BV v Commision for Children & Young People

[2002] NSWADT 168

CITATION:	BV -v- Commision for Children & Young People [2002] NSWADT 168
DIVISION:	Community Services Division
PARTIES:	APPLICANT BV RESPONDENT Commision for Children & Young People
FILE NUMBER:	024025
HEARING DATES:	15/07/02
SUBMISSIONS CLOSED:	07/15/2002
DATE OF DECISION:	08/29/2002
BEFORE:	Gormly P - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	X v Commission for Children and Young People[2001] NSWADT 130
REPRESENTATION:	APPLICANT In person RESPONDENT V Hartstein, barrister
ORDERS:	Application dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
( 1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

1 This is an application filed 7 May 2002 for a declaration that the Child Protection (Prohibited Employment) Act 1998 ( CP(PE) Act) not apply to Mr BV in respect of the offence of attempt sexual intercourse without consent for which he was convicted on 31 October 1983 at Queanbeyan District Court and sentenced for 3 years penal servitude.

History of these proceedings

2 On 17 May 2002 Mr BV made an urgent application to this Tribunal for a stay of any prohibition under the CP(PE) Act, pending final determination of his application by the Tribunal. The interim application was refused on the grounds there was insufficient evidence before the Tribunal to grant a stay. Mr BV has remained a prohibited person for the purposes of the CP(PE) Act and therefore has been prohibited from engaging in any ‘child related employment’.

Legislative provision

3 Offence Subject to certain defences and transitional provisions s6(1) of the CP(PE) Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment.

4 Definitions The terms ‘prohibited person’ and ‘ serious sex offence’ are defined in s5 of the Act. The term ‘conviction’ is defined in s3 of the Act.

5 There is no dispute in this case either that the offence for which Mr BV was convicted in 1983 is a ‘serious sex offence’ or that Mr BV is a ‘prohibited person’.

6 Declaration The Administrative Decisions Tribunal has jurisdiction to make an order pursuant to s9 of the Act that a person is not a prohibited person with respect to an offence.

7 S9(4) of the CP (PE) Act says a relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

8 S9(5) says in deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person

(a1) the period of time since those offences were committed

(b) the age of the person at the time those offences were committed

(c) the age of each victim of the offences at the time they were committed

(d) the difference in age between the prohibited person and each such victim

(d1) the prohibited person’s present age

(e) the seriousness of the prohibited person’s total criminal record

(f) such other matters as the tribunal considers relevant

Issues

9 On the basis of the legislative framework set out above the issue which the Tribunal must address in determining whether to make a declaration is whether the Tribunal is satisfied that the Applicant does not pose a risk to the safety of children. If the applicant does not pose a risk the Tribunal must then determine whether to exercise its discretion to grant a declaration.

10 In X v Commission for Children and Young People[2001] NSWADT 130 the Deputy President accepted the submission that safety in the context of s9(4) of the CP(PE) Act relates not only to sexual offences but safety from physical and emotional injury of any kind. This approach is adopted here.

Offence

11 The circumstances of the offence of attempted intercourse without consent in 1983 which brought Mr BV under the CP(PE) Act were as follows: Mr BV was 18 years at the time of the offence. In the company of another man and after having been drinking, the two were driving around Canberra when they saw two young girls. They stopped and asked how old the girls were. This established the girls were 14 and 13. The men left, then returned and after some harassment chased the girls. According to the Police file Mr BV caught one girl and grabbed her by the arm. A taxi driver stopped and the two men fled the scene. Later in a police interview Mr BV agreed that he and his mate had sought to abduct the girls for the purpose of forced sexual intercourse. He said they did not know the girls. Mr BV was convicted and jailed for this offence.

Evidence

12 Mr BV is 37 years old. He has been married for about 2.5 years but has been in a relationship with his wife for 5 years.

13 There are two children to this union who are preschool age. His wife has four other children from a previous marriage. Each of these children have been diagnosed with ADHD. The younger three are on medication in an attempt to control the behavioural problems which result form this condition. The eldest child aged 14 years is expecting her first child. Each of these children live with their mother and Mr BV. The eldest daughter’s boyfriend also lives there.

14 Mr BV has almost continuous work history as a truck driver. He has been with his current employer for a number of years. Firstly as a subcontractor and then on a permanent casual basis since November 1998.

15 The reason for this application is to allow Mr BV wife to continue her application to run a daycare facility from their home. The current position of this application is unclear. However both Mr BV and his wife gave evidence that various steps had been taken to obtain such a license.

16 There is evidence that there is some degree of disharmony which sometimes leads to violence in the home. Mr and Mrs BV have caused AVO’s against each other. Both gave evidence that the children of the house witness conflict between the couple. It was also said in evidence that both Mr and Mrs BV instigated such activity.

17 Evidence was given by both witnesses that Mr BV’s excess consumption of alcohol was often the factor which led to disharmony. Dr Lennings reports that he has a long history of alcohol abuse. Both witnesses gave evidence that Mr BV had changed his alcohol consumption to light beer. The evidence given about when this happened is inconsistent. Mr BV said he had stopped consumption of normal beer three years ago, yet Mr Sutton reports that in June 2002 the couple had agreed ‘he would only drink light beer’.

18 I prefer the evidence of Dr Lennings who surmises

‘What does seem to be the case is this. Until March 2001 BV was still drinking at a sufficiently high level to cause violence at home. He continues to drink at a level that borders on hazardous drinking as assessed by the AUDIT (psychological test), and it is likely that his real consumption level is higher than he is admitting to. The importance of alcohol related behaviour lies in the possibility for violence, and for the disinhibition of behaviour.’
19 Mr BV’s NSW Police record includes numerous offences including assault and malicious damage in 1995. His ACT record includes an offence in August 1997 for breach of the peace. There are numerous drink driving offences.

20 Dr Lennings provided a report dated 4 July 2002, for the Commission. He opined that

‘a continuing risk of alcohol abuse and domestic violence must be considered likely in this case. However, …there seems to be an overall low risk of sexual recidivism’

He later says

‘there is in my mind a substantial risk that such children(in a daycare facility at Mr BV home)could be exposed to aggression and domestic violence as a result of poor communication style, potential for alcohol abuse, and reactive aggression revealed by Mr BV…………it is my belief that a substantial risk to children) remains in this case’

21 Mr BV relied on a report prepared by Ms R Mack supported by Mr T Sutton dated 28 June 2002. Ms Mack concluded that although there was no evidence that Mr BV is a sexual danger to children there is evidence that he continues to have trouble with anger control and opined that in the event that a home care facility is approved Mr BV should be monitored.

22 In deciding whether there is a risk to the safety of children the Tribunal is to consider all matters listed in s9(5) of CP(PE) Act.

(a) the seriousness of the offence with respect to which the person is a prohibited person. The offence of attempted sexual intercourse without consent which Mr BV was convicted of in 1983 was clearly very serious.

(a1) the period of time since that offence was committed was 19 years

(b) (c) (d) (d) the victim was 14 years and Mr BV admitted he knew her age at the time of the offence, Mr BV was 18 years at the time, therefore there was an 4 year age gap, Mr BV age now is 37.

(e) Mr BV has a fairly lengthy criminal record including assault, DUI, but the most serious matter was the conviction in 1983 which brought him under this Act.

(f) other matters which the Tribunal considers relevant.

23 Both the applicant and the respondent’s experts opine that the risk of sexual recidivism in this case is low. However both Ms Mack and Dr Lennings reports suggest that Mr BV does pose a risk to children. Dr Lennings states this clearly. Ms Mack recommends the need for monitoring in the event that the license for day care is obtained.

24 I find the violence between Mr BV and his wife and the potential for future violence as discussed above makes me determine that Mr BV does pose a risk to children as envisaged by the CP(PE) Act.

Conclusion

25 Taking into account all the evidence the Tribunal finds that Mr BV does pose a risk to the safety children. Consequently the Tribunal must not declare that the CP(PE) Act is not to apply to Mr BV in respect of the conviction in 1983.

26 At the time of the hearing it was suggested that s8 of the Act may be used to shorten the time Mr BV can bring the matter back before the Tribunal. This would allow Mr BV the opportunity to have further counselling. Dr Lennings says in his report ‘Attitude to therapy. Mr BVs prior response to substance abuse counselling appears to have been poor and his level of minimisation suggests he retains very poor motivation for treatment generally’.

27 In the light of this opinion, the Tribunal does not find this matter an appropriate matter to invoke s8.

ORDERS:

This application is dismissed