Cqu v Children's Guardian

Case •

[2017] NSWCATAD 171

•

31 May 2017

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: CQU v Children’s Guardian [2017] NSWCATAD 171
Hearing dates:2 December 2016
Date of orders: 31 May 2017
Decision date: 31 May 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Higgins, Principal Member
Dr B Field, General Member
Decision:

The applicant’s application for an enabling order is dismissed.

Catchwords: ADMINISTRATIVE LAW – Child Protection – working with children check clearance – enabling order – applicant is a “disqualified person” by reason of a 2014 finding of guilt on seven counts of filming a person’s private parts without consent, contrary to section 91L of the Crimes Act 1900 – as a “disqualified person” the applicant is presumed to pose a risk to the safety of children unless he proves the contrary – whether the applicant has discharged his onus - onus not discharged
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Child Protection Legislation Amendment Act 2015 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1986 (NSW)
Cases Cited: BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523
CHB v Children’s Guardian [2016] NSWCATAD 214
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
ZZ v Secretary, Department of Justice [2013] VSC 267
Category:Principal judgment
Parties: CQU (Applicant)
Children’s Guardian (Respondent)
Representation:

Counsel:
A Douglas-Baker (Respondent)

  Solicitors:
M Campbell (Applicant)
NSW Crown Solicitors Office (Respondent)
File Number(s):1610446
Publication restriction:Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

Introduction

  1. The applicant, CPU, is a 23 year old man, who seeks an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act). The applicant seeks an enabling order so that he can obtain a working with children check clearance (a clearance), which he needs in order to complete his qualifications and pursue a career in Sport and Exercise Science.

  2. Given the sensitive nature of these proceedings, at the initial directions hearing in this matter, the Tribunal made a non-publication order under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013 prohibiting the publication and broadcasting of the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child without the leave of the Tribunal. For this purpose the pseudonym CQU has been used when referring to the applicant’s name.

  3. As required under the s 13 of the WWC Act, the applicant made an application for a clearance, to the respondent, on 6 June 2016. On 30 June 2016, the respondent determined to refuse his application for a clearance under s 18(1) of the WWC Act, because he is a “disqualified” person for the purpose of that Act. He is a “disqualified person” because, on 24 February 2014, the NSW Local Court found the applicant guilty of a “trigger offence” prescribed in Sch 2 of the WWC Act: see cl 1(1)(p). The finding of guilt was made on the applicant having entered a plea of guilty to seven offences of filming a person’s private parts without consent for sexual gratification contrary to s 91L of the Crimes Act 1900 (NSW). That plea was entered with 13 further charges for offences contrary to s 91L being taken into account.

  4. The Local Court did not enter a conviction for the offences on the condition that he enter a good behaviour bond for two years and that he continue to undergo counselling with his psychologist, Ms Tracy Durrant: see Crimes (Sentencing Procedure) Act 1986, s 10.

  5. The word “conviction” is defined in s 5(1) of the WWC Act to include a finding that the person is guilty of an offence even though the court does not proceed to a conviction.

  6. In proceedings for an enabling order, s 28(7) of the WWC Act contains a statutory presumption that an applicant for such an order poses a risk to the safety of children unless he/she proves to the contrary. It is the contention of the applicant that on the material before the Tribunal, he has discharged his onus, warranting the making of the order. The respondent contended the applicant had failed to discharge his onus.

  7. The applicant’s application was heard on 2 December 2016. At the conclusion of the hearing we reserved our decision.

  8. For the reasons that follow, we find the applicant has not discharged his onus that he poses a risk to the safety of children and on this ground alone we make an order dismissing his application for an enabling order.

Relevant WWC legislative scheme

  1. The WWC Act came into force on 15 June 2013. The objects of the Act are set out in s 3 as follows:

“3 Object of Act

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work, and

(b) by requiring persons engaged in child-related work to have working with children check clearances.”

  1. Section 4 of the Act provides that the “safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration” in the operation of the Act.

  2. The word “children” is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word “child” has the same meaning.

  3. Subsection 8(1) of the Act prohibits a person from engaging in “child-related work”, unless:

  1. the person holds the relevant working with children check clearance, or

  2. there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.

  1. Subsection 9(1) contains a similar prohibition on an employer from employing, or continuing to employ, a person in child related work where the employer knows, or has reasonable cause to believe, that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.

  2. Sections 6 and 7 define what is meant by “child-related work.” It is broadly defined in these sections and includes work that involves direct contact (i.e. physical contact or face to face contact) by the worker with children in specified child-related work and child-related roles. It is not for the Tribunal to determine whether the work for which the applicant seeks to obtain a clearance is child-related work. However, a clearance, once granted, is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].

  3. A “worker” is defined in s 5(1) of the WWC Act to mean:

“ … any person who is engaged in work in any of the following capacities:

(a)  as an employee,

(b)  as a self-employed person or as a contractor or subcontractor,

(c)  as a volunteer,

(d)  as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),”

  1. Section 18 prescribes how the respondent is to determine an application for a clearance. Subsection 18(1) deals with applicants for a clearance, who are “disqualified persons.” That section relevantly provides as follows:

“18   Determination of applications for clearances

(1)  The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a)  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,

…”

  1. As can be seen from the terms of s 18(1), where a person is a “disqualified person” the respondent must refuse that person’s application for a clearance. That is, in such circumstances the respondent has no discretion and can make no further enquiries, as a decision to refuse the application for a clearance is mandatory in such circumstances.

  2. There is no dispute the applicant is a “disqualified person” by reason of the 2014 findings of guilt by the Local Court in regard to the charges the applicant pleaded guilty to.

  3. As we have already noted, s 28(7) of the WWC Act contains a statutory presumption that the applicant poses a “risk” to the safety of children, unless he proves the contrary.

  4. The Tribunal has accepted the word “risk”, in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms:

“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.””

  1. Section 28(5) provides that an applicant for an enabling order must fully disclose to the Tribunal any matters relevant to the application.

  2. Section 30 of the WWC Act sets out the factors the Tribunal must consider in determining an application for an enabling order. That section relevantly provides as follows:

“30   Determination of applications and other matters

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

(a)  the seriousness of the offences with respect to which the person is a disqualified person … ,

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

(c)  the age of the person at the time the offences … occurred,

(d)  the age of each victim of any relevant offence … and any matters relating to the vulnerability of the victim,

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

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

(g)  the person’s present age,

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

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

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

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

(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:

(a)  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

(b)  it is in the public interest to make the order.”

  1. In CHB v Children’s Guardian [2016] NSWCATAD 214, at [107], the Tribunal held that, in accordance with a similar provision in the equivalent Victorian legislative scheme, s 30(1A) only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children because it is satisfied the applicant does not pose a risk to the safety of children (that is, where the person is a disqualified person, that person has discharged his/her s 28(7) onus): see also ZZ v Secretary, Department of Justice [2013] VSC 267. It is not disputed that this is the correct approach to be taken to the application of s 30(1A).

  2. For the reasons that follow, we have not considered the matters in s 30(1A) of the WWC Act as we have found that the applicant has failed to discharge his onus on this occasion.

  3. Finally, s 28(8) of the WWC Act provides that an enabling order may not be made subject to conditions.

Evidence before the Tribunal

  1. In support of his application the applicant, relied on material that included the following:

  1. an affidavit sworn by him on 5 October 2016;

  2. two reports of the applicant’s treating psychologist, Tracy Durrant, dated 10 February 2014 and 20 July 2016;

  3. a report of Dr Olav Nielssen, Psychiatrist, dated 18 September 2016;

  4. a handwritten note from the applicant’s doctor 3 August 2016; and

  5. two character references.

  1. The respondent relied on two small bundles of documents that included:

  1. the Local Court Attendance Notice regard to the charges that were laid against the applicant in November 2013, the Local Court orders made in regard to each charge; and

  2. the applicant’s bail history, a letter from the applicant's solicitor two Dr Nielsen dated 15 August 2016 that had attached to it a number of documents including the Police Fact Sheet in regard to the charges that had been laid against the applicant and the above-mentioned reports of Ms Tracy Durrant, a copy of the documents produced, by Prana Consulting, pursuant to a summons issued by the Tribunal at the request of the respondent. The documents produced pursuant to the summons related to Ms Durrant’s treatment of the applicant.

  1. The applicant, Ms Durrant and Dr Nielssen each gave oral evidence at the hearing and were cross-examined by counsel for the respondent. We have dealt with their evidence below.

Consideration

  1. We note the jurisdiction of the Tribunal in matters under the WWC Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

  2. The term “safety to children” is not defined in the WWC Act, but includes the sexual and physical safety of children, and also their safety from conduct that is likely to cause psychological or emotional harm: see BVM v Children’s Guardian [2016] NSWCATAD 65 at [9] – [15] and [67] and BFX v Children’s Guardian [2014] NSWCATAD 115 at [19] to [30].

  3. In regard to the matters prescribed in 30(1) of the WWC Act, set out below is a summary of the evidence and our findings in regard thereto.

(a) - The seriousness of the offence with respect to which the applicant is a disqualified person

  1. The “trigger offence” of which the applicant was found guilty is a summary offence (i.e. triable before the Local Court) and carries a maximum penalty of 100 penalty units or imprisonment for 2 years or both.

  2. The applicant was initially charged with 25 offences under s 91L of the Crimes Act. He was charged with five offences of attempting to film a woman’s private parts without her consent for sexual gratification and twenty offences of filming a woman’s private parts without her consent for sexual gratification. The offending conduct occurred at three public occasions on seven days between 10 September 2013 and 23 October 2013. The public locations were in Sydney and Campbelltown and included on or near university grounds.

  3. The applicant used his mobile phone to film up the dresses or skirts of women. In filming, the applicant recorded by video the underwear and buttocks of the women he was filming. The evidence was that the victims were unaware they were being filmed by the applicant. The applicant perpetrated his offending conduct by walking closely behind the female victim, sometimes on escalators or stairs. At other times, the applicant was at the same level as the female victim when he perpetrated his offending conduct.

  4. The applicant was apprehended by police on 23 October 2013, after a member of the public, having observed the applicant at Campbelltown, reported him to the local police. On 31 October 2013, the applicant attended the local police station and was interviewed by police, where he is recorded as having provided a frank and honest version of events, including the details regarding the location of the incidents where he had filmed.

  5. As we have noted in the introduction, on a plea of guilty to seven offences of which he was charged, the Local Court made a finding of guilt on the charges relating to those seven offences. However, in sentencing the applicant the Court also took into account 13 additional charges that had been laid against the applicant. That is, 20 charges or incidents of offending were taken into account.

  6. In his oral evidence at the hearing, the applicant said he was ashamed of what he had done. He conceded that the victims he filmed were about the same age as he was. They were all women, who he had specifically picked out from the crowd. He said that at the time he did not consider his behaviour to be wrong or that he was taking advantage of an unaware victim on the first occasion. However over time he gradually did think it was illegal. In regard to one of the offences, the applicant agreed his conduct was predatory in nature in that he had changed his direction to follow the victim up the stairs. He said the length of time he filmed was a matter of seconds.

  7. Some three weeks after he was charged, on 19 November 2013, the applicant’s GP referred him to be assessed and treated by Ms Durrant. His first session with Ms Durrant was on 21 November 2013. In her notes of that session, Ms Durrant recorded that the applicant had told her he used his mobile phone to “film up girl’s skirts” and that he would then go home and masturbate whilst watching the film.

  8. While an offence under s 91L of the Crimes Act is a sexual offence that falls within the lower end of the scale of sexual offending, in our opinion, the applicant’s offending conduct falls within the upper end of an offence of this kind. We make this finding on the basis of the applicant having acknowledged that his offending conduct was not isolated but occurred for a period of 5 to 6 weeks and it was not until a member of the public reported him to police that he ceased engaging in this conduct and took steps to seek help.

  9. We accept the applicant, once detained by police, was fully co-operative and pleaded guilty to the offences at the earliest opportunity. Nevertheless the actual seriousness of his offending, in our opinion, was serious for an offence of the kind he was charged and found guilty.

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

  1. The offences occurred 3 years ago and since that time the applicant has undergone counselling and Cognitive Behaviour Therapy for about 2 years. We have dealt with this evidence in more detail below.

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

  1. The applicant was 20 years of age at the time the offences occurred.

(d)  the age of each victim of any relevant conduct at the time they occurred and any matters relating to the vulnerability of the victim

  1. As the identity of the victims was unknown, so was their age.

  2. In his evidence at the hearing, the applicant explained that police had destroyed the offending images on his mobile phone. It was his evidence that the female victims were of a similar age to himself or older and on this basis they were not under 18 years of age.

  3. The respondent on the other hand contended that given the circumstances in which the applicant filmed the victims it can be assumed that they were of university age, namely in their late teens or early to mid-20’s. In the absence of the victims having been identified we make no finding as to the age of the victims the applicant filmed. However, as we have already noted, a child under the WWC Act is a person under the age of 18 years and not under the age of 16 years.

  1. The respondent contended the victims were vulnerable in that they were unaware of being filmed by the applicant and had they been aware they would undoubtedly have said no. At the time they were filmed, the victims were in a public space where they were entitled to expect to be safe and protected from the conduct of the kind engaged in by the applicant. In his oral evidence at the hearing, the applicant conceded this to be the case. He said he did not understand this at the time he took the initial images but said he began to think this to be the case some time prior to being detained. We have some difficulty in accepting this to be the case, when on 5 February 2014, Ms Durrant recorded that in her session with the applicant that day that they talked in more depth about his offending behaviour and the applicant is recorded as having said he thought “girls should not wear short skirts in front of him.”

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

  1. It was agreed the victims and the applicant were of a similar age.

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

  1. For the reasons set out above, we make no finding that any of the victims were a child. However, we do accept the contentions of the respondent that the victims were likely to have been young adults and vulnerable.

(g)  the person’s present age,

  1. The applicant is 23 years of age.

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

  1. Other than the offending conduct the subject of this application, the applicant has not been convicted of any other offending conduct, nor is there evidence of the applicant having come to the attention of police since his offending conduct. He is currently studying part time and has been employed as a retail sales assistant for the last 6 years. There is no evidence of any adverse findings against the applicant in the course of his employment or during his studies.

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

  1. It is the applicant’s contention that, having undergone counselling and Cognitive Behaviour Therapy following his offending conduct, it is unlikely that he will re-offend as he has done previously. In support of his contention he relies on the evidence of Dr Nielssen and that of Ms Durrant.

  2. Before we deal with the evidence of Dr Nielssen and Ms Durrant, it is important to note the applicant’s evidence as to the circumstances giving rise to his offending conduct.

  3. In his affidavit the applicant explained that up until he was 15 years of age he was in the top of his class at school and excelled in his chosen sports. This changed when he met his first long-term girlfriend, A. He said it was a relationship that lasted for about 4 years and towards the end of the relationship their relationship they became intimate. He explained that A suffered from depression and that throughout the duration of their relationship A was often emotionally abusive towards him and she would often verbally berate him in front of his peers and friends. This emotional abuse, he said, in part led to his performance in sports and his academic achievements to slow somewhat. He said his parents urged him to end the relationship however he chose not to. He said he began to lose some of the friends he had when he was in Year 11 and began to develop friendships with boys from older years, and boys from his current year who often exhibited conduct issues and “risk-taking” behaviour. He said in Year 12 he began to partake in such behaviours that included excessive alcohol use. He said, that behaviour was out of character in an attempt to gain popularity amongst his peers.

  4. The applicant said he ended his relationship A when he began his first year of university studies. He said it was at this time that, at the suggestion of A, he obtained some steroids from a person who he knew through a gym. He said he used them for a while before he became aware of their medical side effects. He said after he broke up with A he struggled to make friends and it was during this time that he began watching pornography on his computer on a regular basis. The applicant went on to say it was after this that he began his offending conduct.

  5. In his oral evidence at the hearing, the applicant said the heterosexual pornography he viewed prior to his offending had failed to give him sexual gratification so he began to look for alternatives. He also conceded during cross-examination that there were alternative means of obtaining sexual gratification that was lawful.

  6. In regard to taking steroids, we note Ms Durrant recorded the applicant having told her, on 10 October 2014, that he was taking steroids and that they made him feel confident about his body and his mind. It was not until July 2015, that the applicant told Ms Durrant that he had ceased taking steroids. We note the applicant also reported to Ms Durrant on this day that his home-life was calmer and that his friendship group had expanded.

  7. In January 2016, Ms Durrant recorded the applicant having told her that he had decided to never take steroids again, or any ecstasy or other recreational drugs anymore.

  8. Ms Durrant’s report of 10 February 2014 was prepared for the purposes of the applicant’s criminal proceedings. In that report Ms Durrant’s prognosis for the applicant was in the following terms:

“…[The applicant’s] prognosis would appear to be positive if he were to commit to a therapeutic intervention. [The applicant] would most likely experience a reduction in his psycho-social symptoms that pre-dispose him to maladaptive behaviours such as: anxiety, depression, frustration, boredom, pathological behaviours and insomnia with a therapeutic intervention aimed at increasing awareness and self-management skills.”

  1. In her report, Ms Durrant also set out a comprehensive treatment plan and the rationale for what she had proposed.

  2. Ms Durrant’s progress notes of her sessions with the applicant indicate that she saw the applicant on a weekly basis, from 21 November 2013 to 27 February 2014. She then saw the applicant every 2-3 weeks, until October 2014. The visits then became monthly, up to March 2016. Ms Durrant’s progress notes of the March 2016 session records the applicant having told her that that particular session would be his last session as he had reached the end of the Court ordered “treatment period”. Ms Durrant noted that she had suggested to the applicant that he continue to see her every two months and he had agreed this would be suitable. Ms Durrant also noted that the applicant said he thought he had a lot more insight about himself and his anxiety and that he felt like he was more in control of himself.

  3. The applicant did not go and see Ms Durrant again until July 2016. The purpose of that visit was to request Ms Durrant to provide a report in support of his application for a clearance.

  4. In his oral evidence the applicant explained that he ceased seeing Ms Durrant after the March 2016 visit, because he could not afford to pay for the sessions. He said his parents had previously paid for these sessions. The applicant also explained that his doctor had prescribed medication for his anxiety. The evidence is that they were originally prescribed in March 2014 when the applicant discovered his brother had cancer. He said he has continued to take the medication when his father was also diagnosed with cancer.

  5. Ms Durrant in her oral evidence explained that she had suggested ongoing treatment because the applicant appeared to be concerned about his father’s illness.

  6. In her subsequent report, prepared for the purpose of these proceedings, Ms Durrant said that, in her opinion, on the basis of the information she obtained during sessions, the applicant appeared to have developed a sound understanding of his past behaviour for which he expressed responsibility, remorse and regret. She went on to identify the issues that appeared to have driven the applicant’s past behaviour. These were:

  1. a lack of social relationships.

  2. intimacy deficits.

  3. sexual self-regulation.

  1. In regard to the latter, Ms Durrant said:

  1. the applicant appeared to have a morbid sex drive pre-occupation in the past, most likely exacerbated by social isolation and his lack of peer group stimulation. However, since then the applicant appeared to have developed a health balance of the various aspects of his life and a sound understanding of his drives, needs and wants along with adaptive strategies to regulate them;

  2. although the applicant had, “in the past, used sexual gratification as a means of coping with his psychological and psychological distress he had more recently expressed an understanding of sex as a means of intimacy and connection” and appeared driven to find alternative means of coping with stress; and

  3. although the applicant “had a history of arousal related to voyeurism he more recently expressed an understanding that involving other people in his fantasies was not appropriate and potentially problematic, consequently he had developed appropriate and effective strategies for relapse prevention.”

  1. Ms Durrant concluded her 2016 report with the following prognosis:

“Given his goals to become an exercise physiologist in the future and his family’s desire for him to succeed [the applicant’s] prognosis would appear to be positive. [The applicant] reported a significant reduction in his psychological symptoms and pre-disposed him to maladaptive behaviours such as; anxiety, depression, frustration, boredom, pathological behaviours and insomnia. According to [the applicant] his commitment to therapy and self-improvement have increased his awareness and self-managed skills and effectively “changed his life”.”

  1. In his report, Dr Nielssen observed that the offences of which the applicant was convicted were not uncommon now that nearly ninety percent of Australian adults have a mobile telephone with a video recorder function. He noted the applicant was not thought to have a disorder of abnormal sexual interest such as being only aroused by voyeuristic images.

  2. In regard to the likelihood of the applicant re-offending, Dr Nielssen said:

‘…[I] believe that [the applicant] carries a low probability of committing a further offence on both clinical and actuarial grounds. On clinical grounds, [the applicant] does not have a pattern of anti-social conduct, a substance use disorder, or any kind of psychiatric disorder associated with compulsive and self-defeating behaviour. He has participated in long term insight or entered counselling and his treating psychologist has noted the progress he has made in the last 2 years. In particular, he has expressed his shame and remorse at his conduct, even if it was essentially victimless, in the sense that the women involved could not be identified or potentially embarrassed by the images he took. …”

  1. Dr Nielssen’s opinion was based on the history provided by the applicant during the August 2016 interview he had with him and the documents he was provided with, which included the reports of Dr Durrant. Dr Nielssen’s went on to say that based on his score on the commonly used actuarial instrument, Static-99, the applicant was assessed as falling within the low to moderate range of further offending. He pointed out that the Static-99 is not a risk assessment instrument as such, as it estimates the probability of further offences and not the seriousness of any further offences.

  2. Dr Nielssen also noted in his report that the recidivism rate of sexual offenders as a group is far lower than for other categories offender.

  3. Dr Nielssen concluded by saying the applicant had been assessed to have a low probability of reoffending and that any further offences were unlikely to involve children.

  4. In his oral evidence at the hearing, Dr Nielssen the applicant’s filming was anti-social. He said just because a person has sexual fantasies does not mean they act on them. He said that in his view, the applicant’s illicit substance use did not amount to a disorder. He said experimenting with drugs is a very usual adolescent behaviour.

  5. While we do not accept aspects of Dr Nielssen’s evidence, we agree that the likelihood of the applicant reoffending as he did in 2013 is within the low to moderate range of reoffending so long as he is not exposed to any further stressors of the kind he was exposed to previously. If he were to reoffend, in our view this would be serious and not a mere fetish as suggested by Dr Nielssen.

  6. What is of concern to us is that, on the material before us, we are not persuaded that the applicant has sufficiently demonstrated an insight into his offending behaviour and the harm it may cause a child if the victims had been a person under the age of 18 years. We accept he is remorseful and is ashamed of what he has done. We also accept that, with the assistance of Ms Durrant, the applicant appears to have learnt some skills to deal with his stresses and anxiety that gave rise to his behaviour. These stresses and anxiety, he said mainly arose from his relationship with his parents and his girlfriend A. He no longer has a relationship with A and it is his evidence his relationship with his parents has now improved. In our opinion, the applicant’s past relationship with A and his parents do not fully explain his offending behaviour. Nor does it appear that since ceasing to see Ms Durrant in March 2016 and as at the date of the hearing of this application, the applicant has been placed into circumstances that required him to call on the skills he has learnt so as to avoid behaviour of the kind he engaged in three years ago.

  7. Finally, while the applicant states he has no interest in working with children, it would appear that his chosen career may involve direct contact with a person aged between 16 and 18 and on this basis it is essential that he have an understanding of child protection issues for persons of this age.

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

  1. In his affidavit, the applicant said, that work in his chosen field of study, will primarily involve clients who are adults and not children. However he understood in order to successfully graduate from his current university program, and to obtain employment thereafter he will need to obtain a clearance because his employment situations will be linked in with health care provision centres and hospitals. In his oral evidence the applicant emphasised that he had no specific interest in working with children.

  2. The applicant’s referees each state that the applicant is of good character and that his 2013 offending was totally out of character. The referees are friends of the applicant who have known him for many years. They each state the applicant fully disclosed the nature of his offending conduct and notwithstanding this, they strongly believe the applicant is of no risk to children, and/or young people. Each referee also makes reference to the applicant’s struggles in regard to his younger brother’s ill health and the more recent diagnosis of his father’s cancer.

  3. The applicant otherwise contends that he has discharged his onus. In this regard he points to the fact that the victims the subject of the offending conduct were not children and the efforts he has made to rehabilitate himself.

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

  1. As we have already noted, the respondent contends the applicant has not discharged his onus in that he has not satisfactorily explained his carelessness and indifference to the interest of his victims and why he did not at the relevant time find some other lawful means by which to achieve sexual gratification and stress relief other than by his offending. Also of concern to the respondent is that the applicant’s conduct was relatively recent and that it occurred over a sustained period of time and only ceased when the applicant was apprehended by police. At the same time the respondent acknowledges the applicant’s efforts to rehabilitate himself.

Risk Assessment Conclusions

  1. As we have noted, the first issue for us to determine is whether, having regard to the material before us and taking into account the matters/factors prescribed in subs 13(1) of the WWC Act, the applicant has discharged his onus and rebutted the statutory presumption that he poses a real and appreciable risk to the safety of children today if he were to be granted a clearance to work in child related work. In making that determination we must also have regard to the paramount consideration in s 4 of the WWC Act.

  2. The applicant is a young man and we accept his latter years at high school and his initial years at university were difficult for him. It was during his time at university that he committed the disqualifying offences. While an offence under s 91L of the Crimes Act, falls within the lower range of sexual offending, we have found that the applicant’s offending was a serious breach of that section. We have made that finding because the offences occurred over a period of 5 to 6 weeks and it was not until a member of the public reported him to police that he ceased engaging in this conduct.

  3. Although the identity of the victims of the applicant’s offending conduct is unknown, the applicant acknowledges that the victims he chose were about his age. At the time he was 20 years of age. The applicant was not a child, but he also acknowledged he did not know the age of the victims he chose. Some of the offending conduct was committed on or near university grounds and it is probable that some of his victims were in their late teens.

  4. We accept the applicant is remorseful and ashamed of what he did and that the likelihood of him reoffending as he did is low to moderate at this time. We also agree that he should be commended for the efforts he has made to address his levels of anxiety and stress. However, as the offending conduct occurred relatively recently, we are not persuaded that, at this time, the applicant has demonstrated a sufficient amount of insight into his behaviour, or that he has the necessary skills to avoid behaviour of this kind that may cause harm to children if he were to be granted a clearance.

  5. Hence, we find that the applicant has failed to discharge his onus to rebut the statutory presumption that he poses a real and appreciable risk to the safety of children. On the basis of this finding, it is unnecessary for us to consider the matters in s 30(1A) of the WWC Act and his application should be dismissed.

  6. Notwithstanding our finding that the applicant has failed to discharge his onus on this occasion, this does not mean he will not be able to do so in future, especially if he is able to demonstrate an insight into his offending following some further counselling, which includes issues around child protection in child-related work. In this regard we note s 13A(1) of the WWC Act places a five-year embargo on persons whose clearance has been refused, unless there has been a change of circumstances under which a further early application is permitted under that section. The changes of circumstances that permit an earlier application are set out in s 13A(2). These include the respondent permitting a person to make an application earlier than the five-year embargo (WWC Act, s 13A(2)(d)). Hence, it is open to the applicant to seek to make an earlier application for a clearance if he is able to establish changed circumstances.

Order

  1. For the reasons set out above, we order:

  1. The applicant’s application for an enabling order is dismissed.

**********

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: 31 May 2017

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

4

BKE v Office of the Children's Guardian [2015] NSWSC 523
Commission for Young People v V [2002] NSWSC 949
CHB v Children's Guardian [2016] NSWCATAD 214