FO v Commission for Children and Young People

[2003] NSWADT 271

CITATION:	FO v Commission for Children and Young People [2003] NSWADT 271
DIVISION:	Community Services Division
PARTIES:	APPLICANT FO RESPONDENT Commission for Children and Young People
FILE NUMBER:	034017
HEARING DATES:	25/06/03, 27/08/03
SUBMISSIONS CLOSED:	08/27/2003
DATE OF DECISION:	12/18/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
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
REPRESENTATION:	APPLICANT In person RESPONDENT M Higgins, barrister
ORDERS:	Application is dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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 enrol in a course of nursing. The Respondent opposes the 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, “FO”. 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 Child Protection 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 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 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 “risk” in the context of s 9(4) meant “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 1987, the Applicant was convicted of charges of “indecent assault” and “assault and rob whilst armed” and “robbery with an offensive weapon”. At the time he was 18 years of age and the victim of the indecent assault 17 years of age. That offence occurred 16 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 the victim was working alone at in a restaurant when the Applicant confronted her with a knife and ordered that she put all the money from the till into a bag, which she did. He then forced her into a back room kissing her on the lips and fondling her breasts and vagina. That conduct was repeated. The victim was terrified and crying.

13 In a statement to police the Applicant agreed that he had threatened to kill the girl, and after ransacking the restaurant returned with a vibrator and asked for “a fuck or a head job.” In cross-examination in these proceedings the Applicant said he found the vibrator in the kitchen of the restaurant and used it to tease the girl and “stir her up”.

14 In his application to the Tribunal the Applicant stated, “ the charge being mentioned [the index offence] was not my doing”. On the first day of hearing the Applicant testified that he had been involved with the robbery but not the indecent assault. On the second day of hearing he insisted there was a co-offender who he had spoken to sometime after the offence. He testified that he had no recollection of the assault.

15 The respective statements given to police by the victim and Applicant shortly after the offences were committed make no reference to any other person having being involved in either the robbery or the indecent assault.

Applicant’s Age (s 9(5)(d1))

16 The Applicant is now 33 years of age.

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

17 The Applicant has a lengthy history of crimes of violence and dishonesty dating back to 1986 when he was a young person. The index offence was committed in the course of an armed robbery in which a victim was assaulted. He received a gaol terms for these offences. Two years later he was again convicted of armed robbery and other serious offences including Break, Enter and Steal and Larceny of a Motor Vehicle and again was imprisoned. During the 1990s he was convicted four times of assault or assault occasioning actual bodily harm and twice of crimes of dishonesty.

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

Psychological Evidence

18 The Applicant was interviewed and assessed by psychiatrist, Dr Christopher Lennings, at the request of the Respondent. A report prepared by Dr Lennings, dated 7 August 2003, was tendered in these proceedings.

19 The Applicant disclosed to Dr Lennings that he had been sexually abused by his stepfather from age seven and left home at fourteen, to live with relatives following a particularly vicious physical assault by his stepfather.

20 Dr Lennings records that the Applicant describes his current relationship with his partner as good although he reported some difficulties.

21 The Applicant told Dr Lennings that he could not recall the index offence due to his drug-affected state at the time but could remember going to a restaurant to rob it and making sexual passes at a girl: kissing and breast touching.

22 Dr Lennings was of the view that the Applicant’s past behaviour suggested an anti-social personality disorder which probably continues, although Dr Lennings considers he may well have learned to temper the worst aspects of this condition. According to Dr Lennings, while the Applicant’s self-reports indicated he had matured, he concluded from psychometric assessment and review of relevant documents, that he continues to display “high levels of defensiveness, denial … in order to achieve a desired impression”.

23 Dr Lennings assessed the Applicant using STATIC-99, an actuarial test used to predict recidivism rates among sex offenders. STATIC-99 identified that the Applicant fell within the medium-high risk group. That risk rating, cautions Dr Lennings, needs to be interpreted in light of the Applicant’s apparent changes in personality function. Structured clinical assessment according to Dr Lennings, places the Applicant at medium risk of re-offending

24 In addition, Dr Lennings considers that the potential for instability in the Applicant’s relationship, his high level of libido and characteristic defensiveness suggests that potential risk remains.

25 Taking account of all these tests, Dr Lennings believes there is a medium risk that the Applicant may reoffend. Dr Lennings did not suggest any ways that the Applicant’s risk could be reduced through the imposition of conditions, as he concludes on the basis of research, that people with anti-social personality disorders are difficult to supervise and unlikely to comply with counselling or requests for monitoring.

Applicant’s conduct since index offence

26 The Applicant told the Tribunal he now lives with his girlfriend and their one child. They have, he asserts, a strong and committed relationship.

27 The Applicant claims that for the past two years he has worked as a nurse’s assistant in the aged care sector and is highly regarded by his employer and co-workers alike. He claims his employer is highly supportive of his application before the Tribunal. He asserts that he is a reformed character and his colourful past is now behind him.

28 The Applicant testified that he has never treated a child in an improper way and says he abhors child sexual abuse to which he had been subjected by his stepfather. He states in his application “I have never abused anybody regardless of age or sex”.

29 In cross-examination the Applicant conceded that about 18 months ago he was involved in an incident where he “stole” a kiss and hug from a colleague who was then aged 17 years of age. He said she had not asked to be kissed but nor did she show any resistance. He said he later apologised to her for the conduct, as it was the wrong thing to do in a work environment.

30 In a job application tendered by the Respondent in these proceedings, the Applicant claimed he obtained the HSC from Campbelltown School of Performing Arts and had a diploma and bachelor of Physical Education from Wollongong University. On the second day of proceedings the Applicant conceded that that claim was not entirely correct: he had obtained the HSC while in gaol “ through the Education Department” and had started, but not completed, tertiary studies. He said he embellished his educational qualification, as employers were reluctant to employ “ex crims”. On the final day of hearing, the Applicant revised his evidence and said that he had applied for, but not started, the course at Wollongong University and had only completed units in English and Maths for the HSC. The NSW Board of Studies and Wollongong University have no records of the Applicant.

31 The Applicant gave evidence that he had played grade football for the Western Suburbs Rugby Club and taught swimming at Bradbury pool operated by Campbelltown Council. In answer to a summons served by the Respondent both organisations state they have no records of the Applicant.

32 The Applicant did not offer any satisfactory explanation for the apparent inconsistency between his evidence and the records of these four organizations.

33 Tendered in these proceedings was a character reference provided by the principal of a primary school where the Applicant had been employed in 1996, to coordinate sporting activities. The principal observed that the Applicant had good rapport with students, was respected by staff and students alike and demonstrated great initiative and enthusiasm for his work.

Findings and Conclusions

34 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. He bears the onus of demonstrating that he poses no material risk to children.

35 The Applicant contends that he is now a reformed character as his stable work record as a nurses’ assistant and loving relationship with his family establish. He says that while he is ashamed of his criminal history it does not of itself indicate a propensity to act in an inappropriate way towards children. He asserts that he is and always has been repulsed by the abuse of children.

36 Four aspects of the case, apart from the index offence itself, are troubling to the Tribunal. First, the Applicant was proven during the evidence to have told a number of lies concerning various aspects of his past life. It may well be that these lies and misrepresentations were made to place a patina of worthiness and credit over his chequered and colourful past to obtain employment and also perhaps to enable him to gain a degree of respectability which he knew his criminal record would deny him if it were known in the community. A desire to start afresh after the beginning the Applicant made to his adult life can well be understood. Nevertheless, to have been demonstrated to be a liar and a dissembler did nothing for the credibility of his evidence in these proceedings. It is possible of course that the Applicant has lied about peripheral matters but not about the claim, of critical importance to his case, that he is now a reformed character. From the material before me I could not however confidently accept any evidence given by the Applicant not independently corroborated. It is to be noted that the sole evidence to support the Applicant’s claim of rehabilitation is the written employment reference provided in 1996.

37 Secondly, given the inconsistent and unreliable evidence given by the Applicant about his life following the index offence, I cannot be comfortably satisfied that the Respondent has been able to make all necessary enquiries of the Applicant’s former employers and relevant agencies. Such information is highly relevant to any assessment of risk especially in circumstances such as this where there is little material to corroborate the Applicant’s claims.

38 Thirdly, I am troubled by the consistency of the Applicant’s history of violence and dishonesty. Commonsense suggests that persons with the sort of record the Applicant has accrued over the years tend to have less regard for others and the law than those who do not demonstrate such behaviours. In short, to a greater or lesser extent, depending on their personalities and their opportunities, they constitute a material risk of harm to others.

39 Fourthly, the evidence of Dr Lennings is compelling. In three different ways, Dr Lennings formed the view that the tests he performed suggested that the Applicant posed a “medium level of risk” to children. The STATIC-99 test placed the Applicant in the medium-high risk of re-offending. This was based on his prior history and “dynamic risk factors”. The dynamic risk factors include high libido and what Dr Lennings characterised as “some risky sex practices”. They also include a significant and long-term history of sexual abuse upon him, his own criminal behaviours and a history of oppositional and confrontational conduct. Dr Lennings’ structured clinical assessment indicated that the Applicant constitutes a moderate or medium-level risk of harm to children. The final indicator relied upon by Dr Lennings was his assessment that the Applicant probably suffers from an Anti-Social Personality Disorder, although he has learned to moderate the worst aspects of this disorder.

40 In my opinion, the weight of evidence supports Dr Lennings’s conclusions. Nothing in the Applicant’s case suggests that his conclusions may be incorrect or exaggerated. On the contrary, I think that they are balanced and fair. They do not suggest that the Applicant is a greater risk than he actually may be, nor do they predict that he will re-offend. Nor are the conclusions based on one test or one methodology. On the contrary, the STATIC-99 indicative test was subjected by Dr Lennings to further analysis by a different methodology. It appears to me that Dr Lennings’ approach has been as scientifically rigorous as it has been possible to be in the circumstances. Where he has been unsure what the evidence indicates his opinions have been suitably guarded and qualified.

41 Dr Lennings’ final comments in the report are particularly apposite. He said:

“It is conventional in risk assessments to not only consider the inherent risk a person may have (as a function of past behaviour or personality) but also the transaction of that risk with opportunity. In situations of low opportunity, even high-risk people may have little real risk. In the current situation, [the applicant] is applying for a position as a nurse. Such a role will bring him into contact at times with people who have little external supervision and potentially high vulnerability. Hence, the medium risk rating needs to be considered in light of the possible opportunity to offend.”
42 It is unfortunate and perhaps paradoxical that the Applicant, a man who was himself abused as a child, finds himself now caught by legislation designed to protect children from abuse. That said, the Applicant’s index offence was a serious and troublingly callous one. Nothing can diminish that. The more serious the offence, the more difficult it may be for an Applicant to prove on balance that he or she poses no risk to children but that is now one of the legal consequences of committing such crimes. It is a heavy burden. Parliament has decided to place the protection of children above the individual concerns of sex offenders. In this case, it may be that the Applicant now in fact poses little or no threat to children but, if so, he has not, in my opinion, discharged his burden of proof. The application must therefore fail.

Orders

Application is dismissed.