DR v Commission for Children and Young People

[2008] NSWADT 137

CITATION:	DR v Commission for Children and Young People [2008] NSWADT 137
DIVISION:	Community Services Division
PARTIES:	APPLICANT DR RESPONDENT Commission for Children and Young People
FILE NUMBER:	074034
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12 December 2007
DATE OF DECISION:	13 May 2008
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Commission for Children and Young People Act 1998 Crimes Act 1900 Minors (Property and Contracts) Act 1970
CASES CITED:	CK v Commission for Children and Young People [2008] NSWADT 50
REPRESENTATION:	APPLICANT In person RESPONDENT M Neville, solicitor
ORDERS:	By the operation of section 33G of the Commission for Children and Young People Act 1998 the applicant is not entitled to make a review application under that Act.

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,



(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(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.

REASONS FOR DECISION

1 The applicant, DR, is a ‘prohibited person’ by virtue of a conviction in 1976 for the offence of ‘carnal knowledge’ (the index offence). As a consequence he is a ‘prohibited person’ as defined by section 33B of the Commission for Children and Young People Act 1998 (the Act) and cannot engage in ‘child-related employment’. DR has now applied to this Tribunal for an order under section 33I declaring that the provisions of the Act, which prohibit him undertaking child-related employment, are not to apply to him.

2 The respondent contends that by the operation of section 33G of the Act, DR is not entitled to make an application under the Act. This is the sole issue addressed in these reasons. With the consent of the parties the matter has been determined ‘on the papers’.

Scheme of the Act

3 By the operation of the Act it is an offence for a prohibited person to apply for, undertake or remain in child – related employment (section 33C). A prohibited person may apply to the Tribunal for an order declaring that the Act is not to apply to him or her (‘a review application’): section 33I. The Tribunal cannot make such order unless it is satisfied that the applicant does not pose a risk to the safety of children (section 33 J).

4 Section 33G(1) provides that a prohibited person convicted of any of the following offences, while he or she was an adult, is not entitled to make a review application:

(a) murder of a child,

(b) an offence under section 66A, 66B, 66C, 66D or 73 of the Crimes Act 1900 or a similar offence under that Act or any other law involving sexual intercourse with a child (including a law other than a law of New South Wales),

(c) an offence under section 91H (2) of the Crimes Act 1900, involving the production of child pornography, or a similar offence under a law other than a law of New South Wales,

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

5 Notwithstanding the above the Tribunal may grant leave to a prohibited person for a review application to be made where it is satisfied pursuant to section 33G(2) that:
a) the offence is an offence referred to in sub-section (1)(b), or an offence of attempting, or of conspiracy or incitement to commit such an offence, and

(b) the prohibited person was not more than 3 years older than the child against whom the offence was committed, and

(c) the offence did not involve circumstances of aggravation within the meaning of section 66C of the Crimes Act 1900.

6 The operation of section 33G was considered by this Tribunal in CK v Commission for Children and Young People [2008] NSWADT 50 at [6] and [7].

Is DR entitled to make a review application?

7 Whether DR is entitled to make a review application turns on the resolution of three issues, namely:

Was he an adult at the time the index offence was committed?

If so, is the index offence a disentitling offence, that is, does it fall within the scope of section 33G(1)?

If so, are the provisions of section 33G(2) satisfied?

(i) Committed as an adult?

8 Section 33G has no application unless the offence was committed by the prohibited person while he or she was an adult.

9 The age of majority in New South Wales is regulated by the Minors (Property and Contracts) Act 1970. Section 9 provides that for the purposes of any Act, except so far as the context otherwise requires, a person aged eighteen years or over, is of ‘full age and adult’.

10 That provision applied at the time the offence was committed. At that time DR was 18 years and two months, accordingly section 33G applies.

(ii) Does the index offence fall within section 33(1)?

11 The respondent tendered a copy of the applicant’s criminal history. It records that in 1976, the applicant was convicted in New South Wales of the offence of ‘carnal knowledge’. He pleaded guilty to the offence, and sentencing was deferred upon the applicant entering a recognisance to be of good behaviour for twelve months and giving a self-surety in the sum of $200.

12 The facts of the offence were that between 1 August 1975 and 30 September 1975, the applicant ‘did unlawfully and carnally know ... [the victim ... a girl ... of the age of 15 years’.

13 The applicant was charged under section 71 of the Crimes Act 1900 which then provided:

Whosoever unlawfully and carnally knows any girl of or above the age of ten years, and under the age of sixteen years, shall be liable to penal servitude for ten years.
14 Section 62 of the Crimes Act 1900 is also relevant and provided that ‘carnal knowledge’ shall in every case under this Act, be deemed complete upon proof of penetration only.

15 It is apparent that the index offence is not caught by paragraphs (a) or (c) of section 33G(1), respectively, the offences of child murder and production of child pornography. Nor is the now repealed section 71 listed as a disentitling offence under paragraph (b) of that provision. The question therefore to be determined is whether the old section 71 offence is a ‘similar offence’ to an offence under section 66A, 66B, 66C, 66D or 73 of the Crimes Act 1900, as it now provides or a similar offence under that Act or any other law involving sexual intercourse with a child.

16 The Crimes Act 1900 has been significantly amended since 1975. Section 66 C of the Crimes Act 1900 as it now provides would appear to be the descendant of the section 71 offence for which DR was convicted in 1976. It provides:

66C Sexual intercourse—child between 10 and 16
(1) Child between 10 and 14

Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years is liable to imprisonment for 16 years.

(2) Child between 10 and 14—aggravated offence

Any person who has sexual intercourse with another person who is of or above the age of 10 years and under the age of 14 years in circumstances of aggravation is liable to imprisonment for 20 years.

(3) Child between 14 and 16

Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.

(4) …

17 ‘Sexual intercourse’ as defined by section 61H of the current version of the Crimes Act 1900 has a broader meaning than that given to ‘carnal knowledge’ under the 1975 version of that Act, and like the latter, includes penile vaginal penetration.

18 While the current section 66C offence is broader in scope, in my view it is nonetheless a ‘similar offence’ to the old section 71 offence of which DR was convicted. First, both offences catch, to use the language of the old Act, the act of ‘carnal knowledge’ with girls aged above the age of ten and under the age of 16. Second, consent by the victim is not a defence to either offence. Third, the maximum penalty for the old section 71 offence was 10 years imprisonment; which corresponds to the penalty prescribed by section 66C(3) where, as in this case, the victim was between the age of 14 and 16 years.

19 Being satisfied that the ‘index offence’ is a ‘similar offence’ to an offence under 66C of the Crimes Act 1900, in its current form, DR is not entitled to make a review application unless it is established that the provisions of section 33G(2) apply.

(iii) Does the section 33G(2) exemption apply?

20 The respondent properly concedes that sections 33G(2)(a) and 33G(2)(c) are satisfied. It argues however that the facts of the offence reveal that paragraph (b) of section 33G(2) cannot be satisfied. That provision requires the Tribunal to be satisfied that DR was not more than 3 years older than the victim of the index offence.

21 The material before the Tribunal reveals that at the commencement of the period covered by the index offence the victim was exactly 15 years of age and DR was aged 18 years and two months. Accordingly as the age difference between DR and his victim was more than three years, it is not open to the Tribunal to grant DR leave to make a review application.

22 For these reasons DR is not entitled to make a ‘review application’ and the Tribunal is without power to grant him leave to do so.

Orders

By the operation of section 33G of the Commission for Children and Young People Act 1998 the applicant is not entitled to make a review application under that Act.