BQJ v Children's Guardian

[2015] NSWCATAD 217

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BQJ v Children’s Guardian [2015] NSWCATAD 217
Hearing dates:	17 June 2015
Decision date:	21 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Molony Senior Member
Decision:	1. The decision of the Children's Guardian made 27 November 2014 refusing BQJ a working with children check clearance is set aside.  2. The Tribunal determines to grant BQJ a non-volunteer working with children check clearance.
Catchwords:	Child Protection – working with children check clearance – application for administrative review Children's Guardian decision set aside – working with children check clearance granted
Legislation Cited:	Child Protection (Working with Children) Act 2012
Cases Cited:	AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commissioner for Children and Young People v FZ [2011] NSWCA 11 R v Commission for Children and Young People [2002] NSWIRComm 101
Category:	Principal judgment
Parties:	BQJ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Harnstein (Respondent)   Solicitors: De Brennan Tomlinson Pearce (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	1410734
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS For decision

Non-publication orders

1. In this matter the Tribunal made an order on 26 February 2015 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication or broadcasting without leave of the applicant or that of any person which might identify the name of the applicant. As a consequence the applicant is referred to in these reasons as BQJ. In these reasons specific information that may reveal his identity is discussed in a non-specific way in order to protect his identity.

Background

2. BQJ has applied for administrative review of a decision of the Children's Guardian to refuse him a working with children check clearance under the Child Protection (Working with Children) Act 2012 (the Act).

3. BQJ has convictions for the following offences:

1. A conviction for the manslaughter of a child which was recorded in 1982 and for which he was sentences to ten years penal servitude, with a specified non-parole period.

2. Two counts of common assault on children which was recorded in 1982 and for which he was sentences to three months each, to be served concurrently.

Those offences took place and the convictions were recorded when BQJ was a child.

4. BQJ made an application for a working with children clearance check on 16 April 2014. On 30 June 2014 the Office of the Children's Guardian imposed an interim bar on BQJ engaging in child related work. On 27 November 2014 the Children's Guardian advised BQJ that he would not be granted a working with children clearance check because he was a risk to children, as, “The gravity and seriousness of [his previous convictions] precludes the OCG from determining that you do not pose a risk to the safety of children.”

5. In reasons for decision subsequently provided by the Children's Guardian it was explained that –

“While the Applicant has provided extensive evidence of subsequent rehabilitation, and a compelling account of his desire to give back to the community, particularly in the field of sporting endeavours, there is limited evidence of remedial action taken by way of psychological intervention or treatment or an assessment of the dynamic risk factors operation on the applicant at the time of the offences or now.“

6. On 23 December 2014 BQJ made an application for administrative review of that decision in this Tribunal. The matter came before me for hearing on 17 June 2015, when Mr De Brennan appeared for the applicant, and the Children's Guardian was represented by Ms Harnstein.

Material before the Tribunal

7. In considering BQJ’s application I have had regard to the following materials:

1. The s 58 documents filed by the CG on 12 March 2014 (173 pages)

2. Further s 58 documents filed on 14 May 2015 (4 pages).

3. Typed transcript of sentencing remarks made in 1982 by the presiding Justice on BQJ’s conviction for manslaughter of a child, and two convictions for assault of a child.

4. Reasons for decision filed on 26 March 2015.

5. Report of Dr Olav Nielssen, Psychiatrist, dated 21 April 2015.

6. BQJ’s bundle of document including his statement of 17 April 2015.

7. Three additional character references filed on 27 April 2015.

8. Applicant’s written submissions.

8. During the hearing BQJ gave sworn evidence and was cross-examined.

The legislative scheme

9. The Act regulates who can engage in child-related work by requiring that they have “working with children check clearances.” 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: see s 3. 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. Children are persons under 18 years of age: see s 4.

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

11. 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 is engaged in, or proposes to engage in, ‘child-related work’. Section 6 of the Act provides, among other things, that a person who engages in work in education and in clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children is engaged in “child-related work” for the purposes of the Act.: see section 6(2)(d) and (g) (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.

12. If any of the matters specified in Schedule 1 apples to a person, s 14 provides that they are the subject of an assessment requirement. Among the assessment triggers specified in Schedule 1 are that–

(1) Proceedings have been commenced against a person:

(a) for an offence specified in clause 1 of Schedule 2, if the offence was committed as a child (whatever the outcome of the proceedings).

Schedule 2 contains disqualifying offences. One of these is (1)(b) –

(manslaughter of a child (other than as a result of a motor vehicle accident).

Manslaughter of a child, committed when a child, is therefore not a disqualifying offence for the purposes of the Act, but operates as an assessment trigger to which s 14 applies. So too does a charge of indecent assault against a child: see clause 2(a) of Schedule 1.

13. The Children's Guardian, having received an application may determine that an applicant is the subject of an interim bar on engaging in child-related work, if of the opinion that, “it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work pending the determination of the application or assessment”: see s 17. In BQJ’s case an interim bar was imposed on 30 June 2014.

14. Section 15 provides that the Children's Guardian must conduct a risk assessment of an applicant for working with children check clearance who is the subject of an assessment requirement. Sub-section 4 provides –

(4) In making an assessment, the Children’s Guardian may consider the following:

(a) the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred,

(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,

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

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

15. Section 18(2) provides that the Children's Guardian must grant a working with children check clearance to a person who is the subject of an assessment requirement, “unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.” The Children's Guardian is required to notify the applicant of that any proposed decision to refuse a working with children check clearance, and to then consider any submissions made by that person, before finally deciding the application: s 19. A person who is refused a working with children check clearance is prohibited from applying for a clearance for 5 years, unless there is a defined change in circumstances: s 21.

16. A person aggrieved by a decision of the Children's Guardian to refuse a working with children check clearance may seek administrative review of that decision under the Administrative Decisions Review Act 1997: s 27(1). Such an applicant has an obligation to “fully disclose to the Tribunal any matters relevant to the application.”

17. Section 30 sets out factors to be considered by the Tribunal when conducting a review under s 27 to determine whether an applicant poses a risk to children. 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.

18. 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.’

19. Those remarks are equally applicable to the word ‘risk’ as it appears in the 2012 Act.

20. 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; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. The object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

Consideration

21. It is convenient to discuss BQJ’s application by considering each of the factors that s 30 of the Act requires the Tribunal to have regard to (although not in the order set out in that section).

The seriousness of the matters that caused the refusal of a working with children check clearance

22. The triggers leading to the refusal of BQJ’s working with children check clearance is his conviction in 1982 for the manslaughter of a five year old boy and a charge of indecent assault. He had been charged with murder, but a jury accepted that, by virtue of an abnormality of mind, his responsibility for that crime was diminished, and convicted him of manslaughter instead. He had also been charged with indecent assault of another boy on an ex officio indictment, of which he was found “Not guilty.”

23. At the time of the offences BQJ was aged 14. A summary of the events of that day he indicates that he intercepted an 11 and a 5 year old boy, who had been shopping, as they walked home. Claiming to be from the Police he took the boys into a toilet block, and ordered the 11 year old into a cubicle.

24. The 11 year old then heard BQJ tell the crying 5 year old that he was going to kill him, and could hear the 5 year old being hit and kicked. By looking under the door the 11 year old could see BQJ tying a handkerchief around the 5 year old’s mouth. He then went to help the 5 year old, and removed the handkerchief. BQJ the ordered the 5 year old into a cubicle.

25. BQJ the offered the 11 year old a cigarette, and told him to, “Take your pants off.” The 11 year old ultimately complied out of fear, and BQJ then began sucking his penis. When the 11 year old declined BQJ’s request that he reciprocate, BQJ grabbed him by the throat, pulled him to the floor, and bashed his head against the ground. As the 11 year old got up, BQJ began checking his pockets and produced a knife.

26. The boys then offered BQJ money to let them go. BQJ said, “I am not going to let you go, you’re going to tell the Police.”

27. The 11 year old then heard someone walking outside the toilet and called for help. BQJ grabbed him. Placing a hand over the 11 year olds mouth, BQJ then climbed up to look over the wall, keeping hold of the 11 year old’s arm. The 11 year old broke free, and ran from the toilet, calling out to the 5 year old, “I am going to get the Police.” He heard the five year old say, “OK.”

28. As a result of the 11 year olds attendance at a Police Station, Police attended at the toilets and found the 5 year old’s body in a cubicle, with a large amount of blood. Witnesses identified BQJ as a person seen running from the toilet block.

29. A subsequent autopsy found several bruises and fourteen knife wounds to the body of the 5 year old. Five were of a serious nature, with one, a stab to the heart, leading to the cause of death.

30. As already noted BQJ was charged with murder. He was found not guilty of murder on the ground of diminished responsibility, but guilty of manslaughter.

31. A charge of indecent assault was also levelled against him with respect to the 11 year old. His criminal history records that he was found not guilty of this offence. The Children's Guardian argues that this is a result of a technical difficulty with the charged, which is discussed in a memorandum from the prosecuting solicitor. Whether this is correct is impossible to tell from the information before me. The bail report produced from Police records shows a verdict of “Not Guilty.” This is the best evidence as to the outcome of the indecent assault charge.

32. In his sentencing remarks at BQJ’s trial the sentencing judge said –

“The circumstances of this crime were very serious indeed. Fourteen stab wounds in all were inflicted upon this small boy in the lavatory… Five of these were deep penetrating wounds in different places all over his trunk. I accept that some of the fourteen wounds were of a defensive kind as the unfortunate victim sought to fend off the knife with which you were attacking him. But it remains a grim picture indeed. And in particular is this so in the light of the jury's finding that by those wounds you intended either to kill or to inflict really serious bodily injury. That finding cannot be read down or ignored.”

33. The seriousness of BQJ’s manslaughter conviction must also be emphasised in the context of BQJ now applying for a working with children check clearance. It was a vicious, brutal and most disturbing crime committed by BQJ when he only 14 years old.

34. The sentencing judge, at BQJ’s trial, also sentenced him for two charges of common assault to which BQJ pleaded guilty. His Honour described them thus –

“Both these new charges arise out events in the lavatory of another school, on the 15th August, some five weeks or so prior to the events in the lavatory of the [redacted] School. The two complainants, both young girls, were then aged eight and ten years respectively. You told these young girls in the school playground that you were a police trainee, and you offered to show them a pair of handcuffs which you said you had in a bag you had placed in the lavatory block. Having so induced the girls into the lavatory, you produced a knife and told them that you would hurt them with it. You then tied the older girl to one of the lavatories by her hands and gagged her with a bandage. This was, you told the police, to keep her out of the way and to keep her quiet. Next, you directed the younger girl to pull down her pants and to lay down on the floor. The girl having complied with the direction, you lay on top of her and, so far as your record of interview concedes, you kissed her. There were other allegations made against you, but this is the extent to which your admissions and your plea of guilty to the two charges of common assault go. This episode lasted some ten minutes or so.”

35. In sentencing BQJ the court noted, among other things, the positive reports it had received regarding BQJ’s behaviour while under supervision pending his trial, commenting that –

“Those reports speak surprisingly highly of your behaviour, of your attitude and your relationship with both staff and the other boys. It is obvious from these reports, which I have found immensely helpful, that you have been able to use your stay there so far positively and constructively.

36. BQJ was sentenced to –

1. penal servitude of 10 years for manslaughter, with a non-parole period expiring in late 1985.

2. Three months for each common assault, to be served concurrently.

37. BQJ sought leave to appeal against the severity of sentence to the Court of Criminal Appeal. The appeal was dismissed.

The period of time since those matters occurred and the conduct of BQJ since they occurred

38. The offences which BQJ was convicted of in 1986 took place over 30 years ago.

39. While he was sentenced to 10 years imprisonment, he was released after four years, and was then supervised by the Probation and Parole Service until 1990. The material before the Tribunal indicates that he was considered a model detainee who showed every sign of being rehabilitated.

38. Since his release the Children's Guardian noted that BQJ had come to Police attention as follows -

1. In 1994 BQJ was convicted of improper use of a telecommunications service, which conviction was quashed on appeal.

2. In 1998 BQJ was convicted of driving with a low range prescribed concentration of alcohol. He was fined $350.

3. In 2002 Police observed BQJ enter a public toilet and remain there for a period of time.

4. In 2009 Police observed BQJ enter an isolated public toilet “known for offensive conduct with males.” After another male left the toilet Police entered and found BQJ in a cubicle. He told them he was unwell, with vomiting and diarrhoea and that nothing inappropriate had happened. Police noted his car was parked 100 meters away, and that there were closer parking spots.

5. In 2013 BQJ was issued with an infringement notice for shoplifting a shower tap from a Bunnings store.

41. As BQJ’s conviction for improper use of a telecommunications service was overturned on appeal it is not a matter that concerns me when assessing BQJ’s risk to children. Similarly his 1998 PCA conviction does not concern me when assessing his risk to children.

42. BQJ gave evidence in which he denied any other purpose behind his attendance at the Public toilets than his use of the facilities. He said that in 2009 he had become ill while at work, and had used the facilities accordingly. His car was parked where he had parked when he arrived for work. I have no reasons to reject this evidence from BQJ. I also agree with BQJ’s submissions that homosexuality is not a crime, and that the Police records of these matters have not been tested and do not indicate any concern by Police that a child was involved.

43. BQJ conceded that he had been issued with the infringement notice with respect to shop lifting.

The age of BQJ at the time the matters occurred

44. At that time was aged 14.

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

45. The victim of the manslaughter was aged 5. The other victim of that attack was aged 11. The victims of the common assault on the two girls were aged 8 and 10. All the victims were young and not street wise. There can be little doubt that they were all terrorised by the conduct of BQJ.

The difference in age between the victim and BQJ and the relationship (if any) between the victim and the person

46. BQJ was 9 years older than the manslaughter victim, 3 years older that the 11 year old boy, and 4 and 6 years older that the girls.

47. BQJ had no relationship with any of them.

Whether the BQJ knew, or could reasonably have known, that the victim was a child

48. The circumstances indicate that BQJ must have known that each of his victims, who were all younger than him, were children.

BQJ’s present age

49. BQJ is now aged 48.

The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred

50. BQJ has an extremely serious criminal record as a juvenile. Since he was released from custody he has a conviction in 1998 for a low range PCA, and was issued with a shoplifting infringement notice in 2013 in what he described to the security officer who detected the offence as a “crazy moment.”

51. Aside from those two blemishes the material before me indicates that, since his release from custody, BQJ has led a productive life, in which he was worked continually and advanced himself; married and had two sons; and made a significant contribution to his chosen sport as a player, coach, and club committee member.

52. It is apparent that BQJ’s period of youth detention was a positive experience for him in which he gained the support of staff and was entrusted with broader roles of responsibility. He was encouraged to pursue his own personal development, such as by participating in the Duke of Edinburg awards and by being allowed to participate in numerous sporting events. His love of sport was clearly encouraged. His positive behaviour led to him being released on probation fifteen months before the expiration of the minimum term set by the Court.

53. A youth worker at the detention centre wrote in a reference dated 7 July 2014 that –

During [BQJ’s] time at the … Detention Centre I found him to be an honest and reliable detainee. I supervised [BQJ] in a number of programmes with some involving working with developmentally delayed young people and adults. For the entire time he was at the centre he posed no problems regarding his behaviour towards other detainees or with the community programmes he was involved with.

Whilst BQJ was at the centre he progressed to a level which enabled him to become a member of a [local sports] club. Upon [BQJ’s] release he remained with the club for approximately 10 years and also on the management committee. During this time with the club [BQJ] represented the [region], N.S.W, U/18 (captain) and Australian U/19. Because of [BQJ’s] knowledge of the game I asked him to assist me in coaching our junior teams for approximately 3 years. [BQJ] left our club due to work, marriage and relocating.

Even though a number of club members were aware of [BQJ’s] history they were never concerned for the safety of their children.

When [BQJ’s] son joined the {Name] Club he became involved initially as a manager and later as a coach. [BQJ] continues to be involved as a coach of the junior teams for the past five years.

In more recent year s [BQJ] has been a manager and coach of the [Name] Junior representative teams. And again there have never been any concerns regarding his behaviour towards the players or their families.

In regard to [BQJ’s] character I am always pleased to write a reference for him. I continue to have no hesitation in asking [BQJ] for assistance with junior teams if the occasion arose.

54. A statutory declaration sworn in July 2014 by the Superintendent of the detention centre says that -

… I was responsible for [BQJ’s] custody, professional treatment and general rehabilitation.

Since that time I have known [BQJ] as he lives in our local community where he is held in high regard, is married with two sons, has been involved in coaching representative [teams] and holds a supervisory position with [a large corporation].

I have watched [BQJ] grow into a mature young man and have not had any reason to see him other than as a well adjusted citizen in the community.

[BQJ’s] involvement with his family could best be described as that of a dedicated father who, with his wife, …, are fully involved with his children ensuring that they have received the best of education in a local Church School and participated in their respective sporting bodies … where they have both achieved representative levels.

I have no hesitation in referring to [BQJ] as a mature model citizen.

55. In a statutory declaration dated 11 July 2014 set out in some detail his personal, professional, and sporting history from his time in the juvenile justice system till now. In that statutory declaration BQJ did not address the trigger offences. In summary the information contained in the statutory declaration shows that:

1. Since his release from Juvenile Detention BQJ has always been in work. Initially he was employed in unskilled occupations, but over the years he has obtained various qualifications which have enabled him to work in a variety of roles. He has been employed by his present employer for 15 years as a manager.

2. BQJ has been married for 24 years. He and his wife have two sons who are receiving private educations. They own their own home, subject to a mortgage.

3. BQJ has an evident passion for his chosen sport and has closely involved in it as a player (ceasing at age 42), coach and club administrator. He has undertaken the training necessary to coach at a high level and is a successful and respected coach.

4. At various times over the years BQJ has held a security licence, a hire car licence, and been a Justice of the Peace. Each of these has lapsed as they are not required in his present work. He has also been an active volunteer in a number of community organisations such as the RFS. His contribution in fighting bush fires has been acknowledged by State Government award.

56. BQJ also provided the Tribunal with a large number of personal references which both parties traversed in some detail in their submissions. Many of them were written for the applicant in the course of his career, and demonstrate that he has been held in good regard by those with whom he has dealt with over the years. These usually do not refer to this conviction.

57. There are also a number of recent references written for the purpose of these proceeding by parents of boys who BQJ has coached, and who are aware of BQJ’s juvenile criminal history. These each speak of the high regard with which BQJ is held by both parents and the boys in the teams he coaches. I set out a few extracts form those references which speak for themselves. One parent wrote –

“I am aware that [BQJ] spent 4 years at [the Detention Centre] and was granted early release due to his good behaviour and rehabilitation.

This did not change the relationship that I had with [BQJ]. [BQJ’s] interaction with all of the boys …, including our son, his coaching style, the fact that all the boys looked up to him, the respect that all the parents afforded him - was more relevant to my assessment of him than the offence he committed 34 years ago.

I have no hesitation in stating that in my opinion [BQJ] is a person of great character and integrity. He has given selflessly of his time to encourage, motivate and coach boys …. As a team sponsor I have seen first hand the interaction between [BQJ] and the boys (including our son) and I believe that he is an asset to all activities he gets involved in.

When [BQJ] had to step down as a coach during the …season last year there were a lot of disappointed boys and parents - who are very keen to see him back doing what he does best-coaching teenage boys to be great … players in our local community.

In regards to [BQJ’s] Working with Children Check I can honestly say that having been involved my 5 children's various sports and activities over many years and having met many adults in coaching positions, [BQJ] has been an outstanding coach and mentor to our son and the rest of the team, and I have no concern whatsoever in regards to him being involved with our children.”

58. Another parent wrote –

When [BQJ] asked me to provide this reference and he explained the reasons, I did not hesitate to help. I am aware that [BQJ] committed an offence when he was 14 years of age and as a result a young child was killed, and [BQJ] was charged with murder and convicted of manslaughter and that he served a sentence at [the Detention Centre]. I have got to know the man he has become and he is a kind, gentle man who I have the greatest respect for and I know he is well respected by his peers and the boys that he has voluntarily trained for years …. I have never seen nor heard of any adverse or inappropriate behaviour from [BQJ] towards any child and I really hope that we see him back on the footy field soon as he is greatly missed.”

59. A third parent wrote –

“Since our meeting several years ago [BQJ] and I have become close associates with a relationship that I value. We have discussed many subjects and shared personal issues of which [BQJ]'s past as a young boy of 14 committed an offence and as a result a young child was killed. [BQJ] was charged with murder and convicted of manslaughter and served a sentence at [a] detention centre.

I have first-hand experience of [BQJ]'s involvement with children as I have been involved with the team since 2009 and seen how he inspires the boys to play fair, honestly and respectfully in … competition against our … rivals. Several boys hinge their club registration on [BQJ] being their coach. As manager l have direct contact with all the boys and all their parents and I have not received any questions regarding his conduct around the children.

[BQJ] has promoted [our sport] on a Club level and State Representative level. He has spent time with the boys in training camps, locker rooms and on travel to games. He has ensured the boys feel safe, secure and they trust the authority that he has, so do the parents that entrust him with their children. I have never seen or heard any reports of [BQJ] acting in an unprofessional manner on or off duty with children.”

60. I am satisfied that the material before me establishes that BQJ is held in high regard by those he deals with, and is seen as good role model for the boys he coaches. All the material before me points him being a vastly different person to the boy who was found guilty manslaughter at age 14. Indeed the material demonstrates that the goal of rehabilitation which underlined his sentence to juvenile attention has been achieved, in a remarkable and heartening fashion.

61. Aside from his two relatively minor brushes with the law in 1998 and 2013 (neither of which provide a basis for a concern that he is a risk to children) BQJ’s conduct since the trigger offence has been exemplary.

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

62. In addition to the information already referred to BQJ filed a report from Dr Olav Neilssen, Psychiatrist, dated 21 April 2015. In so doing, he addressed one of the deficits noted the Children's Guardian’s reasons for decision of 26 March 2015. Dr Neillssen has extensive experience in dealing with offenders, and has made a close study of the basis of risk assessment and meta-analysis of the recidivism of homicide.

63. Dr Neilssen’s report recorded that he had taken a detailed history from BQJ, who had little memory of the events leading to the murder charge. BQJ denied that there was any sexual element to the offence, pointing to the fact that the indecent assault charge was dismissed. BQJ did not tell him about the assaults on the girls. He had asked BQJ about this, but could not recall his response.

64. Dr Neillssen also took a family history from BQJ in which he disclosed the dysfunctional nature of his family of origin, and that one of his brothers had suicided, while a nephew had been diagnosed with bi-polar disorder. BQJ denied suffering from any psychiatric symptoms, and said that he did not abuse drugs or alcohol. On mental state examination Dr Neillssen detected no apparent abnormality. Dr Neillssen concluded that BQJ does not suffer from any psychiatric disorder. He did note that –

“There was a history of an episode of severe violence and other conduct disturbance in early adolescence, but no pattern of antisocial conduct before the age of eighteen that would meet the criteria for the diagnosis of a childhood conduct disorder. Moreover, there was no pattern of antisocial behaviour in adult life, or any history of substance abuse.”

65. Dr Neilssen expressed the following view with respect to the risk associated with BQJ working with children –

With regards the history of a homicide matter and the two assaults of young girls, although there are some troubling and difficult to explain aspects of those offences, they took place when [BQJ] was fourteen years old, and little more than a child himself. The personal circumstances that contributed to his behaviour were taken into consideration by the court at the time. [BQJ] expressed his regret and remorse, and by all accounts has taken every opportunity towards rehabilitation, and to make amends for his teenage behaviour in adult life. There was no history of any pattern of violent or antisocial conduct as an adult. There was no information to suggest that [BQJ] harbours plans to commit offences, including offences against children. [BQJ] does not have a substance use disorder, which is one of the main predictors of criminal recidivism. The rate of all types of offences decline with age, and [BQJ] is now 48 years old.

The science of risk assessment is limited by the very low base rate of serious offences and our limited ability to identify factors shown to be specifically associated with serious offences. For example, the rate of homicide in Australia is now about 1 per 100,000 per annum and the rate of homicide recidivism is less than one percent of homicide offenders. The factors most associated with homicide recidivism are alcohol use and alcohol related brain damage, a pattern of jealousy in relationships and severe mental illness. Hence, there is very little to suggest that [BQJ] carries a high risk of committing a further homicide offence. He has been in stable employment in positions of trust, and has been in a stable marriage of twenty three years. Based on the absence of the main risk factors for re-offending, and the presence of strong protective factors, I believe [BQJ] carries a low risk of committing any further offences, including offences against children.

I believe a better guide to whether [BQJ] is fit to work with children is to consider his performance as a football coach over the last twenty five years, and his performance as a parent of two sons. The information that is available suggests there have been no concerns about his suitability to perform those roles in the past, or any information to suggest that he is an unsuitable person to continue as a parent or sports coach in the future.”

66. Dr Neilssen’s report concluded –

“I did not identify any features of [BQJ] clinical history or presentation to indicate a current risk of harm to children in [BQJ] care, and hence I do not recommend interventions to mitigate any risk. He carries an increased risk of severe mood disorder, given the family history. However, he has reached the age of forty eight without an episode of mental illness, which greatly reduces the likelihood that he will develop a similar disorder, and if a mood disorder was to emerge, it could be treated in the usual way, without affecting his suitability to act as a sports coach.”

67. In cross-examination Dr Neilssen was asked whether BQJ’s description of his crimes showed a lack of insight into the seriousness of his conduct. Dr Neilssen agreed that one could say that, but thought that poor memory and not wanting to be seen in a bad light, were equally viable explanations. Dr Neilssen agreed that he had not performed any dynamic or static risk assessments of BQJ, such as the Static 2000R, which it was put to him which show BQJ as a moderate risk. Dr Neilssen described such risk assessments as “complete nonsense.” He said that the Static 2000R “conflates the minor with the serious,” and is a “simplistic 12 point scale,” with “low’ bands off reoffending. He said that, “It is not a sound basis form making predictions about an individual’s personal behaviour.” In his view BQJ demonstrated, “complete rehabilitation.”

Any other matters that the Children’s Guardian considers necessary

68. The Children's Guardian submitted that BQJ had lied to both Dr Neilssen during their consultation and to the Tribunal when he gave evidence. Central to this submission were BQJ’s:

1. Failure to tell Dr Neilssen about the assault on the girls;

2. Insistence in cross-examination that he had not persuaded the girls to go to a toilet block, and that the court found it never happened; and

3. Lack of clarity, when questioned about when and where he had a knife during his offending behaviour. For example when asked he said he had no memory of having a knife when he assaulted the girls.

69. The Children's Guardian submitted that as a result of these lies BQJ was in breach of his obligation under s 27(4) to fully disclose to the Tribunal any matters relevant to the application.

70. I do not accept this submission. In his evidence BQJ said he had no recollection of stabbing the 5 year old, of threatening to kill that boy, or of the sexual assault charge. In my view it both clear and perfectly understandable that BQJ has a very poor recollection of these events. He was only fourteen years old at the time, his balance of mind was found to be disturbed at the time, and the events he was charged with, and the trail itself, must have been both disturbing and traumatic for him. That his memories are confused, chaotic, and unreliable is understandable. This lack of clarity is demonstrated by his insistence that the Court found that he had not lured the girls to a toilet block, when the record demonstrates that this is not the case.

69. As a result I think BQJ’s lack of clarity with respect to the trigger offences is due to the trauma associated with those events, and the effluxion of time, rather than him deliberately seeking to mislead the Tribunal.

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

72. There can be no doubt that were BQJ to repeat the trigger offences the consequence to a child victim could be fatal, or traumatic and very damaging. The seriousness of the trigger offences is a significant obstacle to BQJ’s application for a working with children check clearance.

73. Yet in BQJ’s favour is the fact that those offences were committed when he was 14 years old. They resulted in significant sentences to juvenile detention in the hope that he could be turned around and rehabilitated.

74. All of the evidence points to that intervention to having been remarkably successful. BQJ was a model detained while in juvenile detention, and was released on probation early as a consequence. In the 30 plus years since his release from custody, his life has not been without blemish, but shows him to be a determined and valuable member of society who was worked hard both to establish himself and to support his family. His ongoing involvement in sport has earned him significant respect in the community. He is respected and successful coach of boys sport at club and representative level.

75. Dr Neilssen thought that what BQJ had done in the years since his release from custody was the best measure of his rehabilitation, and of his risk of reoffending and to the safety of children. In this he agreed with the assessment made by parents of children BQJ has coached, who are aware of his juvenile record.

76. When I consider the man BQJ now is I think it highly unlikely that he will repeat the trigger offences.

Conclusion

77. Having considered all of the above I am satisfied that BQJ does not pose a real and appreciable risk to the safety of children. As a consequence I will set aside the decision of the Children's Guardian and instead grant BQJ as volunteer working with children check clearance.

78. The Tribunal orders that:   

1. The decision of the Children's Guardian made 27 November 2014 refusing BQJ a working with children check clearance is set aside.

2. The Tribunal determines to grant BQJ a non-volunteer 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: 21 October 2015