CT v Commission for Children and Young People

[2003] NSWADT 61

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION:      CT v Commission for Children and Young People [2003]  NSWADT 61

PARTIES:      APPLICANT
CT
RESPONDENT
Commission for Children and Young People

FILE NUMBERS:      024041

HEARING DATES:   19/09/02, 22/10/02, 18/11/02

SUBMISSIONS CLOSED: 18/11/2002

DECISION DATE:     24/03/2003

BEFORE:       Britton A - Judicial Member

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998

CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949

APPLICATION:          Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE:               APPLICANT
S Beckett, barrister

RESPONDENT REPRESENTATIVE:       RESPONDENT
R McIlwaine, solicitor

ORDERS:      1 That the parties exchange and serve submissions on the issue of suitable conditions within seven days of the date of these reasons
2 Any submissions in reply be exchanged no later than 14 days from the date of these reasons.

Reasons for Decision:

1. This is an application pursuant to s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“the Act”) for a declaration that the Act is not to apply to the applicant in relation to a specified offence, namely an indecent assault committed by him in Western Australia on 25 August 1990. The respondent opposes the application.

2. By virtue of this conviction, the Act deems him a “prohibited person”. As such, it is an offence for him to apply for, undertake or remain in child-related employment, without a declaration under s 9(1) of the Act.

Background and evidence

1. The applicant is a 39 year-old married man who between 1997 and 2001 was employed as a bus driver by the State Transit Authority.  He seeks to return to that position but is unable to do so because of his “prohibited person” status. He currently works as a casual storeman.

2. In 1990 he pleaded guilty in the WA District Court to one count of indecent assault upon a 14 year-old boy and was placed on probation for two years and was required to complete 150 hours of community service and therapeutic counselling.  No conviction was recorded.  The applicant was 27 years at the time of the offence.

3. The sentencing judge, Viol DCJ found:

   “…         this offence took place on [text deleted] and on that date the Complainant, who was 14, was invited by you to stay the night at your home in [text deleted]. That was done and you both watched television until about 2:30am in the morning and both of you slept in the lounge room. In the course of the evening you touched the Complainant on the buttocks and it is said, at one time, tried to put some fingers in a tear in the Complainant’s , tracksuit pants and grab the complainant on the penis. I think there was some issue taken with that in the course of the plea matter on your behalf. However, it is clear that there was some touching or attempt to touch the Complainant as part of some sexual contact with him.”

4. His Honour said further:

   “... you told the police that there were no sexual intentions. However, I do not accept that and I think that the clear indications is that there was, in the course of this evening, some attempt to have some sexual contact with the Complainant. So that, of course, is a serious matter because, firstly, it was a young boy, some 13 years younger than you. Secondly, there seemed to be some degree of pre-meditation in it and there must have been a quite traumatic effect on the young boy who as I recall reading the papers attempted to avoid this contact on several occasions, and it amounted to a beach of trust because some permission had been sought of the boy's parents and even though I am rather surprised that they let the boy go there, they did put the boy in your trust and you breached that.”

5. Before the offence the applicant had been drinking and was possibly depressed.

6. There is no evidence that this offence was anything but a one-off occurrence. It remains the only entry on the applicant’s criminal record.

7. The applicant is an active member of his church. He plays in a church band, whose members include persons under 18 years of age.  Over the past few years he has attended a number of overnight youth camps organised by his church. There is no evidence of any complaint or adverse comment being made about his treatment of any child during these activities.

Expert Evidence

1. The applicant was assessed by two psychologists in relation to his personality and the risk that he may present to children if the declaration were granted.

2. The applicant was first seen by Ms Jenny Howell on 17 August 2001.  She applied the STATIC-99 test, an actuarial gauge of risk.  On that test, it is impossible for anyone proven to have committed a sexual offence at any time to be designated as a person who constitutes no risk whatsoever of recidivism.  On this test, she found that the applicant fell within the “medium low” category of risk because the victim was unrelated, was male and because the applicant was single at the time.  She applied a “sex offender need assessment rating” (“SONAR”) test to the applicant.  On this test the applicant was found to be in the “low” category of risk.  She concluded at the end of that test that “while I cannot say that [the applicant] will never again act in a sexually inappropriate way it is my professional opinion that such risk is low.”

3. Following the submission of her report on 27 August, she was asked for further comment in the light of additional material which the Crown Solicitor placed before her.  After considering all that material, Ms Howell altered her assessment.  Some of this material contradicted the history given to her by the applicant.  In her view, this confused and reduced the reliability of the results obtained in the tests she had applied.  She wrote, “the clearly contradictory information he provided at interview gives cause for concern, and it is my opinion that [the applicant] was less than honest in his responses to questions at interview.”  She concluded that “while it is difficult to quantify with certainty [the applicant’s] level of risk, I believe he should not hold positions of trust over children.”

4. She concluded that unless he gained some insight into the offence and accepted responsibility for his conduct he would be unable to guard against a recurrence. In her view, the applicant is not “predatory” and will generally act appropriately towards children. However, in some circumstances he may pose a risk to children.

5. In oral evidence to the Tribunal, Ms Howell said it was of concern that the applicant had not established any sort of "safety plan" for himself to deal with the combination of circumstances that may cause him to be a risk to children. These would include the use of alcohol, loss of employment and deterioration of a significant relationship.

6. Two reports were prepared by Dr Christopher Lennings. He assessed the applicant in a number of different ways.  In his first report, dated 11 September 2002, Dr Lennings stated that on the STATIC-99, the applicant is assessed as constituting a “medium low” risk of re-offending.  Dr Lennings also conducted a structured clinical assessment which samples a wide number of variables from both static and “dynamic” or changeable risk factors known to be predictive of sexual recidivism or violent crime recidivism or both.  The dynamic factors include such matters as employment status, suicidal ideation, remorse and denial.

7. Taking into account all the factors tested for, Dr Lennings concluded that the applicant presented a low risk of re-offending.  He also was of the view that “it is unlikely that his employment as a bus driver would create the kind of situation in which a future breach of trust could occur.”  He thought that “the major risk for [the applicant] is of a return to a maladjusted, marginal level of functioning [but that] there is an absence of factor which would specifically indicate risk of sexual offending”. 

8. In his second report, dated 15 September 2002, Dr Lennings expanded on his comments but did not alter his conclusions.  He offered the observation that, in his interview with Ms Howell, the applicant may have been defensive because he was ashamed.  While he did not criticise the professionalism with which Ms Howell had conducted her assessment, he thought that her conclusions in the second report were not beyond challenge.

The issues

1. The first and principal issue in this matter is whether or not there is an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm to children posed by the applicant, having regard to the need to protect children and employees and reasonable civil rights.  (See Commission for Children and Young People v V [2002] NSWSC 949 at [22] per Young J.)

2. The second issue is whether, by the imposition of conditions upon the applicant, it is possible to for the Tribunal to mitigate or reduce any risk that the applicant may re-offend to insignificance or immateriality. 

Submissions and conclusions

1. Under s 9(4) the Act requires that the Tribunal not grant a declaration “unless it considers that the person the subject of the proposed order [prohibiting him or her from certain types of employment] does not pose a risk to the safety of children.” The applicant bears the onus of proof on the high civil (or Briginshaw) standard.  The test of risk is as set out in V’s Case (see par 18).  The questions the Tribunal must ask itself before granting an application for a declaration are whether the applicant poses “an unacceptable risk, a real risk” to the safety of children and whether there is any material likelihood of harm or a recognisable potential for harm to children which is not merely theoretically or remotely possible but substantial.

2. In assessing the risk posed by the applicant the Tribunal must take into account those matters listed in s 9(5) namely: the seriousness of the offence(s); the age of the offence(s); the respective ages of the offender and victim(s) at the time(s) of the offence(s); and the offender’s general criminal record. In addition, the Tribunal may take into account any other relevant information that might bear on an assessment of risk. Relevant matters might include the offender’s efforts to rehabilitate him or herself and any undertaking to undergo further rehabilitative programs; his or her current circumstances, such as the stability and cohesion of his or her marriage; whether the offence was an isolated incident or part of a pattern of conduct; whether the offender admitted his or her offence and showed remorse or denied it; whether the offender has genuine insight into the causes of his or her misconduct and whether the nature of the employment or profession the applicant seeks to pursue is likely to bring him or her into close, unsupervised contact with children.

3. In this case, the respondent contends that the applicant has not discharged the onus of proof laid upon him and that the application ought, accordingly, be dismissed.  The applicant, on the other hand, points to a number of matters which he says, taken in combination, ought satisfy the Tribunal that he poses no material risk to children. 

4. First, while it is conceded that the offence is a serious one, it is towards the lower end of the scale of sexual offences.  Second, it was a once-only offence.  There is no evidence of repetition of this type of conduct.  Third, the offence was committed almost thirteen years ago and there have been no further offences committed, sexual, child-related or otherwise, by the applicant since that time, apart from minor traffic matters.  Fourth, the applicant is in a stable marriage and is committed to his church, suggesting a good attachment to his family and a strong moral sensibility.  Fifth, he demonstrated insight and remorse during the course of his probation whilst under sentence in WA.  He has not denied the offence.  Sixth, those who know him regard him as trustworthy with children and he has been assessed by objective experts as presenting a low-risk. Seventh, he is willing to comply with any conditions that the Tribunal may impose upon him as to further counselling or rehabilitation.  Eighth, as a bus driver he would have little opportunity in any event for close contact with children and therefore would, from an objective point of view, pose little risk to children if he remained in that employment.  He has no plans to work closely with children. Lastly, following V’s Case, his civil rights, namely his right to pursue a career in a chosen field, is a matter to be taken into account all other things being equal.

5. The respondent submits that the applicant has demonstrated a lack of frankness in the past as well as committing the offence in question.  It argues that he has a history of attempting to misrepresent matters which may tend to disadvantage him in various ways if the truth were admitted or revealed to various people or bodies whose decisions or assessments affected him, right up to the time he saw Ms Howell.  That being the case, it argues that he cannot be regarded as a reliable witness and cannot be said to have discharged his burden of proof.

6. It argues, further, that he committed the offence at a time when he was unemployed, suffering emotionally and was under the influence of alcohol.  If that combination of events were to recur, the respondent suggests that children would be at risk from misconduct by him.  It says that there is no evidence of intrinsic change in the applicant and therefore children remain at risk.  Moreover, no “safety plan” has been presented by the applicant to the Tribunal.

7. While the respondent argues that there is no evidence of an intrinsic change in the applicant, I would respectfully disagree with that proposition.  The best evidence of change in the applicant is that, since the commission of the offence in 1990, and his punishment by the District Court of WA, he has not re-offended.  At most, he has tended to minimise the gravity of the offence he committed. It may be that he has also told lies about collateral matters in other situations.  Of course this does not bolster his credit and credibility, but it is important to distinguish between those matters and this one.  A person may misrepresent things for certain reasons other than a consciousness of guilt in relation to the matter about which he or she is under examination.  It is not entirely clear why the applicant made certain inconsistent statements, made misrepresentations or even told outright lies about various things, but what is clear is that he has not been re-offending and that on the objective tests applied to him he presents as a low risk to children.  I think that Dr Lennings’s assessment of him being defensive is the most rational explanation of the inconsistencies and other matters.

8. I am satisfied that when one considers the applicant’s case as a whole and takes all the relevant circumstances into account, that the applicant has demonstrated that he presents no material risk to the safety of children in his role as a bus driver and in respect of employment on a voluntary basis in those church activities in which he has recently been involved, as outlined in the evidence in these proceedings.  In reaching that conclusion, one of the matters I have taken into account is the applicant’s willingness to undergo further counselling and rehabilitation and to comply with a condition to that effect.

9. On the evidence currently before me, I am unable to determine whether the applicant needs or would benefit from any program of counselling.  I consider, however, that it ought be a condition of the order that he be assessed in that respect and undertake any program recommended.  In my view, that assessment ought be undertaken by Dr Lennings (if he is willing to do so). 

10. The respondent has requested that it be heard on the question of suitable conditions.  I am willing to receive any written submissions the parties may wish to make on that question before making final orders.  I direct that the parties exchange and serve any such submissions within seven days of the date of these reasons and that any submissions in reply be exchanged no later that 14 days from the date of these reasons.