EBZ v Children's Guardian

[2020] NSWCATAD 201

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

EBZ v Children’s Guardian [2020] NSWCATAD 201

Hearing dates:

18 June 2020

Date of orders:

18 June 2020

Decision date:

14 August 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Grant Senior Member
Dr J Green General Member

Decision:

(1) 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 section 61D of the Crimes Act 1900 (NSW) for which he was convicted on 7 September 1990.

(2)   The application for an enabling order is granted.

(3) Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the respondent is to grant the applicant a Working with Children clearance.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualifying offence – consideration of applicant’s conduct over a lengthy period with no offending or adverse reports – consideration of assessment of risk by forensic psychologist - whether applicant has discharged the onus of proof

Legislation Cited:

Administrative Decisions Review Act 1997

Child Protection (Prohibitive Employment) Act 1998 (Repealed)

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Cases Cited:

BHA v Children’s Guardian [2014] NWCATAD 161 

BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523

Commission for Children and Young People v FZ (2011) NSWCA 111

BHA v Children’s Guardian [2014] NWCATAD 161 Commission for Children and Young People v Y [2002] NSWCA 949

CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264

CYY v Children’s Guardian (No.2) (2017) NSWCATAD 262

Smith v Commissioner Police 2014 NSWCATAD 184.

Director of Public Prosecution v Smith (1991) VR 6

Category:

Principal judgment

Parties:

EBZ (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Decle (Applicant)
J McDonald (Respondent)

Solicitors:
Legal Aid Lismore (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2019/00335256

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 including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: 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

Overview

1. The applicant was employed as a mental health worker and facilitator. In 2018, his employer required all staff to have a working with children clearance (‘clearance’). The applicant applied for a clearance but on the 21 September 2018, the Children’s Guardian (‘the respondent’) refused him a clearance on the basis that he was a disqualified person due to a prior conviction for sexual assault which occurred in 1987. This is a disqualifying offence and the applicant is presumed to pose a risk to the safety of children.

2. The applicant is now seeking an enabling order to allow him to obtain a clearance so he can continue to work in his community as a mental health facilitator. The applicant acknowledges the disqualifying offence. It occurred 33 years ago when he was 27 years old and the victim was 19 years old. He also acknowledges he has an extensive criminal history dating back to 1981. However, the applicant submits that his offending was primarily due to a chronic addiction to heroin. He states that he has now turned his life around, no longer uses drugs, has not committed any criminal offences for many years and has been working in his community to assist people with mental health issues.

3. Based on all the evidence, we are satisfied that the applicant has discharged the required burden of proof and find that he does not pose a real and appreciable risk to the safety and wellbeing of children and young people. Therefore, the application for an enabling order is granted. The reasons are set out below.

4. Due to the sensitive nature of these proceedings the Tribunal has made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 requiring that names of the victim, the applicant or any witnesses are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym ‘EBZ’ has been used for the applicant’s name.

The Application

5. EBZ filed the application for an enabling order on 25 October 2019 which was outside the statutory time limit of 28 days from the date of notification of the respondent’s decision. On 12 March 2020, the Tribunal ordered that the time for EBZ to lodge his application be extended to 25 October 2019 and noted that the respondent did not object to the extension.

Evidence

Documents

6. The Applicant, EBZ relied on the following written material:

1. Affidavit of EBZ affirmed 27 February 2020

2. Three affidavits, two from former work colleagues and one from a friend and affirmed respectively on 25 February 2020, 26 February 2020 and 8 May 2020.

3. Report from forensic psychologist, Ms Clair Baker dated 10 February 2020 and her addendum report dated 10 April 2020.

7. The respondent relied on a s.58 bundle of documents including the police briefs of evidence for the 1987 offences comprising of the victim’s statements, the record of interview of EBZ and his two co-accused in relation to the 1987 disqualifying offences. The documents included the criminal history of EBZ, file notes and reports from NSW Corrective Services, reports from probation and parole and other miscellaneous documentation regarding treatment received by EBZ in various drug treatment and rehabilitation facilities.

8. Both EBZ and the respondent were represented by Counsel.

9. During the hearing, EBZ gave oral evidence by video-conference and was cross-examined by the respondent’s Counsel. Forensic psychologist, Ms Clair Baker gave oral evidence by video-conference and was cross-examined by the respondent’s Counsel. No other witnesses were called by either party and Counsel for EBZ and Counsel for the respondent gave final submissions.

The disqualifying offence

10. The disqualifying offence against EBZ was that together with two other males, he had sexual intercourse with a 19 year old woman in the back of a motor vehicle without her consent. The offence occurred on 2 November 1987. There was no statement of facts available. The Judge’s sentencing remarks do not disclose details of the facts of the offence for which EBZ was sentenced. The best evidence available to the Tribunal was EBZ’s record of interview by police on 5 November 1987 and evidence given by the victim at EBZ’s committal hearing.

11. In her evidence, the victim stated that she had been picked up by three males including EBZ in a panel van. They had smoked cannabis and talked in the van. One of the males, whom she had previously known, had sexual intercourse with her against her will. At that time, the other two males including EBZ got out of the car. The male who had intercourse with her then told her, “the other two fellows are going to go through you” and she said, “No way”. EBZ then got in the car and he struggled to get on top of the victim. She told him that she didn’t want to have sex. The victim stated that EBZ did not say anything to her. EBZ then had sex with the victim for about five minutes. She stated that she tried to push him off but he was too strong. After EBZ ejaculated, he left the car and the remaining male got in the car and had sex with her, despite the victim telling him to go away. The victim was driven home and reported the sexual assaults to her boyfriend’s father.

12. On 4 November 1987, EBZ was interviewed by police and admitted to having sex with the victim but he believed she had consented. On the same day, he was charged with having sexual intercourse without consent of the victim. EBZ pleaded not guilty. He was convicted on 7 September 1990 in the District Court of NSW and sentenced to 12 months’ imprisonment.

13. A victim impact statement was tendered at the sentencing hearing. It was prepared by a counsellor on behalf of the victim. It states that the victim had suffered acute traumatic reactions associated with the rape trauma syndrome. She had experienced “strong feelings of humiliation, degradation, guilt and shame” and consequently, she behaved in a self-destructive fashion, especially in her abuse of drugs and alcohol. She also feared retaliation and experienced intense feelings of anger.

EBZ’s evidence regarding the disqualifying offence

14. In his affidavit, EBZ stated that he pleaded not guilty at the time, as he was of the belief that the victim had consented to having sex with him. However, he now acknowledges the seriousness of the charges and “the inappropriateness of being one of three men to have sex with one woman”. He states, “The act felt wrong at the time because I felt it went against my values”. He also stated, “It felt wrong because it was not something I had ever done.

15. In evidence, EBZ adopted his Affidavit and was cross-examined by respondent’s counsel about the 1987 offence. EBZ stated that he believed the victim was in her mid-20’s at the time but he agreed that he did not ask her age. At the time of the offence, he, the co-accused and the victim had all been smoking cannabis. He did not know the victim but she was a friend of one of the co-accused. He still maintained that the victim consented to having sex with him. He recalled he asked her prior to having sex, if she was okay and she agreed. However, he also knew it was wrong for three men to have sex with one woman. It was also not something he would do as it went against his values. He could only explain his actions by the influence of cannabis and peer pressure from the other men to be involved. He agreed that he made a very poor choice.

16. EBZ was asked about his feelings towards the victim. He stated that he had read the victims impact statement for the first time only a few days before the Tribunal hearing. He stated that after reading the statement, “I felt very bad that at the time of the offence, the victim’s mindset was that she was not consenting. I also felt bad about the impact of the event on her life”. He expressed his wish that the victim was now okay and repeated, “This is not who I am. This is not me.”

Applicable law

17. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act.

18. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; Section 4 of the Act.

19. Subsection 18(1) of the Act states the Children’s Guardian must not grant a clearance to a person convicted of a disqualifying offence. EBZ was convicted of the offence of sexual assault without consent which is a disqualifying offence under the Act.

20. Subsection 28 (1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order.

21. Subsection 28(7) of the Act places the onus on EBZ to satisfy the Tribunal that he does not pose a risk to the safety of children.

22. The meaning of the word “risk” in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word meant:

“whether, in all the circumstances, 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. One, however must link the word “risk” with the words that follow, namely, to the safety of children”.

23. The issue for the Tribunal to decide is whether EBZ has discharged the presumption under s 28(7) of the Act that he poses a risk to the safety of children.

24. In determining this issue, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is to then consider making an order enabling an applicant to work with children, we must then consider the two-part test set out in s 30 (1A) of the Act.

Consideration of s.30(1) factors and findings

a) Seriousness of any matters that caused the assessment in relation to the person

25. EBZ was found guilty of the offence of sexual assault without consent. He was sentenced to a term of imprisonment for 12 months. This is an extremely serious offence. The devastating impact on the victim is outlined in her victim impact statement.

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

26. The offence occurred on 2 November 1987, over 32 ½ years age.

27. EBZ has an extensive criminal record which is discussed at paragraphs 33 to 35 below. However, we note there has been no charges or convictions of sexual offences, other than the disqualifying offence. There has also been no charges, convictions or adverse reports against or involving children. The last criminal offence against EBZ was a contravention of an AVO in 2012.

c) The age of the person at the time of the offences or matters occurred.

28. EBZ was 27 years of age at the time of the disqualifying offence.

d) The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

29. The victim of the disqualifying offence was 19 years of age at the time of the offence. She was very vulnerable being in a motor vehicle in a remote location, with three men, two unknown to her and all under the influence of cannabis.

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

30. The difference in age between EBZ and the victim of the disqualifying offence was approximately 8 years.

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

31. The victim was not a child.

g) The person’s present age

32. The present age of EBZ is 59 years of age.

h) The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.

33. EBZ has been convicted of about 50 criminal offences in total between 1981 and 2012. Some of the offences were very serious and included demanding money with menaces, aggravated robbery, assault, destroy and damage property and contravening AVO’s.

34. EBZ was extensively cross-examined by the respondent’s Counsel regarding his criminal history. He agreed that his criminal history was very serious. He agreed that adding up all his time in jail would come to about 13 years in actual jail time. However, apart from the 2012 offence, he believed all his offending was related to his addiction to heroin. He first used heroin in 1978 and stopped in October 2009. Despite his criminal record, he does not believe he is a violent person and noted the only offence involving a weapon was an armed robbery that occurred in 1999 when he threatened a bottle shop attendant with a tyre lever. At the time, he was in the middle of a home detoxification program and desperately seeking funds to service his heroin addiction. He also stated that he did not believe he would have ever used the lever.

35. Since he stopped using drugs in 2009, there has been no further offending apart from EBZ being charged with the offence of contravening an AVO in 2012. This involved another participant in a drug rehabilitation program whom EBZ was trying to assist. There was no violent or aggressive behaviour involved. EBZ wanted to connect with this person but misjudged the situation. He was sentenced to a section 9 Bond to be of good behaviour for 18 months.

i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

Evidence of EBZ

36. EBZ stated that he feels shame about the disqualifying offence as it does not reflect the type of person he is. He also feels shame about his criminal history but believes it was all related to his chronic addiction to heroin that consumed him most of his life. However, on 21 October 2009 he had a revelation that he had to stop his drug use as he was “losing his spirit”. From that time, he stopped using drugs and drinking alcohol. He has also committed himself to helping others in the community including being a mentor to other people who struggle with drug addiction.

37. When EBZ found out that he was a disqualified person preventing him from obtaining a clearance, he was very upset. He has never harmed a child and finds the idea of harming a child to be abhorrent. In relation to his own family life, he has an adult daughter and adult step-son, both of whom he sees regularly and has a close relationship with. He is not a risk to the safety of children.

Views of the Medical Experts

38. Forensic psychologist, Ms Clair Baker provided a report dated 10 February 2020. She assessed EBZ for the purposes of a psychological assessment regarding the decision of the respondent to refuse him a clearance. Her assessment found no evidence that EBZ posed a risk of harm to children. Ms Baker noted that EBZ had shown considerable remorse as well as substantial insight into his historical offending and the negative impact his actions have had on himself and others. She noted that EBZ’s sexual offence occurred over 30 years ago, and since that time he has no other similar record, which strongly suggests that since the incident there has been no reoccurrence.

39. She concluded her assessment as follows:

It is my opinion that [EBZ] was sufficiently distressed and ashamed about being charged with sexual assault in 1987, which has subsequently prevented him from placing himself in a situation where such an incident could reoccur. The complete absence of any similar charge over the following thirty-three years provides a strong indication that there is very little risk that he will reoffend in a similar manner again. It is further evidenced in his highly commended work with [communities], his voluntary work at [youth organisation] and his past ten years without using drugs. Finally, it is noted that [EBZ] has expressed considerable remorse and shame regarding his historical conviction and the impact of that on his own personal insight has been profound. As such, when considering all the above information it is considered highly unlikely that [EBZ] poses a risk towards any child, or for that matter any person at all, at the present time or in the future.

40. Ms Baker provided an addendum report dated 10 April 2020 based on further documentation from NSW Police, NSW District Court and summons material that was not available to her at the time of her first assessment of EBZ. Upon reviewing the material, Ms Baker concluded that she could find no reason to amend her report of 10 February 2020.

41. Ms Baker was cross examined by the respondent’s Counsel. Her evidence was consistent with her assessment and report. She was asked about the results of psychological testing carried out on EBZ when he was in custody in 2000 by another psychologist that were very different to the results of Ms Baker’s assessment in February 2020. Ms Baker stated that these differences were to be expected. That is, in her view, “[EBZ] is a different man, in a different world, living a different life; he is drug free, he has a job, he has friends and he is productive.” She also believed his chances of relapse were unlikely given he has been drug free now for over 10 years and despite experiencing many stressful events over these years, he has not resorted to any drug use.

Conclusion

42. We find EBZ to be a genuine and honest witness who has clearly rehabilitated himself being drug free for over ten years and having insight into his previous offending. Based on this evidence and the undisputed evidence of forensic psychologist, Ms Baker we find the likelihood of EBZ committing the same type of offence in the future to be extremely low.

43. The disqualifying offence was not committed against a child or involving a child and therefore, if the offence was repeated, there would be no impact on children.

a) Any information given by the Applicant in, or in relation to, the application.

44. EBZ provided affidavits from three people in support of his application. Two of the affidavits were from former work colleagues, the Chief Executive Officer (CEO) and another Manager of the company where EBZ was employed since 2014 up until the time his clearance was refused in September 2018. The CEO stated that he had known EBZ for over 40 years and in 2014, employed him to provide ‘mental health first aid’ in remote communities. The CEO stated that EBZ was well suited to the role as he is compassionate and he shows empathy. EBZ is an active listener and appreciates the difficulties of those in remote communities. The CEO was aware of EBZ’s criminal history but believes he is a changed man from this history and in the CEO’s view, EBZ has found his life’s purpose in his work. The Manager was also aware of EBZ’s criminal history and has even seen a copy of his criminal history. She agrees that EBZ is very suited to present mental health workshops because of his lived experience and background. She also believes he is “irreplaceable in the role”. The other affidavit was from a friend who met EBZ through a drug rehabilitation service about 10 years ago. He was aware of EBZ’s criminal history and confirmed that EBZ has completely turned his life around and is now sober and clean. He is also aware that EBZ has given numerous presentations to Hospitals and other institutions speaking about his own experiences, sharing his story and explaining to people who are in similar situations to what he was, what he has done to get where he is today.

45. All three stated that they do not regard EBZ as a risk to the safety of children and all would allow EBZ to work with their own children without supervision.

j1) Any relevant information in relation to the person that was obtained under section 36A

46. No such information was provided to the Tribunal.

b) Any other matters that the Children’s Guardian considers necessary.

47. After hearing the evidence and in her final submission, Counsel for the respondent submitted that the respondent supported EBZ’s application for an enabling order on the basis that he was not a risk to the safety of children.

Consideration of s.30(1) factors

48. We considered the disqualifying offence of sexual assault occurred over 30 years ago and this was the only offence of this type on EBZ’s record. We considered that EBZ has no previous charges, offences, or adverse reports against or involving children on his record. We took account of the undisputed evidence that EBZ has turned his life around. That is, he has been drug free since 2009, has committed no criminal offences since 2012 and has been in full time employment since 2014 up until the time his clearance was refused. We took account of the expert evidence of psychologist, Ms Baker that EBZ is not a risk to the safety of children and finally, we gave significant weight to the submission of the respondent’s Counsel supporting the application for an enabling order. Based on these factors and on our consideration of the s.30(1) factors set out above, we find that EBZ has discharged the required onus of proof and he does not pose a risk to the safety of children.

Consideration of s.30(1A) factors

49. Having decided EBZ does not pose a risk to the safety of children, we must consider the “reasonable person” test and the “public interest” test in s.30(1A) of the Act. The section provides that the Tribunal may not make an order under this Part which has the effect of enabling the affected person to work with children in accordance with this Act unless the Tribunal is 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 any child-related work, and

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

The “reasonable person” test

50. This test requires us to determine whether a reasonable person would allow his or her child to have direct contact with EBZ in circumstances where he would not be directly supervised by another person while engaging in child related work.

51. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. In this case, for the reasons for our finding that EBZ is not a risk to the safety of children set out in paragraph 48 above and in particular, the support of the respondent for the enabling order being granted, we are satisfied that a reasonable person would allow their child to have direct, unsupervised contact with EBZ, while he is engaged in child related work.

The “public interest” test

52. We must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount consideration.

53. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. We also note the decision of ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in community affairs, and people with appropriate skills and experience having contact with children.

54. Based on EBZ’s personal history, his demonstrated ability to contribute to society as a mental health community facilitator and mentor to other persons with histories of drug abuse as described in the supporting affidavits, we are satisfied that it is in the public interest to grant EBZ a working with children check clearance.

Orders

55. The Tribunal makes the following orders:

1. 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 section 61D of the Crimes Act 1900 (NSW) for which he was convicted on 7 September 1990.

2. The application for an enabling order is granted.

3. Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the respondent is to grant the applicant a Working with Children 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

Amendments

03 September 2020 - Counsel corrected.

Decision last updated: 03 September 2020