CZF v Children's Guardian

[2017] NSWCATAD 347

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CZF v Children’s Guardian [2017] NSWCATAD 347
Hearing dates:	20 October 2017
Date of orders:	20 October 2017
Decision date:	29 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member Professor P Foreman, General Member
Decision:	(1) The Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of sexual intercourse with a child between the age of 14 and 16 years for which he received a 12-month good behaviour bond pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999 on the 19 September 2007. (2) Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 the Children’s Guardian is to grant the Applicant a Working with Children Check Clearance.
Catchwords:	Administrative Law – Working with Children Check Clearance – real and appreciable risk to children - disqualifying offence presumed Applicant to be a risk to children- whether Applicant has discharged his onus of proof to the contrary
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:	CZF (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Ms Drinkwater (Applicant) Ms Giacomo (Respondent)   Solicitors: Barraclough Jones & Associates (Applicant) NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2017/00078360
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2013 that the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcasted without the leave of the tribunal.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

1. The applicant, known in these proceedings as ‘CZF’ is a 31 year old man, who wishes to continue to coach young people at a sporting club. He has played and coached at the same sporting club for the last 10 years. For him to continue he now requires a Working with Children Check Clearance (‘clearance’). The Children’s Guardian has refused to grant him a clearance because in 2006 he was charged and pleaded guilty to the offence of sexual intercourse with a child between 14 and 16 years. The offence occurred when he was 19 years old. This is a disqualifying offence. CZF has applied for an enabling order to allow him to obtain a clearance. The Children’s Guardian opposes the granting of an enabling order.

2. The Tribunal has considered the evidence and decided that CZF has discharged the onus and established that he does not pose a risk to the safety of children. The respondent has requested reasons for decision and those reasons and the orders are set out below.

3. Due to the sensitive nature of these proceedings the Tribunal has made the order under subsection 64(1) of the Civil and Administrative Tribunal Act (2013), that names of the applicant and his family as well as the name of the victim of the 2006 offence are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym ‘CZF’ has been used for the applicant’s name.

The index offence

Facts of the offence

4. CZF pleaded guilty to the offence of sexual intercourse with a child between 14 and 16 years. The police facts were agreed between the police and CZF’s solicitor. The relevant facts stated that CZF attended a party with the victim and several other young people on 28 July 2006. CZF was 19 years old at the time and the female victim was 15 years and 7 months. They had not met personally but had communicated previously on social media. All young people appear to have been drinking alcohol during the evening. At some stage in the evening, the victim was in a private closed bedroom with CZF. They kissed and this led to them having sexual intercourse but the sex only lasted about a minute before another young man, the co-accused entered the room. CZF pulled up his pants and listened to music on a computer. At some point CZF turned around and observed the victim having sex with another young person, the co-accused. CZF told police the co-accused had pulled the bed in front of the door and CZF asked them to stop having sex so he could get out of the room. However, the victim told the co-accused not to stop, so CZF “tried to blank it out” and continued to listen to music until they stopped and he left the room.

5. The victim told police she remembered seeing CZF standing in the room near the bed. However, she did not remember having sexual intercourse with CZF. She did remember having sexual intercourse with the co-accused. The police interviewed CZF. He told police that he did not know the victim was under 16 years at the time. He only found out the next day. He stated to police that she “looked a bit drunk, but not like, she wasn’t like laying on the ground or couldn’t walk or whatever”. The police charged CZF based on the admissions he made to police during the interview.

6. CZF pleaded guilty to the charge of sexual intercourse with a child 14 to 16 years. On 19 September 2007, the Court ordered that he enter a section 10 Bond to be of good behaviour for 12 months.

CZF statement and evidence

7. CZF provided a statement and gave oral evidence.

8. In his statement, CZF stated:

1. He struck up a friendship with the victim, through a mutual friend. He had not met her before but spoke over the internet as friends. He then attended the same party as the victim on the 28 July 2006

2. He believed the victim was 16-17 years of age. She was friends with a girl that was a sister of a good friend of his. He knew the sister to be between 16-17 years old and believed they were the same age.

3. A few weeks after the offence occurred he learned that the victim was 15 years old at the time.

4. He pleaded guilty to the offence accepting the advice of his solicitor that the law did not provide a defence at that time of reasonably believing the victim was over 16 years old.

9. CZF also gave oral evidence in the hearing and was cross-examined. He confirmed the facts as agreed with police. That is, he believed the victim was 16 years or over. He had penetrative sex with the victim for only a short time before the co-accused entered the room. He agreed the victim was intoxicated but at no time did he believe she was not consenting. He agreed with respondent Counsel that given the victim did not later remember having sex with him, he may have ‘mistook’ her level of intoxication at that time.

10. The respondent suggested the Tribunal should consider an allegation raised in the initial police investigation regarding the victim’s level of intoxication and a further allegation, that both CZF and the co-accused were alleged to have had sex with the victim at the same time. These allegations were denied by the CZF at the time. CZF’s solicitor sought to cross-examine the relevant witnesses regarding these allegations. However, the prosecution did not press these allegations. The Tribunal has considered these further allegations and gives no weight to them. They are untested allegations and not relied on by the prosecution. Further, the Tribunal has no statements from the witnesses attesting to or relating to these further allegations.

Applicable law

11. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act.

12. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; Section 4 of the Act.

13. As stated, CZF pleaded guilty to the offence of sexual intercourse with a child between the age of 14 and 16 years. This offence is listed as a disqualifying offence under Schedule 2 of the Act. Subsection 18(1) of the Act states the Children’s Guardian must not grant a clearance to a person convicted of a Schedule 2 offence. A conviction also includes a finding of guilt.

14. Subsection 28 (1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order.

15. Subsection 28(7) of the Act places the onus on the Applicant to satisfy the Tribunal that he does not pose a risk to the safety of children.

16. The meaning of the word “risk” in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word meant;

“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”.

17. The issue for the Tribunal to decide is whether CZF has discharged the presumption under section 28(7) of the Act that he does not pose a risk to the safety of children.

18. In determining this issue, 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 order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30 (1A) of the Act.

Consideration of s.30(1) factors and Findings

(a) seriousness of any matters that caused the assessment in relation to the person

19. The offence of sexual intercourse with a child between the ages of 14 and 16 years is a serious offence. The victim in the matter prepared a victim impact statement for the sentencing court and set out how the offences, including the offences of the co-accused, had a significant detrimental impact on her ongoing mental health. Mitigating factors in favour of CZF are that at the time of the offence he believed the victim was 16 years or over. He also made admissions to police when interviewed and based on those admissions he was charged. There was no other evidence implicating him in the offence as the victim did not remember having sex with him. These factors are likely to have reflected the Court’s more lenient approach in not imposing a conviction but instead that he entered a section 10 good behaviour bond for 12 months.

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

20. The offence occurred on 28 July 2006. Since the offence there have been no similar incidents. CZF has continued his full-time employment in a building trade. He has been involved in various positions of responsibility at his local sporting club. He is currently in a long term serious relationship.

(c) the age of the person at the time of the offences or matters occurred.

21. CZF was 19 years of age.

(d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

22. The victim was 15 years of age at the time of the offence. She was also vulnerable due to her level of intoxication. She also told police that she had not had sex before, but had tried to have sex with a previous boyfriend.

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

23. The difference in age between CZF and the victim is 4 years.

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

24. CZF told police that he did not know the victim was under 16 years at the time of the offence. He said in his statement that he believed she was 16 years or over as she was a friend of a sister of his friend and he knew the sister was 16 or 17 years of age and he believed they were the same age. He gave oral evidence and was cross-examined about this and confirmed his belief at the time of the offence that the victim was 16 years or over.

(g) the person’s present age

25. The present age of CZF is 31 years of age.

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

26. In 2009, CZF was fined for offensive behaviour. The offence involved urinating in a public place. There are no other criminal matters on CZF’s record and no other matters of conduct raised by the Children’s Guardian.

(i) the likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

27. CZF filed an expert report of forensic psychologist, Jenny Howell. Ms Howell interviewed CZF on two separate occasions. She was also provided with some of the section 58 bundle filed by the respondent including the agreed police facts and witness interviews. She concluded that CZF posed a very low risk of future sexual offending and stated in her opinion:

[CZF] is a thirty one year old man who was co-operative with the interview process, demonstrating logical and coherent thought. He does not appear to manifest any symptoms consistent with a psychotic, mood or anxiety disorder. He does not have a history of mental health concerns and there is no suggestion that he is a violent man who has anti-social peers or endorses anti-social attitudes. He was able to discuss the sexual abuse of children and young people demonstrating an understanding of the issues for victims and their families and acknowledged that sexual offending behaviour is unacceptable and harmful.

[CRZ] does not deny the offence for which he was convicted occurred when he was 19 and the victim was 15 years of age. He has no prior or subsequent criminal history.

Assessment using STATIC-99R and RSVP suggests that [CZF] has a very low risk for future sexual offending behaviour. Clinical assessment supports the assessment that his future risk is very low. Recently published research suggests that given the extended time [CZF] has remained in the community and free of further sexual offence charges or convictions his risk of engaging in future sexual offending is minimal.

28. If the offence is repeated, it could have a very serious detrimental impact on children. This is evidenced by the victim impact statement filed in this matter.

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

29. A coach at CZF’s local sport club provided a statement in support of a clearance for CZF He also gave oral evidence to the Tribunal. The coach stated that he was an accredited teacher and had worked as a primary school teacher for 20 years. He had no criminal convictions and a current ‘clearance’. He had known CZF for 12 to 13 years through his association at the sporting club. He stated that CZF was a ‘real leader and the younger kids looked up to him’. Five years ago, the witness became the Junior Development Director at the club and CZF was one of the coaches working under him during that time. He stated he had never had any issues with him during that time and parents would often request for CZF to work with their child in his team because of how well he works with children. He also stated that CZF had a good relationship with his own four young children aged between 2 years and 13 years and he would trust CZF ‘implicitly’ with his children. Under cross examination, he agreed that his knowledge of the 2006 offence did not change his opinion and support for CZF.

30. CZF’s Counsel also sought to rely on a letter from the Secretary of the local sporting club who wrote a favourable report about [CZF] in response to the Children’s Guardian request for information. He has been Secretary since October 2012 and has known [CZF] as a member of the club since that time. [CZF] had worked as a volunteer and coach at the club. He stated “he [CZF] is a very important part of the [club] and I am proud to have worked with [CZF] over my period as Secretary and to know him as a friend”. It is not clear if the Secretary was aware of the 2006 offence at time of writing the letter.

(j1) any relevant information in relation to the person that was obtained under section 36A

31. There is no such information.

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

32. No further matters were submitted.

Consideration

33. The Tribunal has considered the evidence in this matter and finds that CZF has discharged the onus, as required under subsection 28(7) of the Act, and has displaced the presumption that he does not pose a risk to the safety of children.

34. The reasons for the finding are as follows:

1. There is no evidence to suggest that CZF knew the victim was under 16 years of age at the time of the offence in 2006 when he was 19 years old and the victim was 15 years old. When questioned by police he made admissions and was charged. In CZF’s evidence to the Tribunal he agreed upon reflection that he should have made more enquiries at the time in relation to the victim’s age. He also accepted responsibility and expressed remorse.

2. The relevant offence occurred 11 years ago in 2006. CZF has no other criminal history apart from an infringement notice for offensive behaviour that related to him urinating in a public place. There are no other matters of misconduct or other allegations relied on by the Children’s Guardian.

3. CZF has worked in full time employment since the offence occurred 11 years ago. He has been an active member of his local sporting club and contributed in various positions of responsibility in the club. His coach, who has known CZF for the last 12 to 13 years gave evidence in support of him obtaining a clearance. He spoke highly of CZF and re-iterated his strong support despite knowing of the 2006 offence. CZF also appears well regarded by the Secretary of the club who provided a letter of support.

4. A forensic psychologist, Ms Howell assessed CZF and in her expert opinion, having regard to the STATIC-99R and RSVP risk assessments and her clinical evaluation of the applicant, he poses a very low risk of future sexual offending behaviour.

Section 30(1A) of the Act

35. The Tribunal must now consider the tests outlined in s.30(1A) of the Act. The Tribunal must first determine whether a reasonable person would allow his or her child to have direct contact with the CZF in circumstances where he would not be directly supervised by another person while engaging in child related work.

36. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the agreed police facts, the police interviews of CZF and the victim, the transcript of the evidence of the coach in support of CZF and the report of the forensic psychologist, Jenny Howell. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CZF’s care. This is also consistent with the evidence of the coach who trusted CZF ‘implicitly’ with his own young children. This view was after knowing CZF for an extended period and also, knowing about the 2006 offence.

37. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount consideration.

35. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.

36. CZF has worked full time in the building trade continuously for the last 11 years, without incident. He has also contributed significantly to the life of his local sporting club as a member, player, volunteer and junior coach. His head coach gave evidence that CZF is highly regarded as a member and coach by his peers, children and parents at the club. He has been involved at the club since 2012 and requires a clearance so he can continue to contribute as a volunteer and coach. In the circumstances, the Tribunal is satisfied that it is in the public interest to grant CZF a working with children check clearance. It therefore follows that the correct and preferable decision is for the Tribunal to make the following Orders.

Orders

1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of sexual intercourse with a child between the age of 14 and 16 years for which he received a 12-month good behaviour bond pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999 on the 19 September 2007.

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

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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: 07 June 2018