Ddu v Children's Guardian

[2018] NSWCATAD 6

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DDU v Children’s Guardian [2018] NSWCATAD 6
Hearing dates:	1 December 2017
Date of orders:	05 January 2018
Decision date:	05 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member M Bolt, General Member
Decision:	The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence. The Respondent is to grant the applicant a Working with Children Check clearance.
Catchwords:	ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	BKE v Office of Children’s Guardian & Anor [2015] ZZ v Secretary, Department of Justice and Another [2013]
Category:	Principal judgment
Parties:	DDU (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Mr G Stewart (Applicant) Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	17/220513
Publication restriction:	Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: 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 (“DDU”) applied for a Working with Children Check (WWCC) clearance citing work as a bus driver. The Children’s Guardian (the Respondent) refused to grant a WWCC clearance because DDU is a “disqualified person” under the Child Protection (Working with Children) Act 2012 (NSW) (the Act). This is because DDU had been charged with an offence of aggravated indecent assault (the “disqualifying offence”). DDU pleaded guilty and was discharged without conviction in 1992. He received a recognizance under s 556A (repealed) of the Crimes Act 1900 (NSW) to be of good behaviour for a period 12 months. Section 5 (1) of the Act provides that a conviction includes a “finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction”. The parties agree that DDU is therefore deemed to be a disqualified person under the Act and is presumed unless he proves to the contrary, to pose a risk to the safety of children.

2. DDU asks the Tribunal to make an order to the effect that he not be treated as a disqualified person under the Act, and order the Respondent to grant him a WWCC clearance. The Respondent neither opposes or supports DDU’s application.

3. The issue for determination is whether DDU has proven on the balance of probabilities that he does not pose a risk to the safety of children. The Tribunal is satisfied from the evidence presented to it that DDU does not pose a risk to the safety of children. The correct and preferable decision is to order that DDU not be treated as a disqualified person under the Act and to order the Respondent to grant him a WWCC clearance.

The material before the Tribunal

4. The Tribunal was provided with the following material:

1. Application received from the Applicant on 20 July 2017.

2. Section 58 documents filed by the Respondent received on 1 September 2017.

3. Section 58 documents filed by the Respondent received on 20 October 2017.

4. Further documents filed by the Respondent received on 17 November 2017.

5. Evidence in Reply from the Affidavit received on 10 November 2017.

6. Respondent’s written submissions received 23 November 2017.

7. Submissions on behalf of the Applicant received 24 November 2017.

8. Psychological assessment report received 29 September 2017.

9. Written statement of DDU received 29 September 2017.

10. Record of interview between Police and the Applicant dated 18 December 1991.

5. A hearing was held in Sydney. DDU was present and gave oral evidence. The psychologist who provided an expert report for the Applicant, gave evidence by phone.

6. Section 30 (1) and (1A) of the Act provides the factors that the Tribunal must consider in determining this application. These are set out below.

The seriousness of the disqualifying offence; and the period of time since this offence and the conduct of the person since it occurred; s30 (1) (a) and (b)

7. DDU pleaded guilty to the disqualifying offence. There is no dispute that it is a serious offence in circumstances where the victim was a vulnerable young woman. DDU touched the victim’s breasts while she was intoxicated and was being moved in a state where she was intoxicated and did not consent to the physical contact. The offence also occurred in the company of other men.

8. The sentence given to DDU, which could have been up to 7 years imprisonment, was instead a recognizance of 12 months to be of good behaviour with no record of a conviction.

9. The disqualifying offence took place in 1991 and there has been no other incident or complaint against DDU. DDU told the Tribunal he deeply regretted his actions and feels deeply ashamed about his behaviour. The Tribunal accepted his expression of remorse and shame as genuine.

The age of the person at the time of the disqualifying offences; the age of the victim; the difference in age and the relationship between the victim and the person; s 30 (1) (c), (d) and (e)

10. DDU was 29 years old at the time of the disqualifying offence. The Victim was 20 years old. The Victim was intoxicated and vulnerable. There was 9 years difference in age and they knew each other as acquaintances.

Whether the person knew that the victim was a child and the person’s present age; s 30 (1) (f) and (g)

11. The Victim was not a child. DDU is now 55 years old.

The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred; s 30 (1) (h)

12. The disqualifying offence is the only matter contained in DDU’s criminal record.

The likelihood of repetition of the offences or conduct and the impact on children of any such repetition; s 30 (1) (i)

13. The Respondent submits the likelihood of DDU repeating the conduct constituting the disqualifying offence “appears to be low” on the basis that it was an isolated incident and there has been no other charge or conviction. DDU concedes he was intoxicated at the time but accepts that is not an excuse for what happened and he admits that he is ashamed of his behaviour.

14. DDU relies on the expert report provided by Dr Morris, who is a clinical psychologist, and assessed DDU to be an “extremely low risk” of offending in any manner.

15. At the time Dr Morris assessed DDU, the documents available to the Respondent were not available to DDU in order to be provided to her. She conducted her assessment on the basis of information provided by DDU and his recall of events.

16. DDU told the Tribunal he told Dr Morris what had occurred to the best of his recollection. There were differences in the account given by DDU to Dr Morris with the material provided to the Respondent by the Police, which subsequently was made available to DDU and then Dr Morris. DDU did not seek to dispute the accuracy of the events recorded at the time (except an error in relation to his age).

17. Dr Morris told the Tribunal when she was subsequently provided with the relevant documents it did not change her conclusion of the risk of DDU re-offending. Dr Morris explained to the Tribunal in some detail how she had arrived at her assessment, which the Tribunal accepts. Dr Morris was not concerned by the differences in the accounts given by DDU and explains that these differences are understandable given the period of time that had elapsed.

18. The Tribunal is satisfied from the evidence given by Dr Morris and DDU that DDU was not intending to mislead or minimise his role in the disqualifying offence to Dr Morris, the Respondent or the Tribunal.

19. Dr Morris’s evidence is that DDU has insight into his conduct and she found him to be candid, realistic and accepting of responsibility for his behaviour. The Tribunal accepts this evidence.

20. The Tribunal is satisfied that the risk of DDU repeating the conduct that comprised the disqualifying offence, and the risk of reoffending generally, is highly unlikely.

Any information given in, or in relation to, the Application; s 30 (1) (j)

21. DDU has a history of stable employment, which has included contact with children. There are no records of complaints or concerns about him.

22. DDU provides supporting references from his wife, step-son, friend of 20 years and a work colleague. These references do not refer to the disqualifying offence and can therefore be accorded limited weight, but are supportive of DDU and provide positive comments in relation to DDU’s contact with children.

Any other matters that the Children’s Guardian considers necessary s 30 (1) (k)

23. The Respondent is concerned about DDU’s insight in light of the different versions of events he has given about the disqualifying offence. The Respondent also refers to some comments made by DDU, which the Respondent is concerned might betray a lack of insight and empathy towards the Victim.

24. The evidence DDU has given to the Tribunal together with the evidence of Dr Morris, leads the Tribunal to conclude that DDU shows appropriate insight into his conduct and accepts responsibility for his behaviour. Dr Morris found DDU to have no problem with insight. DDU told the Tribunal that he accepted the Victim was vulnerable, that the offence was serious and that he is ashamed of what he did. He reiterated that the fact that he was intoxicated at the time was no excuse. He deeply regrets his actions. He made a promise to himself that he would never behave like that again and he said he has kept that promise. He said he is truly sorry for the Victim. The Tribunal accepted this evidence as genuine.

Presumption of risk to the safety of children

25. Section 28(7) creates a presumption of risk to the safety of children as a result of the disqualifying offence. The Tribunal finds on the basis of the evidence presented to it that DDU has rebutted this presumption. The disqualifying offence is an isolated event that occurred 26 years ago. The expert report and the evidence provided by Dr Morris confirms the risk of re-offending is low. DDU has been working as a bus driver and a dance teacher, which has involved working with children, and there have been no complaints or concerns about his conduct.

26. DDU expresses genuine shame and remorse for his conduct. The Tribunal finds DDU to show appropriate levels of insight and empathy in relation to the impact the offence had on the victim. DDU did not attempt to minimise the impact on the victim or to discredit her in any way.

27. The Tribunal is satisfied DDU has established on the balance or probabilities that he does not pose a risk to the safety of children.

28. The Tribunal must also be satisfied “that 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 it is in the “public interest to make the order”; the Act, s 30 (1A)

29. There is no evidence of any conduct that would cause the Tribunal to consider that a reasonable person would not allow his or her child to be directly supervised by DDU. The Tribunal is satisfied that this condition is met.

30. DDU has applied for a WWCC clearance in order to continue to work as a bus driver. It has been held that the right to work can be taken into account when considering the public interest in similar legislation: ZZ v Secretary, Department of Justice and Another [2013] VSC 267. The Tribunal is satisfied that this condition is also met.

Conclusion and orders

31. The Tribunal is satisfied DDU has established to the required standard that he does not pose a risk to the safety of children.

32. The correct decision is to grant an enabling order and declare him not to be a disqualified person under Act and to order the Respondent to grant him a WWCC clearance: Administrative Decisions Review Act 1997 (NSW), s 63.

33. The Tribunal orders that:

1. The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence.

2. The Respondent is to grant the applicant a Working with Children Check clearance.

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

Registrar

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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: 05 January 2018