Ent v Children's Guardian

[2021] NSWCATAD 279

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ENT v Children’s Guardian [2021] NSWCATAD 279

Hearing dates:

20 September 2021

Date of orders:

15 October 2021

Decision date:

15 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

EM Connor, Senior Member
R Royer, General Member

Decision:

The application for an enabling order under s 28(1) of the Child Protection (Working with Children) Act 2012 is dismissed.

Catchwords:

CHILD PROTECTION – working with children clearance – disqualified person – application for enabling order – sexual offending – frotteuristic disorder

Legislation Cited:

Child Protection (Prohibited Employment) Act 1998 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes Act 1990 (NSW)

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Commission for Children and Young People v FZ [2011] NSWCA at 111
Commission for Children and Young People v V [2002] NSWSC at 949

Category:

Principal judgment

Parties:

ENT (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
P Schmidt (Applicant)
B Madden (Respondent)

Solicitors:
Kells (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2021/00009035

Publication restriction:

Section 64(1) Civil and Administrative Tribunal Act 2013. Restriction on publication of information that will identify the applicant, any children, or victims and evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons without leave of the Tribunal.

REASONS FOR DECISION

Background

1. The Applicant, referred to as ENT in these proceedings, is a ‘disqualified person’ under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) and seeks an enabling order pursuant to section 28 of the Act declaring that he not be treated as a ‘disqualified person’ so that he can be granted a Working with Children Check (WWCC) clearance.

2. Due to the sensitive nature of these proceedings, an order was made, under section 64(1) of the Civil and Administrative Tribunal Act2013 (NSW), that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence, is not to be published or broadcast without the leave of the Tribunal.

3. The applicant, who is 22 years of age, seeks a WWCC clearance because he is undertaking studies in pastoral leadership with the Hillsong Church for whom he then hopes to work. He previously worked as a carpenter.

4. On 26 November 2020 the applicant applied to the respondent for a WWCC clearance. He has never held a WWCC clearance and has not worked in a role in which he has had direct contact with children.

5. By notice dated 9 December 2020 the applicant was informed by the respondent that he is a ‘disqualified person’ because his criminal history includes a disqualifying offence (either a conviction or proceedings having commenced) relating to offences specified in Schedule 2.1(1)(e) of the Act. The applicant was charged with two counts of ‘Assault with Act of Indecency’ pursuant to section 61L of the Crimes Act 1990 (NSW). He was convicted of one of the offences and acquitted of the other on 18 September 2018.

6. On 11 January 2021 the applicant filed an application which was erroneously stated to be an administrative review application pursuant to section 27 of the Act. The application was filed 5 days after the time permitted and on 8 February 2021 the Tribunal made an order extending the time for the applicant to lodge the application to 12 January 2021. On 8 February 2021 the Tribunal also noted that the applicant was seeking an enabling order under section 28 of the Act (not administrative review under section 27).

The Legislative Scheme

7. The Act makes provision for the regulation of those persons who engage in or continue to engage in ‘child related work’. The objects of the Act are to protect children:

1. by not permitting certain persons to engage in child-related work; and

2. by requiring persons engaged in child related work to have working with children check clearances.

8. Section 4 of the Act provides that the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration’ in the operation of the Act.

9. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children. ‘Children’ is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

10. Subsection 8(1) of the Act prohibits a person from engaging in ‘child related work’ unless (a) the person holds the relevant WWCC clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant WWCC clearance.

11. Subsection 9(1) of the Act contains a similar prohibition on an employer employing or continuing to employ a person in child-related work who does not hold or have a current application for a relevant WWCC clearance.

12. Child-related work is broadly defined in sections 6 and 7of the Act. It includes paid and unpaid child-related work.

13. Applications for a WWCC clearance are made to the respondent under section 13 of the Act. Section 18 sets out the powers of the respondent in regard to determining any application that is made. As previously noted, the respondent refused ENT’s application, as she was required to do under subsection 18(1) of the Act, because he is a disqualified person having been convicted of a Schedule 2 disqualifying offence.

14. Subsection 28(1) of the Act gives the Tribunal a discretion, on the application of a disqualified person, to make an enabling order declaring the person not to be treated as a disqualified person for the purposes of the Act in respect of the disqualifying offence.

15. Subsection 28(7) provides that where an application for an enabling order is sought:

“…it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children”.

In this application, therefore, the onus is on the applicant to rebut this statutory presumption that he poses a risk to the safety of children.

16. The meaning of the word ‘risk’ was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 at [42]. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998. At [42], his Honour said:

One does not define risk as meaning minimal risk. One would… exclude fanciful or theoretical risk but what one is looking for is 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’…

17. The Tribunal has adopted a similar meaning to the word “risk” as it appears in the current Act.

18. Subsection 28(8) provides that an enabling order cannot be made subject to conditions. If an enabling order is made and a WWCC clearance is granted, this clears the person to work in all forms of child-related work for five years unless suspended or cancelled by the respondent prior thereto.

The evidence relied upon

19. The applicant relied upon the following documentary material:

1. Agreed joint tender bundle (Exhibit R6); and

2. Applicant’s written submissions in reply (Exhibit A7).

20. The respondent relied upon the following documentary material:

1. Agreed joint tender bundle (Exhibit R6); and

2. Respondent’s written submissions (Exhibit R5).

21. The respondent showed the Tribunal footage captured on CCTV at a bus stop on 30 September 2017.

The reported behaviours of concern

22. The respondent submitted that the applicant has a recorded history of sexual misconduct which resulted in one conviction, two acquittals, one police intelligence report and other complaints included in police statements which did not result in charges.

23. In a Statement of Witness dated 23 October 2017 (Exhibit R6, page 44) Victim 1, an international student aged 28, reported that in the middle of September 2017 she was walking within the grounds of a regional university towards a bus stop to board a free shuttle bus with a female friend (Witness 1), also an international student. The applicant was walking towards them on the footpath and Victim 1 moved to the side. The applicant moved to the same side. Victim 1 moved to the opposite side three or four times and the applicant mirrored her moves. He then ‘brushed gently’ past her and she reported that ‘his soft penis briefly connected with my upper leg area’. Victim 1 reported not being frightened on this occasion which she initially thought was an accident. She later became concerned that the behaviour was suspicious after discussing the incident with a friend (Exhibit R6, pages 66 - 67) who was also a victim of the applicant’s behaviour (Victim 2 below) and following the events that took place on 14 October 2017 outlined below.

24. Three offences are detailed in a Facts Sheet prepared by Detective Dean Simpson on 25 October 2017 (Exhibit R6, pages 31 – 34) and are elaborated on in statements given by the victims. The offences are summarised below.

25. Offence 1: Assault with Act of Indecency. At approximately 5.15pm on 30 September 2017 the applicant was observed walking about the bus stop area at the university with ‘his hand in his jacket pocket and a large bulge observed at the front of his short area’. He was standing near Asian students and moving his hand vigorously in an action that appeared consistent with masturbating. The applicant walked towards the free shuttle bus behind several Asian students and at about 5.30pm got on the bus at the same time as Victim 2, also an international student at the university. The applicant and Victim 2 sat at different locations but the applicant then moved to sit directly next to Victim 2. The applicant stood to allow Victim 2 to get off the bus and as she moved past him he placed his hands above his head and rubbed his erect penis against her upper right leg. He then said: ‘I am sorry’. Victim 2 said that she was now scared to be alone on the bus and that her partner has to come and get her after she finishes her part time job at night. (Exhibit R6, page 42)

26. Offence 2: Offensive Behaviour. At about 5.10pm on 23 September 2017 the applicant was observed to have his hand in his jacket pocket with a large bulge observed at the front of his short area. He was moving his hand vigorously while standing near Asian students and his ‘action appears consistent with the accused masturbating’.

27. Offence 3: Assault with Act of Indecency. On 14 October 2017 Victim 1 and Witness 1 got on the shuttle bus at the same location as the incident that took place in the middle of September 2017 described in paragraph 23 above. They recognised the applicant who was seated three or four rows from the back of the bus but did not speak to him and walked to the back of the bus. Witness 1 got off the bus before Victim 1 and the applicant then moved to the back of the bus and sat next to Victim 1. Victim 1 pressed the button to get off the bus and saw that the applicant, who was wearing black shorts, had an erect penis. He stood up and as she walked past him Victim 1 placed her backpack near her bottom. Victim 1 took a photograph of the applicant but walked in a different direction. Victim 1 reported the incident to the university support officer and the police were notified. She stated that the two incidents made her feel scared and worried that the applicant might follow her home and attack her. (Exhibit R6, page 46)

28. Victim 2 stated that on 21 October 2017 she was at the same bus stop and saw the applicant stand behind a young female Asian student she did not know. She was concerned that he may also assault this student. (Exhibit R6, page 42)

29. On 25 October 2017 the applicant was charged with the three offences.

30. On 18 September 2018 the applicant was found guilty of one count of ‘Assault with Act of Indecency’ (relating to Offence 1 above, the incident on 30 September 2017). He was sentenced to a 2 year good behaviour bond pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999. An appeal was heard by the District Court on 8 March 2019 when the order made by the local court was confirmed.

31. On 18 September 2018 the applicant was found not guilty of one count of ‘Assault with Act of Indecency’ by the Local Court (relating to Offence 3, the incident on 14 October 2021). The magistrate also determined that there was no prima facie case in relation to the charge of ‘Behaving in Offensive Manner in/near Public Place/School’ (relating to Offence 2, the incident on 23 September 2017).

32. On 9 February 2019 the applicant came to the attention of the police again (Exhibit R6, page 71). It was reported that he was masturbating underneath his swimming costume on a beach near a female sunbather whom he had approached and asked if it was a nudist beach. Police attended and reported that the applicant attempted to avoid interaction by putting on his shorts and walking away. The applicant was not charged.

The applicant’s oral evidence

33. The applicant gave evidence under cross-examination that he commenced masturbating and viewing pornography several times per week as a teenager. He had his first sexual experience at 20 years of age with a partner who was 19 years old. He has had two sexual partners with whom he had oral and penetrative sex. The applicant ended the most recent of those relationships in May or June 2020 when he ‘adopted a religious lifestyle’ after joining the Hillsong Church. In January or February 2021 he commenced a relationship with a young woman he met at church. He has not had a sexual relationship with her and intends to abstain from having a sexual relationship before marriage in accordance with his new religious beliefs. He intends to abstain from viewing pornography indefinitely.

34. The applicant stated that he previously accessed the university shuttle bus (which has a stop near where he lives) on a regular basis but no longer does so. He acknowledged catching the bus a few times each week during September 2017 but denied the events reported in paragraph 23 above, stating that he had no recollection of them taking place and ‘does not believe it happened’.

35. In relation to the incident on 23 September 2017, the applicant agreed that he was at the bus stop on that day because he has seen CCTV footage and accepts that he was present. He denied that he was masturbating or that he stared at the victim. He stated that: ‘I would not have intentionally masturbated’ and that ‘I have never caused myself to have an erection in public’.

36. The applicant agreed that he caught the bus on 30 September 2017 but denied moving seats to sit next to the victim; pressing his erect penis into her; putting his hands up; or saying that he was sorry.

37. CCTV footage taken at the bus stop on 30 September 2017 was played during the hearing. After viewing it the applicant denied that he was masturbating and said that he ‘could have been clicking his fingers’.

38. The applicant told us that he has no personal recollection of the events of 14 October 2017 but acknowledged that CCTV footage shown to him evidences that he got off the shuttle bus at the same stop as Victim 1. He denied moving seats; having an erection; refusing to move such that Victim 1 had to move past him to get off the bus; or that his erect penis touched her backpack.

39. The applicant agreed that he got off the shuttle bus at approximately 2pm on 21 October 2017 and returned to the bus stop at about 5.30pm on the same day. He denied intentionally standing close to a student on that date.

40. The applicant agreed that he attended the beach on 9 February 2019 and said that he had entered it from a nearby golf course. He stated that he has never approached a stranger at a beach and denied speaking to anyone at the beach on 9 February 2019. He denied having masturbated at a beach.

41. The applicant stated that he ‘vaguely remembered’ the comments of the magistrate during his sentencing on 18 September 2018 who recommended that he follow up on treatment recommended by Dr Richard Furst, an expert witness who provided a report for the criminal proceedings. The applicant said he has not sought any treatment but that his newly adopted ‘religious lifestyle’ has helped him to deal with the trauma of the court proceedings. He does not know why he has been the subject of several similar complaints but noted that the complainants were ‘potentially all students of the same heritage’.

42. The applicant told us that he is seeking a WWCC clearance because he has moved from a career in carpentry to pastoral care and ‘wants to be able to serve his community through his church and rugby club’. He stated that he understands that the behaviours he has been accused of could be traumatic to a child if they were to witness them.

The evidence of Mr Bradley Jones

43. Before us was a report dated 7 June 2021 prepared by Mr Bradley Jones, forensic psychologist (Exhibit R6, page JTB 73). Mr Jones was cross-examined during the hearing by counsel for the respondent.

44. Mr Jones gave evidence that he was aware of the allegations against the applicant and his conviction when he assessed him on 13 May 2021. He was not, however, aware of the report of Dr Richard Furst, consultant forensic psychiatrist, dated 12 September 2018 (Exhibit R6, pages 108-112). We stood the matter down briefly to allow Mr Jones time to read this report.

45. Mr Jones was referred to page 111 of Dr Furst’s report where he states that:

The nature of the offensive question before the court on 30/09/17 was highly suggestive of frotteurism, which is a form of paraphilia (deviant sexual arousal) characterised by abnormal interest and sexual arousal obtained by rubbing the pelvic area, usually the erect penis, against the body of a non-consenting person.

46. Dr Furst sets out in his report the criteria for frotteuristic disorder according to DSM-5, the Diagnostic and Statistical Manual of the American Psychiatric Association, as follow:

• Over a period of at least 6 months, recurrent and intense sexual arousal from touching or rubbing against a nonconsenting person, as manifested by fantasies, urges, or behaviours.

• The individual has acted on these sexual urges with a non-consenting person, or the sexual urges or fantasies cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

47. Dr Furst states at page 112 that:

Treatment of frotteuristic disorder generally involves referral to a psychiatrist and/or psychologist with experience in the treatment and management of sexual deviance and sexual offending.

48. Mr Jones agreed with Dr Furst that a diagnosi of frotteuristic disorder was appropriately applied to the applicant and supported Dr Furst’s recommended treatment. Mr Jones confirmed his written view that the applicant was not suffering any psychiatric or psychological disorder when he assessed him. He agreed that from 2017 to 2019 the applicant exhibited behaviour suggestive of frotteuristic disorder and satisfied the DSM-5 criteria when assessed by Dr Furst.

49. Mr Jones gave evidence that ‘denial is not uncommon for socially unacceptable behaviours’. In relation to the applicant’s performance on the Paulhus Deception Scale (PDS), which measures the tendency to give socially acceptable or desirable responses, Mr Jones explained that the test provides an indication of whether the individual is engaging in deception when assessed. The results of the test indicated that the applicant did not engage in deception. When asked to comment on Dr Furst’s statement that the applicant ‘denies the offence in question, suggesting insight may be an issue’, Mr Jones responded that ‘if an individual maintains their innocence, it does not necessarily mean that they lack insight. However, if the applicant committed the offences, it is suggestive of a lack of insight’.

48. Mr Jones states in his report that the applicant ‘may present a danger to adult women in the community and may benefit from a suitable sex offending treatment program’ (Exhibit R6, page 81). Under cross-examination Mr Jones opined that treatment such as cognitive behaviour therapy or medication may mitigate the risk of the applicant re-offending and that the offending behaviour would impact a child if they were present. He is not aware of the applicant having engaged in any treatment.

49. Mr Jones stated that an individual with a dissociative disorder may block previous trauma and be unable to recall events. He confirmed under re-examination that frotteuristic disorder is not linked to other paraphilias and that to be diagnosed with frotteuristic disorder an individual must have engaged in the behaviours over a period of at least six months.

Findings of fact

52. The respondent submitted that the Tribunal should give weight to the applicant’s criminal history; the statements and oral evidence of the victims and witness in the criminal proceedings; the findings of the trial magistrate; the expert report of Dr Furst, psychiatrist; the COPS Information Report relating to the February 2019 beach incident; and the expert report of Mr Bradley Jones, psychologist, when undertaking the fact-finding exercise. (Exhibit R5, paragraph 56)

53. The respondent submitted that this evidence, in aggregate, establishes on the balance of probabilities that:

1. On 23 September 2017, the Applicant committed the offence of “offensive behaviour” of which he was acquitted;

2. On 30 September 2017, the Applicant committed the disqualifying offence, “assault with act of indecency” of which he was convicted;

3. On 14 October 2017, the Applicant attempted to engage in further conduct which, if successful, would have constituted “assault with act of indecency”; and

4. On 9 February 2019, the Applicant engaged in further sexual misconduct comprising public masturbation.

54. Counsel for the applicant submitted that the only event to which we should give any significant weight is that of 30 September 2017 which resulted in a conviction.

55. We gave significant weight to the conviction, particularly as it was appealed to the District Court who dismissed the appeal. We are satisfied that on the balance of probabilities the applicant engaged in the behaviour on 30 September 2017 for which he was convicted. We note that the trial magistrate found the victim to be ‘very compelling’ and that he had no ‘hesitation in accepting her evidence as that of being the truth and nothing but the truth’. (Exhibit R6, page 162),

56. We were shown two clips of CCTV footage dated 30 September 2017 taken of the applicant at the university shuttle bus stop, one of him walking away from a camera and one when he was seated. Both clips showed him moving his hand in his jacket pocket in a manner which was highly suggestive of him masturbating. The applicant was wearing loose fitting red brief sports shorts and a hoodie style jacket. Counsel for the applicant acknowledged that ‘the footage does not look good’ but submitted that the applicant is ‘100% adamant that he was not self-pleasuring’ and ‘appeared to be almost in a catatonic state’.

57. We did not accept the applicant’s evidence that he may have been ‘clicking his fingers’ and note that during the criminal trial he attributed his hand movement to playing with a stress ball, which he made no mention of during the hearing before us. We did not accept the submission of his counsel that the clothing the applicant was wearing would have made masturbating ‘an almost impossible task’.

58. We do not make any finding in relation to the alleged offensive behaviour of the applicant on 23 September 2017 and did not attribute any weight to the incident. The applicant was charged with offensive behaviour after the university provided the police with CCTV footage from the bus stop on 23 September 2017 in error. The police alleged this footage showed the applicant masturbating while seated at the university bus stop on that date. There was no complainant and, after viewing the footage, the magistrate determined that there was no prima facie case and dismissed the matter. We did not see this footage during this hearing and did not form any view as to whether, on the balance of probabilities, the applicant engaged in the alleged sexual misconduct behaviour.

59. In relation to the events of 14 October 2017, the trial magistrate stated that:

She (Victim 1) has given her evidence and was quite clear in relation to her observations. There is nothing about the voracity of her evidence that I doubt. The real question is whether based upon that evidence at this stage I could be satisfied beyond reasonable doubt as to the allegations the prosecution made out. I note that the charge is particularised as attempting to push his erect penis against her leg.

The magistrate stated that there was no evidence from the complainant that the applicant had attempted to push his erect penis against her leg. This raised doubt in his mind as to whether the applicant intended to assault the victim as she got off the bus; whether there was an actual threat; and whether it was indecent towards her. On that basis he could not be satisfied that an act of indecent assault had taken place. The magistrate went on to say, however, that ‘there is no doubt that (the applicant’s) conduct was strange…’. The magistrate accepted the evidence of Victim 1 that the applicant moved to sit next to her on the bus, that he had an erect penis and that she was fearful. Although the applicant was not convicted of the offence, on the balance of probabilities we are satisfied that he engaged in sexual behaviour of concern.

60. Mr Schmidt asserted that the incident on 9 February 2019 should be attributed little weight and that without its inclusion the diagnosis of frotteuristic disorder could not be properly attributed to the applicant because the six month criteria in DSM-5 would not be met. He asserted that an ‘intelligence report’ can ‘come from anywhere’; that if the incident had happened there would have been more evidence; and that the applicant may have been targeted as a result of his then distinctive hairstyle.

61. Although the incident did not result in charges being laid, we think it is more likely than not that the applicant was masturbating at the beach on 9 February 2019. The police were contacted and attended. There is no evidence that the person who made the report on the beach was aware of the earlier incidents at the university or recognised the applicant. Whether or not the applicant has exhibited behaviours within a particular timeframe to lead to a diagnosis of frotteuristic disorder is not of significance to us. The issue for the Tribunal is whether he has engaged in behaviours which may pose a real and appreciable risk to the safety, welfare and well-being of children. We did not, however, attribute significant weight to the incident given that there was limited evidence in relation to it before us.

62. We are satisfied that on the balance of probabilities the applicant engaged in the reported behaviours of concern on 14 October 2017 and 9 February 2019. There is a pattern of behaviour; the magistrate clearly accepted the evidence of Victim 1 in relation to the events of 14 October 2017 and there is no plausible reason why the complainant fabricated the events on 9 February 2019 when the police were contacted and attended the beach.

Section 30 (1) factors

63. The Tribunal "must consider" those factors set out in section 30(1) in determining an application under Part 4 of the Act, which includes this application. These are similar to those taken into account by the Children's Guardian under section 15 (4) of the Act for the purposes of carrying out their risk assessment.

64. The Tribunal must also satisfy itself in relation to the tests set out in section 30(1A) of the Act.

65. The evidence is set out below under subheadings that refer to the section 30(1) factors and section 30(1A) tests set out in the Act.

(a) the seriousness of the offences (b) the period of time since those matters occurred and the conduct of the person since they occurred and (h) the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred (i1) any order of a court or tribunal that is in force in relation to the person

66. The respondent submitted that the applicant has a recorded history of sexual misconduct which resulted in one conviction, two acquittals, one police intelligence report and other complaints included in police statements which did not result in charges.

67. On 18 September 2018 the applicant was found guilty of one count of ‘Assault with Act of Indecency’ by the Local Court and sentenced to a two year good behaviour bond pursuant to section 9(1) of the Crimes (Sentencing Procedure) Act 1999. An appeal was heard by the District Court on 8 March 2019 when the order made by the local court was confirmed.

68. The respondent submitted that the offences are serious because they comprise ‘repeated sexual misconduct involving physical contact against vulnerable women in a public place’ and the offence for which he was convicted carried with it (prior to amendment of the statute) a maximum penalty of 5 years imprisonment.

69. The magistrate who heard the criminal matters said that:

But whatever way you look at it, it is a very serious charge. It carries up to five years imprisonment. (Exhibit R6, page 197)

70. The applicant submitted that the offence for which the applicant was convicted was at the ‘lower end of seriousness’ as evidenced by the sentence he was given relative to the maximum available.

71. The applicant received a non-custodial sentence for the offence for which he was convicted and we accept that his offence was at the lower end of seriousness for that offence.

72. The disqualifying offence took place approximately four years ago on 30 September 2017. The applicant also came to the attention of the police in relation to other similar incidents in September and October 2017.

73. On 9 February 2019 the applicant was reported to be masturbating in a public place while the subject of a good behaviour bond.

74. The applicant is not currently the subject of any order of a court or tribunal.

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

75. The applicant was 18 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 they occurred and any matters relating to the vulnerability of the victim

76. The victim of the offence for which the applicant was convicted was 27 years old at the time of the disqualifying offence.

77. The victim of the sexual misconduct which took place on 14 October 2017 was 28 years old at the time.

78. It is not known how old the victim was in relation to the incident on the beach which took place on 9 February 2019.

79. The respondent submitted that the victims in 2017 were additionally vulnerable at the time of the offending because they were female international students who spoke English as a second language; who were of significantly smaller stature to the applicant; and whose cultural background led them to be particularly humiliated by the offending.

80. We accept that these factors may have increased the vulnerability of the victims given that the applicant targeted his sexual misconduct behaviour in 2017 at young women of Asian background. The applicant may have thought they were less likely to complain because of their cultural background and lesser fluency in English. Victim 2 stated in evidence that:

Well, like, what I says is depend on my culture. So we quite embarrassed and we quite shies to speak, and even before I came here as well, I’m really shy to speak English anyway… (Exhibit R6, page 140)

And, like, what I say from the culture, is really embarrassing to say anything about it (being touched by an erect penis), or even when I’m say the feeling of the touch of the peanuts (as said), because I have sex with my partner, that’s quite embarrassing for me. (Exhibit R6, page 145)

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

81. The applicant was approximately seven to nine years younger than the victims of the 2017 offences.

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

82. The victims were not children. The respondent submitted that the applicant could not have been certain that the victims were adults. The applicant submitted that this was unlikely given that the victims were university students well into their twenties. We agree with the applicant that there is no evidence to suggest that the applicant may have thought the victims were children.

(g) The person’s present age

83. The applicant is now 22 years of age.

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

84. The respondent argued that there is a high risk of the applicant repeating the recorded misconduct because he has demonstrated:

…no positive evidence of acknowledgement of the offending conduct, let alone remorse, insight into triggers, subsequent psychological treatment nor other effort to rehabilitate. (Exhibit R5, paragraph 77)

85. The respondent submitted that the applicant’s offending behaviour took place in 2017 when the applicant had no outlet for his sexual desires other than masturbation and pornography. The respondent argued that the applicant’s recent celibate lifestyle may increase his risk of further offending.

86. The applicant submitted that there is no basis for any finding of likelihood of repetition and that:

…there was no psychological treatment needed given the lack of intent and also the developmental age of (the applicant). It is widely accepted, that young adult males mature and “sexual urges” are generally relative to age. (Exhibit A7, paragraph 30)

87. Counsel for the applicant submitted that ‘it is not accepted that (the applicant) has any issues of untreated sexual deviancy’. (Exhibit A7, paragraph 40) In closing submissions he said that if the events happened, they were when the applicant was young and developing and that he ‘has now had a realisation and knows what’s right, wrong and acceptable’. He submitted that the applicant has a greater insight into the offence he committed than a lay individual because he ‘has been through a lengthy court procedure where all his behaviours have been under the microscope’. (Exhibit A7, paragraph 39)

(j) Any information given by the applicant in, or in relation to, the application

88. The applicant provided a statement, an expert report and several written character references. Mr Bradley Jones, the expert witness, also provided evidence under cross-examination.

89. Written references were provided by two members of the applicant’s church and the president of his rugby club. They make no mention of the issues of concern for this Tribunal and we attributed them little weight.

90. Written references were also provided by the applicant’s mother and grandparents. They state that they are fully aware of the circumstances leading to these proceedings, but we afforded these references little weight due to the lack of independence from the applicant.

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

91. There is no such information

(k) Any other matters that the Children’s Guardian considers necessary

92. The respondent submitted that it is necessary for the Tribunal to consider the applicant’s failure to take responsibility for his criminal offending and misconduct; failure to acknowledge or explain his offending behaviour; failure to demonstrate remorse; and failure to seek treatment. The respondent submitted that these failures cast doubt on the reliability of the applicant.

Section 30(1A) tests

The reasonable person test

93. The respondent submitted that a reasonable person with knowledge of the applicant’s criminal history and record of sexual misconduct would not allow their child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work. The respondent notes that in the context of the applicant, contact with children may include providing pastoral care to female teenagers.

94. The applicant argued that the reasonable person test is satisfied and directed us to the written reference of one of the members of the applicant’s church who has children. We gave little weight to this reference as there is no indication that the referee is aware of the applicant’s criminal history and record of alleged sexual misconduct.

95. The applicant submitted that the applicant has ‘no sexual inclination towards female teenagers’ and stated that a reasonable person would have no issue in the applicant ‘providing partitional care to female teenagers’. We assume this should be ‘pastoral care’.

The public interest test

96. The respondent submitted that it is not in the public interest for the Tribunal to grant an order to the applicant enabling him to work with children. The respondent urged us to give significant weight to the need to protect children due to the detrimental effect of offending on society generally. In relation to considering the public interest in allowing individuals to engage in paid employment and contribute to society, the respondent argues that the applicant does not have any particular skills or experience in child-related work

97. Counsel for the applicant submitted that it is in the public interest for young people to be supported to fulfil their ambitions and be valuable members of society. He argued that the applicant has a ‘bright future’ and an ability to assist his community in a pastoral sense through his church activities. It was submitted that denying the applicant the opportunity to be engaged in paid employment using his skills and experience could be ‘significantly debilitating and crushing’.

Consideration

98. As previously noted, the jurisdiction of the Tribunal under the Act is protective, not punitive. The Act requires that the protection of children, particularly from child abuse, is the paramount consideration of the Tribunal.

99. The respondent submitted that the Tribunal should find that the applicant poses a real and appreciable risk to the safety of children and dismiss the application for an enabling order. The respondent submitted that the applicant’s offending is recent; he lacks insight into his conduct and denies any offending; and has not participated in any rehabilitation.

100. The applicant submitted that the application should be allowed because the reasonable person and public interest tests are satisfied; the behaviour which resulted in the conviction are at the lower end of seriousness for such offences; no child has been placed in danger by the applicant; and denying him the ability to work with children would be a lifelong and debilitating punishment.

101. Although the offence committed by the applicant is serious, we accept that the conviction and commencement of proceedings that triggered these proceedings is at the lower end of seriousness in relation to disqualifying offences.

102. In his written statement to the Tribunal (Exhibit R6 page 89) the applicant states that:

I humbly accept the courts (sic) findings, however these are not a true indication of my character and life that I lead.

103. Throughout the hearing, however, the applicant denied that he had engaged in any of the sexual misconduct, including the offence for which he was convicted, and did not demonstrate any acceptance of the finding of the courts that sentenced him and dismissed his appeal. It is of concern that the applicant has steadfastly denied engaging in the behaviour for which he was convicted or reported.

103. The report and oral evidence of Mr Jones did not assist the applicant greatly. Mr Jones concludes in his report that:

I am not of the opinion (the applicant) posses (sic) a direct danger toward children. Notwithstanding (the applicant’s) denial of the offences and allegations, he has been convicted of some sexual offences toward adult women. Consequent (sic) he may present a danger to adult women in the community and he may benefit from a suitable sex offending treatment program.    

105. Mr Jones states that the applicant may be a danger to adult women and leaves it open for us to be concerned that the applicant could pose an indirect danger to children. He also states that the applicant may benefit from a suitable sex offending treatment program, which indicates that he believes the applicant has engaged in sex offences.

106. During the hearing the applicant demonstrated little emotion and it is noteworthy that his counsel commented that he appeared to be in ‘an almost catatonic state’ in the CCTV footage shown to us.

107. Mr Jones gave evidence that individuals in a state of trauma may experience a dissociative state as a result of which they are unable to remember events. We are unable to determine whether the applicant was being untruthful when he steadfastly denied engaging in the misconduct, or whether he genuinely has no recollection of so doing. If the applicant genuinely has no recollection of engaging in the behaviours of concern, this does not alleviate our concern that he may repeat the behaviours in the future, potentially in the presence of children or teenagers.

108. Both Dr Furst and Mr Jones formed the view that the applicant’s behaviour meets the definition of frotteurism and suggested he seek treatment. The two magistrates who heard the criminal matters both urged the applicant to seek treatment. The applicant has not engaged in any treatment to address his problem behaviours. The only assistance he has sought has been from his church in relation to dealing with the trauma of the court proceedings he has been subject to.

109. We determined that there is a real risk of the applicant re-offending. There is an established pattern of behaviour which the applicant has steadfastly denied. We disagree that he does not have any untreated sexual deviancy or that he has greater insight than others. The evidence is that the applicant has engaged on several occasions in sexual behaviours which have caused distress to women and that he has no insight into the potential consequences of this behaviour on children who may witness the behaviour. He has never acknowledged the trauma caused to the victims of his behaviour.

110. In final oral submissions the respondent expressed concern that there may be an increased risk of the applicant re-offending because he is now celibate. We did not attribute significant weight to this concern because it was not put to the applicant or to Mr Jones for comment.

111. We did not accept the applicant’s submission that there is a low risk of the applicant re-offending because he has now matured and developed insight into his behaviour or that we should, in effect, excuse his behaviour because he was at the time a young man. There is no evidence to support the proposition that the applicant has developed insight into his behaviour which was unacceptable irrespective of the age of the applicant at the time. It is not acceptable for teenagers or young men to masturbate in public or engage in frotteuristic behaviour with non-consenting victims.

112. We are not satisfied that a reasonable person with knowledge of the particulars of the offences committed by the applicant and the surrounding facts would allow his or her children to have direct contact with the applicant in situations where he is not directly supervised by another person while engaged in child-related work.

113. Although there is no evidence that the applicant has targeted children, he has offended in public places where children could be present. He has also targeted young women who may be less likely to report his behaviour because of their cultural background.

114. As both the respondent and the applicant submitted, the Tribunal’s primary consideration in determining public interest is the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse.

115. We are not satisfied that it is in the public interest for the applicant to be granted an order enabling him to work with children.

116. Given the applicant’s lack of recollection, or denial, of his behaviours, we cannot be confident that he may not engage in inappropriate sexual conduct in the presence of children. His adult victims reported being upset and fearful because of the applicant’s behaviour. The impact on children may be even more significant.

117. There is evidence that the applicant was previously employed as a carpenter in environments where he was not required to work with children and that he has skills and experience in this area. He is, therefore, able to engage in paid employment in an area in which he does not pose a risk to children.

118. Having regard to the abovementioned factors and the material before us, in our view the applicant has not discharged his onus in rebutting the presumption that he poses a risk to the safety of children.

Order

119. The application for an enabling order under s 28 (1) of the Child Protection (Working with Children) Act 2012 (NSW) is dismissed.

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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: 15 October 2021