.

93. I have already outlined the varying evidence relating to what BPT has said about his alcohol consumption, both in evidence to the Tribunal and in what he told Dr Millic and Mr Ward. I should also note that in cross-examination BPT conceded that he had lied to Dr Lewin (who prepared a report for BPT’s sentencing on the sexual assault without consent charge) about his usual levels of alcohol consumption at that time.

94. In my view, BPT minimisation of his current levels of drinking shows a lack of candour about an issue that BPT knows is central to the risk assessment. His evidence that he did not seek treatment from Mr Ward concerning his drinking pattern, and his reliance on Mr Wards report, points to a distinct lack of candour by BPT. This is so because BPT relied on the letter when, on his evidence, it incorrectly said, to his knowledge, that he had sought treatment regarding his drinking pattern, and that the pattern had changed when treatment ceased.

95. The part alcohol played in in his committing the index offence was the subject of comment, and recommendations for treatment, by the sentencing judge. While I am inclined to the view that BPT’s level of drinking is generally controlled so that he can drive, it has a chameleon like quality when one tries to pin down how often and how much he drinks. Having heard his evidence I am satisfied that he drinks daily. Alcohol remains an important part of his day to day life.

96. I also accept that BPT was not candid with the Tribunal about the circumstances relating to his wilful exposure offence in Queensland. His version of the events did not have any sexual element to it and did not involve children. I am satisfied that he mislead Dr Millic, on whose report he relied, about his level of drinking, the circumstances of the index offence, and the wilful exposure offence.

Conclusion

97. Section 28(7) of the Act provides that BPT”s is to be presumed to be a risk to children unless he proves to the contrary. In attempting to satisfy the Tribunal that he is not a risk to children BPT has an obligation to fully disclose all relevant matters. I am satisfied that BPT has not adhered to his full disclosure obligation.

98. Having regard to all of the factors set out in s 30(1) of the Act, which I have discussed above, BPT has not satisfied me that he does not pose a risk to children. He has a history which includes a very serious sexual offence against an adult female (in circumstances where he was unable to restrain his sexual impulses, while under the influence of alcohol) and an episode of public masturbation, in the presence of children. There is no indication that alcohol was involved in the wilful exposure offence. While the last of those offences happened 15 years ago. BPT’s failure to candidly admit the circumstances of it causes me considerable disquiet, and real concern about the worth of BPT’s assurances that he will not offend again and is not a threat to children.

99. In the light of all the evidence I am unable to find that BPT poses no risk to children. As a consequence the Act provides that he is presumed to be a risk to children. He has not disproven that assumption.

100. It follows that his application for an enabling order must be dismissed.

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

Registrar

Amendments

03 July 2015 - Paragraph 71, 81 and 85 anonymised

Decision last updated: 03 July 2015