CLB v Children's Guardian

[2016] NSWCATAD 311

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CLB v Children's Guardian [2016] NSWCATAD 311
Hearing dates:	14 October 2016
Date of orders:	14 October 2016
Decision date:	14 October 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal Member Dr B Field, General Member
Decision:	(1) Application for enabling orders is refused and dismissed. (2) Broadcast or publication of the name or other identifying information in respect to any person referred to in these reasons other than by their name, without the leave of the Tribunal, is prohibited
Catchwords:	Working with Children Check Clearance- refusal by the Children’s Guardian because applicant disqualified person- application for enabling orders – refused.
Legislation Cited:	Child Protection (Working With Children) Act 2012; Crimes Act, 1900; Child Protection (Prohibited Employment) Act, 1998 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Commission For Children and Young People –v- V [2002] NSWSC 949; BGX v Children’s Guardian [2014] NSWCATAD 173; CFJ v Children’s Guardian [2016] NSWCATAD 62.
Category:	Principal judgment
Parties:	CLB (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Crown Solicitors Office (Respondent)
File Number(s):	1610091
Publication restriction:	See order 2

REASONS FOR DECISION

Introduction

1. On 20 July 2012, CLB pleaded guilty to possessing child abuse material. The offence was found proved, but pursuant to Section 10(1)(b), the Magistrate did not impose a conviction. He found the offence proved and sentenced the applicant to a good behaviour bond for 2 years, the conditions of which required him to be of good behaviour and to comply with an Apprehended Violence Order that had been made for protection of the victim (hereinafter called "B").

2. CLB in late 2015 or early 2016 obtained employment as a qualified personal trainer with a fitness company. The employer required him to obtain a Working With Children Check Clearance under the Child Protection (Working With Children) Act 2012 ("The Act").

3. He made the application for the clearance on 16 December 2015. Under the Act, a finding of guilt is included in the definition of "conviction".

4. The "conviction" for possession child abuse material under Section 91H of the Crimes Act 1900 is a disqualifying offence under the Act, and the Act prohibits the Children's Guardian from granting a Working With Children Check Clearance to a disqualified person. (Child abuse material is defined in s91FB(1) of the Crimes Act 1900.) Accordingly, the Children's Guardian refused the application by letter dated 16 December 2015 to CLB.

5. On 12 February 2016, CLB lodged his application to this Tribunal for enabling orders under the Act which would require the Children's Guardian to not treat CLB as a disqualified person and to issue him with a Working With Children Check Clearance.

6. The hearing was originally set down for 17 June 2016, but on the application of one or both parties it was deferred and proceeded on 14 October 2016.

7. At the end of the hearing, the Tribunal made an order refusing the application. These are the reasons.

The Evidence

8. The evidence before the Tribunal comprised:

1. The application;

2. The letter of 19 January 2016 regarding the application;

3. Crim Track report of the criminal record of CLB;

4. Documents produced by Local Court;

5. Documents produced by NSW Police State Crime Command Child Protection Register;

6. Documents produce by Local Court;

7. Documents produced by Local Court;

8. Documents produced by the Sex Crimes Squad;

9. Documents produced by NSW Police in relation to AVO search;

10. Documents produced by the Department of Corrective Services;

11. Further documents produced by Local Court;

12. Documents produced by the Department of Family & Community Services (114 pages);

13. Section 31 Response from Hunter New England Local Health District;

14. Written statement by CLB;

15. Psychological Risk Assessment report by Dr Rebecca Smith;

16. Character reference by Mitchell McLachlan;

17. Oral evidence by CLB on 14 October 2016; and

18. Oral evidence by Dr Smith on 14 October 2016.

Relevant Law

9. "Child Abuse Material" is defined in Section 91FB(1) of the Crimes Act 1900 for the purposes of that Division ( the same Division contains section 61H) as meaning material "that depicts or describes in a way that reasonable persons would regard as being, in all the circumstances, offensive:

1. A person who is, appears to be, or is implied to be a child as a victim of torture, cruelty or physical abuse; or

2. A person who is, appears to be, or is implied to be a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons); or

3. A person who is, appears to be, or is implied to be a child in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or

4. The private parts of a person who is, or appears to be, or is implied to be a child.

10. Section 4 of the Act provides that:

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

11. Section 6 of the Act provides that a person who is engaged in “child-related work” for purposes of the Act if the work involves direct contact by the worker with children. It also lists in ss6(3) a series of roles that are “”child- related roles” and in ss6(2) lists a series of areas of work which may be declared by the regulations to be child-related work.

12. 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”.

13. 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.

14. Section 11 of the Act requires that a prospective adoptive parent and any adult resident of the home of the prospective adoptive parent, must apply to the Children’s guardian for a Working With Children Check Clearance.

15. 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.

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

17. 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”. CLB was born in August 1992 and was an adult aged 19 years at the date of the offence in October 2011. In paragraph 1(1)(n) of Schedule 2 to the Act, an offence under s.91H of the Crimes Act, 1900, is included in the list of specified offences that are disqualifying offences. CLB is a disqualified person.

18. Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to CLB because of the offence in 2011. But some such disqualified persons are able to apply to the Tribunal for enabling orders which require the Children’s Guardian to disregard the disqualifying offence(s) and issue a clearance.

19. Section 27 of the Act provides for administrative review by the Tribunal of a refusal to grant a Working With Children Check Clearance in certain circumstances. That does not apply in the present situation.

20. Section 28 of the Act provides:

1. The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

2. The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

3. A disqualified person may make an application under this section only if:

1. the person has been refused a working with children check clearance, or

2. the person’s clearance has been cancelled, because the person is a disqualified person.

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

5. An applicant must fully disclose to the Tribunal any matters relevant to the application.

6. If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.

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

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

21. Section 26 of the Act provides that certain persons who have been refused a clearance by the Children’s Guardian are not entitled to apply for a review or an enabling order. They are listed in Sub-section 26(1) and include in 26(1)(a)(viii) a person who has been convicted of an offence against Section 91H of the Crimes Act, which was committed as an adult. However, there is a requirement s in Section 256(1)(a) that a person must also satisfy Sub-section 26(2) and that limits the group to persons who have, for the offence, received a sentence of full time custody, a detention order, intensive order, community service order, a good behaviour order, or one of various other orders. None of those provisions of Sub-section 26(2) apply to CLB, and therefore section 26 does not exclude him applying for enabling orders.

22. Section 30 of the Act includes the following provisions:

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 person in, or in relation to, the application,

11. any other matters that the Children’s Guardian considers necessary.

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

1. A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work; and

2. It is in the public interest to make the order.

2. On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to CLB pending the determination of the matter.

Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.

23. A literal interpretation of “a risk assessment … to determine whether CLB ….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.

24. 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’.

The Seriousness of the offence with respect to which the person is a disqualified person, or any matters that caused the refusal of a clearance

25. The nature of the disqualifying offence and surrounding circumstances are as follows.

26. On a day in October 2011 when CLB was 19 years of age, he was at his flat at night with 2 school boys, C and D, both aged 16 years. At about 12:30am, CLB telephoned B, a girl aged 14 years of age, who knew one of the boys and had briefly met CLB only once (about an hour before, he said).

27. B attended school with D. CLB invited B to join them. She agreed and left her home without the knowledge of her family and was collected nearby by CLB or one of the boys in CLB’s motor vehicle.

28. CLB testified at the hearing that he went to collect her. In B's statement given to 2 officers of the Department of Family & Community Services on 14 October 2011 when she was interviewed in the company of her mother, she said "one of the boys came to collect me in a car”. At the time neither boy was old enough to have a driver's licence.

29. When she arrived at CLB's flat, the group watched some movies. During the course of the evening, CLB had sexual intercourse with B in CLB's bedroom. While this was happening, D entered the bedroom several times and, using his mobile telephone, filmed CLB and B engaging in sexual intercourse.

30. Later CLB and B joined the others in the lounge room, and D showed them the recording on his mobile telephone. It is alleged he stated that he deleted the footage. CLB and D then suggested that they make a further video recording of CLB and B engaging in sexual intercourse again. B indicated she was reluctant to agree to that and felt pressured. However, she agreed to participate upon the condition that the recording would not be shown to anyone else.

31. CLB and B returned to the bedroom and engaged in sexual intercourse and oral sex and D was present in the room and appeared to record the activity on his mobile telephone. CLB also made a recording on his mobile telephone of sexual activity between him and B. B was driven back to near her home that morning.

32. The following day a number of people at B’s school received footage on their mobile telephones of B engaging in sexual activity with CLB. B complained to a school teacher. FACS and the police were notified.

33. B declined to provide a statement to the detectives who interviewed her that night. She told them that she had told CLB that she was 14 before they had sexual intercourse. While she was talking with the police her mobile phone rang and police observed that she received a text message from CLB apologising for the “incident” and asking what was going to happen.

34. About 10:20 pm on the day after the incident the police attended the flat of CLB and he made admissions of having engaged in sexual intercourse with the victim. He was cautioned. He produced a mobile telephone from his pocket saying that the recording was still contained on it and provided it to the police to view. The police observed the recording, and it showed the accused engaged in vaginal / penile intercourse and oral intercourse with B. CLB produced to the police a mobile telephone, a laptop computer, a portable hard drive, and a USB memory stick, all of which contained footage of CLB engaged in sexual activity with B.

35. B informed the police that she had told CLB that she was 14 prior to them having sexual intercourse on the first occasion. The next day, B's mother went to CLB's flat about the issue, and he volunteered to show her part of the recording and made admissions that it depicted himself and B engaged in sexual intercourse.

36. The Joint Investigation Response Team from the Department of Community Services and the NSW Police Service interviewed B regarding the events leading to the prosecution of CLB. She declined to cooperate in any proposed prosecution of CLB for having sexual intercourse with her at the age of 14. She signed a document which included the following statements:

4.   At this time I do not want Police to make any further enquiries or investigations in relation to this complaint. I do not wish for the matter reported to proceed further at this time. I am fully aware of the options available to me in relation to this matter.

5.   I do not wish for Police to make an application for an apprehended violence order in relation to this matter.

6.   I am satisfied with the actions taken to date by the officers attached to the Newcastle Joint Investigation Response Team. I have no complaints about the dealings that I have had with the Joint Investigation Response Team"

37. CLB declined to participate in an electronically recorded interview and was subsequently charged with produce, disseminate or possess child abuse material. The court found the offence was proved but without a conviction ordered CLB under section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 to enter a bond for a period of 2 years with conditions he be of good behaviour, appear before the court during that period if required, and comply with the Apprehended Violence Order.

38. CLB provided an undated half page typed statement in support of his application to this Tribunal. It does not dispute any of the allegations made by the police in the redacted Police FACTS provided to the court when the offence was found proved.

39. CLB in cross examination said that for him the events in relation to the sexual activity with B and the recording of that was “a life changing event”. But he described his photographing of the activity as “a young mistake”.

40. Section 91H of the Crimes Act 1900 provides that the maximum penalty for the offence that was found proved is imprisonment for 10 years.

41. Although it appears that CLB pleaded guilty to only possession of child abuse material, the evidence establishes on the balance of probabilities that CLB produced, disseminated and possessed child abuse material. His conduct involved the exploitation of a child for sex and to produce child pornography. The child was extremely vulnerable because of her age, immaturity, being outnumbered by CLB and two 16 year old boys, and her lack of adult parental protection, supervision or control.

37. As a result of his conduct pornographic film of B was distributed to students at the child’s school. The consequences included the disrespect and disgust engendered amongst her peers and the wider community, the poor reputation it caused her in the community, and the relationship problems and damage to her relationships with fellow students, her teachers, other staff in the school, her friends, members of her family, and the wider community.

38. Another consequence is the damage to B and members of her family in terms of self respect, self confidence, self image and self esteem.

39. Another aspect of his conduct was the damaging example his exploitation of B provided to the two16 year old boys who were present and the wider audience of children who saw the recordings. There is also in previous decisions of the Tribunal a recognition of expert evidence that the viewers of “hands off” child abuse material leads to a market which encourages “hands on” child abusers (BGX v Children’s Guardian [2014] NSWCATAD 173; CFJ v Children’s Guardian [2016] NSWCATAD 62).

40. It was a very serious offence. There is no evidence by CLB demonstrating that he recognises the diverse consequences for others or has any serious empathy for those affected.

The period of time since the offence and the conduct of the person since they occurred

46. At the time of this hearing it was 5 years since the offence. When CLB was charged in 15 October 2011, the police granted bail under conditions which were:

1. The accused must follow the strict conditions of the apprehended violence order;

2. The defendant must not reside at the premises of which the protected person(s) may, from time to time reside, or other specified premises;

3. The defendant must not enter the premises of which the protected person(s) may, from time to time reside, or work or other specified premises.

47. The interim apprehended violence order prohibited CLB from:

1. Stalking B;

2. Entering the premises where B resides;

3. Approaching or contacting her by any means whatsoever, except through his legal representative; and

4. Approaching her school.

48. The report of Tracy Cook, Senior Social Worker at Hunter Valley Mental Health Services, states in her statement regarding CBL’s resort to mental health services in late October 2011:

[CBL] presented at the emergency department of the Hospital with police on a Section 22 with suicidal ideation, and superficial scratches to his left forearm. [CBL] has reportedly texted friends whilst he was intoxicated expressing suicidal thoughts. According to the assessment [CBL] was experiencing multiple psycho-social stressors including financial stresses due to a reduction in work hours, damage to his vehicle, and being charged with child pornography after sleeping with a girl whom he was told by her was 16 years of age, but had just turned 15. They videoed themselves having sexual intercourse and when the girl's mother found the video she reported it to the police. Court proceedings were continuing".

49. At the time of his assessment at the hospital he denied having suicidal thoughts. He was then referred to the Intensive Community Care (ICC) Team for follow up in the community. He was contacted later that day by a Mental Health Clinician from the ICC Team. He was playing the Xbox with his friends at the time of the call. He reported that he was still "highly stressed about the pending court case" but was feeling well supported by his mother and his friends. He denied throughs of suicide and self harm. There was a follow up interview the following day, and again he denied thoughts of suicide and self-harm. He told the clinician that he was intending to attend work that evening and was keeping himself distracted so he did not ruminate over his current situation.

50. There was a further follow up contact on 30 October and then a face to face interview on 3 November 2011. No acute mental health or risk issues were identified. The report states "he was provided with information and encouraged to contact Headspace for support and counselling. He was referred back to his GP and the service request was closed". There is evidence that he had one session of counselling (presumably on 3 November but no evidence that he obtained support (other than a phone call on 30 October) or saw his GP for follow up.

51. The final apprehended violence order was made on 20 May 2012. On 2 April 2012, the bail allowed to CLB in relation to the pending prosecution for production, dissemination or possession of child abuse material, included the following conditions:

1. Continue to reside at his present address;

2. Strictly comply with the current apprehended violence order;

3. Not be in the company of any female under the age of 16 years.

52. Less than 2 weeks his bail conditions commenced on the Saturday night 14 April 2012, CLB breached those conditions of his bail when he and his brother took a 15 year old girl "E" to a rural show. The police were informed by the girl after her family found her missing, and she was located, that when she was at the show with CLB and his brother she had consumed a quantity of alcohol and when traveling back from the show in the vehicle, she was in the rear of the vehicle with CLB while his brother drove the vehicle. She alleged that whilst they were in the rear of the vehicle, CLB placed at least 1 finger inside her vagina. She told the police that this was “consensual”.

53. While E was still in the vehicle, it was seen by E’s brother and her sister who were in their car searching for E. She had left her home without the knowledge of family members. They saw E in the car, followed it in their car and they then approached the vehicle. E was no longer in the vehicle. When they questioned CLB and his brother, they both denied knowing E at all. E had exited the vehicle and returned home through a paddock. When her parents returned home she disclosed to her father her participation in the sexual act in the rear of the vehicle. Police later arrested CLB and charged him with breach of his bail conditions. The evidence does not disclose the outcome.

54. In cross examination CLB denied the alleged sexual activity and denied being in the back of the vehicle with E. He said that he drove to and from the show, so he was in the front of the vehicle throughout the travel to and from the show. He denied the alleged sexual activity.

55. CLB did not disclose the incident with E in breach of his bail, and the alleged sexual assault on her, to Dr Smith, the expert forensic psychologist he engaged to provide an assessment of whether he poses a risk to the safety of children. When he was cross examined about his conduct in going to the show with E, he said he couldn’t recall whether he told Dr Smith.

56. When he was asked why he breached the bail condition requiring him not to associate with girls under 16 years of age, his response was "it wasn't a question that came up".

57. He conceded that he was aware of the condition that he not be in the company of a child under 16, and he knew “I’d be in trouble if I did”. When asked why he did it he replied, “I was not in a good emotional state. I wasn’t thinking clearly”. Then he said he was unaware of her age. Notwithstanding the charge pending in the court about B there was no evidence he asked E her age or did anything else to find out.

58. CLB did not rely on any evidence of his brother supporting CLB’s claim that he was not in the back of the vehicle with E on the way home that night and his denial of the alleged sexual activity. There was no explanation as to why the brother did not provide a statement.

59. Overall the Tribunal finds that E’s version of what happened on that night is more likely that CLB’s version. The Tribunal finds E’s allegations proved on the balance of probabilities.

60. On 20 July 2012, a final apprehended violence order was made restricting the behaviour of CLB for a period of 2 years for the protection of B and the orders provided:

1. [CLB] must not assault, molest, harass, threatening or otherwise interfere with B or a person with whom B has a domestic relationship;

2. [CLB] must not engage in any other conduct that intimidates B or a person with whom B has a domestic relationship;

3. [CLB] must not stalk B or a person with whom B has a domestic relationship; and

4. [CLB] must not enter the premises at which B may, from time to time reside or work.

61. Dr Smith reported from her interview with CLB in July 2016 that he:

…was able to articulate the legal definition of consent (e.g. he stated 16 years of age and older for sexual intercourse, and 18 years and older for sexual intercourse in a media context). Further, he was able to identify that consent was not possible if drugs, alcohol, physical or mental impairment was a factor.

62. In cross examination 5 years after the offence involving B he was asked about consent to sexual intercourse and conceded it was not possible if the girl was aged under 16. He said he knew that before the incident with B. He said that consent was not possible if there was “physical impairment” and when asked what he meant by that he said, “if they can’t stop you.” When it was put to him that with B and E “you were reckless as to consent?” And he answered, “I would say unknowing.” It appeared that he still does not accept responsibility for the sexual offences against girls under 16. This evidence is most concerning in that it indicates that in 2016 he has a very narrow and wrong understanding of the concept of consent and he denies responsibility for his conduct involving the children B and E.

63. The relevant parts of the recent statement of CLB state:

I am entirely aware of the serious nature of the charge and emphasis (sic) my deepest regrets retaining towards the events that occurred within the charge and hope that the court sees that I am not a continued threat and that since the events I have tried hard to move forward with my life.

My life has been adversely affected since the court matter happened, I have pulled myself from a depressive state of mind and pushed forward focusing (sic) on my future goals.

I am currently in a stable relationship, and working hard to achieve something throughout my life.

Having this interruption to my Working With Children's Check has already affected my employment, causing me to lose an employment opportunity in which I had worked and studied for over 24 months to obtain, I appeal to the court to see that I am no threat so that there is no obstruction in my future employment endeavours and so I can have every opportunity to further better myself through study and employment.

I offer the court my sincerest apologies, and request that hey allow me to obtain my Working With Children's Check.

64. CLB did not demonstrate in that document any insight into the consequences of his conduct for others affected or any empathy for them.

65. In cross examination on 14 October 2016, CLB said he did not know that B was only 14. He said "I had met her about 1 hour before I sent her the text message asking her to come". He also said, “I didn’t know I should find out her age…..I didn’t ask.”

66. He denied that he knew that B was in year 10 at school. He denied that she said to him "have you ever had sex with a 14 year old before?". B told the police that D knew how old she was and CLB was a friend of D, so he would have known. She said that he knew how old she was because she had asked him if he had ever had sex with a 14 year old before.

67. When police interviewed CLB at this home the day after the disqualifying offence, he admitted having sex with B and said that he thought she was 16 years of age.

68. CLB told the Tribunal in his evidence that when the matter came before the court and the offence was proved, he knew B was only 14 at the time of the sexual activity. But he said that he didn't know her age at the time he had sexual intercourse with her. He denied asking B her age and said "I didn't know I should find out her age".

69. Dr Smith, the forensic psychologist who prepared a report for CLB assessing the risk, if any, he poses to the safety of children for his use in the proceedings, reported that he told her that he didn't have specific knowledge of B's age and believed her to be "approximately 17 and in year 10, as she was a friend of his acquaintance of the same age and year level". In cross examination he denied he told Dr Smith he believed B to be in Year 10 at the time of the offence. But he told the police the day after the offence he thought she was 16. .

70. When it was put to CLB in cross examination that 17 year old high school students are in year 11 or 12, after some evasion he said that he was "slightly aware" of that. He rejected the proposition that he knew she was under 16, even if he was not aware that she was 14 and said "I believed she was over 16”. The acquaintance, D, was only 16 and was in year 10. CLB told the Tribunal that D was "around 17" and he believed that B was in year 10. This contradicted his earlier evidence denying he knew she was in year 10. Then, he said he "wasn't sure" whether he was attending the same high school as D.

71. B was born in January 1997 and was only 14 at the time of the offence, but when CLB presented on 27 October 2011 at the emergency department of a public hospital, he told them he had been "charged with child pornography after sleeping with a girl whom he was told by her was 16 years of age, but had just turned 15". This is fabrication. He previously denied she told him her age. He knew when he was at the hospital on 27 October 2011, 2 weeks after the offence, that B was 14 at the time of the offence. But he said she was 15. She didn’t turn 15 till the following January.

72. It was put to CLB in cross examination that at the time he was charged, he knew B was only 14, but he lied to the hospital. He avoided the question and then said that he "didn't want to open up to the counsellor".

73. Dr Smith said CLB agreed with the police FACTS except that he believed B was about 17 and in year 10, “as she was a friend of his acquaintance of the same age and year level.”’ The acquaintance D was only 16; not 17

74. He then claimed in his oral evidence in the Tribunal that he had sexual intercourse with B on only 1 occasion on the night in question. When it was put to him that that was not what she claimed, he said that he was "not aware of what she said". But he had been served with the police FACTS in these proceedings at least 4 months before the hearing in the Tribunal and, previously, at the hearing in the Local Court on 20 July 2012 when the disqualifying offence was found proved. He had discussed the Police FACTS with his barrister and deleted parts of the police FACTS that were disagreed with. He had also discussed the Police Facts with Dr Smith. She said he agreed with them except that he believed B was about 17and in year 10, “as she was a friend of his acquaintance of the same age and year level”’. By the time he attended on Dr Smith in August 2016 he well knew that B had alleged that there was a second session of sexual intercourse in the bedroom with filming. The version of the Police FACTS provided to the Tribunal had been redacted. But it contains the allegation of a second incident of sexual activity, including sexual intercourse. He did not raise any disagreement with that allegation of a second incident of sexual activity with B on the night in question in his written statement to the Tribunal. Nor in his instructions to Dr Smith. Nor, apparently, when he and his lawyer read the police facts and required parts to be redacted.

75. In cross examination, CLB said that he had met D only the week before the night he had sexual intercourse with B and he had associated with him on only 1 occasion prior to the incident. He said he had previously worked with C at "Hungry Jack's" for about 1 ½ years. He said he believed that C was 17, but acknowledged that he knew C did not drive a motor vehicle.

76. He said he knew C was still attending high school but wasn't sure what year he was in. He said he hadn't been in any licensed premises with him. He acknowledged that C has been driving a vehicle, but said he was not sure when he became licensed.

77. In cross examination he said that before the "incident" the 2 boys came around and they watched movies together and they had some food. He said they were "trying to find something to do for the night" and he said that "D had “met B the week or weekend before and suggested they 'text her' to see if she would like to come around". When asked, he said that he believes that D said that he had had sexual intercourse with B.

78. Since the disqualifying offence, the respondent has been convicted of driving a motor vehicle whilst his licence was suspended. His licence had been suspended on 17 June 2014 when he was detected by police exceeding the speed limit by more than 45km per hour. He was suspended form 17 June 2014 to 16 December 2014. Then on 26 July 2014, less than 2 months after the suspension, he was apprehended driving. When stopped by police and asked to produce hi licence, he said “I don’t have it, another policeman took it off me”. When asked if his licence had been suspended, he lied and said “I’m not sure, I don’t remember,” He had signed the Suspension Notice on 17 June 2014 acknowledging the suspension.

79. He was convicted on 11 September 2014 of driving whilst his licence was suspended.

80. In her report, Dr Smith said CLB told her that he had had 2 notable incidents of reactive depression. The first, he said, occurred after he was charged with the possession of child abuse material in 2001.

He stated "that one of the police officers whom (sic) charged him called 'disgusting individual' and 'treated [him] like a paedophile'. He found himself ruminating on the manner in which he was treated by this police officer and became despondent. Believing that he would live the rest of his life with a 'paedophile' label and be regarded as such, he engaged in suicidal ideation. One evening he consumed '3 long necks of Woodstock bourbon and a plastic sleeve worth of panadol' and sent his mother a text message which she interpreted as a suicide note. He then cut into his arm and wrist. His mother had phoned the police, believing him to be at risk of suicide, and he was ultimately taken by them to the [hospital]. He was treated for his injuries and had 1 counselling session over the phone by a youth mental health service. At the time he was living by himself in an apartment, but was released from hospital into his mother's care, and so moved back home. In retrospect he stated that he believes this was more of a 'cry for help', than a genuine attempt to end his life. He recalls feeling relief once the court case had been finalised and he did not receive a conviction for the charges".

81. The second incident of reactive depression that she referred to was after CLB at 30 years of age suffered severe burns when a gas oven exploded in his home. He was flown to Sydney's North Short Hospital and spent 2 ½ months recovering from burns and injuries to his lungs. She commented that there is now "little of this evidence of the burns which he sustained to his face and chest".

82. He said that the depression occurred when he was recovering in hospital and became preoccupied with the idea that he would be disfigured from the burns. He stated that he may have engaged in suicidal ideation at that time, but did not make any plans or attempts.

83. Dr Smith reported that:

"a mental state examination of [CLB] revealed no signs of depression or anxiety, and no signs of major mental illness. Further, no evidence of suicidal or self harming attitudes were elicited"

84. According to Dr Smith's report, it appears that CLB sought to minimise his conduct in relation to the ………… offence. He referred to as being "a charge for the possession of child abuse material" but the charge also related to production and dissemination of child abuse material. Also, from Dr Smith's report, it appears that he did not concede to her that he himself had made a video recording of the sexual activity. She reported:

"He agreed that he had knowledge of a video recording of sexual activity between himself and the victim, however denied that he knew the video recording was sent to other people".

85. He apparently did not disclose to Dr Smith that he made a recording of some of the sexual activity his mobile telephone.

86. There is no evidence in the proceedings that CLB has considered that he as an adult may have a sexual attraction to female children or that his associations at age 19 with boys and girls aged 14 to 16 may be inappropriate or an indicator of immaturity or some other problem. There is no evidence that he has considered that he may need or benefit from some professional advice or therapeutic intervention. He has not sought any such advice, counselling or other intervention to address whether or not he has a problem or to provide any therapeutic service to address such a problem if he has one. In oral evidence he said he has had no psychological treatment since the 2011 offence.

The age of each victim of any relevant offence or conduct at the time they occurred

87. B was 14 years of age and E was 15 years of age.

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

88. B was 14 years of age and CLB was 19 years of age. There was no relationship between them. CLB had met B only briefly in the hour before he invited her to his place.

89. E was 15 years of age at the time of the alleged sexual assault by CLB and CLB was 19 years of age. The age difference was 4 years. It does not appear that E had any prior relationship with CLB. She told police that she had been talking to CLB's brother beforehand and he had told her that he would take E to the Show with his brother if she allowed CLB (his brother) to "finger" her. She told the police that she agreed to go and consented to the sexual conduct by CLB. There is no evidence that CLB met or knew E before that night. There is no evidence that they had any relationship before or after the sexual assault. The only explanation of how the 2 males came to be taking E to the show came from E. Neither CLB nor his brother provided any other explanation.

90. The relevant sexual conduct of CLB on each of B and on E amounted to an assault because each of E and B was not old enough to give valid consent to such sexual conduct.

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

91. B told the police that she informed CLB that she was 14. CLB denies this, but has made inconsistent statements as to whether B told him her age, what age B disclosed and to how old he believed she was. He certainly ought to have known her age and it is common ground that he didn’t ask her. On the balance of probabilities, the Tribunal finds that B told CLB she was 14 and he therefore knew that.

92. In relation to the victim E, the Tribunal is not satisfied on the balance of probabilities that CLB knew E was 15, but is satisfied on the balance of probabilities that he knew she was a child and ought to have asked and known her age.

93. There are numerous occasions where CLB has lied.

The applicant's present age

94. CLB is now 24 years of age.

The seriousness of the applicant's total criminal record and the conduct of the applicant since the offences occurred

95. The disqualifying offence in October 2011 is a serious crime. Some other relevant matters are conduct that is not part of his criminal record.

96. His conduct of going with E to the show in April 2012 was a breach of conditions of his bail granted only 2 weeks before in respect of a serious charge.

97. His offence of the sexual assault on E in April 2012 constituted digital penetration of her vagina. Section 61H (1) of the Crimes Act 1900 defines “Sexual intercourse” for purpose of that Division as including such conduct. Subsection 66C(3) is in the same Division. It provides “Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable for imprisonment for 10 Years. Under subsection 66C(5) the circumstances of aggravation are set out whereby the maximum penalty is under subsection 66C(4) is increased to 12 years. imprisonment. They include where the offender is in the company of another person or persons (para 66C(5)(c)), and where the offender took advantage of the victim being under the influence of alcohol (para 666C(5)(g)). It was a premeditated serious offence, particularly in the context of the disqualifying offence less than 6 months previously.

98. Driving in June 2014 at a speed 45 klms per hour faster than the speed limit is a serious driving offence and in this case a 2 year suspension of his licence resulted under the legislation. It was also antisocial conduct and showed a gross lack of concern for public safety.

99. Driving in July 2014 while his licence was suspended and so soon after the suspension was serious criminal and antisocial conduct. It demonstrated a serious disrespect for the law and its purpose in terms of public safety. It should not be described as merely “a driving offence”.

100. His dishonesty is consistent with his disrespect for the law and legal requirements.

101. There is other conduct and attitudes described in these reasons, including dishonesty, that has also weighed against him on the issue of what risk, if any, he poses to the safety of children.

102. His criminal record and conduct under this item supports the argument that he does pose a risk to the safety of children.

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

103. The impact on a child of sexual abuse by an adult can be serious and longstanding. It can be traumatic. It can contribute to, or aggravate, sexual promiscuity and can cause serious emotional problems including difficulty forming trusting and intimate relationships.

104. Some of the possible consequences of CLB’s conduct for children have already been described in these reasons.

105. The evidence suggests that CLB at 19 had (and may still have) some serious problem in that as a young adult, his associates were children (both boys and girls) and that he displayed a sexual interest in girls under 16.

106. There are numerous instances where CLB has been dishonest. His conduct and criminal record show a serious disrespect for the laws and legal requirements.

107. Dr Smith, a forensic psychologist, was engaged by [CLB] to prepare a Risk Assessment in relation to the possibility of future such conduct towards children. She prepared an 8 page report dated 1 August 2016. She completed a personality assessment inventory of [CLB]. She found that the results revealed "that he may not have answered in a completely forthright manner. His positive impression management scales (the tendency to repress undesirable characteristics) were outside of the normal range, and thus this instrument was interpreted with caution. It is not unusual for someone in [CLB]'s situation to respond to psychometric instruments in a manner that tends to portray themselves relatively free of shortcomings which most individuals will admit. There was also some level of defensiveness noted throughout his responding".

108. The profile revealed "no indications of the presence of clinical psychopathology" but she said "this may have been influenced somewhat by his positive impression management".

109. She used the Static-99R instrument for assessment of risk. She found that based purely on that score he would be held within the "low-moderate risk category relative to other male sexual offenders ".

110. She then used the Stable-2007 and Acute-2007 tools assessing changeable dynamic risk factors which she described as "personal skill deficits, predilections, and learned behaviours that correlate with sexual recidivism but can be changed through a process of effortful intervention".

111. In both these areas she found that his scores fell into the low priority categories of sexual reoffending.

112. In her summary, Dr Smith said that she accepted [CLB]'s statement that he believed B to be 17 years of age. The Tribunal has found that statement was not true and that he knew that B was 14.

113. She found that because of other dynamic factors, including "no prior or post (index) history of sexual offending", the risk was lower. She also said that matters that might have increased CLB's risk included "demonstrative maladaptive skills for coping with stressors, particularly with reactive depression, and impulsivity during periods of heightened emotion; a tendency towards positive impression management (as evidenced by his PAI profile)".

114. There are several factors in which the Tribunal finds lead to a conclusion that contrary to Dr Smith’s opinion in her report that he is “low risk”, CLB's risk of reoffending is not less than “low-moderate”, and they are:

1. CLB’s dishonesty and poor credibility;

2. The Tribunal has made findings as to extensive dishonesty of CLB since the disqualifying offence and statements minimising his bad conduct and demonstrating a lack of insight into the seriousness of his conduct and the possible consequences (or risks) for victims. He has falsely denied critical elements of criminal behaviour such as not knowing B’s age. These appear to not be matters adequately recognised by Dr Smith in her report as denials and minimisations of his bad conduct.

3. Consistent with his lack of insight, CLB has not demonstrated empathy for B or E in relation to his conduct towards them.

4. There is evidence of Dr Smith that CLB has "demonstrative maladaptive skills for coping with stressors, particularly with reactive depression, and impulsivity during periods of heightened emotion”. He blamed the sexual offences and driving offences on impulsivity, stress or reactions to bad events such as losing his job.

5. His failure to disclose to Dr Smith the allegations of a sexual assault of E in April 2012, and breach of his bail conditions set in relation to the disqualifying offence. The tribunal’s finding is that the allegations are true. Dr Smith in cross examination said that if she had been informed of the allegations she would have given a less favourable assessment;

6. Failure of CLB to provide Dr Smith with most of the written material relied upon in the proceedings of the Children's Guardian;

7. Dr Smith said that she accepted CLB's statement that he believed B to be 17 years of age. The Tribunal found he knew she was 14.

8. Dr Smith accepted CLB’s claim that he has been in a secure, stable romantic relationship of 6 Months. That claim is not corroborated. Nor did CLB rely upon any statement or other evidence of his partner or any other person on that claim. In the context of CLB’s poor credibility, the evidence of previous bad behaviour by CLB and his lack of empathy for others and insight into the effects on others of his conduct, the tribunal could not find the relationship demonstrated a capacity for stable long term relationships on his uncorroborated evidence of a single romantic relationship of 6 months that had only just developed to cohabitation, and with a baby aged 1 from the woman’s prior relationship, ongoing conflict with the abusive father and an apprehended violence order restricting his conduct for the protection of the woman.

9. One of the factors Dr Smith considered in relation to the Static 99 assessment in the actuarial factors is the person had stranger victims. It appears from her report that this was not a factor on which Dr Smith scored CLB, but on the evidence before the Tribunal both victims B and E were strangers to CLB. It appears that if correctly scored on this item alone CLB would have been scored higher overall and possibly at “Moderate” risk instead of “Low – Moderate”.

10. The Tribunal is concerned that Dr Smith did not recognise the strength and diversity of CLB’s positive impression management. The Tribunal acknowledges that CLB’s financial circumstances may not have extended to Dr Smith consulting additional persons and this may have prevented phone calls or interviews to verify important, but uncorroborated, matters told to her by CLB.

11. The Tribunal is not satisfied that Dr Smith’s assessment adequately investigated the extent of CLB’s emotional identification with children, or his capacity for stable relationships. Although he told her he had been in a romantic relationship with a lady for 6 months, when Dr Smith interviewed him in July 2016 a month before her report, he told Dr Smith that he and the lady had “just moved in together”. They had not previously cohabited.

12. Dr Smith did not take into account in assessing the risk, his more recent conduct of driving at a speed 45 klms per hour faster than the speed limit and driving while his licence was suspended. These matters compel a finding that the conduct was antisocial and criminal and seriously disregarded the safety of members of the public on the roads.

13. CLB did not respond to these matters in any documentation he provided to the tribunal. In cross examination he said that when he drove while disqualified he knew it was wrong, but he still did it because of “my emotional state. I had lost my employment and wanted to get out of the house. I was on my way to see friends”.

14. That lawless conduct is recent and does require recognition that if he has the care of a child, there is a risk of similar conduct causing serious injury to the Child.

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

115. Apart from the evidence of Dr Smith and himself, the only evidence offered by CLB in support of his application is a short work reference. At the date of the reference he had worked for the firm “on a casual ingoing assignment “for less than 7 months. The signatory of the reference does not disclose that he has any knowledge of the use for which the reference is needed, or any of the adverse matters raised against the Applicant in the evidence before the Tribunal. The reference does not provide any evidence directly relevant to the issue of whether the applicant, if working with, or caring for, persons 17 or younger, would pose a risk to their safety.

116. The half page statement of the Applicant did not comply with the onus placed on CLB by Sub-section 28(5) of the Act to "fully disclose to the Tribunal any matters relevant to the application".

Any other matters that the Children's Guardian considers necessary

117. There are no such other matters.

Conclusions

118. The Children's Guardian relies upon Sub-section 28(7) of the Act which provides that in these proceedings it is presumed, unless CLB proves the contrary, that the applicant poses a risk to the safety of children.

119. The Act defines children as persons under the age of 18 years.

120. The Tribunal is not satisfied that if CLB has the care of a child (which includes young persons 17 or younger, the risks of him committing a further sexual assault on a child for sex or child pornography, of physical injury to a child in his care from his use of a motor vehicle, and of psychological or emotional injury to children from his exploitation of a child or children for production, dissemination or possession child pornography are together a risk greater than “low”. It is a real and appreciable risk. CLB has not overcome the presumption that he poses a risk to the safety of children in his care.

121. The application was therefore refused.

Privacy

122. For the protection of the privacy of CLB and any of the children referred to in these reasons, there should be an order prohibiting broadcast or publication of their names or other identifying information of any such person without the leave of the Tribunal.

Orders

123. The orders therefore were:

1. The application for enabling orders is refused and dismissed;

2. Broadcast or publication of the name or other identifying information in respect to any person referred to in these reasons other than by his or her name, without the leave of the Tribunal, is prohibited.

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: 27 January 2017