FD v Commission for Children and Young People

[2003] NSWADT 261

CITATION:	FD v Commission for Children and Young People [2003] NSWADT 261
DIVISION:	Community Services Division
PARTIES:	APPLICANT FD RESPONDENT Commission for Children and Young People
FILE NUMBER:	034010
HEARING DATES:	12/06/2003
SUBMISSIONS CLOSED:	06/12/2003
DATE OF DECISION:	12/10/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101 HG v R (1999) 197 CLR 414
REPRESENTATION:	APPLICANT In person RESPONDENT K Lapthorn, barrister
ORDERS:	The Child Protection (Prohibited Employment) Act 1998 does not apply to FD in respect to the offence of “indecent assault of female under 16 years” for which he was convicted on 18 August 1982.

(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.

1 The Applicant, seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”). The Applicant seeks this order so he can return to work at the Department of Technical and Further Eduction (TAFE). The Respondent opposes this application.

2 In 1998, the Applicant was convicted of one count of indecent assault on a female under the age of 16 years of age. This offence constitutes a “serious sex offence” as defined by the Child Protection Act. By the operation of s 5 of that Act, the Applicant is a “prohibited person” and as such it is an offence for him to apply for, undertake or remain in child-related employment.

3 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the Applicant or anyone referred to in the proceedings (other than the experts). The Applicant is referred to in these reasons by the pseudonym, FD. The official copy of the orders provided to the parties will include the name of the Applicant.

Relevant legislation

4 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Act is not to apply to him or her. Section 9(1) provides that, on application of a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).

5 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person’s total criminal record,

(f) such other matters as the tribunal considers relevant.

6 Section 9(7) requires the respondent to be a party to proceedings for an order under s 9 and may make submissions in opposition to, or support of, the making of the order.

Onus of Proof

7 The Applicant carries the onus, on the Briginshaw standard, that s/he is not a risk to children.

8 The meaning of the word “risk”, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of “risk” in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:

“…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.” ( Commission for Children and Young People v V [at 22], R v Commission for Children and Young People [at 104].)

9 Young J held at [42] that the meaning of “risk” in s 9(4) was that “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”. That test is now binding on the Tribunal.

10 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. He held at [46] that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant “who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children”.

Index offence (s 9(a), s 9(a)(1), s 9(b), s 9(c), s 9(d))

11 In 1982, the Applicant was convicted of a charge of “indecent assault on female under 16 years of age”. At the time he was 26 and the victim 13 years of age. That offence occurred 22 years ago.

12 The police facts sheet, which was tendered in evidence in these proceedings and in the District Court sentencing proceedings, sets out the details of the charges to which the Applicant pleaded guilty. It states that a complaint had been made that the Applicant had been “sexually involved” with his 13-year-old neighbour. The Applicant admitted that he had “sexually interfered” with her, specifically that he put his hand down her pants, placed his finger inside her vagina and fondled her breasts. In addition it stated that “the girl was a willing party to the assault…and was not harmed”.

13 In a record of interview the Applicant disclosed that the girl often visited his flat when he and his wife were present “she was always in and out of the place”. He claimed that the sexual assault, the subject of the complaint, occurred on only one occasion. The victim corroborated that claim. She stated “…even though I have been back to the flat [after the assault] with the [Applicant] alone he has never tried to do anything else to me”.

14 The sentencing court convicted the Applicant and released him upon entering a good behaviour bond for three years.

Applicant’s Age (s 9(5)(d1))

15 The Applicant is now 48 years of age.

Seriousness of Applicant ’s total criminal record (s 9(5)(e))

16 In 2002 the Applicant was charged with the offence of ‘make false statement in disclosing prohibited person’. That charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999.

17 That offence relates to a declaration made by the Applicant to a prospective employer to the effect that he had no convictions for sexual offences (s 7(6) of the Child Protection Act).

Other relevant matters (s 9(5)(f))

Psychological Evidence

18 The Applicant was interviewed and assessed by psychiatrist, Professor David Greenberg, at the request of the Respondent. A report prepared by Professor Greenberg, dated 19 April 2003, was tendered in these proceedings and, in addition, Professor Greenberg gave oral evidence.

19 Professor Greenberg reports that the Applicant initially told him he had not been sexually attracted to the victim but later conceded, “I suppose she must have been [sexually attractive]”.

20 Professor Greenberg recorded that at the time of the offence the Applicant’s marriage was good, there were no sexual problems and no apparent stressors in his life. On the evening of the offence he was not intoxicated.

21 In interview the Applicant denied ever having had sexual fantasies or sexual urges with pubertal children of either gender. He further denied any other sexual acts with underage children or adolescents.

22 Professor Greenberg assessed the Applicant using two actuarial tests: STATIC-99 and Rapid Risk Assessment for Sexual Offence Recidivism (RROSOR). Both are used to predict recidivism rates among sex offenders. On the RROSOR scale, the Applicant scored one out of a possible score of four. This, according to Professor Greenberg, places him in a group of individuals, 9% of whom it is predicted will sexually re-offend within five years, increasing to 11.2%, after 10 years.

23 STATIC-99 looks at ten factors to assess recidivism: prior sexual offences; prior sentencing dates; non-contact offences; index non sexual violence; prior non-sexual violence; unrelated victim; stranger victim; male victim; young (aged less than 24.99) and single. Applying that test the Applicant’s scored one, placing him in the low risk category.

24 Professor Greenberg asserts that the usefulness of both tests is limited. First, while each assist in identifying recidivism rates among groups of sex offenders, they do not identify which individual/s within that group will re-offend. Second, neither have been tested on an Australian population, although, he notes two recent Australian studies apparently confirm their validity. Third, both STATIC 99 and RROSOR are based on official police records of re-offending, which Professor Greenberg contends, understate re-offending rates.

25 Professor Greenberg diagnosed the Applicant as suffering from a psycho-sexual disorder, hebophilia. A person suffering such disorder, explains Professor Greenberg, has a sexual attraction to teenage children who are pubertal, i.e. range in age from 13 to 16 years of age. That condition in his opinion is chronic and lifelong. He bases that conclusion on two grounds: first, the literature, which establishes that a percentage of hebophiles will re-offend and second, his clinical experience which he claims reveals that some hebophiles report a life long attraction to children.

26 Two factors were especially important in Professor Greenberg’s diagnosis. First the Applicant’s disclosure that he was sexually attracted to the girl and, second, what Professor Greenberg describes as the “modus operandi” of the offence. According to Dr Greenberg the tickling of the girl in the days or weeks prior to the offence indicated that his actions were intentional and goal driven and the placing of acorns down the girl’s pants was a “surreptitious means of enticing the child into sexual contact”.

27 It is relevant asserts Professor Greenberg, that at the time of the offending there was no disinhibition from mental illness, alcohol, illicit substances, medication etc that may explain the behaviour.

28 According to Professor Greenberg, hebophiles are sexually aroused by the pubertal child. He asserts that behaviour pattern, demonstrated by the Applicant leading to the offence is common to hebophiles: their actions are intentional and purposeful; they commonly create opportunity for sexual contact through the use of clandestine activity such as games.

29 In his view the Applicant “appears to have been able to suppress his symptoms of hebophilia and has a sufficient degree of control over his psycho-sexual disorder”.

30 In Professor Greenberg’s opinion the Applicant appreciates the nature of his problem and bases that conclusion on the Applicant’s disclosure that he always ensured there was an adult female around “to protect his personal safety” when coaching children’s sport.

31 Based on clinical assessment, Professor Greenberg considers that the Applicant probably falls in the low risk category, which is in line with the results of actuarial assessment. In examination in chief he explained that he had used the term “low risk” to mean low in relation to other sex offenders not low in relation to the general male population. Notwithstanding the results of actuarial and clinical testing, in his opinion the Applicant poses a risk to children on account of his underlying disorder. Professor Greenberg considered the risk of offending in respect of male children to be small, but one that could not be discounted.

32 While treatment might assist the Applicant, Professor Greenberg contends that expert opinion is divided as to whether it is of any real value. At best treatment might assist in controlling the disorder.

33 According to Professor Greenberg the age difference between the Applicant and the victim is of pivotal importance. He opined that most men are not attracted to 13-year-old children. “It is not normal for an adult male to be sexually attracted to 13 year olds.”

34 He said that while the risk of a hebophile re-offending was life long, the available research showed that the main risk occurs in the first five to seven years after the initial offence, and then starts to plateau. Professor Greenberg noted that there had been no further reports of such misbehaviour by the Applicant. From this he concluded that the Applicant “either appreciates the nature of his psycho-sexual problem or the risks of potential accusations of sexual impropriety or both” and has been able “to suppress his symptoms of hebophilia and has a sufficient degree of control over his psycho-sexual disorder [to prevent him re-offending]”. He took the view that the Applicant’s disorder was in “partial remission.” He noted that approximately 7-11 per cent of sexual offenders with the Applicant’s actuarial score on the tests conducted would be recorded as re-offending and that the best predictor for re-offending was evidence of an underlying disorder such as hebophilia or paedophilia.

35 Professor Greenberg also testified that the Applicant’s sexual preference is towards adult females. Nevertheless, he was of the view that “in situations of opportunity he may become aroused or attracted to a younger group.” He also gave it as his opinion that the Applicant is not impulsive. He said, “Just like a person who is heterosexual in their orientation is not going to walk down Elizabeth St and try to rape each woman he sees, he has the same controls as any other male or female.” In his opinion, FD is not predatory in his behaviour but a risk arises if the Applicant is placed in a situation of opportunity. He acknowledged that while the community does not condone sexual violence towards women, there is an even greater degree of abhorrence for crimes of sexual abuse or violence against children and that the deterrent effects of the criminal law and social sanctions for molestation of children are even stronger than for sexual crimes against adult women.

36 Professor Greenberg also gave evidence that persons with a paraphilic disorder (paedophilia or hebophilia) developed that sexual preference in their teenage years. His evidence was that they were generally not discovered for some time -- “most offenders… get caught in their 30s” -- and he said that the average age of caught hebophiles was in the mid-30s.

Applicant’s conduct since index offence

37 The Applicant told the Tribunal that he has three children aged 20, 16 and 8 years. They live with his wife with whom he separated in 1995 and he maintains contact with them and they stay on occasion. He said he had been involved in his children’s sporting activities. More recently he has “helped out” his son, who coaches children’s cricket.

38 For the past 14 years the Applicant worked as a storeman with TAFE. He explained that in that role he assisted with class preparation, which involved delivering and setting up tools and material. He estimated that about 30 % of the student population is female but that male students dominated the “trades” where his work was centred.

39 The Applicant claimed that the index offence was the first and only time he acted in an inappropriate way with a young girl. He claimed the offence was entirely out of character: “I don’t know what came over me”. He denied being sexually attracted to girls or female children. He claimed that no complaint had been made about his conduct with persons under 18 years of age following the offence. Nor have any complaints of a sexual nature been made about him involving adults.

40 The Respondent made enquiries of FD’s current and former employers, the police and the Department of Community Services. No information adverse to the Applicant, bar the index offence has been revealed through these enquiries.

Findings and Conclusions

41 The key issue to be determined is whether the Applicant poses a real and material risk to children and, if so, whether that risk can be reduced to one of no material significance by the imposition of appropriate conditions.

42 The Applicant contends that his history following the offence indicates that the offence was a one off and does that does not indicate a propensity to act in an inappropriate way towards children. He disagrees with Professor Greenberg’s diagnosis. The respondent’s case is based on the 1982 conviction for an indecent assault on a 13 year-old girl and on Professor Greenberg’s report.

43 Professor Greenberg’s conclusions that the Applicant suffers from a hebophilia disorder are critical to the outcome of the case. If his opinions are accepted in their entirety, it must be concluded that the Applicant poses a low but material risk to children.

44 I must state immediately, however, that it appears to me that there are appreciable difficulties in following that course. Expert evidence must be treated with some circumspection. In HG v R (1999) 197 CLR 414 at 428-9 Gleeson CJ trenchantly attacked an expert report offered in a criminal case and emphasised the requirements in relation to admissibility of expert evidence. He said (at 429):

This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined …to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture “opinions” (sometimes merely their own inference of fact) outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.

45 There are a number of problems which are presented by psychiatric and psychological evidence for tribunals of fact. In a broad sense, three main areas of difficulty have been identified:

· Problems of unreliability of diagnoses;

· Distortion of the patient-analyst role;

· A tendency among mental health professionals towards findings of mental illness. (Freckleton, I The Trial of the Expert p175ff )

46 Diagnoses in relation to mental health issues are inherently problematic. Dr John Ellard has said:

Let us have and use diagnoses, but let us remember what they are and what they are not. They are not stations on the way to some ultimate reality; they are this year’s shorthand for this year’s hypotheses about the nature of things that interest us. The only thing certain about them is that they will be found wanting and will change as the years change (“New White Elephants for Old Sacred Cows: Some Notes on Diagnosis” (1992) 26/4 ANZ J Psychiatry 548 quoted in Shea, P Psychiatry in Court 2nd edn, Federation Press, Sydney, 1993 p8)

47 Diagnoses are generally shorthand labels or ways of conveying complex information about individuals and their disorders or mental states. They only work properly if both the giver and receiver of the information being conveyed understand with precision what the label means, otherwise they may be misleading.

48 If a person is examined only once or a small number of times for the purposes of litigation it is very difficult for an accurate assessment of that patient to be made.

49 The normal patient-healer relationship is distorted by a forensic environment. Dr Ian Freckleton, whose legal speciality is expert evidence, has remarked:

…the peculiar factor often involved is that there is no confidentiality between professional and client. This must necessarily inhibit the formation of the normally fiduciary relationship and the degree of trust that the patient can have in the mental health worker. In such circumstances the psychiatrist-psychologist is placed in a position in which he or she cannot fill the usual role played by the health professional. The relationship is one in which the client-patient has something specific to gain by impressing the clinician in a certain way and the psychologist or psychiatrist is in a more powerful, imbalanced role in the relationship than is normal. The role of the professional changes to one of quick analysis and labelling rather than the customary one of assistance and caring. All of these factors have the potential to distort and even invalidate the findings by forensic mental health professionals. (Freckleton, I The Trial of the Expert p 197)

50 Dr Freckleton has also noted a tendency on the part of mental health professionals towards findings of abnormality when being called as witnesses for a person in whose interest it may be for such a finding to be made. (Freckleton, I The Trial of the Expert p 198). Where mental health professionals give evidence, there can be a tendency on the parts of the witnesses themselves, subconsciously or consciously, to descend to the role of advocate for the client-patient. Alternatively, if that it not so, lawyers may still seek to manipulate the result of the case by calling only witnesses whose conclusions reflect the desired result.

51 One observer of this phenomenon wrote:

Unfortunately but inevitably the psychiatrist, far more than any other medical expert, is drawn into the fray. He is drawn into the arena of battle between the litigants. There has been a tendency for psychiatrists engaged in civil litigation work to be used by solicitors in what I regard as at least an unfortunate if not unprofessional way. It has resulted in a significantly higher proportion of such psychiatrists … being branded as belonging to one camp or the other – they are either for the plaintiffs or the defendants … A psychiatrist so branded becomes part of ‘the team’… psychiatrists are seen as ‘wearing the guernsey’ for the party who is paying them. As a result their objectivity and professional integrity is subjected to considerable attack. (Stanley, R “The Psychiatrist as Expert Witness: A Legal Perspective” (1989) 9 Australasian Forensic Psychiatry p4 quoted in Shea op. cit p92-3)

52 There is no ironclad way of testing the reliability of expert psychological or psychiatric evidence and I certainly do not wish to be construed as implying that Professor Greenberg is a “gun for hire” or has a professional bias (conscious or unconscious) towards the respondent’s view. The above general remarks are simply made to outline some of the complexities of the fact-finding exercise for a tribunal involved in a matter such as this. The role of an expert witness is not to make a fact-finding decision for a tribunal of fact but to assist the tribunal in understanding evidence or factual material which is more complex than a layperson can ordinarily understand without the expert’s specialist knowledge and experience being brought to bear. If in a case such as this the inherent difficulties of psychiatric diagnosis then combine with the tendency against which Gleeson CJ warned in HG, a tribunal of fact has real evidentiary problems on its hands. There can be a real danger of an expert effectively usurping the tribunal’s role, or to put it another way, of a tribunal ceding its fact-finding role to the expert.

53 Justice Dyson Heydon, in a paper to the Judicial Commission ((2001) 5 Judicial Review 123), outlined seven steps or requirements for assessing the admissibility of expert evidence under the Evidence Act 1995. Although this tribunal is not bound by the rules of evidence, there is, nonetheless, just as much need to control the manner in which expert evidence is given and used in this jurisdiction as in courts. Paraphrasing his test, the following questions must be answered affirmatively before the expert evidence is admissible:

· Is there a field of specialised knowledge, and has the witness identified it?

· Does the witness have expertise in some aspect of that field, and has s/he identified that expertise?

· Is the opinion proffered substantially based on the witness’s expertise, and has the witness identified the basis of his/her opinion?

· Have any factual assumptions underlying the witness’s opinion been clearly identified and articulated?

· Have any factual observations made by the witness underlying the opinion been clearly identified and articulated, and are they sufficiently detailed to form a satisfactory basis for the opinion proffered?

· Does the witness rely on a combination of observation and assumption, and have the differences been clearly delineated?

· Has the expert satisfactorily explained how his/her expertise applies to the facts assumed or observed so as to produce the opinion propounded?

54 One of the main reasons Professor Greenberg concluded that the Applicant suffers from hebophilia is that he holds the opinion that a man of 26 would not normally be sexually aroused by a 13 year-old. In evidence he said, “…it is not normal for an adult male to be sexually attracted to a 13 year-old. And I use the word ‘normal’ in a very wide sense.” This appeared to be an opinion which formed the foundation to Professor Greenberg’s diagnosis of hebophilia in the Applicant’s case. It is not clear on what evidence or objective scientific basis he advances this opinion. While it appears from the scientific literature that there is such a condition as hebophilia, it does not appear to me to be a diagnosis that is necessarily easy to make where the offender concerned is a relatively young adult. Common knowledge and experience of the world tell us that there is often a sexual attraction between people of widely differing ages. The point is not that there is a wide gap in ages, but that, if a person is a hebophile, he or she is attracted to pubertal teenagers and remains so throughout the rest of life until sexual drive burns out.

55 It would not be clear for some years whether or not a heterosexual young man suffered from hebophilia. In his teenage years it seems likely that it would be abnormal for him to hold a preference for anyone but a teenage girl and often a younger one at that. It seems to be generally the case that people prefer sexual partners of roughly their own age or certainly generation, but a significant disparity in ages is not unusual. Professor Greenberg himself gave evidence that while hebophilic orientation arises in teenage years “most offenders… get caught in their 30s” and said that the average age of hebophiles was in the mid-30s. If a person of that age has some sort of sexual relations or sexual fantasy concerning young teenagers, I think that it would, obviously, be reasonable to make the diagnosis of hebophilia, but the issue is not so clear in relation to person in his or her early- or mid-twenties. At the age of 13 some girls may appear to be more mature physically and psychologically than they actually are. A man of 26 may be emotionally and psychologically immature in a way he will not be five, ten or twenty years later. The tribunal does not need expert evidence to tell us this.

56 Unfortunately Professor Greenberg was not asked during his evidence to explain the basis for his view that it is abnormal for a 26 year-old man to find a pubertal 13 year-old girl sexually attractive. While I accept that Professor Greenberg has considered other possibilities than the diagnosis he arrived at, a close consideration of his evidence elucidates no foundation for that critical opinion. Absent some foundation this may be one of the sorts of opinions that Gleeson CJ was so concerned in HG to exclude from evidence.

57 If there is some sort of scientific basis for the opinion, such as research literature, I have not been referred to it. Even if there is some such research, commonsense suggests a potential flaw in the argument. A person’s hebophilic tendency or orientation can only come to light either from his or her conduct or admissions. Societal taboos and criminal sanctions discourage both the thought and the deed and are designed to deter such conduct. It is at least theoretically possible that most or a large proportion of heterosexual males find pubertal teenage girls sexually attractive but because of the taboos never act on their thoughts.

58 There cannot be any real doubt, on the evidence, that FD found the 13 year-old victim of his assault sexually attractive, despite the fact that he prevaricated about admitting that. The fact that he failed to admit it or only grudgingly admitted cannot, in my opinion, be used to prove that he is a hebophile because most adult men would be reluctant, due to social taboos, to admit such an attraction. The question here is really whether or not it is abnormal for a 26 year-old man to find a pubertal girl sexually attractive. Unless it is proven that it is abnormal then there cannot be a scientific basis for suggesting a disorder because a disorder, by definition, is an abnormality. The fact that there is a strong societal taboo against such sexual relations seems to suggest that it is all too normal for such attractions to be felt (even if subsequently repressed). In my opinion, Professor Greenberg’s evidence does not satisfactorily identify and articulate the basis for his assumption that it is abnormal for a 26 year-old heterosexual man to feel sexually attracted to a pubertal 13 year-old girl. If it cannot be said that it is abnormal for there to be such attraction, then it cannot be said that FD suffers from a permanent abnormality or personality disorder of the kind diagnosed by Professor Greenberg.

59 Professor Greenberg gave evidence that he had not been able, despite careful consideration, to formulate any other diagnosis than that of a hebophilic disorder. He does not appear to have considered the possibility that a normal 26 year-old heterosexual male may find a pubertal 13 year-old sexually attractive. Without an explanation from him as to why he did not it appears to me that the diagnosis must be tentative at best. I can understand from his evidence why Professor Greenberg has suspicions concerning FD but it does not appear to me that they are based on solid evidence. Without that explanation, to accept the evidence of Professor Greenberg on this point would be to fall into the trap of surrendering to him the factual determination.

60 Professor Greenberg proffered the opinion that the Applicant’s decision to ensure that he always had a female adult present when coaching children may indicate that he was conscious of an attraction to young girls and was pre-empting any temptation. On the other, that conduct is equally consistent with the Applicant seeking to protect himself from any accusations of misbehaviour with children. Either way, it would appear that the deterrent effect of his previous experience has had a powerful effect on him as, of course, was the justice system’s intention.

61 Finally, Professor Greenberg suggests that the research shows that a person diagnosed as suffering from a hebophilic disorder may re-offend years after the previous incident if provided with an opportunity and therefore concludes that there is a low but material risk of the Applicant re-offending. That conclusion is based, in my opinion, on an uncertain and questionable diagnosis. In any event, the weight of evidence seems to suggest that the Applicant either does not suffer from the disorder or has it under such control that there is little material risk of his re-offending in the way he did.

62 I am satisfied that the Applicant does not pose a real and material risk to children for the following reasons: first, while it is conceded that the offence is a serious one, it is towards the lower end of the scale of sexual offences. Second, it was a once-only offence. There is no evidence of repetition of this type of conduct. Third, the offence was committed over twenty years ago and there have been no further offences committed, sexual, child-related or otherwise, by the Applicant since that time, apart from the recent offence of make false statement. This most recent offence does not indicate a propensity to sexually reoffend. Fourth the offence was committed when the Applicant was a relatively young man. Fifth, while not determinate, the Applicant has been in a long-term adult relationship. Fifth, he demonstrates insight and remorse into the offence.

63 I therefore conclude that the application ought be granted.

Orders

The Child Protection (Prohibited Employment) Act 1998 does not apply to FD in respect to the offence of “indecent assault of female under 16 years” for which he was convicted on 18 August 1982.