CRY v NSW Office of Children's Guardian

[2017] NSWCATAD 77

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CRY v NSW Office of Children’s Guardian [2017] NSWCATAD 77
Hearing dates:	22 December 2016
Date of orders:	13 March 2017
Decision date:	13 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member Professor P Foreman, General Member
Decision:	(i) Declare that the Applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of Assault with act of indecency for which he received a s.10 Bond for 18 months on 17 September 2014. (ii) Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the Children’s Guardian is to grant the Applicant a Working with Children clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – by reason of offence presumed to be a risk to children – whether applicant has discharged his onus to establish the contrary – assessment of risk.
Legislation Cited:	Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998
Cases Cited:	BHA v Children’s Guardian [2014] NWCATAD 161  BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 Commission for Children and Young People v FZ NSWCA 111 BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Smith v Commissioner Police 2014 NSWCATAD 184. Director of Public Prosecution v Smith (1991) VR 6
Category:	Principal judgment
Parties:	CRY (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Self-represented (Applicant) M Giacomo (Respondent)
File Number(s):	1610551
Publication restriction:	Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal.

REASONS FOR DECISION

Introduction

1. The Applicant is a ‘disqualified person’ under s.18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and is applying for an enabling order under s.28 of the Act declaring that he not be treated as a disqualified person and be granted a working with children clearance check (WWCCC).

2. The Applicant, referred to as ‘CRY’ is a 50 year old man who has worked for a hospital as a wardsman for the last 18 years. He does not work directly with children but his employer recently required him to obtain a WWCCC. The Applicant applied but was notified by the Children’s Guardian (CG) on the 9 November 2015 that he was deemed to be a disqualified person under the Act and the CG refused to grant him the clearance. The Applicant has applied for an enabling order to allow him to obtain a clearance.

3. The disqualifying offence occurred in July 2014 when the Applicant pleaded guilty to an Assault with act of indecency under s.61L Crimes Act. The Applicant pleaded guilty and was placed on a Section 10 good behaviour bond for 18 months. This is a disqualifying offence being an offence set out in Schedule 2 of the Act and the CG is required to refuse a clearance to any person convicted of such an offence. A finding of guilt is deemed to be a conviction under s. 5 of the Act even though the Court did not proceed to a conviction.

4. Under s.28(7) of the Act the Applicant is presumed to pose a risk to the safety of children. The question for the Tribunal is whether the Applicant has displaced that onus.

5. The Respondent opposes the application.

6. Due to the sensitive nature of the proceedings, an order was made under s.64 of the Civil and Administrative Tribunal Act 2013 prohibiting publication or broadcasting of any information identifying the names of the Applicant, witnesses or evidence given or received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. Under this order the Applicant has been given the pseudonym, CRY to be used for the Applicant’s name.

Evidence

Documents

7. The Applicant did not file any documents to support his application. He instead relied on a pre-sentence psychological assessment and report prepared by Corrective Services at the time of the 2014 offence. This report formed part of the Respondent’s s.58 bundle of documents.

8. The Respondent provided a s.58 bundle of document that included:

1. Police brief in relation to the 2014 offence

2. Updated Criminal history

3. Employment records of the Applicant including performance reviews

4. Health records of the Applicant including clinical notes and progress reports

5. Court records regarding the 2014 offence including court orders, bail notices and a pre-sentence report of 12.09.2014 prepared by Corrective Services

6. Consultation Report prepared by Community Corrective Services and Corrective Psychological Services of 12.09.2014.

7. Court documents in relation to High Range PCA offence committed August 2016

8. Section 31 response from President of local baseball league stating the Applicant was a short term junior coach several years ago and he has no knowledge of any complaints against him.

9. The Applicant was not legally represented during the hearing. The Respondent was represented by counsel.

10. The Applicant gave oral evidence in the hearing and was cross-examined by the Respondent. No other witnesses were called by either party and both the Applicant and the Respondent gave final submissions.

Applicable Law

11. The object of the Act is to protect children:

1. by not permitting certain persons to engage in child-related work, and

2. by requiring persons engaged in child related work to have working with children check clearances: see section 3 of the Act.

12. 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: see section 4 of the Act

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

14. Section 28(1) of the Act makes provision for a disqualified person to make an application to the Tribunal for an enabling order. Section 28(7) provides that in any proceedings where an enabling order is sought, it is presumed unless the Applicant proves to the contrary, that the Applicant poses a risk to the safety of children.

15. Section 28(8) provides that an enabling order may not be made subject to conditions.

16. The Tribunal must consider whether the applicant poses a risk to the safety of children. It is well established that the test to be applied is whether the risk posed by the applicant is “real and appreciable in the sense of a risk that is greater than the risk of any adult preying on children” (BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523).

17. The jurisdiction of the Tribunal in considering whether to grant an enabling order is protective and not punitive in nature (BHA v Children’s Guardian [2014] NWCATAD 161 and Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]).

18. The Applicant bears the burden of proof in these proceedings, in which he must establish on the balance of probabilities, that he does not pose a risk to the safety of children.

19. In determining this application, the Tribunal must first have regard to the factors set out in section 30 (1) of the Act. If the Tribunal is considering making an enabling order, it then needs to consider the application of the two-part test set out in section 30 (1A) of the Act.

Consideration of s.30(1) factors

Seriousness of the offence with respect to which the Applicant is a disqualified person

20. The offence of Assault with an act of indecency is a serious offence and provides for a sentence of up to 5 years imprisonment.

21. The police facts sheets state the Applicant had been drinking at a club with friends. While standing behind a woman who was known to him and while she was hugging another person, the Applicant reached down and grabbed her crotch area reaching his palm around her behind to her vagina, cupping the area and squeezing it significantly. He did not say anything at the time and caused her pain. She pushed him away at which time he said, “I’ve got you this time” and laughed. She exchanged words telling him how inappropriate his actions were and proceeded to use the facilities. Upon her return the Applicant tried to apologise to her. He was asked to leave the venue and he did. He was charged.

22. The Applicant’s interview with police or ERISP was not provided in the s.58 bundle. The police fact sheet states; ‘During the interview the Accused made full and frank admissions to the indecent assault against the victim and apologised profusely for his actions’.

23. The Applicant gave evidence about the 2014 offence. He said he had been playing darts and drinking at his local licenced club. He told the victim, whom he knew, that he could lift her up with one hand and this is when the assault occurred. He intended it as a joke. He stated that he immediately felt ashamed and apologised to the victim. He was asked to leave the club immediately and he did. The police then visited him at home and later questioned him. He made full admissions and pleaded guilty to the charge when he went to Court.

24. The offence occurred in July 2014. The Applicant was 47 years old and the victim was 51 years old at the time. The Applicant pleaded guilty to the offence of Assault with an act of indecency. In September 2014, he entered a good behaviour bond for 18 months pursuant to s.10 Crimes (Sentencing Procedure) Act 1999.

25. In the pre-sentence report dated 12 September 2014 the Applicant told his caseworker that he had been drinking with friends and was having a joke with the victim and lifted her up between the legs. In the victim’s statement to police she stated she had her back to the Applicant hugging another person when the assault took place (without warning) and there is no reference to having a joke with the Applicant.

26. In the pre-sentence report the author states there does not appear to be any sexual motivation in the offending and the Applicant does not require sex offender specific treatment.

27. In the pre-sentence report the author states the Applicant took full responsibility for the offence, he regrets his actions and the impact of his offending has had on his victim, her family, his family and the broader community. In evidence before the Tribunal the Applicant again expressed his apologies for the assault and the harm he caused the victim.

28. On the facts, this offence is serious but not in the worst case category. This is also reflected in the leniency of the sentence, although there were clearly other factors such as the Applicant’s clear criminal record and his immediate acceptance of guilt and remorse.

Period of time since those matters occurred and the conduct of the person since they occurred.

29. The disqualifying offence occurred two and half years ago in July 2014.

30. In August 2016, the Applicant was charged with the offence of driving with High Range PCA. He pleaded guilty and in October 2016 the Court fined him for the offence and imposed the prescribed disqualification period.

31. Apart from PCA offence there has been no re-offending. There have also been no complaints or allegations or incidents of inappropriate behaviour.

The age of the person at the time the offence occurred.

32. The Applicant was 47 years of age.

The age of the victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim

33. The victim was 51 years old at the time of the offence.

34. At the time of the assault, the victim had her back turned away from the Applicant, hugging another person. The victim would have been shocked by the assault as she had no pre-warning or knowledge and was unable to take any action to prevent it or stop it.

35. In the police facts, the victim had drunk 2 to 3 schooners of full strength beer before the assault and this may have made her more vulnerable.

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

36. The age difference is four years with the Applicant being the younger of the two. The police facts state they were acquaintances and had known each other for about 4 years.

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

37. The victim was not a child.

The person’s present age

38. The Applicant is 50 years old.

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

39. The Applicant has no record of any criminal convictions prior to July 2014.

40. As stated above the Applicant pleaded guilty to a high range PCA offence that occurred in August 2016. The Applicant complied with an 18 month good behaviour bond and was not required to return to Court. There has been no further re-offending or complaints or incidents of inappropriate behaviour.

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

41. The Applicant stated in evidence that he has never hurt a child and would never hurt a child. He was disgusted by the thought of hurting a child.

42. He did not provide his own psychological expert to assess risk. He was cross-examined about this. The Applicant stated that he believed there was no need as he had already been assessed by Corrective Services psychologist prior to going to Court for the July 2014 offence in preparation for the pre-sentence report. The opinion set out in the report was that he was not a risk of re-offending and he relied on this opinion and says nothing had changed. He agreed with counsel for the respondent that the assessment was completed on the paperwork and he did not meet personally with the psychologist who wrote the pre-sentence report.

43. The pre-sentence report includes a consultation report prepared by forensic psychologists, Katie Mackrell and Kate Solomon. They carried out a STATIC -99R risk assessment on the Applicant. They confirm the conclusions are limited by having no direct interview with the Applicant and relying on historical and file information only. Their conclusion about the Applicant is that based on the STATIC-99R he falls in the low risk range for sexual re-offending. They also consider that the Applicant does not require sex offender specific treatment.

44. The Applicant complied with the conditions of his 18 month good behaviour bond. He has not committed any further offences other than the high range PCA offence. There is no evidence of any complaints or allegations of any inappropriate behaviour including against children. There is no other record of offending or inappropriate behaviour or complaints.

45. Having regard to all the information before the Tribunal we are satisfied that the likelihood of the applicant re-offending is low.

46. The Respondent raised the concern that alcohol was a significant factor in the Applicant’s offending and the Tribunal has no information on whether the Applicant has maintained his sobriety or is dealing with his mental health issues. Of concern is the August 2016 offences of high range PCA which suggests the Applicant continues to struggle with alcohol. There is also no information as to whether he is continuing to treat his unresolved grief.

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

47. He confirmed he had worked at the same hospital for the last 18 years. He stated that he had never committed any offences against children. He finds it offensive and very upsetting that he could be accused of being a risk to children.

Any other matters the Children’s Guardian considers necessary.

48. The Respondent raised concerns about the pre-sentence and consultation report prepared in 2014 in which the psychologists find that the Applicant is at low risk of re-offending. The report stated that alcohol use had been a significant factor in the Applicant’s offending behaviour. When the assessment was carried out the Applicant had been engaged in treatment and had been sober for about two and half months. There is no information provided by the Applicant as to his current state of sobriety. However, the evidence is that in August 2016 he consumed alcohol to excess when he was charged with a high range PCA charge. This then raises questions about the validity of the conclusions set out in the pre-sentence report. The report also states the STATIC-99R is not sensitive to the changes in an offender’s circumstances that may increase or decrease his actual risk of re-offending.

49. The Applicant gave evidence of the August 2016 DUI offence. He indicated he had swollen testicles and had been drinking for pain relief. He was picked up by police when he was travelling to the chemist to get some pain relief.

50. In cross-examination, he agreed that alcohol had been a contributing factor in the 2014 offence. He agreed that he had not maintained his sobriety since the 2014 incident and he still drank alcohol but not to excess, maybe 2 to 3 times per week. He agreed that his drinking in August 2016 that led to the high range PCA charge was also influenced by the anniversary of the death of his still-born son occurring on the same day. He confirmed that he was on medication for his anxiety and also for arthritis. He named the medication. He also saw a counsellor for approximately 8 months after the 2014 offence. He agreed that he did not provide any medical information to the Children’s Guardian or their solicitor about his medication or the counselling.

51. The Applicant was asked by the Tribunal in evidence whether over the course of his employment there had ever been any alcohol related incidents or complaints at work and he responded that there had not been.

Consideration

52. The Applicant is 50 years old. Prior to the 2014 offence the Applicant did not have a criminal record. The offence is serious but not in the worst case category. It involved a victim who was four years older than the Applicant. It did not involve a child. He has expressed genuine remorse.

53. It would have been helpful to the Tribunal to have had an expert psychological report to assess risk. In evidence the Applicant seemed genuinely confused as to why he needed to obtain a further expert report when he had participated in a pre-sentence assessment process from July to September 2014 and in his view, his circumstances had not changed. He also genuinely appeared not to understand why he needed to provide any further supporting documentation. However, the pre-sentence report of September 2014 and the Static 99R assessment is useful in that it confirms on the available information the Applicant is in the low risk category to sexually re-offend.

54. The Respondents main concern about the application was the lack of information provided by the Applicant making it difficult to assess risk of safety to children. In particular, his current use of alcohol and state of sobriety and his engagement with treatment to address any unresolved grief issues. This concern was highlighted by the high range PCA offence in August 2016. However, the failure to provide this information does not appear to be a lack of candour on the part of the Applicant but a belief that it was not required and therefore not necessary. In evidence the Applicant confirmed he was seeing a counsellor and he was taking medication. He also stated that he was still drinking alcohol but moderately and only about 3 days per week. He also stated in evidence that there had been no alcohol related incident or complaint at work over the last 18 years and the employment records provided in the s.58 bundle of documents did not refer to any such complaints. It is clearly important for the Applicant to continue to work on any mental health issues and any misuse of alcohol.

52. Having regard to all the material before the Tribunal, we are satisfied that the Applicant has displaced the onus in rebutting the presumption that he poses a risk to the safety of children.

Application of s.30(1A) of the Act

56. Having decided that the Applicant has displaced the onus, the Tribunal must consider the application of s30(1A) of the Act. This subsection was inserted into the Act by the Child Protection Legislation Amendment Act 2015 (NSW) and came into force on 2 November 2015. It provides an additional test for the Applicant and provides:

s.30(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.

57. The Tribunal considers the additional test outlined in s30(1A) of the Act does apply in this case. That is, the Children’s Guardian notified the Applicant of its decision to refuse him a clearance as he was a ‘disqualified person’ on the 9 November 2015 and after commencement of s.30(1A). See CHB v Children’s Guardian (2016) NSWCATAD 214 and CMA v Children’s Guardian (2016) NSWCATAD 264.

58. The first part of the test of s.30(1A) requires the Tribunal to be satisfied that a reasonable person would allow his or her child to have direct contact with the affected person being the Applicant that was not directly supervised by another person. The section assumes the reasonable person is acquainted with all the relevant facts the Tribunal is aware. (see CHB v Children’s Guardian (2016)NSWCATAD 214). The relevant facts include:

1. The finding of guilt to the offence of Assault with act of indecency committed in July 2014,

2. The Applicant’s evidence about the incident,

3. The Report by Corrective Services providing background to the offence and that the offending did not appear to be a sexual act,

4. A Static 99R risk assessment was carried out on the Applicant and he was assessed as being in the low risk category of sexual re-offending,

5. The Applicant took immediate responsibility for the offence, apologised to the victim, made full and frank admissions to police. He complied with his 18 month Section 10 Good Behaviour Bond.

6. The Applicant is 50 years old and the only offences on his criminal history are the 2014 disqualifying offence and the 2016 high range PCA,

7. The Applicant has worked in the same hospital for 18 years and without any complaints or incidents of inappropriate conduct raised by the Respondent. There are also no alcohol related incidents at work.

59. Based on these relevant facts and the evidence of the Applicant which was forthright and open, the Tribunal is satisfied that a reasonable person would allow his or her child to have direct contact with the Applicant that was not supervised by another person while the Applicant was engaged in any child-related work.

60. The Tribunal must also be satisfied under the second part of s.30 (1A) that the order is in the public interest. The Tribunal in the matter of CMA v Children’s Guardian (2016 NSWCATAD 264 recently considered the meaning of public interest and referred to Smith v Commissioner Police 2014 NSWCATAD 184. The public interest considers the wider community interests over private interests. In Director of Public Prosecution v Smith (1991) VR 6 the Court held:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals"

61. The Tribunal must also consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

62. Neither party made specific submissions on the additional test outlined in s.30(1A) of the Act.

63. The Applicant has worked as a wardsman at the same hospital for 18 years. He requires a WWCCC to continue to work as a wardsman as the hospital now requires him to obtain a clearance as he is working with members of the public but not specifically children. His role as a wardsman is to assist the nursing, medical and professional staff to undertake duties in the care of patients. He has no doubt built up a skill level and knowledge in the role as a wardsman over the 18 years that is valuable to the hospital and the patients he assists and cares for. Without a WWCCC he will not be able to continue in this role. Taking into account all the information before the Tribunal, we are satisfied that it is in the public interest to make the enabling order and grant the Applicant a WWCC clearance.

Orders

64. The Tribunal make the following Orders:

1. Declare that the Applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of Assault with act of indecency for which he received a s.10 Bond for 18 months on 17 September 2014.

2. Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the Children’s Guardian is to grant the Applicant a Working with Children clearance.

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

Registrar

Decision last updated: 13 March 2017