Cfe v Children's Guardian

[2016] NSWCATAD 135

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CFE v Children’s Guardian [2016] NSWCATAD 135
Hearing dates:	4 March 2016
Date of orders:	05 July 2016
Decision date:	05 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member P Foreman, General Member
Decision:	(1) The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 2013 of the offence of filming person’s private parts without consent contrary to s91L of the Crimes Act 1900. (2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – enabling order – working with children check clearance – disqualified person – disqualifying offence was a conviction in 2013 for filming person’s private parts without consent – s91L of the Crimes Act 1900 –whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus discharged.
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	BGX v Children's Guardian [2014] NSWCATAD 173 BYR v Children's Guardian [2013] NSWADT 310 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Category:	Principal judgment
Parties:	CFE (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: I Fraser (Respondent)   Solicitors: NEW Law Pty Ltd (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510650
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim of child referred to in the material before the Tribunal is prohibited. Note: 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.

REASONS FOR DECISION

Introduction

1. The applicant is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (‘the Act’) and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a ‘disqualified person’ for the purpose of the Act. The order is known as an ‘enabling order’ and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.

2. The offence which brings the applicant within subsection 18(1) of the Act is that of filming a person’s private parts without consent under s91L(1) of the Crimes Act 1900. This offence is a disqualifying offence falling within Schedule 2 of the Act. The applicant pleaded guilty to the offence on 2 July 2013 and was directed to enter into a good behaviour bond for 9 months pursuant to s9(1) of the Crimes (Sentencing Procedure) Act 1999.

3. According to the agreed facts, the circumstances of the offence are as follows. The applicant and his wife were shopping together when they decided to look at different stores. The applicant found some clothes and entered a unisex change room to try them on. When in the change room, the applicant heard a woman’s voice coming from the change room next to him. He then took out his mobile phone, raised it over his change room so it was facing down towards the woman in her change room. Whilst getting changed, the woman noticed the phone and called out to her friend outside for assistance. The applicant apologised for his behaviour, deleted the footage and, when placed under arrest, made full admissions to the police. The applicant has no other offences on his criminal record.

4. The notice by the Office of the Children’s Guardian (‘the Children’s Guardian’) advising the applicant of his disqualification for a working with children check clearance is dated 12 October 2015. The applicant filed his application for review to this Tribunal on 19 October 2015. He has therefore applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act.

5. There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant’s application.

6. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the applicant and the victim of the offence are not to be published without the leave of the Tribunal. For this purpose the pseudonym CFE has been used for the applicant's name.

Legal Issues

The Working with Children legislative scheme

7. Section 4 of the Child Protection (Working with Children) Act 2012 provides that the safety, welfare and well-being of children. Protecting children from child abuse is the paramount consideration in the operation of the Act.

8. Subsection 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.

9. Subsection 18(1) provides that the Children’s Guardian must refuse an application for a clearance where the applicant is a disqualified person by reason of having been ‘convicted’ of an offence falling within Schedule 2 of the Act.

10. Subsection 28(1) of the Act makes provision for a ‘disqualified person’ to make an application to the Tribunal for an enabling order. According to subsection 28(7) of the Act, in any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995.

11. The meaning of the word ‘risk’ was considered by his Honour 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) Act1998:

‘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.’

12. The former Administrative Decisions Tribunal construed the meaning of ‘risk’, as it appeared in subsection 33J(1) of Part 7 (now repealed) of the Commission for Children and Young People Act 1998 to have the same meaning. It is accepted that the word ‘risk’, has a similar meaning in the current Act.

13. The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] NSWCATAD 173 and BYR v Children's Guardian [2013] NSWADT 310, at [38].

Evidence

CFE

14. Evidence from the applicant’s former place of employment confirms that he was employed as a high school teacher until 2015. For part of this time, he lived on school premises. No records are before the Tribunal to show that there were any issues of concern with the applicant’s employment during this time. He has never come to the attention of the Department of Family and Community Services.

15. The applicant confirmed that he had pleaded guilty to an offence under s91L of the Crimes Act and that he did not contest the police facts. He advised that prior to commencing the video recording, he had seen the victim and observed ‘that she was an adult that I estimated to be in her thirties.’

16. In evidence before the Tribunal, the applicant advised that he was looking for work outside teaching although he would like to have the option of casual teaching to supplement the family’s income.

17. The evidence before the Tribunal is that the applicant has previously engaged in voyeuristic behaviour involving adult women in their twenties or thirties. There is no evidence before the Tribunal that he has ever targeted children or young people in this behaviour.

18. The evidence before the Tribunal is also that the applicant previously accessed pornography involving adult women. According to the applicant, he has not engaged in any voyeuristic behaviour since 2013 and has not been tempted to do so. He told the Tribunal that he no longer engages in watching pornography.

19. Under cross-examination, he conceded that whilst he may find a sexually mature female aged 17 years objectively attractive, he was adamant that he would never act on such an attraction as ‘the line needs not to be crossed’ and ‘adolescent females have a right to be adolescents, because they are not adults.’

20. The applicant told the Tribunal that he accepts his offending behaviour was wrong and that he will not re-offend.

Dr Martin

21. Dr Adam Martin is a forensic psychiatrist who has been the applicant’s treating psychiatrist since 2013. In a report dated 20 October 2015, Dr Martin stated that he had assessed the applicant on 13 occasions since 2013.

22. In his report dated 20 October 2015, Dr Martin stated that:

[The applicant] has presented as a reliable and forthright historian who has not attempted to evade responsibility for his actions and who has engaged well in psychological and psychiatric treatment. He has always presented as a candid historian. [T]here has been no suggestion of impropriety towards children. He does not have a paedophilic disorder. There has been no other deviant behaviour.

In my opinion, CFE does not represent any risk towards children. Furthermore, he has engaged reliably and enthusiastically in psychological treatment and impresses as a person who does not avoid responsibility or minimise his actions…From a psychiatric perspective, I think it would be entirely safe for him to continue working as a teacher.

23. In clinical notes obtained from Dr Martin, he writes that the applicant ‘is attracted to adult women, post-pubescent, not attracted to children.’

24. It is Dr Martin’s view that the applicant is attracted to women of a similar age to him and not to teenagers. The fact that the applicant conceded, under cross-examination, a theoretical attraction to a sexually mature seventeen- year-old did not alter Dr Martin’s view that the applicant’s risk to children is low.

25. He explained the rationale behind his opinion that the applicant’s risk to children is low:

• most people who are convicted of an offence don’t reoffend;

• the applicant was motivated to seek help;

• he is married and receives support from his wife;

• he has no history of substance abuse;

• he has mature coping mechanisms;

• he has no other paraphilias;

• his voyeurism was at the mild end of the spectrum.

26. Dr Martin told the Tribunal that, in his view, voyeurism was not a continuing problem for the applicant. Dr Martin told the Tribunal that the applicant’s issues were ‘largely resolved and that he has managed himself very well.’ He described the applicant as a candid listener who didn’t seek to minimise his behaviour, who is aware his conduct was wrong and who is at pains to change his behaviour. It is his view that the applicant’s previous history of voyeurism is of no risk to children. He would place the applicant’s risk to children on a par with a person of the applicant’s age and gender who has no criminal convictions and no history of voyeurism.

27. He told the Tribunal that he did not have any concerns that the applicant has any hebephilic tendencies. It is Dr Martin’s view that the applicant is very unlikely to engage in similar behaviour again: he is more mature, his marriage is important to him, he has lost his job and has felt a sense of shame for his behaviour. It is Dr Martin’s view that the applicant is a very low risk of any re-offending behaviour.

28. He told the Tribunal that anti-libinal medication would not be indicated for the applicant. He has formulated a relapse prevention plan with the applicant and agreed that follow up consultation would be prudent. Even without any follow up, it is Dr Martin’s view that the applicant poses a low risk to children (noting that an adult can never be seen to be of no risk to a child).

Dr Kobylinska

29. Dr Kobylinska is a Senior Clinical and Forensic Psychologist with NSW Corrective Services. In 2013, she used the Static 99R risk category assessment to find that the applicant posed a moderate to high risk of sexual recidivism. In her report, Dr Kobylinska acknowledged that she had assessed the applicant in the absence of direct contact with him and conceded that there are limitations to the Static 99R assessment, namely that it is based on groups of individuals and therefore will not necessarily directly reflect the recidivism risk of an individual offender; and that is it not sensitive to the changes in an offender’s circumstances that may increase or decrease his actual risk of re-offending.

30. Dr Kobylinska did not give evidence before the Tribunal.

Dr Seidler

31. The forensic psychologist, Dr Katie Seidler, prepared a risk assessment report for the applicant dated 20 January 2016.

32. In her assessment, Dr Seidler administered the Personality Assessment Inventory (PAI). The results of the PAI suggest that the applicant is a well-adjusted and stable individual with a strong social support network on whom he can rely emotionally.

33. CFE described the circumstances of his offending behaviour to Dr Seidler in the following terms:

[he] described his offending as being in a chance occurrence, whereby he was in a change room when he heard a woman’s voice and began to think about offending as a means of fulfilling his sexual fantasies.

34. Dr Seidler administered the Static-99 test for the applicant the results of which placed him in the low- moderate range for reoffending.

35. On the basis of the Risk for Sexual Violence Protocol (RSVP), the applicant represents a low-moderate risk of reoffending.

36. In providing her opinion, Dr Seidler outlined a series of issues which are protective against the applicant’s risk of further reoffending. These include only coming to attention once for sexually abusive behaviour, his stable and pro-social lifestyle and long-term relationship with his wife, the absence of major mental health issues or substance abuse concerns, his productive lifestyle, his development of skills through specialist psychological treatment.

37. She also identified the following factors that can be considered to elevate the applicant’s future risk of re-offence:

• he appears to have quite a high sex drive;

• it is suggested that [he] presents with some sexual self-regulation concerns associated with the use of sex as an emotional coping strategy;

• his history of voyeurism.

38. According to Dr Seidler, there is no evidence that the applicant’s risk relates to children and young people in any way.

39. In oral evidence before the Tribunal, Dr Seidler told the Tribunal that she does not use the Static 99R test because there is a debate as to its validity and how predicable it is in relation to recidivism.

40. She agreed that it was a positive step that the applicant has stopped using pornography. She agreed that whilst the applicant was a low-moderate risk of re-offending against adults, he is of no risk to children. To clarify this, she told the Tribunal that his risk to children was commensurate to anyone in the community. She does not believe that he would have a desire to abuse a person under the age of eighteen years.

41. She is not concerned by the applicant’s acknowledgement that he finds teenage girls attractive but would not act on it. She told the Tribunal that it was not unusual for men to be attracted to teenaged girls and that this can be explained through evolutionary theory: that it makes sense that a female who is at her most fertile would be sexually attractive. She is satisfied that the applicant’s moral conscience is such that he would not act on such an attraction. She noted that the applicant denied any attraction to a pre-pubescent child. She could gauge no distorted attitudes held by the applicant in relation to children and has found no evidence that his behaviour has ever been linked to children. She is of the view that the applicant has mainstream beliefs in relation to children. She told the Tribunal that she could not be certain that he would not look at a seventeen-year-old female. It is her view, however, that he would stop once he became aware of her age. She is of the view that the applicant is not a risk to children.

Findings and reasons

42. Subsection 30(1) of the Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1).

(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.

43. The applicant pleaded guilty to one count of filming a person’s private parts without consent.

44. This offence, which is set out under s91L of the Crimes Act is no longer included in Schedule 2 of the Child Protection (Working with Children) Act, which specifies those offences, a conviction for which bars the Children’s Guardian from granting an applicant a working with children check clearance. At the time of the applicant’s application for a working with children check clearance, the offence was still included in Schedule 2 of the Act.

45. Section s91L of the Crimes Act provides as follows:

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person's private parts, in circumstances in which a reasonable person would reasonably expect the person's private parts could not be filmed:

(a) without the consent of the person being filmed to being filmed for that purpose, and

(b) knowing that the person being filmed does not consent to being filmed for that purpose,

is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

46. According to section 91I of the Crimes Act, private parts means a person’s genital area or anal area, whether bare or covered by underwear.

47. The agreed facts in relation to the offence are that the applicant entered a change room in a department store and filmed an adult woman in an adjoining change room. It is not alleged that the woman was naked at the time, rather that she was in her underwear. The applicant pleaded guilty to the offence and entered into a bond to be of good behaviour for nine months.

48. In light of the agreed facts in the matter, the Tribunal finds that although the actions of the applicant were unpalatable and involved an invasion of the victim’s privacy, the fact that he was sentenced to a good behaviour bond is an indication that the magistrate viewed the circumstances of the offence to be at the lower end of objective seriousness.

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

49. The index offence was committed on 20 April 2013, which is now over three years ago. The evidence before the Tribunal is that there has been no other offending behaviour since this time.

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

50. At the time of the index offence, the applicant was thirty years old.

(d) the age of the victim and any matters relating to the vulnerability of the victim,

51. The age of the victim is not contained in the evidence before the Tribunal. There is, however, no dispute that she was over the age of eighteen years. The applicant estimated the victim to be in her thirties. The victim’s privacy was invaded by the applicant’s actions. Apart from that, there is no evidence of any particular vulnerability relating to the victim.

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

52. As there is no evidence as to the age of the victim - although it is accepted that she was an adult at the time of the offence - it is not possible to give an accurate figure as to the difference in age between the victim and the person. If we accept the applicant’s estimation that the victim was in her thirties, there was less than ten years difference in age between the victim and the applicant, with the applicant being younger than the victim.

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

53. There is no suggestion that the victim was a child.

(g) the person's present age,

54. The applicant is now 33 years old.

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

55. Before the index offence, the applicant did not have a criminal record. Since the index offence, he has not committed any further offences nor has he been the subject of any application for an apprehended violence order or restraining order.

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

56. According to Dr Seidler, the applicant has a low to moderate risk of reoffending by engaging in voyeuristic behaviour in public and targeted at an adult woman. She listed, however, a series of protective factors that would guard against any re-offending by the applicant. These include having come to attention in the behaviour for which he was convicted, which, according to Dr Seidler, would act as a strong incentive not to further offend; his stable lifestyle and relationship, his absence of mental health issues or substance abuse, his development of skills through specialist psychological treatment.

57. Importantly, it is Dr Seidler’s view that the applicant’s risk does not relate to children and young people in any way and that ‘she does not see any reasons why the applicant should not be considered as appropriate to work with children and young people.’

58. This is a view also shared by the applicant’s psychiatrist, Dr Martin, who believes that the applicant’s voyeuristic tendencies have always been limited to adult women and not children and have, in themselves, ‘largely been resolved.’ For similar reasons, he agreed with the assessment of Dr Seidler that the applicant does not represent a risk to children. Dr Martin is of the view that the applicant has gained insight into his earlier behaviour and would be unlikely to repeat it.

59. Because Dr Kobylinska conducted her assessment without having direct contact with the applicant and did not give evidence before the Tribunal, the Tribunal has given limited weight to her assessment, which is now over three years old.

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

60. The applicant wishes to obtain a working with children check clearance to enable him to supplement his income by working as a teacher.

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

61. It is the view of the Children’s Guardian that the applicant has not rebutted the presumption that he poses a risk to the safety of children.

CONCLUSIONS

62. The applicant pleaded guilty to an offence under s91L of the Crimes Act, which at the time of the applicant’s application for a working with children check clearance was contained in Schedule 2 of the Child Protection (Working with Children) Act, thereby barring the Children’s Guardian from granting him a working with children check clearance.

63. There is no dispute that the victim was an adult and there is no evidence to contradict the applicant’s evidence, which was given in a direct and forthright manner, that he estimated the victim to have been in her thirties.

64. The expert evidence provided by Dr Martin and Dr Seidler was comprehensive. Dr Seidler is a forensic psychologist with an expertise in sexual offenders. Dr Martin has been the applicant’s treating psychiatrist since 2013. No issue was taken with the expertise or qualifications of either practitioner.

65. It was the evidence of both Dr Martin and Dr Seidler that the applicant does not pose a risk to children, including sexually mature women under the age of eighteen.

66. The applicant was cross-examined at length by counsel for the Children’s Guardian. The applicant answered all questions without hesitation and, it appeared to the Tribunal, honestly. He gave evidence that whilst he may have some objective attraction to a sexually mature seventeen-year-old female, he had a good understanding of boundaries and would act accordingly. He appeared to have a strong insight into his offending and was remorseful both to the victim and in relation to the pain caused by his offending behaviour to his family.

67. The applicant’s evidence accords with Dr Seidler’s assessment of him, namely that he has insight into his offending behaviour and a strong moral conscience in relation to children and adolescents. This, the Tribunal finds, is strong evidence in favour of the applicant’s submission that he has displaced the presumption that he poses a risk to children. Indeed it is both the view of Dr Martin and Dr Seidler that the applicant’s risk to children is so low that it is on par with a person of the applicant’s age and gender who has no criminal convictions and no history of voyeurism.

68. This submission by the applicant is further supported by the evidence of Dr Seidler and Dr Martin that the applicant does not have an attraction to children, that his former voyeuristic behaviour had only ever targeted adult woman and was now, in any case, largely resolved.

69. For these reasons, and having considered the evidence generally, the Tribunal is satisfied that the applicant has discharged his onus, as required under subsection 28(7) of the Act, and has displaced the presumption that he poses a risk to the safety of children.

ORDERS

1. The Tribunal declares that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of his conviction in 2013 of the offence of filming person’s private parts without consent contrary to s91L of the Crimes Act 1900.

2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children’s Guardian is to grant the applicant a working with children check clearance.

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

Registrar

Decision last updated: 05 July 2016