DPH v Children's Guardian

[2019] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DPH v Children’s Guardian [2019] NSWCATAD 202
Hearing dates:	28 June 2019
Date of orders:	27 September 2019
Decision date:	27 September 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member Prof 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 his 2012 conviction on three counts of committing an act of indecency. (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:	Child protection – Working with children – enabling order sought – disqualified person - disqualifying offence – act of indecency – s61N Crimes Act 1900 - underlying conduct - relevance to risk of finding of intellectual disability – whether working with children check clearance required for referees - enabling order granted.
Legislation Cited:	Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Crimes Act 1900 (NSW)
Cases Cited:	CHB v Children’s Guardian [2016] NSWCATAD 214 CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143 Sudath v Health Care Complaints Commission [2012] NSWCA 171 The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 VQB v The Secretary to the Department of Justice [2013] VCAT 789
Texts Cited:	Macquarie Dictionary online
Category:	Procedural and other rulings
Parties:	DPH (applicant) Children’s Guardian (respondent)
Representation:	Counsel: P. Singleton (Respondent)   Solicitors: Macarthur Legal Centre (Applicant) Crown Solicitor (Respondent)
File Number(s):	2018/00295378
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. (section 64(1)(a) of the Civil and Administrative Tribunal Act 2013)

REASONS FOR DECISION

Summary

1. The applicant, who will be referred to as DPH, is seeking an order to enable him to work with children. DPH is a 45-year-old man with a rare disorder as a result of which he is short in stature, has some unusual facial characteristics and a mild intellectual disability. He requires an enabling order to allow him to continue his work as a sporting referee, for without a working with children check clearance his employer will not continue to employ him as a referee. This is despite referees like the applicant - whose work does not ordinarily involve contact with children for extended periods without other adults being present - not being required by law to hold a working with children check clearance.

2. In 2012, the applicant was convicted of three counts of committing an act of indecency with a person aged 16 or over in contravention of s61N(2) of the Crimes Act 1900 (NSW). Because this offence is listed in Schedule 2 of the Child Protection (Working with Children) Act 2012, the applicant is, by virtue of his conviction for the offence, a disqualified person. This means that the Children’s Guardian does not have the power to grant a working with children check clearance. Instead, this Tribunal has the power to make an ‘enabling order’ declaring that the applicant should not be treated as a disqualified person. If made, the order will have the effect of granting the applicant a working with children check clearance to work in child-related work.

3. For the reasons that follow, we have decided that the applicant should be granted an enabling order.

Issues

4. The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children. In any application before this Tribunal where an enabling order is sought, there is a presumption that the applicant does pose such a risk to the safety of children unless the applicant can persuade the Tribunal to the contrary. (s5B and s28 of the Child Protection (Working with Children) Act 2012).

5. If we are satisfied that the applicant has displaced the presumption that he poses a real and appreciable risk to the safety of children, we then need to consider:

• whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

• whether it is in the public interest to grant the applicant a working with children check clearance.

Does the applicant pose a real and appreciable risk to the safety of children?

6. To engage in child-related work, a person must hold a working with children check clearance. The Office of the Children’s Guardian has the power to grant such a clearance unless, as is the case in this application, the applicant is, by virtue of his or her criminal history, a disqualified person.

7. To determine whether the applicant poses a real and appreciable risk to the safety of children, we have considered the evidence before us in relation to the disqualifying offence of committing an act of indecency with a person 16 years or over. We have also considered the relevance of the other evidence before us, namely:

1. the applicant’s criminal history;

2. the applicant’s work history and living skills;

3. the applicant’s work as a referee;

4. medical material for the applicant;

5. the risk assessment report for the applicant, as prepared for these proceedings.

8. We have considered these matters in the context of those topics we are obliged to take into account, as set out in s30(1) of the Child Protection (Working with Children) Act.

Disqualifying offence

9. A disqualified person is a person who, as an adult, has been convicted of a disqualifying offence or against whom proceedings in relation to a disqualifying offence have been commenced. The list of disqualifying offences is set out in Schedule 2 to the Child Protection (Working with Children) Act. In this case, the disqualifying offence is that of committing an act of indecency towards a person above the age of 16 years.

10. It is not disputed that in November 2011, the applicant boarded a train whilst intoxicated and whilst on the train exposed his penis in view of passengers on the train. It is also not disputed that the applicant again exposed his penis in the custody room of the police station where he had been taken, before urinating on the floor.

11. The applicant agrees that he pleaded guilty to three counts of committing an act of indecency to which he was sentenced to a term of imprisonment of eight months, with a non-parole period of two months. The case has, therefore, been finalized and the applicant does not claim to have been wrongfully convicted. He does, however, dispute one aspect of what was said to be the underlying conduct of the offences, namely that as well as exposing his penis he also masturbated, both on the train and in the police custody room.

12. In considering this issue, we have relied on the Macquarie Dictionary’s definition of masturbation, namely ‘the manual stimulation of the genital organs of oneself or another in order to achieve or provide orgasm.’

13. It is within the Tribunal’s power to consider the underlying conduct behind an offence and to allow relevant evidence to be brought before the Tribunal in this regard, even if the evidence is inconsistent with the findings of the earlier court which had convicted the applicant of the offence.

14. In Sudath v Health Care Complaints Commission [2012] NSWCA 171, the Medical Tribunal considered a complaint by the Health Care Complaints Commission against a medical practitioner with a conviction for sexual assault and a second, and later, conviction for common assault. The NSW Court of Appeal (per Meagher JA) found that:

Although the Tribunal may inform itself in any way "it thinks fit" and is not bound by the rules of evidence, it must base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined. Thus, material which, as a matter of reason, has some probative value in that sense may be taken into account: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 491-493; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR at 249- 250, 256

15. When considering Dr Sudath’s right to practise as a medical practitioner, the Health Care Complaints Commission relied on conduct which included the conduct underlying Dr Sudath’s two convictions. The Court (per Meagher JA at [101]) found that Dr Sudath had an interest in challenging or explaining the alleged conduct as part of his response to it.

If he puts that conduct in issue, the Tribunal's obligation is to inquire and make findings as to whether it occurred. In doing so it must base its decision upon relevant material. Whilst it is not bound by the rules of evidence and may inform itself as it sees fit, it must accord the appellant procedural fairness. In the circumstances, that requires that the appellant be given the opportunity to lead evidence inconsistent with that relied on by the respondent. It does not matter that this material also challenges facts on which the convictions were based, provided that it is not proffered for the purpose of impugning those convictions or the fairness of his trial.

The requirement that the Tribunal allow the appellant to present relevant and probative material in response to the evidence relied upon by the respondent in relation to the second complaint, does not mean that the Tribunal is required to rehear the matters dealt with in the District Court. It is entitled to receive as evidence before it, the certificates of conviction, the trial judge's findings in his remarks on sentence and the evidence before the trial judge. It must consider all of the evidence and material before it and in the process of making findings of fact, it is entitled to give those matters significant weight.

16. In conclusion, the Court found, per Meagher J at [103] that ‘the leading of evidence which challenges the facts underlying the conviction does not, without more, involve the re-litigation of the question whether the appellant was guilty of the offences so as to engage the public policy against collateral attack on a conviction.’

17. In this case, DPH accepts his conviction for three counts of committing an act of indecency but denies that the conduct involved him masturbating in view of passengers in a train and in view of a police officer in the police custody room.

18. In determining whether we can be satisfied that the applicant’s conduct involved masturbation, we have considered all the evidence before us in relation to the circumstances of the disqualifying offence.

19. A police facts sheet in relation to the applicant’s disqualifying offence is contained on file. It is dated 19 November 2011, which is the date the offences occurred. The facts sheet has not been signed by the applicant and there is no evidence before us to confirm that it is, indeed, the document that was agreed to by the applicant. We are, however, advised that the facts sheet formed part of the registry file for the Local Court proceedings and we accept it on this basis.

20. According to the police facts sheet the applicant boarded a train before alighting at the next station. In part, the facts sheet states that:

Shortly after the train began to move the accused left his seat and approached the windows at the end of the carriage. Through the window the witnesses could see a group of people in the next carriage. This group consisted of young females.

The accused whilst standing at the window began to yell, undid the front of his jeans and exposed his penis. Both witnesses were seated a short distance from the accused at this time and both saw the accused’s penis. The accused took hold of his penis with his hand and began to masturbate. Whilst doing this, the accused was yelling words like ‘hey sexy’ and whistling.

The accused jumped up and down at the window. This action brought the groin area of the accused in line with the window. This behaviour continued until the train arrived at..[the] [s]tation.

The accused was arrested, cautioned and conveyed to [a] [p]olice [s]tation. The accused was escorted to the custody room and placed in a dock after being introduced to the custody manager.

Through the clear acrylic door of the dock, the custody manager observed the accused undo the front of his jeans, pull out his penis and begin masturbating. The custody manager removed the accused from the dock and placed him in a cell.

The custody manager left his desk and went to the clear acrylic door of the cell. The accused was seen to be urinating on the floor of the cell.

21. There are, therefore, two references to masturbation in the facts sheet:

1. The first reference is that while in the train, and standing at the window at the end of the carriage, DPH ‘undid the front of his jeans and exposed his penis. Bother witnesses were seated a short distance from [DPH] and both saw [DPH’s] penis. [DPH] took hold of his penis with his hand and began to masturbate. Whilst doing this [DPH] was yelling words like ‘hey sexy’ and whistling.’

2. The second reference is that while DPH was in the custody room of the police station where he was taken. According to the facts sheet:

Through the clear acrylic door of the dock, the Custody Manager observed [DPH] to undo the front of his jeans, pull out his penis and begin masturbating. The Custody Manager removed [DPH] from the dock and placed him into a cell. [DPH] was left in the cell and the custody manager returned to his desk. From the desk the Custody Manager observed [DPH] via Closed Circuit Television. The Accused was standing in the cell when he removed his penis from his pants and began to urinate on the floor.

22. According to the statement of Mr Cooper, who was on duty at the railway station as a transit officer:

At approximately 1830hrs…station staff approached us and informed us that a male person is on a train..exposing himself to passengers….On the concourse, I was approached by a group of very irate passengers concerning the obscene behaviour of a male person now known to me as [DPH]. One of the victim[s] said, ‘That man dropped his pants and took out his penis and showed it to us, while he gyrated his hips, whistled and made lewd remarks to us.’

23. According to the statement of one of the passengers on the train:

I saw that the guy had the fly of his pants open all the way and his hand was in his pants. I could see his hand jerking around it looked like he was wanking. The guy turned around and looked at my mum and I, when he turned around I could see his penis and him jerking it around with his hand. The guy was about only a few metres away from me and there was nothing blocking my view of him.

24. This passenger’s mother, who was also on the train, stated that:

I did not pay to[o] much attention to this man at first until I saw him walk over to the doors that go between the carriages. The man was facing the window of the door. His hands were in front of his pants. He was moving around, turning back and forth. I saw that the button and fly of the man’s pants were down and his penis was out. ..The man started jumping up and down, so his penis was visible from the window.

25. According to his statement, Mr Woods - also on duty at the station as a transit officer - told the applicant that ‘We’ve had complaints of someone exposing himself to other passengers and you match the description.’ Mr Woods described aggressive behaviour by the applicant and stated that he had been approached by station staff ‘who had received reports of a male person…who had been exposing himself to other passengers.’ He also noted that a police officer then arrived ‘and took the male person into custody to be charged with Breach of Bond and Indicent [sic] Exposure.’

26. According to the statement of Senior Constable Reed, he approached the applicant on the night of the offence and had the following conversation:

I said, ‘What’s your name champ?’

The accused said, ‘[DPH] but I’ve done nothing wrong. I was just fixing me belt.’

I said, ‘That’s not what everyone else is saying..You’re under arrest for pulling your dick out whilst on the train and for trying to punch that Transit Officer.’

27. The applicant was taken to the police station and put into a charge room. According to the statement of Constable Laurie Cutajar:

I began to watch the Accused via the live CCTV in the charge room. While watching the CCTV, I observed the Accused pull down his pants, expose his penis and urinate on the floor of the cell.

28. In evidence before the Tribunal, the applicant agreed that he had boarded the train, that he had been drunk and that he had taken his penis out of his trousers. He had done this, he told the Tribunal, in order to urinate. When he did that, two women sitting behind him started to yell at him. He told the Tribunal that he hadn’t realized the women had been sitting there. As a result of the incident, he was handcuffed by the police. He agreed that he had become agitated and had sworn. He told the Tribunal that he did not masturbate. He accepted that he had pleaded guilty to an offence under s61N of the Crimes Act, namely three counts of committing an act of indecency but denied having read the police facts sheet.

29. The documents produced for these proceedings by the Children’s Guardian include the magistrate’s bench sheet and orders confirming that the applicant was sentenced on three counts of committing an act of indecency to a term of imprisonment of eight months, with a non-parole period of two months.

30. Because there is no transcript of the proceedings before us, we do not have any details of the magistrate’s findings in this matter. The only sentence details before us are that:

1. the applicant was convicted of three counts of committing an act of indecency;

2. the applicant was sentenced to a term of imprisonment of 8 months with a direction that he be released to supervised parole at the expiration of the non-parole period;

3. the magistrate directed that psychiatric and psychological reports be forwarded to Probation and Parole.

31. A psychiatric report was prepared by Mr John McCallum, Clinical Nurse Consultant with Justice Health at the request of the presiding magistrate which states in part:

[DPH] had some recollection of the events surrounding the index offences but stated to me that he had been drinking at the time and was obviously intoxicated. The Court has not asked me to provide a detail account into his mental state at the time of the alleged offences but I would be happy to reassess and provide another report if required. …[He] attended special needs schools and has only a rudimentary capacity to read and write…[DPH]’s primary diagnosis is mental retardation as defined by DSM-IV TR.

32. A further report was prepared for the presiding magistrate by the psychiatrist, Dr Chew confirming the applicant’s diagnosis of ‘mild mental retardation.’

33. Prior to the sentencing proceedings, a report for the applicant was prepared by the psychologist, Ms Hopkins, at the request of the applicant’s solicitor at the Legal Aid Commission. Among the sources of information to which Ms Hopkins had access is the ‘Statement of Facts Document’ dated on the evening of the applicant’s arrest, which we have assumed is a reference to the police facts sheet before us. In her report, Ms Hopkins refers to the applicant ‘showing his penis to strangers’ and notes that the applicant’s account of the offences was ‘generally inconsistent with the facts in this matter’ and that he ‘minimize[d] his conduct with regard to his offending.’

32. The police facts sheet is therefore the only document in which the applicant is categorically said to have masturbated in front of other people on 19 November 2011.

33. For the following reasons, we are not satisfied on the evidence that the applicant was actually masturbating on either occasion, that is, he was not manually stimulating his genital organs in order to achieve or provide orgasm.

34. In sworn evidence before us, the applicant agreed that he had been on the train, drunk, and that he had taken his penis out in order to urinate. That the applicant felt a need to urinate is corroborated by the statement of Constable Laurie Cutajar who observed the applicant urinate on the floor of the charge room following his arrest.

35. A mother and daughter were passengers on the train. In her statement, the daughter said that the applicant’s fly was undone, he had his hand in his pants and it ‘looked like he was wanking.’ Later, she could see him ‘jerking’ his penis around with his hand.

36. In her statement, the mother said that the applicant’s penis was out and he was moving around, ‘jumping up and down, so his penis was visible from the window.’

37. When he approached the applicant having spoken to the witnesses, the transit officer, Mr Woods, accused the applicant not of masturbating but rather of exposing himself to other passengers. So, too, in his statement he refers to station staff who had received reports of a man ‘exposing himself to other passengers.’ Furthermore, in his statement, Senior Constable Reed recounts his conversation with the applicant, when he told him that he was ‘under arrest for pulling your dick out whilst on the train.’

38. Whilst we accept that the applicant was drunk at the time of the offences, we are satisfied on the evidence before us – and particularly on the basis of the evidence of the applicant, who we found to be a truthful and forthcoming witness – that he had some recollection of the events of the night, such that whilst he agreed that he had taken out his penis both in the train and in the police custody room, he denied masturbating.

39. That the applicant retained some recollection of the events is corroborated by the psychiatric report prepared by Mr John McCallum, Clinical Nurse Consultant with Justice Health, as set out above.

40. In the report prepared by the psychologist, Ms Hopkins, she refers to the applicant ‘showing his penis to strangers’ and notes that the applicant’s account of the offences was ‘generally inconsistent with the facts in this matter.’ Whilst Ms Hopkins does not set out the specific inconsistencies, the report is consistent with the applicant’s denial that he was masturbating in the train.

41. In the absence of a transcript of these court proceedings and in light of the evidence before us, including statements prepared in relation to the disqualifying offence, psychological and psychiatrist reports and the applicant’s oral evidence before us, for the reasons set out above, we are unable to be satisfied that the applicant’s acts of indecency included masturbating either on the train or later whilst in police custody.

42. There is no inconsistency between the Local Court proceedings in which the applicant was convicted on three counts of acts of indecency and our findings in relation to the conduct underlying the offences. To the contrary, we accept that the applicant was guilty of three counts of committing an act of indecency on 19 November 2011. We simply cannot be satisfied, on the evidence before us and in the absence of a transcript of the Local Court proceedings, that the surrounding conduct involved masturbation, namely the manual stimulation of the genital organs of oneself or another in order to achieve or provide orgasm. On the evidence before us, we can only be satisfied that, in a state of intoxication, the applicant took his penis out of his trousers so it was visible to passengers on the train and, later, to officers in the custody room and not that his conduct involved masturbation. (see Sudath v Health Care Complaints Commission [2012] NSWCA 171)

Criminal history

45. Although the applicant has a lengthy criminal record, we agree with the submission of Counsel for the Children’s Guardian, namely that:

[DPH’s] total criminal record is long, but his criminality is significantly mitigated by his disability and each of the offences was one which the Local Court could, and did, deal. [DPH’s] conduct was not at the serious end of the range.

46. Whilst the applicant’s conduct did escalate between 2005 and 2016, we are satisfied that, on the evidence before us, there have been no further offences since February 2017. On the evidence before us, we are satisfied that the applicant’s consumption of alcohol has been particularly relevant to this conduct and that since 2017 he has greatly reduced his alcohol intake.

47. On the evidence before us, we are satisfied that between 2005 and 2016, the applicant was convicted of making false calls to the emergency number 000, harassing the emergency operator, having the custody of a knife in custody and making a false representation that resulted in a police investigation and resisting arrest.

48. For making twenty-eight false calls to emergency services by using the 000 emergency services number on one night in 2013, the applicant received a six month suspended sentence.

49. On 14 December 2015, he was given an Intensive Corrections Order for a period of eight months following his conviction for making false calls to an emergency service number. In the assessment date form for the Intensive Correction Order, no child protection issues were identified for the applicant and the assessment stated that there was not a potential for the intensive correction order to have an effect on co-residents under 18 years.

50. According to documentation before us, however, he breached the order in January 2016 by making further calls to the 000 emergency life and making threats to the operators. He also had the custody of a knife in a public place, for which he received a conviction with no further penalty pursuant to s10A Crimes (Sentencing Procedure) Act 1999.

51. On the evidence before us, he has not engaged in any further offending behaviour since February 2017.

52. In evidence before the Tribunal, the applicant stated that he has been out of trouble for the past two to three years and that it is his goal to ‘stay on the narrow track.’

53. We were impressed by the applicant’s evidence in relation to the steps he has taken since 2017 which have included changing his social behaviour by minimising his consumption of alcohol, seeking psychiatric help to alleviate his depression and anxiety through the prescription of anti-depressants, becoming very involved in his refereeing activities and making progress towards becoming a team leader at work. Taking into account the applicant’s evidence together with personal and professional references supplied in support of him in addition to recent medical and psychological reports, we are satisfied that the applicant has now developed in his understanding of appropriate behaviour and how to avoid reoffending.

Medical material

54. We have taken into account the wealth of medical material contained on file in relation to the applicant, much of which considers the applicant’s disorder that has resulted in his short stature, underdeveloped facial bones and intellectual disability as well as his history of anxiety and depression and his consumption of alcohol.

55. In her psychological report dated 27 October 2008, Dr Emma Collins expressed the following views in relation to the applicant:

[DPH’s] presenting problems are complicated by his developmental disability. His prognosis will remain guarded unless treatment is consistent, supportive and thorough enough to appropriately accommodate his level of need but also effectively address the underlying issues (alcohol abuse, increase social supports and independency etc).

56. In her report dated 21 November 2011, the psychiatrist, Dr Kavanagh, expressed the view that the applicant’s use of alcohol seemed to be triggered by stress, frustration, lack of structure and activities. According to Dr Kavanagh:

It is usually the case that stressful or frustrating situations overwhelm [DPH’s] coping mechanisms and he turns to alcohol in order to cope with this. This is then associated with his offending behaviour. It appears that if [DPH] can learn to cope with stress and frustration without turning to alcohol, he is less likely to offend.

57. The psychologist, Ms Danielle Hopkins, prepared a report for the applicant while he was in custody in 2012. She noted that he had been employed as a fork-lift driver from the age of 22 and that his employer had advised him that he would be able to return to this position once he is released from custody. The applicant reported that he had had two sexual partners who were same-aged and wiling partners.

58. In relation to the disqualifying offence, Ms Hopkins stated that:

With regard to consent, he noted that he was aware that people had to be 16 in order to give consent for intercourse, however he appeared to be unable to make a connection between showing his penis to strangers and the idea of others being non-consenting to such a display…[DPH] lacked insight into his offending behaviour and noted that he was intoxicated. He did not appear to understand his motivation with regard to his offending in any detailed way and as such, he minimised his conduct with regard to his offending….[DPH]’s use of alcohol is concerning given the connection to his offending behaviour. He reported that he consumes more alcohol when he is ‘depressed’ suggesting that he uses this substance as a means of coping and it has become a maladaptive reaction for him when he is feeling low in mood.

59. In her 2012 report, Ms Hopkins did not assess the applicant’s risk to the safety of children. Considering the disqualifying offence she did, however, consider the applicant to pose a moderate-high risk of re-offence across the sexual domain. In making this assessment, she considered the applicant’s alcohol consumption and what she described as his minimising of his offending behaviour which, as set out in the police facts sheet, included the allegation that the applicant had masturbated on the train and in police custody. As we have found, for the reasons set out above, that we cannot be satisfied on the evidence that the applicant did masturbate as part of the offending behaviour for the disqualifying offence, and because we are satisfied on the evidence that the applicant has since reduced his alcohol intake, we give little weight to Ms Hopkins’ 2012 report in assessing whether the applicant poses a current risk to the safety of children. Seven years have passed since the report and the applicant is now a different person whose social and vocational activities have given a structure to his life he had previous lacked, who no longer drinks alcohol to excess, and who has received medical treatment for his earlier depression and anxiety.

60. In 2013, prior to his sentencing, the applicant was accepted in the MERIT (Magistrates Early Referral into Treatment) program. In the final report for the applicant, the following comments were made:

[DPH] has attended all scheduled appointments on time. He has engaged well during counselling appointments and has identified his motivation to abstain from alcohol use throughout the program. Counselling sessions..have involved practical strategies to abstain from alcohol use, manage cravings and deal with daily stressors. Sessions also included examining his history of offending behaviour. Time during sessions was utilised on strategies to stay away from these triggers and to develop new social environments that do not encourage alcohol use or offending. [DPH] was able to acknowledge the severity of his offending behaviour and his poor impulsive decisions can impact himself and his family. He identified that physical structures that promote alcohol use such as the pub are not appropriate places to support his abstinence.//[DPH] has engaged well throughout the…program and has made some good progress in relation to abstaining from alcohol use and attempting to use developed strategies from counselling sessions in his life. [DPH] has demonstrated a commitment to continuing the changes he has made. If [DPH] is provided with the appropriate support he will be able to continue these changes into the longer term.

61. In a later psychological report dated 9 April 2014, Dr Emma Collins stated that

It has been reported that DPH’s offending is typically precipitated by changes in his routine and it has been suggested that he struggles with such changes. If this is true, it bodes well for a potential reduction in offending once DPH’s daily routine is stabilised.

62. In a pre-sentence report prepared in 2014, the Community Corrections Officer stated that:

Both [DPH] and his mother reported the offender has consumed alcohol most of his adult life and has abused alcohol periodically over the same period. BY all accounts the underlying issues in relation to [DPH’s] abuse of alcohol appear to be frustration associated with uncertainty and change in routine. It is at this time whilst the offender is under the influence of alcohol that triggers his offending behaviours.

63. A letter from the applicant’s therapy service confirms that the applicant has been attending therapy since November 2016 and has been compliant, well-mannered and attentive in sessions.

Risk assessment report

64. Although there are several psychological assessments for the applicant contained on file, only one of them was specifically prepared for these proceedings, namely the report of the forensic psychologist, Ms Jenny Howell dated 7 June 2019.

65. According to Ms Howell, the applicant presented as ‘having low average intelligence with appropriate social skills.’

66. In assessing the applicant, Ms Howell administered the Static-99R test that intends to position offenders in terms of their relative degree of risk for sexual or violent recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism of adult male sex offenders. The applicant’s score on the Static-99R placed him in the Below Average Risk level for being charged with, or convicted of, a sexual offence. Considering both the applicant’s static and dynamic risk factors, including his criminal record, his cognitive impairment, his employment record, management of his alcohol use and his numerous protective factors against the risk of future sexual offending, it is Ms Howell’s view that the applicant has a low risk of engaging in a sexual offence.

67. In oral evidence before the Tribunal, Ms Howell expressed the opinion that the applicant’s history of pranking police and making nuisance calls were part of the applicant’s desire to deal with his loneliness, to want people to see him and not to be invisible in society. It is her view that this desire has changed since the applicant has been engaged in refereeing.

68. It is Ms Howell’s view that the applicant is unlikely to relapse into negative behaviour unless alcohol becomes a problem again. She does not think this is likely given that applicant’s sense of now being accepted in society and having a useful role, particularly in his work as a referee. She does not think it is of a concern that the applicant continues to drink in moderation. It is her view that the fact that the applicant has been given more responsibility in his workplace over the past two years is an indication of his confidence and the positive changes in his behaviour. It is Ms Howell’s view that although the applicant has had a steady work history for many years, only in the last couple of years has there been the combination of his steady work, for which he has been given more responsibility, the reduction in his consumption of alcohol and his ongoing referee work. It is this combination, in addition to the applicant’s increasing maturity and his desire to maintain his good behaviour and current lifestyle, that gives Ms Howell the confidence that the applicant is unlikely to relapse into negative behaviours.

69. According to Ms Howell, the applicant has a number of protective factors and support structures to stop alcohol becoming a risk for him. These include his interaction with his regular psychologist, his positive relationship with his adult niece, his involvement with Alcoholics Anonymous, his NDIS support worker and his relationship with his work managers and colleagues.

70. In relation to the disqualifying offence, Ms Howell assessed the applicant on the basis that whilst under the influence of alcohol, he had been accused of urinating on a train and that the event had been witnessed by two adult females who called the police. She told the Tribunal that the applicant had been shocked at the suggestion of him having masturbated on the train. He had spoken to her of needing the toilet and urinating on the train and that he hadn’t been aware that there were so many people on the train.

71. In oral evidence before us, Ms Howell agreed that her assessment of the applicant’s sexual risk would change if she were to accept that his offending behaviour had involved masturbation. For the reasons set out above, we are not satisfied that the applicant’s offending behaviour did involve masturbation. Accordingly, the weight we give to Ms Howell’s report has not been diminished by her failure to find that the applicant’s offending behaviour included masturbation.

72. Ms Howell told the Tribunal that on her assessment of the applicant, she had picked up no suggestion of sexually inappropriate behaviour at all. She agreed that her assessment considered sexual risk rather than generalised violence. Nevertheless, it is her view that the applicant would not score high in relation to a risk of future violence. This is because there has not been a history of extensive violence and no suggestion of violence at all at his workplace or during his refereeing work. During cross-examination, she agreed that any history of violence had been related to the applicant’s consumption of alcohol.

73. Ms Howell told the Tribunal that although she had not conducted a formal risk assessment of the applicant for violence, on all the material before her and given that any violence by the applicant had been alcohol-related, it is her view that the applicant is a low risk of future violence and a low risk to the safety of children in general.

74. We were impressed by Ms Howell’s oral evidence in clarifying aspects of her written risk assessment report. Given that we do not accept that the applicant masturbated as part of the offending behaviour of the disqualifying offence, we accept the findings of Ms Howell that the applicant poses a low risk to the safety of children.

Work history and living skills

75. In oral and written evidence, the applicant described his work history and living skills. The applicant impressed us with his evidence, which we accept.

76. We accept that for the past twenty-three years, the applicant has been employed as a forklift driver by an organisation specialising in the employment of people with disabilities. The applicant holds both a driver’s licence and fork lift licence. In oral evidence before us, the applicant confirmed that he has recently completed a course to become a team leader at his work.

77. We also accept that the applicant has attended TAFE where he completed a Certificate III in Warehousing and a Certificate II in Business Administration. He is currently completing a Certificate III in Business Administration.

78. In a reference dated 25 October 2018 by a vocational support officer at the applicant’s place of employment, the applicant is described as committed and hard-working with a keen interest in his self-development. The referee confirmed that the applicant has been doing ongoing training to become a site team leader, which involves helping other employees and independently running production lines.

75. We also accept that the applicant has been allocated a flat through Community Housing and has participated in a program provided by the Department of Ageing, Disability and Home Care around independent living and the development of day-to-day living skills.

76. We give weight to a disability services report contained on file which states that the applicant:

1. requires assistance with general living skills and has little experience managing his money;

2. can prepare a sandwich but requires assistance with more complex meal preparation;

3. can communicate verbally and answer questions asked.

4. is able to move independently around the community and to use public transport.

81. We are satisfied that the applicant has attended Alcoholics Anonymous (AA) for over eighteen months and whilst not abstinent, we accept his evidence that he has not drunk to excess for over two and a half years. We accept that he only drinks alcohol in moderation and no longer socialises in the pub, instead meeting friends at the football and over dinner.

82. Following cross-examination about his alcohol consumption, the applicant agreed that that he has behaved badly in the past when intoxicated but told us that he has now changed. We accept his evidence that he is confident that he will be able to stay out of trouble and has been assisted in this by counselling which has provided him with strategies to manage his emotions and by taking anti-depressants to manage his depression and anxiety.

Sport refereeing

83. We accept the evidence before us that, for medical reasons, the applicant cannot play contact sport. We also accept that he has been working as a sporting referee since 2011 and referees matches for adults and young people from the age of fourteen years.

84. The applicant’s sport refereeing association confirmed that he had been refereeing, without complaint, since 2011. In October 2018, he was prohibited from attending any association events and was not appointed to referee any matches because of his failure to obtain a working with children check clearance. The letter advised that until October 2018, ‘it has not been a requirement to obtain a working with children check clearance to participate in refereeing activities.’ The association confirmed that the applicant’s refereeing activities had not usually involved him being unsupervised with children or young people.

85. A series of references contained on file, and admitted without objection, attest to the applicant’s honest, friendly and polite nature, his diligence and commitment to refereeing.

Does the applicant require a working with children check clearance to work as a referee?

86. A referee does not require a working with children check clearance where the referee work does not ordinarily involve contact with children for extended periods without other adults being present.

87. This is set out in Regulation 7 of the Child Protection (Working with Children) Regulation 2013:

7   Clubs or other bodies providing services for children

(1)   Work for a club, association, movement, society or other body of a cultural, recreational, sporting or community service nature that involves providing programs or services primarily for children is child-related work.

(2)   Without limiting subclause (1), work as a coach or as a team manager, or an assistant coach or assistant team manager, for a sport or activity for children is child-related work.

(3)   However, the work is not child-related work if the work is work as a referee, umpire, linesperson or otherwise as a sporting official or a groundsperson, and the work does not ordinarily involve contact with children for extended periods without other adults being present.

88. According to the applicant, however, the sporting organisation for whom he previously worked requires all referees to have a working with children check clearance and will not allow the applicant to referee without one.

Consideration of the s30(1) matters

89. As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of the offence(s) with respect to which the person is a disqualified person (s30 (1)(a))

90. As set out above, the applicant is a disqualified person because of his conviction of three counts of committing an act of indecency contrary to s61N of the Crimes Act 1900, the underlying conduct for which is considered at length above.

91. In summary, although we accept that, whilst intoxicated, the applicant displayed his penis both on the train where he was a passenger and later in the police station following his arrest and that his language on these occasions was offensive, we do not accept that he masturbated on either occasion.

92. We agree with the submission by Counsel for the Children’s Guardian that ‘the matters that caused [DPH] to be a disqualified person are not serious compared with many other cases.’

93. Were the applicant to repeat the conduct that resulted in the disqualifying offence, we accept it would be shocking to children and young people to witness it. We note, however, that, on the evidence before us, the applicant has never engaged in offending behaviour towards children.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

94. It has been almost eight years since the applicant was convicted of the disqualifying offence.

95. In the five years following the disqualifying offence, the applicant was convicted of making further false calls to the emergency number 000, of having a knife in custody in a public place and of using a carriage service to offend or menace. On the evidence before us, we are satisfied that the applicant’s intoxication played a large part in this conduct.

96. Since early 2017, however, the applicant’s behaviour has markedly improved and we accept that he is now taking medication to address his depression and anxiety and has greatly reduced his alcohol intake. We accept that he has taken measures to change his social networks and that his involvement as a sporting referee has been a strong influence in his new found stability.

97. We are satisfied that the applicant’s good behaviour has continued despite having been prohibited from refereeing without a working with children check clearance as has his focus on moderating his alcohol consumption. He has continued his work as a forklift driver and is being trained to be a team leader. We have been impressed by the applicant’s great strides since 2016 and give weight to Ms Howell’s assessment that in light of the applicant’s steady work, reduction in alcohol consumption, desire to continue refereeing, increasing maturity and desire to maintain his current lifestyle and good behaviour, he is unlikely to relapse into negative behaviours.

The age of the person at the time the matters occurred (s30(1)(c))

98. The applicant was 37 years old at the time of the disqualifying offence.

The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim (s30(1)(d))

99. The complainants were 24,48 and 72. We accept the submission by Counsel for the Children’s Guardian that no special vulnerability appears to be relevant.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

100. The applicant was older than one complainant and younger than the other two.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

101. None of the complainants were children.

The person's present age (s30(1)(g))

102. The applicant is 45 years old.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred. (s30(1)(h))

103. Although the applicant’s total criminal record is long, we agree with Counsel for the Children’s Guardian that the applicant’s criminality is significantly mitigated by his disability, that each of the offences was one with which the Local Court could, and did, deal and that the applicant’s conduct was not at the serious end of the range. We accept that the applicant continued to come to the attention of the authorities after the disqualifying offences but give weight to the fact that there has been no offending behaviour since February 2017.

104. Whilst we accept that the applicant’s offending behaviour demonstrated a lack of restraint when intoxicated, we accept that the applicant has not drunk alcohol to excess for more than two years now and, on the evidence before us, are satisfied that there is little likelihood of him repeating such behaviour. In reaching this state of satisfaction, we give particular weight to the risk assessment report by Ms Howell and to the applicant’s oral evidence before us.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. (s30 (i))

105. On the evidence before us, and giving particular weight to the evidence of the applicant, the risk assessment report by Ms Howell and her oral evidence clarifying aspects of her findings as detailed above, we are satisfied that there is little likelihood of the applicant repeating the behaviour leading to the disqualifying offence. We are also satisfied that there is little likelihood of the applicant engaging in further offending behaviour.

106. In making this finding, we accept that the applicant’s prior offending conduct occurred when he was intoxicated and against a background of depression and anxiety. We are satisfied that the applicant now has structures in place protective against consuming alcohol to excess and that his earlier depression and anxiety is now well managed by medication. We accept Ms Howell’s findings that the applicant’s increasing maturity is also protective against further offending behaviour.

107. We accept that any repetition of the applicant’s offending conduct in front of children would be shocking but note that, on the evidence before us, the applicant has never engaged in offending behaviour towards children.

Any order of a court or tribunal that is in force in relation to the person (s30(il)

108. There are no orders in place in relation to the applicant.

Information given by the applicant in, or in relation to, the application (s30(1)(j))

109. The applicant has made a statutory declaration, provided oral evidence and submitted references and a risk assessment report, all of which have been considered above.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(1)(j1)

110. No further information has been provided.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

111. No further matters have been put forward for our consideration.

Conclusion

112. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children?

113. By reason of the applicant’s disqualifying offence, there is a statutory presumption that he poses a risk to the safety of children. The question is whether he has rebutted that presumption. Having regard to all of the material before the Tribunal, and for the reasons set out above, we are satisfied that the applicant has rebutted that statutory presumption and does not pose a real and appreciable risk to the safety of children.

114. In reaching this conclusion, we accept that:

1. for the reasons set out above, the disqualifying offence did not involve masturbation by the applicant and as such its seriousness is reduced. Accordingly, the weight we give to the 2012 report by Ms Hopkins is also reduced, as is its relevance given that seven years have now passed since her assessment;

2. the applicant is well-regarded at his place of employment where he has worked for 23 years and is now being trained to be a team leader;

3. since 2011, the applicant has refereed matches played by children, young people and adults without complaint;

4. since 2017, the applicant has moderated his alcohol intake and attended Alcoholics Anonymous

5. the applicant has now been successfully treated for the depression and anxiety which according to the medical material contained on file was, together with his alcohol consumption, a cause of his offending behaviour;

6. the applicant has stable lifestyle structures and an increasing maturity;

7. in accordance with the findings of Ms Howell in her risk assessment report and her subsequent oral evidence before us, the applicant has a low risk of reoffending and does not pose a risk to the safety of children.

115. Although Counsel for the Children’s Guardian accepts that physical or intellectual disability per se does not make a person a risk to the safety of children, it is his view that the applicant’s permanent intellectual disability contributes to the risk he poses. We disagree.

116. Although there is expert opinion to the effect that the applicant has a mild intellectual disability, this has not stopped him for completing TAFE qualifications, from obtaining a driver’s licence and forklift licence and from working professionally as a sporting referee. In oral evidence, he impressed up with his clear answers to questions asked of him.

117. In any case, we find it difficult to understand the relevance of a disability diagnosis to the issue of eligibility for a working with children check clearance. A working with children check clearance aims to protect children from physical violence or sexual predation. It is not a general safety check for employers. For example, it would clearly be dangerous for a blind person to be left in unsupervised charge of a group of infants. This does not mean that a blind person could never receive a working with children check clearance.

118. In our view, it would be wrong to introduce assessment of ability/disability as part of risk assessment for a working with children check clearance. The provision of a working with children check clearance indicates that a person does not present an established risk to the safety of children, with the factors that trigger a risk assessment being prior violence or sexual predation. It is up to employers to assess other aspects of child safety in deciding whether to employ a person, and the duties they should be allocated. There are many people with a mild intellectual disability who have a working with children check clearance and are working in child care. People who are blind may well be allocated the task of teaching braille or computer studies to students with vision impairment, but would not be allocated tasks that they could not perform safely. It remains the role of employers and other regulatory authorities to decide whether a person can be employed to carry out particular roles and what supervision is needed to ensure that children are safe, based on relevant childcare and other legislation. The evaluation of safety issues related to the risk, if any, caused solely by the presence of a disability is not the function of a working with children check clearance.

Section 30(1A) considerations

119. Section 30 (1A) of the Child Protection (Working with Children) Act 2012 prohibits the Tribunal from making an order allowing a person to work with children unless satisfied that:

1. 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 child-related work, and

2. it is in the public interest to make such an order.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work?

120. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

121. In order to properly consider whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children, a “reasonable person” would need to know that:

1. the disqualifying offence, which comprised three counts of committing an act of indecency, occurred seven years ago when the applicant was intoxicated and involved him exposing his penis and behaving in an offensive matter;

2. the rest of the applicant’s criminal history predominantly involved him making false calls to 000 when intoxicated;

3. none of the applicant’s offending behaviour involved children;

4. the applicant has not engaged in any offending behaviour since 2017;

5. the applicant has addressed his alcohol consumption over the past 2 and a half years and has not drunk alcohol to excess in that time;

6. the applicant’s depression and anxiety has abated with medication;

7. despite having a mild intellectual disability, the applicant has sufficient living skills to have been allocated his own accommodation, has completed TAFE qualifications, has a stable job for which he is being trained to be a team leader and can make a simple meal.

8. the applicant has been a referee of sporting matches played by children, young people and adults since 2011 without complaint;

9. the forensic psychologist, Ms Howell, is of the view that the applicant does not pose a real and appreciate risk to the safety of children.

122. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.

Is it in the public interest to make the orders sought by the applicant?

123. Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. CHB v Children’s Guardian [2016] NSWCATAD 214

124. The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

125. The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant. Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

126. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143,at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25]   In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

127. For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, and in particular the importance of the applicant’s role in refereeing and the role model he sets as a man with a mild intellectual disability achieving success in this area, we are satisfied that it is in the public interest to make the orders sought by the applicant.

Decision

128. For the reasons set out above, we are satisfied that the applicant has displaced the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

129. For these reasons, we declare 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 his 2012 conviction on three counts of committing an act of indecency.

130. We regard it as a matter of concern that these proceedings would not have reached the Children's Guardian or the Tribunal if the sporting organisation had understood that the work DPH was undertaking did not require a working with children check clearance If the organisation had properly understood the circumstances under which a working with children check clearance is required, DPH would have been able to continue his refereeing career without interruption and without the expense and stress of these proceedings.

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 his 2012 conviction on three counts of committing an act of indecency.

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: 27 September 2019