DJ v Commission for Children & Young People

[2003] NSWADT 67

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION:      DJ -v- Commission for Children & Young People [2003]  NSWADT 67

PARTIES:      APPLICANT
DJ
RESPONDENT
Commission for Children & Young People

FILE NUMBERS:      024055

HEARING DATES:   24/01/03

SUBMISSIONS CLOSED: 24/01/2003

DECISION DATE:     03/04/2003

BEFORE:       Gelin B -  Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Child Protection (Prohibited Employment) Act 1998

CASES CITED:        

APPLICATION:          Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE:               APPLICANT
In person

RESPONDENT REPRESENTATIVE:       RESPONDENT
M Higgins, Barrister

ORDERS:      Orders made on 24 January 2003.
1.  Application is dismissed
2.  The applicant is not entitled to make a further application for an order under the Child Protection (Prohibited Employment) Act 1998 until 24 July 2004 in respect of the offences of Sexual Intercourse without Consent and Indecent Assault for which he was found guilty on 21 April 1982 at Central Criminal Court, NSW.

Reasons for Decision:

REASONS FOR DECISION

1. This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Act) is not to apply to Mr DJ is respect of the offences of Sexual Assault without Consent and Indecent Assault which occurred in 1982 and for which he was convicted in New South Wales on 21 April 1982. Under s 9(6) of the Act, the Tribunal stayed the operation of a prohibition under the Act on 19 September 2002, subject to conditions, pending further determination by the Tribunal. The hearing of the application for a declaration was conducted on 24 January 2003.

2. In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. (Administrative Decisions Tribunal Act 1997 s 126(1).)

3. Although s 126(s) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant’s name and to delete any other information which could lead to his identification. In these reasons we refer to the applicant as “Mr DJ”. The official copy of the orders provided to the parties includes the name of the applicant.

4. Mr DJ is applying for a declaration that the Act does not apply to him, primarily because he wants to clear the “cloud” of the past which he feels he has now overcome.  As well, he feels such declaration is required before he can attend a TAFE course to become a drug and alcohol counsellor.

LEGISLATIVE PROVISIONS

1. In summary, the Act makes it an offence for people convicted of “serious sex offences” to apply for or undertake “child related employment.” The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below.

2. Subject to certain defences and transitional provisions, the Act makes it an offence for a person convicted of a “serious sex offence” (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment. Section 6(1) states that:

   A prohibited person must not:

   (a)apply for child related employment, or

   (b)undertake child-related employment, or

   (c)remain in child-related employment.

   Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.

   (2) Defence

   It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at

   the time of the commission of the offence, that the employment concerned was child-related employment.

3. A “prohibited person” is defined in s 5 of the Act. That section states that:

   (1)For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection…

   (2)For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence.

4. “Serious sex offence” is defined in s 5(3), s 5(4) and s 5(5) as follows:

   (3)In this section: serious sex offence means (subject to subsections (4) and (5)):

   (a)an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or 

   (b)an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or

   (b1) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or

   (c)an offence under sections 91D - 91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or

   (d)an offence under section 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or

   (e)an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or

   (f)any other offence, whether under the law of New South Wales or elsewhere, prescribed by regulations.

   (4)An offence that was a serious sex offence at the time of its commission is not serious sex offence for the purposes of this Act if the conduct constituting the offence has ceased to be an offence in New South Wales.

   (5)An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Act if the conduct constituting the offence:

   (a)occurred in a public place, and

   (b)would not have constituted an offence in New South Wales if the place were not a public place.

5. Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that sections states that:

   (1)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.

   (2)A relevant tribunal is:

   (a)the Industrial Relations Commission, or

   (b)the Administrative Decisions Tribunal.

   (4)A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

   (5)In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:

   (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)On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.

   (7)The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.

   (8)If a 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 or refusal.

   (9)Orders under this section may be made subject to conditions.

   (10)A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

   (11)The following applies to proceedings before the Administrative Decisions Tribunal under this section:

   (a)the Tribunal may not award costs.

   (b)an appeal lies on a question of law to the Supreme Court by any party to the proceedings.

ISSUES

1. There are two questions to be answered before the Tribunal can determine whether a declaration should be granted. These questions are:

   (a)Is Mr DJ a prohibited person within the meaning of that term in s 5 of the Act?

   (b)Does Mr DJ pose a risk to the safety of children taking into account the provisions of s 9(5) of the Act?

EVIDENCE

1. The documentary evidence in this matter consists of

   (a)Mr DJ’s application to the tribunal;

   (b)A bundle of documents provided by the respondent relating to Mr DJ’s conviction and criminal record;

   (c)Additional bundle of  documents provided by the respondent, including materials pertaining to Mr DJ’s employment and medical records, and an assessment by Dr Christopher J Lemmings, psychologist.

2. It is common ground that Mr DJ is a prohibited person under the Act. The offences for which he was convicted in 1982 are clearly serious sexual offences.  He was sentenced to six years imprisonment.  At the time, he was 18 years old; the victim was a 37 year old woman.

3. Mr DJ’s criminal record is extensive, and includes various traffic offences (drive whilst disqualified 1981; drive in a manner dangerous 1981; negligent driving); fail to stop for random breath test 1985; possession of prohibited substance 1985; receiving stolen goods 1986; break and enter 1986; shortened firearms 1986; assault police 1986; assault causing actual bodily harm 1986.  Early experiences with alcohol and drugs leading to addiction and a pattern of antisocial behaviour charactise Mr DJ’s life up until his late

20’s.

1. In 1992 Mr DJ went into a William Booth Hostel, where he spent about 10 months, and during that period he underwent a psychological and spiritual transformation.  It is clear that since then he has not committed any offences.  He has not consumed alcohol or been involved with illegal drugs.  On his path to rehabilitation, he took menial jobs which he accepted stoically and carried out competently.  In these eleven years, he suffered some major stresses: his wife was affected by mental illness; they lost their home due to financial mismanagement by said wife; they suffered a flood.  But notwithstanding such stressful incidents, Mr DJ did not revert to alcohol abuse nor (with minor relapses) to illegal drugs.  He did, however, self-medicate some valium, and then saw a doctor who prescribed medication (Arapax) to help him cope with such stress and anxiety.

2. During this period, since 1992, of his rehabilitation, the William Booth community has been a major source of support.  As well, since 1994 his relationship with said wife (de facto partner) was a stable one until recently and represented a further source of support: Mr DJ met her when he felt still vulnerable to a relapse; he did not so relapse, and his self-esteem greatly improved.  But then, in about 1996, she developed some problems, eventually diagnosed as a mental illness; they were separated for one year, but are now still together, and he is committed to her care and well being.  To manage in this context, Mr DJ has had the assistance of a support group, a psychologist, and various persons from the William Booth community.

3. Notwithstanding the significant, and enduring, transformation experienced by Mr DJ since 1992, there are some questions as to whether he can sustain these achievements without the external supports which have made them possible: he is not at present actively participating in Alcoholics Anonymous; he is lessening his ties with William Booth.  In particular, the abandonment or loss of such social supports could well be seen as lessening Mr DJ’s capacity to maintain his commitment to a drug-free and crime-free lifestyle.

4. Dr Lemming’s report indicates clear problems with the assessment and prognosis of Mr DJ’s risk.  Based on the Static 99 Test, the risk of recidivism is high.  On the other hand, the transformation Mr DJ underwent in 1992 appears genuine.  His demeanour and presentations throughout the hearing impressed us as being those of a man who takes full responsibility for his troubled and hurtful past, and is entirely candid and non-defensive when discussing his history.

5. A major question at present is whether, or how, he will survive the major test presented by his wife’s mental illness; and whether he will continue availing himself of those social supports, primarily the William Booth community, which have made his transformation possible.

REASONS FOR DECISION

1. This Tribunal is required to take into account the factors or matters enumerated in s 9(5) of the Act:

(a)The offence for which Mr DJ was convicted is clearly a serious one.

(a1)Some twenty years have elapsed since the commission of that offence.

(b)Mr DJ was 20 at the time.

(c), and (d) These factors are not particularly determinative.

(d1) Mr DJ is now 39.

(e)There is an extensive and serious criminal record until 1991.  As well there is a history, clearly associated with that record, of drug and alcohol abuse.

(f)Mr DJ clearly acknowledges and takes responsibility for that past; moreover, he underwent rehabilitation (a transformation, in his own words) in 1992 and since then has not relapsed into any criminal activity.  Present stresses in his life can test whether his commitment to such rehabilitation endures.

1. Section 9(4) of the Act does not allow this Tribunal to grant the declaration sought by the Applicant “unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.” I am unable, on the basis of all the evidence and submissions presented in these proceedings, to come to the view, or belief, that Mr DJ does not presently pose such risk. I must therefore decline the application. However, inasmuch as there is clear hope that, particularly if Mr DJ maintains his links with the William Booth community and other sources of support, he will successfully overcome the present stresses and challenges to his complete rehabilitation, I have decided, as provided in sec 9(8) of the Act, to shorten the period he will need to wait before making a fresh application to this Tribunal

ORDERS

1.The Application is dismissed.

1. The applicant is not entitled to make a further application for an order under the Child Protection (Prohibited Employment) Act 1998 until 24 July 2004 in respect of the offences of Sexual Intercourse without Consent and Indecent Assault for which he was found guilty on 21 April 1982 at Central Criminal Court, NSW.