Cej v Children's Guardian

[2016] NSWCATAD 164

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CEJ v Children's Guardian [2016] NSWCATAD 164
Hearing dates:	27 June 2016
Date of orders:	27 June 2016
Decision date:	27 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal member R Royer, General Member
Decision:	(1) The decision of the Children's Guardian of 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance is set aside. (2) In substitution for that decision the following decision is made: The applicant is granted a Working With Children Check Clearance.
Catchwords:	Child Protection – Working With Children – "Working With Children Check Clearance" – Appeal against refusal
Legislation Cited:	Child Protection (Working With Children) Act 2012; Child Protection Legislation Amendment Act 2015; Adoption Act 2000; Administrative Decisions Review Act 1997;
Cases Cited:	Grenfell v Director General of the Department of Finance & Services [2013] NSW ADT 57; Commission For Children and Young People –v- V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CEJ (Applicant) Children's Guardian (Respondent)
Representation:	Counsel: M Neville (Respondent) Solicitors: W Hill (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1510585
Publication restriction:	Order of 5 November 2015: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, any child (whether the person is a child now or was a child when the relevant document was created or incident occurred), any victim and the name of any person that might identify the name of the applicant, the name of a child or victim is not to be published or broadcasted without the leave of the Tribunal.

REASONS FOR DECISION

Introduction

1. The applicant was born in 1989 and is 27 years of age.

2. The applicant has qualified as a Social Worker and on 4 September 2015 the applicant applied to the respondent for a Working With Children Check Clearance under the Child Protection (Working With Children) Act 2012 (“the Act").

3. The respondent determined that in deciding the application there should be a Risk Assessment carried out assessing the risk, if any, that the applicant poses to the safety of children.

4. In the course of this assessment, the respondent discovered that the applicant had been convicted by the District Court on 13 June 2008 in respect to an offence committed on 14 October 2007 under Section 86 (2)(a) of the Crimes Act 1900, as it then was.

5. The applicant pleaded guilty to the offence, which was described as "take / detain person in company with intent to obtain advantage".

6. As a result of the investigations, the respondent determined to refuse the application for a Check Clearance, and the decision was notified to the applicant by letter dated 4 September 2015.

7. This was the hearing of the applicant's application to the Tribunal to review the decision of the Children's Guardian refusing the application.

The Evidence

8. The evidence before the Tribunal comprises the following:

1. Application for review filed 24 September 2015;

2. Letter of the respondent to the applicant notifying the applicant of the refusal of the application;

3. The statement of the applicant of 15 January 2016;

4. Psychology report of Dr M Gauci of 30 October 2015;

5. Unofficial transcript from Printers University in relation to the applicant's studies for the Master of Social Work degree;

6. Bundle of documents indexed and tabulated filed by the respondent on 13 November 2015 (204 pages);

7. Exhibit A1 – psychologist report of Dr M Gauci of 26 June 2016;

8. Oral evidence of the applicant of 27 June 2016;

9. Oral evidence of Dr M Gauci of 27 June 2016.

9. There were written submissions filed on behalf of the respondent and oral submissions made on behalf of the applicant and the respondent at the hearing.

10. Relevant Legislation

11. On 28 September 2015 the Child Protection Legislation Amendment Act 2015 (“the Amendment Act”), which in Schedule 2 set out amendments to the Act, was assented to. It provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because the application was made on 13 May 2014 before the commencement of any of the amendments in the Amendment Act. Accordingly the relevant parts of the Act applied as before the Amendment Act amendments and the following discussion proceeds on that basis.

12. Section 4 of the Act provides:

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

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

14. Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.

15. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.

16. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act 2000. It provides in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.

17. Section 12 provides that there are two classes of Working with Children Check Clearances which are:

1. Volunteer – authorising workers to engage in unpaid child-related work; and

2. Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

18. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.

19. Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is “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”. Section 4 defines “conviction” as including a finding that the charge for an offence is proved, even though there is no conviction.

20. The Act defines an “adult” as “a person who is 18 years of age or older”.

21. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. Those matters do not apply. But the Children’s Guardian is not limited to those matters and may decide to conduct an assessment in any matter (Subsection 15(3)).

22. The Children’s Guardian decided to conduct an assessment because of the offence in 2008. Under Section 16 the Children’s Guardian may request further information from an applicant for a clearance related to an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request.

23. The Children’s Guardian requested the applicant to provide further information, which the Applicant provided.

24. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4) of the Act provides :“An applicant must fully disclose to the Tribunal any matters relevant to the application.”

25. Subsection 30(1) of the Act applies to reviews. It provides:

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

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

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

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

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

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

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

7. the person’s present age,

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

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

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

11. any other matters that the Commission considers necessary.

26. 25 Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The Seriousness of any matters that caused a refusal of a clearance

27. The applicant pleaded guilty to the charge in respect to the offence in October 2007 and the trial judge set out the facts in the following terms:

HER HONOUR: On 11 June 2008 before me the offenders [DGW] and [CEJ] adhered to the pleas of guilty they had entered in the Local Court to a charge that they, on 14 October 2007 at W....., in the company of each other, and [CEJ's sister], took and detained [the victim] with the intention of obtaining an advantage, that being to give the offenders the opportunity of menacing, interrogating and intimidating [the victim]. (The maximum penalty for this offence is twenty years.

[CEJ] entered his plea on 2 April 2008 and [DGW] on 30 April 2008. I accept that both of these pleas have significant utilitarian value and I will therefore reduce the sentences I would have imposed by twenty-five percent to reflect that utilitarian value.

The Crown points out that [CEJ] entered his plea on the first day that he possibly could. She accepts that that fact and his cooperation with the police support the evidence he and his mother gave that he is remorseful. I am satisfied that that is so.

Mr F., who appeared for [DGW], submitted that the evidence showed that his client was also remorseful. The Crown did not agree. I watched [DGW] carefully during his evidence and it seems to me that he does appreciate the seriousness of what he did to [the victim] and is sorry for it, although he does want the commission of the offence to be seen in the context in which it occurred.

[DGW] asks that when sentencing him for the take and detain offence I take into account a matter on a Form One. I consider it appropriate to do so.

The facts of the matter are that between August 2006 and September 2007 [the victim], then aged around eighteen, was involved in a relationship with [CEJ's sister], then aged seventeen. She is the sister of [CEJ]. After the relationship between [the victim] and [CEJ's sister] ended, [CEJ's sister] became involved in a relationship with [DGW]. At that same time [the victim] met and became friends with [Ms P], she shared a flat with [DGW].

In the Crown case [the victim] was in the company of [DGW] socially on a number of occasions before the incident giving rise to the charge, without incident or difficulty. On 14 October 2007 the victim went with his friend [Ms N] to visit [Ms P] at her unit in accordance with an arrangement made earlier that day. Another friend [Mr T] was also present. The friend spent the evening at the unit eventually settling down in the lounge room to watch the Sunday night movie.

At about 9pm the three offenders, the two [CEJ's] and [DGW] and their companion [Ms O] arrived at the unit. S. said to the victim "Why are you here, why can't you get your own mates." [Ms P] told her "He's my mate we're just watching a movie." [CEJ's sister]. continued to raise the issue so the victim and his friend, [Ms N] walked out to the front of the unit. They were followed by S who called [Ms N] a slut.

[The victim] decided to take [Ms P] home before returning to the flat to spend the remainder of the night with [Ms P]. At about 10pm when the victim returned to the unit only [Ms P] and [Mr T] were there. The victim noticed a missed call on his mobile phone. It was [CEJ's sister] saying "You're the lowest piece of scum on earth, you both do and youse are fucked." [Ms P] also listened to this message.

[The victim] got a beer and sat down. Whilst he was drinking it he heard a car arrive. He got up to see who it was. He saw the three offenders and [Ms O]. [DGW] crashed through the front door saying to him "I need to talk to you." [DGW] grabbed the victim by the front of his t-shirt and dragged him out of the building, tearing the t-shirt in half in the process. As he pulled the victim through the door [CEJ] also took hold of [the victim] and the two pulled him to the lawn area and threw him to the ground where he landed on his back. [CEJ] stood with his feet on [the victim]'s right hand whilst [DGW] knelt with his knees on the victim's left arm pinning him to the ground. As he lay there [CEJ's sister] kicked him in the ribs.

[DGW] demanded of [the victim] that he "Get into the fucking car." He said "We're going for a drive." The victim told the police that "the two young men had a hold of my arms and dragged me towards Wayne's car." They pushed him into the back seat behind the driver's seat.

[CEJ] sat in the middle of the back seat with [Ms O] on the other side. [DGW] drove and [CEJ's sister] sat in the front passenger seat.

During the drive the victim asked where he was being taken, nobody replied, he was very scared. [CEJ] was apparently saying things like "We're going to burn you in a barrel, we're going to pull your teeth out with pliers so they can't identify you." During the drive [CEJ's sister] said to [DGW]. "How are we going to kill him." [DGW] said "He's going to kill himself." The victim became terrified for his life believing he was going to be killed. She was also saying things like "He used to bash me."

[DGW] drove to S. Upon arrival there [CEJ] grabbed the victim's shirt and told him to get out of the car, he did. He looked around to see if anyone could help him and saw two fishermen about a hundred metres away. He asked [CEJ] if he could take off his shirt, which he was told he could do. He then tried to motion with the shirt to the fishermen. He threw the shirt into the air and ran towards those fishermen, clambering over a mesh fence in his attempt to get to the men. He stepped into a hole and fell onto the beach.

[CEJ], who had been chasing him, caught up and jumped onto his back, grabbed him by the throat and placed him in a headlock. He applied pressure to the victim's throat causing [the victim] to struggle for his breath. His face was in the sand and the pressure on his throat was causing him pain. He believes he passed out momentarily.

He then heard [CEJ's sister's] voice telling her brother to let the victim up as he could not breathe. She had her hand near his mouth, apparently checking to see if he was breathing. [CEJ] released the victim and he began to cough and dry retch. [The victim] could see the two male offenders and [Ms O] talking to the fisherman. [DGW] then returned to him and told him to get up. He said he could not. [DGW] said "Get up or l'll make you." He got to his feet and was directed to the car by [DGW].

They all got back into the car and [DGW] drove to a car park near a caravan park. The victim got out of the car and [DGW] told him to walk, pointing towards the beach. He was directed to stop about four hundred metres up the beach. He was told by [DGW] to dig a hole. He said he could not as he felt sick and weak. But he was told to dig. He began to scrape the sand with his hands digging a shallow hole before collapsing onto the sand. He felt dizzy and was again dry retching. He was by this stage completely terrified. He was made to continue to dig and he dug a fairly deep hole, deep enough for a person to stand in to at stomach height. When he had finished he was told to take off his belt. He did so. He was then told to get into the hole. He knelt in the hole whereupon he was buried up to his torso by the male offenders.

He was then interrogated by [CEJ's sister] and [DGW] about his former relationship with [CEJ's sister]. He answered these questions. [CEJ's sister] was screaming at him during the questioning and punched him with a closed fist on one occasion. [DGW] repeatedly accused him of lying. The victim was told that if he did not answer the questions the offenders would beat the crap out of him.

During the interrogation [CEJ]'s telephone rang, he did not answer it but he checked the message and said "Fuck it's the cops." The police who had been alerted by [Ms P] to [the victim]'s abduction had telephoned the offender in an attempt to locate them.

[Ms O] who had taken no part in what had occurred intervened asking her friends to go with her. [CEJ] then approached the victim who had been struggling to get out of the hole and dragged him from the hole by pulling on his arms. He was taken to the car and given a shirt to put on. The offender's then drove him to a car park near the ferry terminal at S.. [CEJ] telephoned Constable Craig Smith, the officer who had left the message on his phone. He told the police they were at C.

[DGW] gave the victim the handset telling him "If you tell the cops the truth I’ll kill you." The victim told the police what [DGW] directed him to say, such as giving their location as C rather than S. The police asked the group to return home and the offenders agreed to meet up with the police at the W. unit. The group drove off but stopped on route to W. to discuss the account of events that was to be given by the police.

The victim later told the police that on the way back to [Ms P's] house they were making up stories to tell the police. When they arrived at W. the victim returned to the unit where he spoke briefly with [Ms P] and [Mr T], he then saw the three offenders and [Ms O] walk into the unit. [Ms P] and [Mr T] left. [CEJ] kept trying to give the victim cigarettes and water. [The victim] got into the back of the car and locked himself inside to wait for the police.

After some minutes they arrive and he spoke to them. An ambulance was called and he was conveyed to the hospital. He was kept in hospital overnight and discharged the next day.

28. The trial judge found that

"CEJ is a meek and unassertive person but does not have a personality disorder or mental illness or a drug or alcohol dependency".

29. Dr Scannell, a psychologist, had provided a report to the court in which she said that CEJ was "motivated to making the necessary changes in his life", and "has been willing to engage in the therapeutic process and to embrace change".

30. The trial judge said that Dr Scannell believed that given time and regular therapy, CEJ "will be able to overcome depression, anxiety, low assertiveness and suicidal ideation". She considers it though that "he is presently very vulnerable and would be a risk in a custodial setting".

31. The trial judge concluded that [CEJ] was “a person of good character, he is unlikely to reoffend, he has good prospects of rehabilitation and he assisted the authorities by offering to give evidence against co-offenders".

32. The applicant was sentenced to a term of imprisonment of 18 months, which was suspended on the condition that he entered into a good behaviour bond for a period of 18 months, the conditions of which also required him to notify any change of address, report to the Probation and Parole Service, and accept the supervision and guidance of that service. He was to appear before the court if called upon to do so at any time during the term of the bond for sentencing.

33. The maximum sentence for the offence under Section 86(2)(a) of the Crimes Act 1900 at the time was 20 years imprisonment. The provisions of sub-sections 1 & 2 of Section 86 at the time are as follows:

Section 86

(1) Basic offence A person who takes or detains a person, without the person's consent:

(a) with the intention of holding the person to ransom, or

(b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years.

(2) Aggravated offence A person is guilty of an offence under this subsection if:

(a) the person commits an offence under subsection (1) in the company of another person or persons, or

(b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim.

A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

34. The offence was aggravated because it was conducted in the company of other offenders and actual bodily harm was occasioned to the victim. However, there was no permanent injury to the victim.

35. The trial judge also took into account in terms of the seriousness of the offence, the period of detention, the extent to which fear or terror was occasioned to the victim, what was required of him by his captors, the purpose of the detention, and the fact that other persons were not subjected to the ordeal or anguish through fear for the wellbeing of the victim, such as where a victim is held for ransom or as hostage for other purposes.

36. It was agreed by the counsel for the Crown and for the offenders, and adopted by the trial judge, that the offence was "towards the lower end of the range for offences of this kind". He said that violence was an aggravating feature, and that although the events "must have been terrifying" for the victim, and there would have been significant emotional harm to him, the evidence did not establish that it was substantial and therefore it was not taken into account as an aggravating feature.

37. The offence was serious.

The period of time since those events occurred and the conduct of the applicant since they occurred

38. It is more than 8½ years since those events. The applicant has had no criminal convictions or charges before or after those events.

39. There is no evidence of any complaints about his conduct in that period. On the contrary, the applicant has made dramatic changes to his conduct and lifestyle.

40. After the applicant was charged with the offence in 2007, and before the hearing before the court, he sought assistance from a psychologist, Dr Claire Scannell. Initially he sought to have her advice as to why he committed the offence.

41. Dr Scannell conducted a psychological assessment of the applicant using various psychometric tests. The assessment revealed that the applicant had been experiencing problems for many years:

• Anxiety;

• Depression;

• High stress levels;

• Lack of adequate emotional and social support;

• Lack of assertiveness skills; and

• Suicidal thoughts

42. Dr Scannell produced a lengthy report regarding the tests performed and the results of the assessment.

43. By the time of the report, the applicant had changed his place of residence. He moved to Sydney and lived with his mother. He had not lived with her since his parents had separated and his father obtained custody of him when he was 10 years of age.

44. His mother supported him in the assessment by Dr Scannell and also in the subsequent psychotherapy and counselling that he undertook. She told Dr Scannell that the applicant was "a sensitive, shy child who had many allergies. He was happiest when at home. When his parents separated in 1999 [he] was devastated and stopped speaking for a number of months. After his father obtained custody of him, he had very little contact with his mother. He was sent to a boarding school in Bathurst and while there he developed some confidence”.

45. The applicant's mother told Dr Scannell that he "had always been at the lower end of academic performance".

46. Dr Scannell in her first report said that the conclusions based on the psychometric testing and also clinical observations during 4 interviews with the applicant, that he "has been experiencing significant depressive symptomatiology, heightened anxiety, heightened stress levels and suicidal ideation. [CEJ] has been experiencing these problems for many years, probably as a result of his parent's separation and consequence of the family breakdown in 1999".

47. His mother told Dr Scannell that the separation and divorce were "very acrimonious". She reported "this acuminous separation and divorce, and the family breakdown, has had a detrimental effect on [CEJ's] cognitive, emotional and behavioural development. [CEJ] feels sad and intense most of the time and is ruminative about anticipated misfortune. He was discouraged about the future and feels that he has failed more than the average person. He is experiencing a great deal of tension, difficulty in relaxing, and the presence of fatigue as a result of high anxiety. [CEJ] is also experiencing a disturbance n sleep patterns and insomnia. [CEJ] feels that he isn't worth much as a person, and that life isn't worthwhile. He has thoughts of ending his life."

48. She also found;

"[CEJ]'s aggression scores reflect that he has a reasonable control over the expression of anger and hostility. However, his test results indicate that he is a meek and unassertive person. [CEJ] has difficulty In getting his needs met in personal relationships, and will instead subordinate his own interests to those of others. This failure to assert himself may result in mistreatment or exploitation by others. Consequently, [CEJ] is not skilled in asserting himself when needed.

According to the psychological assessment tools used, [CEJ] is not suffering from delusions of grandeur, paranoia, schizophrenic symptomatology, borderline personality disorder, anti-social personality disorder, addictive personality or psychotic symptomatology. [CEJ] does not have alcohol or drug abuse problems or dependence.

[CEJ] is anxious and depressed, displaying moderate depressive symptomatology, and entertains thoughts about death and suicide. He reports significant suicide ideation/ and sees the people around him as unsupportive. The potential for suicide is high, and it is important that appropriate interventions be Implemented without delay"

49. Dr Scannell recommended a treatment program and said at pages 6 & 7 of her report:

Treatment – Rehabilitation

A complete program of treatment for CEJ will Intervene at the behavioural, emotional. psychological, interpersonal and social levels in order to be effective. A comprehensive treatment plan will entail regular consultations with Dr. Claire Scannell, registered psychologist for cognitive, behaviour and interpersonal therapy, In order to overcome the suicide ideation, depression, anxiety and low assertiveness.

The therapy entails:

● Cognitive therapy Incorporating cognitive interventions such as problem solving; cognitive analysis; distraction; imagery desensitization; overcoming negative self-talk. Helping to modify unrealistic assumptions, beliefs and automatic thoughts that lead to disturbing emotions and impaired functioning. Training CEJ to replace negative thoughts with positive thoughts when anticipating or confronting stressors.

● Anxiety management stress inoculation training. Teaching skills that will help cope with stress.

● Behaviour therapy incorporating behaviour modification; exposure techniques. Helping CEJ to confront specific situations and people, in an assertive, confident manner in order to develop and promote self worth and self esteem.

● Systematic desensitization — including gradual exposure to anxiety provoking situations using guided imagery and real-life exposure

● Interpersonal therapy especially for depression and anxiety

● Relaxation training — including progressive muscle relaxation; guided imagery, controlled breathing.

● Skills training - including problem solving skills and training; stress management; social skills training; assertiveness training.

● Lifestyle changes - exercise program: program for good nutrition.

Effect of custodial sentence

With the help of cognitive, behaviour, and Interpersonal therapy, [CEJ] is taking control of his life. Without the necessary therapy aids in place, the depression, anxiety and suicidal ideation that [CEJ] has been experiencing may be exacerbated by a custodial sentence, and his condition may worsen in prison. The psychological assessment tools revealed that [CEJ] reflects a person who has significant thoughts about death and suicide. He is anxious and depressed and sees the world and people around him as unsupportive. Therefore, his high suicide scores indicate that suicide intent needs to be carefully monitored by a health care professional.

However, [CEJ] does feel responsible for his actions on 14 October 2007, and wishes to make amends for his behaviour. Therefore, he is more likely to benefit from community service for a period of time".

50. He accepted the advice of Dr Scannell as to what ongoing therapeutic assistance he should obtain, and undertook a series of 12 consultations with her by way of counselling and other therapy in relation to the problems she had diagnosed. These consultations continued until February 2011.

51. Shortly after the offence he sat for his Higher School Certificate exams and performed very badly. He then undertook a 1 year bridging course in order to qualify for university entrance. He obtained entry to a course for a Bachelor of Social Work degree and passed the degree with Honours. He subsequently enrolled in a full time post graduate course for a Masters Degree in Social Work and has now completed that degree successfully. He was to attend his graduation in June 2016.

52. After he went to live with his mother, he also completed a course in driving forklifts, a first aid course, and driving lessons to obtain a driver's licence. He also did some volunteer work for St Vincent de Paul Society.

53. Dr Scannell prepared a subsequent report of the therapeutic work that she had done with applicant in the period from 14 May 2008 to 22 February 2011. It is dated 10 May 2011. In that report she described the therapy adopted as follows:

[CEJ] first consulted me on 14 May 2008 for counseling and psychotherapy regarding his offence on 14 October 2007. I have assessed [CEJ] using psychometric assessments tools as well as clinical diagnostic interviews in 2008, and again on 22 February 2011.

Conclusions based on psychological assessments

The psychological assessment of [CEJ] was based on clinical diagnostic interviews and the results of comprehensive psychometric testing (BDI, K10, DAS and PA1 -Appendix). The family history and socio-demographic information was obtained from a consultation with [CEJ's mother].

The assessments in 2008 have revealed that [CEJ] was suffering from anxiety, depression and stress. However, [CEJ] benefitted from his therapy sessions, and based on recent psychometric assessments (BDI, DAS, PAI), he is no longer experiencing any anxiety, depression and stress.

Treatment Plan

A treatment plan was developed to assist him in overcoming his depression and high anxiety and stress levels, based on mindfulness and cognitive behaviour therapy.

The therapy entailed:

● Cognitive therapy -- Incorporating cognitive interventions such as problem solving; cognitive analysis; distraction; imagery desensitization; overcoming negative self-talk. Helping to modify unrealistic assumptions, beliefs and automatic thoughts that lead to disturbing emotions and impaired functioning. Training [CEJ] to replace negative thoughts with positive thoughts when anticipating or confronting stressors.

● Anxiety management — stress inoculation training. Teaching skills that will help cope with stress.

● Behaviour therapy incorporating behaviour modification; exposure techniques

● Systematic desensitization – including gradual exposure to anxiety provoking situations using guided imagery and real-life exposure

● Interpersonal therapy especially for depression and phobias

● Relaxation training — including progressive muscle relaxation; guided imagery, controlled breathing to assist with anxiety and sleep problems.

● Sleep hygiene — learning techniques to change and improve sleep patterns and sleeping environment.

● Developing self esteem, self confidence and self worth.

● Developing strategies and learning new habits to achieve a balanced lifestyle.

54. She made the following conclusions and recommendations

Conclusions and Recommendations

[CEJ] is really flourishing, and he is developing a great sense of self worth, self esteem and independence. His moods are stable and he is happy. [CEJ] is optimistic about the future and he is realising his dreams.

According to the psychological assessment tools used, [CEJ] is not suffering from delusions of grandeur, paranoia, schizophrenic symptomatology, borderline personality disorder, anti-social personality disorder, addictive personality or psychotic symptomatology. [CEJ] does not have alcohol or drug abuse problems or dependence. [CEJ]'s aggression scores reflect that he has a reasonable control over the expression of anger and hostility. [CEJ] is a warm person and he has developed good assertiveness skills.

Since commencing therapy on 14 May 2008, [CEJ] has been very motivated to make the necessary changes to his life. I found that he was very willing to engage in the therapeutic process, and to embrace change. He has a positive attitude toward the possibility of personal change and accepts the importance of personal responsibility. [CEJ] has overcome his depression, and anxiety, and he has learnt strategies to manage his stress levels.

55. In the course of his Social Work studies he was given work placements. He worked for more than 3 months as a volunteer with families and children suffering cerebral palsy. He worked as a volunteer for 3 months with disabled aged people.

56. The work placement supervisor at each of those organisations gave a glowing report about his performance in the placement. His performance was excellent at each placement.

57. In April 2015 the Department of Family & Community Services offered him a position as a case worker. The offer of employment was conditional upon him obtaining a Working With Children Check Clearance. The offer was open for 12 months, and therefore expired in April 2016.

58. The applicant married his wife on 8 February 2013 and they have since resided in a country town in NSW.

59. The applicant decided to obtain an up to date psychological report from Dr Scannell, but attempts to locate Dr Scannell have not been successful. It appears she may have retired.

60. Accordingly, the applicant, through his solicitors, arranged for a psychological assessment to be carried out by Dr Maryanne Gauci, a clinical psychologist. The assessment was conducted on 21 October 2015 and the report is dated 30 October 2015.

61. Dr Gauci concluded her report with the following opinions:

On 14th October 2007, [CEJ] was involved in a crime with three co-offenders for which he received an 18 month suspended sentence. I understand from [CEJ] that the crime was not pre-meditated and that he acted impulsively to scare away his sister's ex-partner.

[CEJ] readily asserted that his actions were harmful and he is deeply ashamed of himself for behaving as he did, and for the psychological and physical damage he inflicted on the victim. He underwent psychological therapy over a period of a few years with psychologist Dr Claire Scannell to develop psychological insight into his behaviour during the incident, to learn to manage his behaviours and emotions more effectively and generally engaging in personal development. In my opinion, should a similar situation arise in the future, I believe that it is extremely likely that [CEJ] would respond in an appropriate and responsible manner.

As a result of experiencing stress after the incident, and realising the seriousness of the crime, [CEJ] felt unable to focus on his examination preparation and performed poorly on his HSC. Because he was determined to pursue tertiary studies, he decided to do a bridging course to gain admission to university. He is now completing a Master of Social Work … In his undergraduate course, he had already completed placements where he had worked with families and children, including very vulnerable children, having received a Working with Children Clearance under the previous Child Protection (Working with Children) Act.

From employer's' placement reports [CEJ] has shown that he conducts himself in an appropriate and professional manner when working with children and adults of a range of ages. From character references, it was stated that [CEJ] was of good character, kind and conscientious and community-minded.

[CEJ] has done the study and student placements to show that he is committed to working in the field of social work as his chosen career. However, the recent refusal to grant him a Working with Children Check Clearance is a major impediment to this career.

In my opinion, there is no evidence that there are any safety issues around [CEJ] working with children. To my knowledge, he has not abused a child. The victim that he abused in 2007 was not a child. [CEJ] takes responsibility for terrorising his adult victim in 2007 and has taken upon himself a course of psychotherapy to help himself to develop Insight and learn from this mistake. He has developed maturity between 2007 and 2015 and his perspective on life has altered. He expressed empathy for the victim and deep remorse for his past actions. He wants to have a career where he can help children, families and communities and significantly contribute to the well-being of others. [CEJ]'s actions since the incident highlight his psychological rehabilitation, and his determination, ability and suitability to work in his chosen field.

62. When the applicant was sentenced, a condition of the good behaviour bond was that he submit to the supervision and advice of the Probation and Parole Service for the period of 18 months. That period would have expired in December 2010.

63. However, the Department of Corrective Services Probation and Parole staff carried out a review in March 2009 and recommended that the requirement for the applicant to have supervision and accept advice from the Probation and Parole Service be terminated early as it was unnecessary. The early termination was approved by the Court on 7 September 2009.

62. There is a character reference provided to the Children's Guardian by a medical practitioner who has known the applicant since he was 14 and who is the father of a close friend of the applicant. He describes the applicant as "courteous, honest and trustworthy….he enjoys company, has a good sense of humour, and shows genuine interest and empathy for others. He is loyal and discreet and a good listener".

63. He also states:

"Over the past few years [CEJ] has become independent and self-directed, though he remains in close contact with his parents and enjoys good family support.

Now he has chosen to study social work, I believe many of [CEJ]'s personal attributes will be an asset to a career in this area. I am confident he will conduct himself admirably during his studies and practical work and apply himself well to learning the new skills required".

66. There is also a character reference from a customer service supervisor who has known the applicant since about December 2009. He says:

"I have always found him to be an extremely conscientious and driven person who genuinely cares about others in this community.

He has undertaken his university degree with a very mature attitude, which is a credit to him.

I would not hesitate to recommend [CEJ] for any position he chooses to apply for, knowing he would endeavor to contribute 100%".

67. There is a statutory declaration by the applicant which he provided to the Children's Guardian. In that statement the applicant said: "I was immediately ashamed, shocked and remorseful and have apologised to the victim in person for the incident". He also said "I also understand the impact the incident has had on the victim".

68. His wife is an early childhood / primary school teacher. He says that she is very supportive of him and he has "a supportive social network of family, friends, students, and colleagues". He says from his experience in a work placement with people with disabilities he would like to work in that area. He said "I was most impressed by the quality and dedication of the ……… staff and the potential of one day being part of a similar team to make a difference in people's lives".

69. In a letter he wrote which is part of the evidence filed by the Children's Guardian, he said:

"I understand that the way I behaved in 2007 was atrocious. I cannot change that now and I know that it can never be undone. All I can do is my best to become a better person. I do not believe that I am the same person that I was, so many things in my life are different. I met my wife at university and we have been together for years. I have been working very hard at university for the last 6 years. I have graduated, I saw a psychologist for a significant period of time. I understand the specific information regarding my time with Dr Claire Scannell would be helpful, however, regardless of my efforts (contacting 4 different numbers and looking to 2 offices that are no longer occupied by her) I have not been able to contact her. I even provided the Children's Guardian with the numbers available and I again tried to contact her".

Age of the person at the time of the offence at the time the matters occurred

70. The applicant was 18 years of age.

The age of each victim and the effect of any conduct at the time of the offence, and any matters relating to the vulnerability of the victim

71. The victim was 18 years of age.

72. The victim was vulnerable because there were 4 people acting in concert against him.

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

73. The victim and the applicant were the same age. They were acquaintances because of the fact that the victim had been the boyfriend of the applicant's sister.

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

74. The victim was not a child.

The persons present ages

75. The applicant is now 27 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offence occurred

76. The conviction is the only matter appearing on the applicant's criminal record in his 27 years. He has no other convictions and there is no evidence of any other complaint about his conduct before or since the offence. Indeed, the evidence is that his conduct since the offence has been exemplary.

77. The NSW Police force COPS database has no record that refers to the applicant in the context of child abuse or sexual offences that did not result in a charge.

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

78. The impact on a child of conduct similar to that of which the applicant was convicted could be serious in emotional and psychological terms, and may leave long term adverse affects.

79. In her first report Dr Scannell found that the applicant "is motivated to making the necessary changes in his life, he has been willing to engage in the therapeutic process and to embrace change". She was of the opinion that given time and with regular therapy he would be able to overcome his problems of depression, anxiety, low assertiveness and suicidal ideation.

80. The trial judge found on the evidence before him that the applicant "is unlikely to re-offend, he has good prospects of rehabilitation…"

81. In her report dated 21 October 2015, Dr Gauci concluded that there were “no safety issues around [CEJ] working with children". She recognised that he had taken upon himself a course of psychotherapy to help develop insight and to learn from his mistakes. She also relied upon the fact that he has developed maturity since 2007 in his perspective and his "perspective on life has altered". He also expressed to her empathy for the victim and deep remorse for his past actions. She said that his choice of studies and career also demonstrated commitment to working in the field of social work. She concluded "[CEJ]'s actions since the incident highlight his psychological rehabilitation and his determination, ability and suitability to work in his chosen field".

82. In her updating report of 26 June 2016, Dr Gauci relied upon recidivism research by the Australian Institute of Criminology establishing that the probability of recidivism is greatest between the ages of 17 and 21 years, and decreases in adulthood. She also relied on research indicating that negative lifestyle factors including unemployment, drug use, low level education, poor residential location, mental health problems and family instability are linked to re-offending.

83. None of those negative lifestyle factors apply to the applicant, and he is now 27 years of age and has not re-offended in more than 8 years since the offence. He is now outside the age group where recidivism is most likely to occur.

84. In that report, Dr Gauci concluded "summing up, my interview with [CEJ] in the context of over 20 years of clinical practice, the research on recidivism, Dr Scannell's findings in her report, [CEJ]'s engagement with psychological therapy (over 4 years), and [CEJ]'s dedication to completinghis social work studiesindicate to me that [CEJ] is deeply remorseful for his impulsive and violent behaviour in 2007 which was out of character. He has addressed his behaviour and developed insight, empathy and socially appropriate ways of responding to negative circumstances through psychological therapy, many years of university study and his evolving maturity, and at this stage of his life seeks to devote his career to helping individuals, families and communities live more fulfilling lives".

85. She concluded that CEJ is "very unlikely to re-offend (by engaging in aggressive behaviour with children or adults)".

86. Dr Gauci was cross-examined. There were various matters put to her that were not contained in the documentation provided to her before her second report. However, she adhered to her opinions that the applicant is genuinely remorseful and regretful about his conduct in 2007, that he has changed his attitudes and overcome the problems that Dr Scannell diagnosed and reported upon. She concluded that there is now no evidence of psychological problems, depression, stress or anxiety, “except the stress of attending the interview of such importance in his future". She said that he had "no serious psychological issues. All his test scores are within the normal levels for an Australian adult".

87. She said that he told her that he felt remorseful, that he had intended that they would only "scare the victim and get him away from my sister". He said "the punishment (inflicted on the victim) didn’t' fit the crime".

88. He told her that the perpetrators had "got carried away" but now he sees what they did to the victim was much more serious than they perceived at the time.

89. Dr Gauci said that with his new found assertiveness he was much less likely to be influenced by those around him to indulge in this conduct, or be impulsive. Dr Gauci adhered to her opinion that the applicant has, through long term therapy, made significant changes.

90. The jurisdiction under this Act is not about punishment of a person, but protection of children.

91. In Grenfell v Director General of the Department of Finance & Services [2013] NSW ADT 57 Senior Member, Mr P Molony, said:

40. The reality is that young people show a degree of immaturity, poor judgment and risk taking, which can lead to difficulty with the law. They are more susceptible to peer pressure, and do not have a depth of experience to inform their decision making. Their characters are not as formed or entrenched as those of adults. In contrast mature adults are more set in their ways, informed by experience, and usually better able to make independent decisions.

41. In some cases the interface of youths with the criminal justice system is a precursor of much more contact to come. In others, youths respond to that contact by taking positive steps to change themselves and to avoid further contact with the criminal justice system.

92. The Tribunal concludes that this is such a situation, that the applicant's "difficulty with the law" was the relevant offence. As serious as it was, it was out of character and it also resulted in him taking extensive, positive steps to improve his conduct and his life generally. He has done that and has not been the subject of any complaint in the 8 years and 8 months since the 2007 offence.

93. The Tribunal has concluded that the likelihood of any repetition by the applicant of conduct similar to the offence in 2007 is very low.

94. A literal interpretation of “a risk assessment … to determine whether the applicant ….poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.

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

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

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children’.

96. The applicant does not pose a real and appreciable risk to children.

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

97. Those matters have already been referred to above.

Any other matters that the Children's Guardian considers necessary

98. The Tribunal has taken into account that the applicant assisted another person to drag the victim from a building and forcibly put him into a car. That in the process the victim was also assaulted at that location and was also assaulted at a subsequent location, including the applicant choking the victim and causing him to lose consciousness. The victim was threatened and chased and made to fear for his life, the victim was made to dig a hole in the sand and forced into the hole and buried up to his torso, and the victim was interrogated further, further threatened and assaulted by the other offenders.

Conclusion

99. The Tribunal concluded that the applicant does not pose a real and appreciable risk to the safety of children.

Orders

1. The decision of the Children's Guardian of 4 September 2015 to refuse to grant the applicant a Working With Children Check Clearance is set aside.

2. In substitution for that decision the following decision is made: The applicant is granted a Working With Children Check Clearance.

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

Registrar

Decision last updated: 25 July 2016