DG v Commission for Children and Young People

[2003] NSWADT 162

CITATION:	DG v Commission for Children and Young People [2003] NSWADT 162
DIVISION:	Community Services Division
PARTIES:	APPLICANT DG RESPONDENT Commission for Children and Young People
FILE NUMBER:	024052
HEARING DATES:	18/12/2002
SUBMISSIONS CLOSED:	02/14/2003
DATE OF DECISION:	07/08/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In person RESPONDENT I Bourke, barrister
ORDERS:	1. Application is dismissed;; 2. The Applicant may make further application for an order under s 9(1) or s 8A of the Child Protection (Prohibited Employment) Act 1998 at any time following the date of these orders.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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.

1 The Applicant, a retired schoolteacher, seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”), declaring that the Act not apply to him in respect of certain offences. The Applicant seeks this order so that he can undertake voluntary tutoring work. The Respondent opposes this application.

2 In 1998, the Applicant was convicted of three counts of indecent assault on a child under the age of 16 years of age. Each offence constitutes a “serious sex offence” as defined by the Child Protection Act. By the operation of s 5 of that Act, the Applicant is a “prohibited person” and as such it is an offence for him to apply for, undertake or remain in child-related employment.

3 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the Applicant or anyone referred to in the proceedings (other than the experts). The Applicant is referred to in these reasons by the pseudonym, DG. The official copy of the orders provided to the parties will include the name of the Applicant.

Relevant legislation

4 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Act is not to apply to that person. Section 9(1) provides that, on the application of a prohibited person, a relevant tribunal may make an order declaring that the Child Protection Act is not to apply to the person in respect of a specified offence. Section 9(2) defines a relevant tribunal to include the Administrative Decisions Tribunal (“the Tribunal”). Orders made under s 9 may be made subject to conditions: s 9(9).

5 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

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

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person’s total criminal record,

(f) such other matters as the tribunal considers relevant.

6 Section 9(8) provides that if the relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence, until after the period of 5 years from the date of the tribunal’s refusal, unless the tribunal otherwise orders at the time of refusal.

7 Section 9(7) requires the respondent to be a party to any proceedings for an order under s 9 and may make submissions in opposition to, or support of, the making of the order.

Jurisdiction

8 A preliminary point raised in these proceedings is whether the Applicant’s proposal to work as a tutor constituted “child- related employment” and, if not, whether the Tribunal had jurisdiction to entertain this application.

9 Section 6(1) makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment. Child-related employment is defined as any employment that primarily involves direct contact with children where that contact is not directly supervised and includes employment involving the private tuition of children (emphasis added). Employment is defined to mean:

(a) performance of work under a contract of employment, or

(b) performance of work as a self-employed person or as a subcontractor, or

(c) performance of work as a volunteer for an organisation, or

(d) undertaking practical training as part of an educational or vocational course, or

(e) performance of work as a minister of religion or other member of a religious organisation

10 In this matter the Applicant wishes to tutor the children of a number of family friends on a voluntary basis. It is for this reason that he makes an application under s 9(1) of the Child Protection Act. His evidence, supported by the parents of his students, is that he will be directly supervised at all times. If that is so, it cannot be said that he is engaged in child-related employment. The Child Protection Act operates to prohibit prohibited persons from engaging in, or seeking child-related employment. Its reach does not extend to other types of employment even where such work may involve some contact with children. As such, it appears that Mr DG’s application is otiose.

11 As a consequence therefore, is the Tribunal without jurisdiction? Section 9(1) of the Child Protection Act provides:

On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
12 In my view, it is clear from the wording of this section that the only precondition to an application being made under the Child Protection Act is that the Applicant be a prohibited person as defined in s 5. It is not necessary for an Applicant to establish that s/he intends to undertake or apply for child-related employment. Indeed, for the purpose of determining whether this Tribunal has jurisdiction, the type of employment the Applicant undertakes, or proposes to undertake, is simply an irrelevant consideration.

13 In this matter it is not in issue that the Applicant is a prohibited person. As such the Tribunal has jurisdiction to entertain this application.

Onus of Proof

14 Section 9(4) of the Child Protection Act mandates that an order may not be made under s 9 unless the Tribunal considers that the Applicant does not pose a risk to the safety of children. The Applicant carries the onus, on the Briginshaw standard, that s/he is not a risk to children.

15 The meaning of the word “risk”, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of “risk” in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:

“…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.” ( Commission for Children and Young People v V [at 22], R v Commission for Children and Young People [at 104].)
16 Young J held at [42] that the meaning of “risk” in s 9(4) was that “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”. That test is now binding on the Tribunal.

17 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commissioner that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. He held at [46] that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an applicant person “who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children”.

Index offence (s 9(a), s 9(a)(1), s 9(b), s 9(c), s 9(d))

18 In 1996, the Applicant was charged with three counts of indecent assault in respect of conduct, which occurred in 1974 or 1975. At that time the Applicant had been working as a schoolteacher and was in his early thirties.

19 The police facts sheet, which was tendered in evidence in these proceedings and in the District Court sentencing proceedings, sets out the details of the charges to which the Applicant pleaded guilty. They indicate that the offences were all committed in similar circumstances. Each involved acts of indecency committed upon female students aged between 9 and 11 years. Each of the victims was called to the Applicant’s classroom, where they were alone with the Applicant. Each described similar behaviour, involving kissing of the face, and touching or attempted touching of the breasts. One of the victims also described being rubbed on the full length of her thigh, with the Applicant’s hand going under her tunic.

20 In statements given some 20 years after the offences, Child 1 attested that the conduct occurred “definitely twice” possibly more. Child 2 attested that the conduct happened on one occasion. Child 3 thought it had occurred “definitely on four occasions, maybe more”.

21 In evidence in these proceedings the Applicant claimed that his behaviour amounted to no more than “cuddling and kissing”. He vigorously denied touching any of his victims on the breast area or under the tunic. He claimed that he could not recall any inappropriate behaviour at all with Child 3. He said he pleaded guilty on the advice of his lawyers and at the time “was not thinking straight.” He claimed he been exhausted by what he considered to be “protracted” legal proceedings and regrets his decision to enter a guilty plea to this day.

22 The sentencing court convicted the Applicant and released him upon entering a good behaviour bond for three years.

Applicant ’s Age (s 9(5)(d1))

23 The Applicant is now 63 years of age.

Seriousness of Applicant ’s total criminal record (s 9(5)(e))

24 The only other offence for which the Applicant has been convicted is the offence of false pretences for which he was convicted in 1986.

Other relevant matters (s 9(5)(f))

Psychological Evidence

25 Dr Warren Before the Tribunal were two reports prepared by psychologist, Bill Warren, dated 10 June 1996 and 12 September 1997. In his first report, Dr Warren expressed the tentative view that given the apparent short duration of the offending conduct, the Applicant’s behaviour could most probably be explained by a lack of impulse control resulting from his relatively undeveloped sexual interest and maturity. [It is not entirely clear from that report precisely what Dr Warren understood to be the duration of the offending conduct.] He proffered the tentative view that this conduct did not support a diagnosis of paedophilia.

26 In his second report prepared after a further two interviews and a number of counselling sessions, Dr Warren stated that he was now confident that his original assessment was soundly based.

27 Professor Greenberg The Applicant was interviewed and assessed by psychiatrist, Professor Dave Greenberg, at the request of the Respondent. A report prepared by Professor Greenberg, dated 14 December 2002, was tendered in these proceedings and, in addition, Professor Greenberg gave oral evidence.

28 Professor Greenberg assessed the Applicant using two actuarial measures of assessment: STATIC-99 and Rapid Risk Assessment for Sexual Offence Recidivism (RRASOR). Both are tools used to predict sexual recidivism rates among sex offences. On the former, the Applicant scored in the medium to low category. On the RRASOR scale, the Applicant’s score of one (out of a possible score of four) placed him in a group of individuals, 9% of whom it is predicted will sexually re-offend within five years, increasing to 11.2%, after 10 years.

29 On both the STATIC-99 and RRASOR scales, the risk of the Applicant re-offending is categorized as low. Professor Greenberg cautions against undue reliance on these tests arguing that their usefulness is limited, as both are based solely on static (historical) risk factors. Dynamic (changeable) factors are ignored. Importantly, a low score merely indicates that the tested individual falls within a sub-group of offenders who are less likely to re-offend than others. Professor Greenberg asserts that neither STATIC-99 nor RRASOR assist in identifying whether a person who achieved a low score, falls within the sub group who will re-offend.

30 Professor Greenberg is of the opinion that the Applicant has a paedophilic disorder and believes Dr Warren’s diagnosis to be incorrect. In reaching that view he notes: the Applicant reports that he has never experienced sexual interest in adult females or males; the only form of sexual interest displayed by the Applicant has been towards children; the offences he committed were multiple and recurrent; all sexual offending involved pre-pubescent children; all incidents were planned and involved sexual intent.

31 Against these factors, Professor Greenberg notes that the rate of sexual recidivism among paedophiles plateaus after five to seven years and decreases with advancing age, particularly over 55. Professor Greenberg says he is confident in his conclusion that the Applicant does pose a risk to children, and while that risk is low-moderate relative to other paedophiles, he points out that that risk is high, when compared with the general male population. In Professor Greenberg’s view, the Applicant has a life-long sexual preference for children, predominantly female children.

Applicant’s Evidence

32 The Applicant gave evidence that his conduct, which led to his conviction, was entirely out of character: “I did not know what came over me”.

33 In evidence before this Tribunal, he conceded that he had kissed and cuddled two of the three victims, but otherwise denied the severity of the offending as set out in the facts sheets before the sentencing court. He pointed out that at the start of the District Court proceedings he entered a plea of not guilty, and that it was only toward the end of the case, when he was financially and mentally exhausted, and forced onto legal aid, that he changed his plea. Specifically, he claims that the offending took place over a one-month period, not twelve months; second, that he did not touch any victim on the breast area or under the tunic; and third, that he could not recall any incident involving a third victim.

34 He said when two of the girls removed themselves from the school band, he realised that what he had done was wrong and went immediately to the Principal of the school and made a full disclosure.

35 He said he had never felt any urge to kiss or cuddle any person, before or after that incident. He said he had been celibate all his life; he had never masturbated nor had any sexual fantasies.

36 The Applicant taught primary school students from 1959 until his retirement in 1994. He said the sole complaint of a sexual or improper nature made against him (other than the charges which led to his conviction in 1998) was one made by a female student in about 1979 who alleged that the Applicant touched her on the breast. He denied any impropriety on his part and explained that the touching had been accidental and occurred in full public view during a classroom game.

Proposed Employment

37 The Applicant says he wishes to continue to tutor the children of family friends on an informal and voluntary basis. He said that if the Tribunal granted the order sought he would insist that the parents of his students be with him at all times, as he would not want to put himself in a situation where he could be falsely accused.

38 He said he had disclosed his 1998 conviction to all parents. He said he told them that he had kissed and cuddled the girls.

Character references

39 The Applicant provided the Tribunal with a number of character references which attest to his good character. Two referees stated that the Applicant had tutored their respective school- aged children over an extended period; they were aware of the indecent assault charges and trusted their children in the Applicant’s care.

Submissions

40 Mr Bourke, for the Respondent, urges the Tribunal not to accept the Applicant’s “more innocent account” of his offending conduct given in these proceedings. The Tribunal, asserts Mr Bourke, is bound by the facts before the sentencing judge to which the Applicant pleaded guilty, and must treat those facts as correct, and binding wherever they conflict with the version now advanced by the Applicant.

41 Mr Bourke submits that, notwithstanding the passage of time since the offences were committed and the absence of any further sexual offending, the following factors taken as a whole indicate that the Applicant continues to present a real risk to children. First, the offences were committed over a considerable period of time. Second, the facts indicate a repetitive pattern of behaviour. Third, the Applicant admits that the offences would have, or may have, continued if the girls had not left the school band. Fourth, the offences cannot be tied to any particularly stressful period in the Applicant’s life. Fifth, there is some material that may suggest the Applicant’s offending behaviour extended beyond the conduct for which he was convicted. Sixth, the Applicant ’s offences are not the only examples of the Applicant suffering from a lack of self control. Seventh, the Applicant failed to honestly disclose his sexual interests and desires to either Professor Greenberg, or the Tribunal. Eighth, Professor Greenberg is of the opinion that the Applicant suffers from a paedophilic disorder and represents a high risk when compared with the general male population. Ninth, the Applicant apparently refuses to seriously consider whether he does have a problem with paedophilic attractions to children.

42 The Applicant submits that the case put for the Respondent is biased and misleading. He attacks Professor Greenberg’s professionalism and objectivity and maintains that Professor Greenberg’s report contains a number of material inaccuracies. He says the circumstances surrounding his assessment indicate that Professor Greenberg had prejudged him prior to assessment. He says the opinion of Dr Warren, a qualified and experienced psychologist who had the advantage of seeing him over an extended period, should be preferred.

43 He argues that the offences which he sincerely regrets, are an aberration in an otherwise impeccable thirty-five year teaching career. He points out that the offending behaviour occurred over twenty-five years ago and has not been repeated. He argues that there is no basis for Mr Bourke’s attack on his credit, arguing that his evidence about his sexuality was truthful.

Findings and Conclusions

44 The key issue to be determined is whether the Applicant poses a real and material risk to children and, if so, whether that risk can be reduced to one of no material significance by the imposition of appropriate conditions.

45 I accept Mr Bourke’s contention that the Tribunal is effectively bound by the fact-finding exercise conducted in the District Court and it is on the basis of the findings of fact made by the sentencing judge that the Tribunal must assess the nature and seriousness of the relevant offence(s). But in any event, in my view it matters little whether the version of events to which the Applicant pleaded guilty or the account given in these proceedings is accepted. The evidence shows that over a period of some time the Applicant, who was then in his mid thirties, invited young girls into his classroom alone for the purpose of engaging in conduct of a sexual nature. The conduct was premeditated and repeated. This was not an isolated one-off incident. Nor was it conduct that could be interpreted as being ambiguous in character. The only conclusion available is that the Applicant engaged in this conduct for sexual gratification.

46 Mr Bourke describes the Applicant’s claims about his sexuality as “bizarre” and asserts that the Applicant has simply failed to be honest with the Tribunal or Professor Greenberg.

47 The submission made by the Applicant that he is, and, but for the course of conduct for which he was charged, always has been, in effect, asexual, is implausible given the nature of the proven offences, the psychiatric evidence, and common knowledge. I am prepared, however, to accept that the Applicant is not generally sexually active or predatory and that the course of conduct which resulted in his conviction was an isolated period of his life. There is no evidence to suggest otherwise.

48 The psychiatric evidence, even from Dr Greenburg, who took a more pessimistic and condemnatory view of the Applicant than Dr Warren, was to the effect that he presented a relatively low risk of re-offending. The Applicant is 63 years of age and the evidence indicates that the threat to children from persons who might be attracted towards them tends to diminish once those persons reach the age of approximately 55 years.

49 I accept that the Applicant had no intention of harming the children in question, but he appeared reluctant to acknowledge that even such behaviour as he admitted to is grievous and can in some circumstances leave the child with long-term psychological damage. On the other hand, it may have been that the episode was one of which he is so deeply ashamed that he has trouble acknowledging publicly the full extent of his guilt.

50 Whichever is the case, he clearly understands that the conduct he was convicted of is absolutely impermissible and intolerable and appears to have a strong sense of the power of the criminal justice system’s attitude to child sex offences. I have no doubt that the sentence imposed upon him had a powerful deterrent effect. This was evident from his assertion that he would refuse to tutor children unless supervised by parents so as to prevent any misunderstandings or accusations being made against him.

51 On the evidence before me, the Applicant has not undertaken any treatment or therapy and may constitute a low-level, but nonetheless real, risk to children in certain circumstances.

52 Having found that the Applicant may represent a material risk to children in general terms, a question arises whether, in all the circumstances of this case, an order is needed at all. It appears that the application was only brought because the Applicant was told that he was not able, lawfully, to tutor children unless he obtained the order he now seeks. This is not necessarily so. An order would only be required if he were to obtain child-related employment that is employment with children that is not directly supervised.

53 The Applicant has declared to the Tribunal that he has no intention of working other than under the direct supervision of the parents of the children whom he wishes to tutor. He desires to be supervised for his own protection from unwarranted allegations against his character.

54 Provided that the Applicant conducts his tutoring under direct supervision of, for example, a parent of the child being tutored, there is no requirement for him to seek or obtain an order of the Tribunal. If he was so informed, he was given incomplete or wrong information. Provided that it is directly supervised, the Applicant is entitled to undertake tutoring, whether paid or unpaid, without obtaining permission or approval from this Tribunal.

55 In these circumstances, it is unnecessary to consider whether an order ought be made on a conditional basis. Should, however, the Applicant desire to seek unsupervised or indirectly supervised tutoring work, or to offer his services on such a basis, an order under s 9(1) (or s 8A) would be necessary. With appropriate conditions the Applicant may be able to establish to the requisite standard, that he does not present a real or material risk to children in such work. This is a question of fact and would require careful examination of the nature of the proposed employment.

56 The Applicant faces a practical difficulty if, in the future, his circumstances were to change, and he wished to undertake unsupervised or indirectly supervised tutoring work. By the operation of s 9(8) of the Child Protection Act he would be prevented from making a fresh application under s 9 or s 8A, for a period of five years from the date of these reasons. In my view, given the circumstances of this application, in particular the fact that the Applicant was self represented, this is an appropriate case to exercise my discretion to remove the time restrictions for making a future application.

Orders and Directions

1. Application is dismissed;

2. A copy of these orders to be served on the Commissioner of Police, NSW Police Service.

3. The Applicant may make further application for an order under s 9(1) or s 8A of the Child Protection (Prohibited Employment) Act 1998 at any time following the date of these orders.