G v Commission for Children and Young People (No 3)

[2002] NSWADT 73

CITATION:	G (No 3) -v- Commission for Children and Young People [2002] NSWADT 73
DIVISION:	Community Services Division
PARTIES:	APPLICANT G RESPONDENT Commission for Children and Young People
FILE NUMBER:	004016
HEARING DATES:	19/11/2001
SUBMISSIONS CLOSED:	11/19/2001
DATE OF DECISION:	05/08/2002
BEFORE:	Hennessy N (Deputy President); Gelin B - Member; Norman C - 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 Child Welfare Act 1989 Evidence Act 1995
CASES CITED:	Commissioner for Children and Young People v G & Anor [2001] NSWSC 534 Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 Hope v. Bathurst City Council (1980) 144 CLR 1
REPRESENTATION:	APPLICANT M Thangaraj, barrister RESPONDENT M Adofaci, advocate
ORDERS:	Application dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) …
(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.

Introduction
1 On 23 November 2000 Mr G applied to the Tribunal for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP (PE) Act) should not apply to him in relation to offences of indecent assault for which he was convicted in August 1986. Without such a declaration, Mr G may be committing an offence if he coached children in athletics or participated in any other “child related employment” as defined by the CP (PE) Act.

2 We refer to the applicant as “Mr G” in this decision. In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person to whom any proceedings before the Tribunal relate. (Administrative Decisions Tribunal Act 1997 (ADT Act) s 126(1).) Although s 126(2) of the ADT Act contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant’s name and to remove any other information which could lead to his identification. The official copy of the orders provided to the parties will include the name of the applicant.

3 The Commission for Children and Young People (the Commission) is a party to these proceedings pursuant to s 9(7) of the CP (PE) Act.

History of these proceedings
4 On 23 November 2000, Mr G applied for a stay of any prohibition under the CP (PE) Act, pending final determination of his application by the Tribunal. On 1 December 2000 the Tribunal granted a stay subject to certain conditions including conditions relating to the supervision of Mr G while he is coaching children athletics.

5 On 22 December 2000 the Commissioner applied for a revocation of the stay order in the light of further evidence. The Tribunal dismissed the application to revoke the stay order. On 21 June 2001 the Supreme Court upheld an appeal by the Commissioner against the granting of the stay on grounds relating to procedural fairness. (Commissioner for Children and Young People v G & Anor [2001] NSWSC 534.) Since that decision, Mr G has been prohibited from engaging in any “child related employment”.

Legislative framework
6 Offence. Subject to certain defences and transitional provisions, s 6(1) of the CP (PE) Act makes it an offence for a “prohibited person” to apply for, undertake or remain in “child-related employment”.

7 Definitions. A “prohibited person” is defined in s 5 of the CP (PE) Act to mean a person “convicted of a serious sex offence, whether before or after the commencement of this subsection.” “Serious sex offence” is defined in s 5(3), s 5(4) and s 5(5) of the CP (PE) Act. There is no dispute in this case either that the offences of indecent assault for which Mr G was convicted in August 1986 are “serious sex offences” or that Mr G is a “prohibited person”.

8 Declarations. By virtue of s 5(2) of the CP (PE) Act, a person is not a prohibited person in respect of an offence if the Tribunal makes an order under s 9(1), that the CP (PE) Act is not to apply to the person in respect of the offence. So far as is relevant to these proceedings, s 9 states that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
(2) . . .
(3) . . .
(4) A relevant 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.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(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,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.
(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.
(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.
(9) Orders under this section may be made subject to conditions.
9 Onus and standard of proof. The onus is on Mr G to establish, on the balance of probabilities, that the Tribunal should grant a declaration in relation to the offences for which he has been convicted. In their written submissions, the Commission stated that the Tribunal must determine, on the balance of probabilities, whether or not it is satisfied that the applicant poses a risk to the safety of children. The Tribunal agrees that the civil standard of proof is applicable but given the gravity of a finding that a person poses a risk to the safety of children, the Briginshaw standard applies. ( Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.)

Issues
10 On the basis of the legislative framework set out above, the issue which the Tribunal must address in determining whether to make a declaration is whether the Tribunal is comfortably satisfied that the applicant does not pose a risk to the safety of children. If he does not, the Tribunal must then determine whether to exercise its discretion to grant a declaration.

Evidence
11 The offences. Mr G was a primary school teacher in several different schools from 1962 until 1986 when he resigned. The offences for which he was convicted were committed when he was Assistant Principal at a primary school which we refer to in these reasons as W school.

12 On 25 November 1986, when he was 44 years old, Mr G pleaded guilty to, and was convicted of, eight charges of sexual assault involving four female students, two aged eight and two aged eleven. The offences occurred at W school over an 18 month period. Mr G accepts the version of events as outlined in the girls’ statements and the findings of Ducker J on sentencing.

13 When sentencing Mr G, Ducker J found that he had touched the girls’ outer genitalia inside their clothing. There was no attempt to penetrate any part of the girls’ bodies. Ducker J concluded that the offences were towards the bottom end of the scale of seriousness of sexual offences. Ducker J noted that Mr G was, prior to the commission of these offences, a person of outstandingly good character and very active in sport in both junior and senior organisations, in particular in soccer and athletics. However, as the Assistant Principal of the school, he took advantage of his position of authority and trust for his own sexual gratification. Mr G was sentenced to an aggregate period of imprisonment of five years, with a non-parole period of two years. He was released after approximately 14 months.

14 Treatment. While he was in goal Mr G attended weekly counselling sessions with Dr D Bergin, a senior psychologist with the Department of Corrective Services. Dr Bergin stated in a report of 27 November 1987, that Mr G “has been in regular contact with me right throughout his incarceration . . . He is aware of the problems that may arise on release, mainly in his coaching activities with sporting groups and has made alternate plans to minimise possible effects of these.”

15 It was a condition of Mr G’s parole order that he undergo psycho-sexual counselling and not undertake any athletics coaching of juveniles. Mr G’s probation and parole officer referred him to Dr Darcy for counselling. Although Mr G gave evidence that he did not attend any counselling after being released from goal, it is apparent from the file that Mr G did attend counselling with Dr Darcy. Mr G’s probation and parole officer wrote a comment in her notes on 1 May 1988 that “Dr Darcy perceived (Mr G) as being very close lipped won’t open up neurotic type personality. He said it would take (Mr G) a long time to recognise his problems then deal with them. He said he may already realise but continually suppresses them therefore he’s not moving onto the next phase which is action.” A note on 24 May 1989 records that Mr G “is no longer seeing Dr Darcy and has not had contact with any psychological services.”

16 The Commission submitted that the applicant’s poor response to counselling is such that the Tribunal could not be satisfied that he does not pose a risk to the safety of children.

17 Motivation. Mr G said that the note recording Dr Darcy’s views does not represent what Dr Darcy told him. Mr G had the impression that he co-operated with the counselling and that he completed the counselling satisfactorily. However he agrees that he does not know why he committed the offences and that counselling did not assist him to identify his motivation. On questioning, Mr G agreed that he must have committed the offences because he was sexually attracted to young girls. He attended relaxation therapy because he thought stress may have had something to do with his problem.

18 Other allegations against Mr G. The material before the Tribunal includes allegations of other sexual offences against children. Mr G agreed that similar allegations had been made against him in 1972, but said he was never given details of the allegations. A newspaper report dated 23 December 1986 states that Department of Education investigators had found that there was no case to answer in relation to allegations of indecent assault against Mr G in 1972. The Commission was unable to obtain any material from the Department of Education in relation to the 1972 allegations.

19 There is a further allegation on the file by a parent who states that her daughter complained that when she was on camp in 1984, Mr G walked in on a group of young girls while they were dressing. Another female student complained that, at the same camp, she and another girl were in the swimming pool when Mr G came towards them with an erection. The same child complained of Mr G entering the girls’ lodges when they were getting dressed. Department of Education officials raised these allegations in 1984 in an interview with Mr G. Mr G said that he can not recall whether he had discussions with Departmental officers at that time.

20 The file also contains an allegation from a Year 6 student at the W school who complained that Mr G pulled her onto his lap and grabbed her in the groin area. The same child also complained of another incident during tennis lessons when Mr G pulled her against him and held her in the groin area. These incidents are alleged to have occurred in August 1985.

21 The Department of Education transferred Mr G to another school early in 1986. Two female students at the new school alleged that Mr G had cuddled them and put his hand “down below” and “near my vagina” respectively. Mr G denied these allegations but resigned from the Department on 25 June 1986 purportedly to avoid embarrassment to the Department, the school, the parents and the children concerned.

22 Mr G accepts that these allegations were made, but adds that he was never charged with any of these matters. Ms Adofaci representing the Commission, made it clear that she was not pressing us to make findings that the alleged conduct had occurred, just that there were several similar allegations which were relevant to any assessment of risk.

23 Connection between offences and sporting activities. Ms Adofaci submitted that Mr G was sexually attracted to young girls especially in the context of a sporting activity. Some of the offences occurred after sporting activities had taken place. For example, canoeing at Myuna Bay, at the swimming pool, the long jump pit and in the sports store room. Mr G denied that he was sexually aroused by young females engaging in sporting activities. Mr G admitted that it was a condition of his parole order that he not undertake any athletics coaching of juveniles and that he repeatedly lobbied the relevant authorities to lift that condition.

24 The Commission submitted that Mr G’s unwillingness to accept the condition imposed on him and his repeated requests to be permitted to coach children, indicates that he poses a risk to the safety of children.

25 Concerns about Mr G officiating at events. Concerns about Mr G officiating at children’s athletic events were expressed in a phone call to a probation and parole officer in December 1988. In that phone call an official from another athletics club stated that parents in her club were concerned that Mr G appeared to be becoming increasingly involved with children as an official in inter-club events.

26 While Mr G accepts that concerns were expressed at that time, he says that he currently has the support of the majority of people in the community. He added that in the 33 years that he has been coaching children athletics, there has never been a complaint about his behaviour in that context.

27 Character references. Mr G provided references from a male who was coached by Mr G when he was a child and whose son has been coached by Mr G. He said that “I have found (Mr G’s) behaviour to be both professional and appropriate.” A reference from an ex-policeman who has known Mr G for seven years, states, in part, that “I have always observed (Mr G) when he is in the company of children and have not observed any indiscretions on his behalf.” A reference from another office bearer in the Club states that: “I have worked with him on many occasions in the capacity of coach, team manager and athletics administrator and official. During this time he has always acted in a most appropriate manner towards all with whom he has come into contact.”

Expert evidence
28 Qualifications. Two experts, Professor McConaghy and Dr Lennings, each provided a report and gave evidence to the Tribunal. Professor McConaghy, who prepared a report at the request of Mr G, is a practicing psychiatrist and a visiting Professor within the School of Psychiatry at the University of New South Wales. Dr Lennings, who prepared a report at the request of the Commission, is a clinical psychologist with a Masters degree in Clinical Psychology and a Ph.D in research on personality.

29 Summary of Professor McConaghy’s assessment. Professor McConaghy’s assessment, based on the research of Hanson and Bussiere, summarised below, was that Mr G has a low risk of recidivism. In fact, he has no higher risk than an average person in the population of his age of committing a sexual offence. Professor McConaghy formed the view that even if Mr G is not supervised, there is a low risk to children because of the nature of the offences, Mr G’s age and because he has not re-offended for over 15 years. Professor McConaghy acknowledged that “one can never say that someone who has committed a sexual offence will not commit one again.” But he considered it an adequate safeguard that one parent is always present when Mr G is directly in contact with children. If any contact with children was supervised there would be no risk whatsoever of Mr G re-offending. In relation to having a safeguard of a parent supervising, Professor McConaghy would advise all male coaches of children to be supervised.

30 Summary of Dr Lennings’ assessment. Dr Lennings concluded that both actuarial risk assessment and clinical assessments suggest that Mr G has a medium to high risk of re-offending. Dr Lennings also tested Mr G in relation to alcohol abuse, cognitive ability and personality. As part of the assessment he considered risk categories developed by the British Columbia Institute Against Family Violence (D Boer, S Hart, P. Kropp & C Webster (1997) Manual for the Sexual Violence Risk-20 (SVR-20): professional guidelines for assessing risk of sexual violence British Columbia Institute Against Family Violence: Vancouver.) This research divides risk into three broad areas: psychosocial adjustment, sexual offences and future plans.

31 Methods of assessing risk. There is some debate in the literature as to the most reliable methods of predicting whether a person convicted of a sex offence will re-offend. Professor McConaghy said that the most reliable assessment tools are objective measures such as those specified in Static-99. Professor McConaghy says his report is based on objective factors, not on clinical assessment of risk. In his opinion, clinical assessment is a very poor way of predicting recidivism. Dr Lennings applied structured clinical assessments as well as actuarial risk assessment in coming to his conclusions.

32 Static 99. Static 99 was developed by R Karl Hanson and David Thornton in Canada, and is explained in an article entitled Static 99: Improving Actuarial Risk Assessments for Sex Offenders 1999-02. The article is available on the internet at Static 99 is designed to predict risk of re-offending at the time when an offender is discharged from goal. The risk is predicted by allocating points to various factors including: prior sex offences, any unrelated victims, any stranger victims, any male victims, age of offender and long term relationships. The total number of points attributable to a particular offender indicates whether he or she is a low, medium/low, medium/high or high risk. On the basis of their data, Hanson and Thornton produced graphs of the likely rate at which offenders falling into each of these categories would re-offend. For example, after 15 years approximately half of the offenders in the high risk category had re-offended. Hanson and Thornton make the important point at page 16 of the article cited above, that the low, medium and high risk labels do not reflect any absolute standard of risk. “An offender with a 10% chance of sexual recidivism over 15 years may be a good candidate for conditional release (ie low risk), but an unacceptable high risk for holding positions of trust over children.”

33 Hanson and Thornton acknowledge that Static 99 has some limitations. The authors note, at pages 14 and 15, that while “Static 99 is clearly more accurate than unstructured clinical judgement”, it “does not claim to be comprehensive.” It neglects whole categories of potentially relevant variables such as dynamic (as distinct from static) factors. The authors commented at p 15 that “The research on dynamic factors related to sexual offending is not well developed, but some plausible dynamic risk factors include intimacy deficits, (Saidman, Marshall, Hudson & Robertson, 1994), sexualisation of negative affect (Cortoni, 1998), attitudes tolerant of sexual assault (Hanson & Harris, 1998), emotional identification with children (Wilson, 1999), treatment failure and non-cooperation with supervision (Hanson & Harris, 1998).

34 Application of Static 99. Professor McConaghy calculated Mr G’s score on the Static 99 test to be 2. One point was allocated because the victims were female children unrelated to him and one point was allocated because Mr G has never lived with a lover for more than two years. Mr G reported two relationships, one when he was about 20 years old, which lasted a little over a year, and one in 1983 which lasted for about 3 months. Dr Lennings also attributed “a mild risk loading” to the fact that Mr G has not had any long term relationships and few sexual relationships. A score of 2 put Mr G in the medium/low risk category when he was discharged from goal 15 years ago. The tables at p 13 of the Hanson and Thornton article show that 16% of people with this score committed a further sexual offence within 15 years of being released from gaol.

35 Professor McConaghy says that Dr Lennings misapplied Static 99 because he counted eight convictions, instead of just counting any conviction prior to the most recent offences. Consequently, in his view, Dr Lennings assessment of Mr G as a high risk based on actuarial risk assessment is incorrect.

36 Hanson & Bussiere. The development of Static 99 was strongly influenced by R Karl Hanson’s and Monique T Bussiere’s research, particularly their article entitled “Predicting Relapse: A Meta-Analysis of Sexual Offender recidivism Studies” which appears in the Journal of Consulting and Clinical Psychology 1998, Vol 65, No 2, 348-362. That article reports on evidence from 61 follow-up studies to identify the factors most strongly related to recidivism among sexual offenders. The findings in regard to the variables which significantly predicted recidivism were:

· of the demographic variables, young age and single marital status;
· of lifestyle variables, anti-social personality and total number of prior offences;
· of sexual criminal history, previous criminal convictions, stranger victim (versus acquaintance), extra-familial victim, began offending at an early age, selected male victim, engaged in diverse sexual crimes;
· of clinical presentation variables, only failure to complete treatment. None of the others such as denial or clinical ratings of low treatment motivation were related to recidivism.
37 The authors noted, at p 351, that:
Failure to complete treatment was a moderate predictor of sexual offence recidivism (r+ = 17). None of the other clinical presentation variables, such as denial or clinical ratings of low treatment motivation, were related to recidivism, except in Maletzky (1993).
When explaining the significance of completing treatment, Hanson and Bussiere state, at p 358, that “Even if we cannot be sure that treatment will be effective, there is reliable evidence that those offenders who attend and co-operate with treatment programs are less likely to re-offend than those who reject intervention.”
38 Hanson and Bussiere went on to conclude, at p 357, that “A negative clinical presentation (eg low remorse, denial, low victim empathy) was unrelated to sexual recidivism and that the average clinical risk assessment showed little accuracy.” The authors noted at p 357 that their findings “contradict the popular view that sexual offenders inevitably re-offend. Only a minority of the total sample (13.4% of 23,393) were known to have committed a new sexual offence within the average 4 to 5 year follow up period examined in this study. This recidivism rate should be considered an underestimate because many offences remain undetected.”

39 As well as the factors which are taken into account in Static 99, Dr Lennings took into account other factors in coming to the conclusion that Mr G posed a medium/high risk of re-offending including evidence of psychological investment in children, lack of insight into the risk of direct contact with children, conflicts in his personality, treatment failure and denial/minimisation of his prior conduct.

40 Emotional identification with children. Dr Lennings noted that although Mr G denies any paedophiliac interest, he continues to seek proximity to children and enjoys the relationship of coach-student. Dr Lennings said that “His personality is not a ‘warm and nurturing one’ and his interests in children’s activities is, in my view, at least in part an unconscious expression of his lack of comfort in age appropriate relationships and his preference for involvement in relationships which allow him a measure of prestige and power.” According to Dr Lennings, because Mr G has an underlying interest and emotional identification with young children and no warm/intimate relationships with adults, he could re-offend if the opportunity presented itself.

41 Denial/Minimisation of behaviour. Dr Leanings placed significance on Mr G’s denial and minimisation of the conduct for which he was convicted. In his interview with Dr Lennings he continued to deny that he had touched the girls under their clothes or around their vaginal area, even though the girls’ evidence was clear and consistent on that point. According to Dr Lennings, Mr G “is trying to avoid thinking about the circumstances of the offences because of his sense of shame about them.”

42 Lack of insight into behaviour. According to Dr Lennings, in order to reduce the risk of re-offending Mr G needs to be aware of the circumstances that trigger his behaviour. “He is in complete denial of deviant sexual arousal. These factors are clinically important, even if they don’t predict re-offending in a statistical sense.” According to Dr Lennings, triggers which could undermine his self-control include poor impulse control, denial/minimisation and poor treatment.

43 Professor McConaghy acknowledged that Mr G has no insight into why he offended but said he would be more concerned if Mr G did profess to know why he committed the offences. Professor McConaghy cited the research of Hanson and Bussiere which shows that low motivation for further treatment and denial does not increase risk of re-offending. In Professor McConaghy’s opinion, a sexual offender is better off without therapy that tries to give him ‘insight’ into why he committed the offences because it has the potential to lower his self esteem and is not related to risk.

44 Professor McConaghy says that Mr G had a sexual attraction to children and took advantage of his position of trust. According to Professor McConaghy, people tend to repeat the same pattern of offending. It is compulsive behaviour driven by cues in particular situations.

45 Treatment failure. Dr Lennings concluded that denial and/or minimisation of previous conduct is an indication that treatment was unsuccessful in making Mr G understand the precise nature and implications of his behaviour. Dr Lennings attributed a high loading to this risk factor.

46 Professor McConaghy maintains that Dr Lenning’s conclusions on this point are not consistent with the research in this area. Hanson and Bussiere define completion of treatment programs as “those offenders who attend and co-operate with treatment programs.” Professor McConaghy states that Mr G completed treatment, certainly while he was in goal and as far as can be told, subsequently. Professor McConaghy conceded that Mr G does show some tendency to block out the details of his previous offences and to minimise them, but minimisation or denial was found (by Hanson & Bussiere) to be unrelated to recidivism.

47 High density sexual offences. Dr Lennings maintained that a pattern of sexual offending, at least during 1985 and 1986 means that a mild risk loading remains on this variable.

Reasons and decision
48 Supervision. During the hearing the possibility of imposing conditions in relation to supervision, in accordance with s 9(9), was discussed. In our view, conditions relating to supervision are not appropriate in relation to final, as distinct from stay orders. The legislation provides that a “prohibited person” will not be participating in “child related employment” (and therefore will not be committing an offence) if the contact with children is “directly supervised.” There would be no point making a declaration with a condition that contact with children be “directly supervised” because an offender would not need a declaration to engage in such employment. Because a stay is an interim measure, conditions in relation to supervision may be appropriate so that there is no doubt that the applicant is not committing an offence pending the determination of the matter.

49 Interpretation of the evidence. The Commissioner submitted that implicit in Professor McConaghy’s suggestion that one parent be present when Mr G has direct contact with children, is an acknowledgment that Mr G poses a risk to the safety of children. Although Professor McConaghy would recommend that any male coaching children do so under supervision, he was concerned enough about Mr G’s risk to make a specific recommendation in relation to supervision. While this is not an express acknowledgment that Mr G poses a risk, it is an indication of Professor McConaghy’s concern.

50 Relevant and irrelevant consideration when assessing risk. When assessing any risk Mr G may pose to the safety of children, it is important confine our consideration to risk factors that research has identified as being significant or that have been identified in the CP (PE) Act. Having read two relevant articles summarised above and heard the evidence of both experts, relevant risk factors can be divided into the following three categories: static factors as identified in Static-99, certain dynamic factors identified by the research and the factors listed in s 9(5) of the CP (PE) Act. In relation to Mr G, the relevant static factors are:

· any unrelated victims (in relation to prior or current offences);
· offenders age at time of assessment (if the assessment concerns the offender’s current risk level, this is his current age); and
· single (the offender is considered single if he has never lived with a lover, male or female, for at least two years).
51 The other factors mentioned in Static 99 do not apply to Mr G. In particular, the factor of “prior sex offences” is not relevant because that factor only applies to offences committed prior to the current offences under consideration - in this case the offences for which he was convicted in 1986. We accept Professor McConaghy’s opinion that Dr Lennings misapplied Static 99 in this respect.

52 Dynamic risk factors identified by the research as relevant to risk assessment are:

· emotional identification with children;
· treatment failure (defined as failure to attend and/or co-operate with treatment); and
· structured clinical assessment.
53 We have chosen not to rely on any of the risk factors mentioned by Dr Lennings as indicative of the risk of sexual violence. (D Boer, S Hart, P. Kropp & C Webster (1997) Manual for the Sexual Violence Risk-20 (SVR-20): professional guidelines for assessing risk of sexual violence; British Columbia Institute Against Family Violence: Vancouver). Dr Lennings did not clarify the relevance of this assessment tool in assessing non-violent offenders such as Mr G.

54 The factors identified in s 9(5) which the Tribunal must take into account in assessing risk, are:

· the seriousness of the offences;
· the age of the person at the time those offences were committed;
· the age of each victim of the offences at the time they were committed;
· the difference in age between the offender and the victim; and
· the seriousness of the offender’s overall criminal record.
55 The static, dynamic and legislative factors will be considered in turn.

56 Static factors. Mr G scored “2” on the Static-99 assessment. The tables at p 13 of the Hanson and Thornton article show that 16% of people with this score committed a further sexual offence within 15 years of being released from gaol. Once an offender commits a further offence, he is removed from the analysis of subsequent time periods. This is called “survival analysis” and, according to Hanson and Bussiere, has the advantage of being able to estimate year by year recidivism rates. The survival curves end when there are fewer than 15 offenders exposed to risk for a particular year. While there are no figures given for recidivism rates beyond 15 years, the graph on page 12 of the article flattens and then drops for the period between 15 and 24 years. The authors noted that while the rates up to 15 years are reasonably reliable, the rates after that time are less reliable presumably because as offenders commit further offences, die or lose contact, there are fewer offenders in the group. Taking all these matters into account, we are satisfied that Mr G’s score on Static 99 indicates that after 15 years during which no offences have been committed, there is still a statistical risk (indicated by the drop in the graph) that he will commit an offence in the future.

57 We do not accept Professor McConaghy’s assessment that based on Static 99 alone, Mr G is at no greater risk of re-offending than a person of his age who has never committed a sexual offence. Professor McConaghy did not provide the Tribunal with any evidence of the rate of sexual offending in the general population. Furthermore, there were no figures available in the Static 99 evaluation of the likelihood of re-offending after 15 years of not been convicted of an offence. Without either of these statistics we are not satisfied that Professor McConaghy’s conclusion is correct.

58 Emotional identification with children. Emotional identification with children was a factor identified by Hanson and Thornton at p 15 of their article as a plausible dynamic risk factor, although the research in this area is not well developed. The Commission submitted that by his persistent attempts after being released from goal to coach children, and by engaging in that activity as soon as he was permitted to do so, Mr G demonstrates an emotional identification with children. Dr Lennings noted that although Mr G denies any paedophiliac interest, he continues to seek proximity to children and enjoys the relationship of coach-student. Dr Lennings expressed the opinion that Mr G identifies emotionally with children. Professor McConaghy said that his life long history of teaching children indicates that Mr G does have a “special interest” in teaching children.

59 Mr G has been coaching children athletics for 33 years. The evidence is clear that Mr G was extremely keen to resume that activity on his release from goal and that he has a “special interest” in teaching children. Mr G explained his desire to coach children, rather than exclusively coaching adults, by saying that coaches generally start out coaching children and may continue to coach them into adulthood. There are few adults who would take up athletics if they had not been coached as children. Consequently there are not many adults seeking an athletics coach.

60 Unfortunately we do not have the benefit of access to the research quoted by Hanson and Thornton on this issue. (Wilson RJ, “Emotional congruence in sexual offenders against children. Sexual Abuse” (1999) A Journal of Research and Treatment 11, 33-47.) However, on the balance of probabilities, we are satisfied that Mr G’s eagerness to coach children and his enjoyment of that activity, together with the lack of sustained age-appropriate relationships in his life, means that he identifies emotionally with children.

61 Treatment failure. We accept Professor McConaghy’s view on the issue of treatment failure. The research shows that if offenders fail to attend or co-operate with treatment, that can be a risk factor. The evidence demonstrates that Mr G did attend and co-operate with the treatment he was offered.

62 Structured Clinical Assessment. Although the research indicates that minimisation or denial of previous offences together with a lack of insight into reasons for offending are not statistically related to recidivism, Dr Lennings was concerned by Mr G’s inability to identify the circumstances that would trigger sexually inappropriate conduct in the future. Professor McConaghy agreed that people tend to repeat the same pattern of offending which is triggered by cues in particular situations. The fact that Mr G cannot identify these cues may not be a significant factor statistically, but clinically Dr Lennings took the view that it was significant. The significance of this factor can be discounted to some extent by the fact that all of Mr G’s previous offences took place in a school or school camp situation, and not in the context of coaching children athletics. The fact that some of the offences occurred after sporting activities did not cause Professor McConaghy concern, because all the data makes him a low risk.

63 We accept that people tend to repeat the same patterns of offending which are triggered by cues in particular situations. Knowledge of these cues would allow a person to anticipate and avoid them. In Mr G’s case none of the offences for which he was convicted, or the allegations made about his conduct occurred in the context of coaching athletics. Similar cues, of which Mr G is unaware, may occur in a coaching situation.

64 Dr Lennings attributed significance to several factors based on a structured clinical assessment. These include:

· Mr G has never developed an ability to form and maintain age appropriate intimate relationships;
· Mr G’s social and occupational interests have always led him to seek the company of children and he has a strong inclination to be involved in activities that place him in close proximity with children; and
· Mr G appears unaware of his prior sexual interest in children.
65 The remaining factors are those enumerated in s 9(5) of the CP (PE) Act.

66 Seriousness of the offences. Each of the victims state that Mr G assaulted them by inserting his hand inside their pants and touched them on the vagina on more than one occasion. These are serious offences, although we agree with Ducker J’s remarks when sentencing Mr G that they are towards the bottom end of the scale of seriousness in relation to sexual offences committed on children. We have also taken into account the fact that Mr G was convicted of eight offences in relation to four children. This indicates that these were not one-off offences but that Mr G had engaged in similar patterns of conduct with several children over a period of at least 18 months.

67 Significance of other allegations. While the number or pattern of offences is not a factor listed in s 9(5), the Commission submitted that this was a relevant factor which the Tribunal should take into account. The evidence shows that, apart from the offences for which Mr G was convicted, there were at least four other allegations of inappropriate touching made at about the same time. The inference which Ms Adofaci asked the Tribunal to draw from these, and other allegations not involving touching, was that Mr G is a risk to the safety of children.

68 Mr G denies the other allegations. The question of whether a particular inference can be drawn from facts found or agreed is a question of law. (Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 [87]; Hope v. Bathurst City Council (1980) 144 CLR 1, at 8-9.) As long as the particular inference is reasonably open on the evidence, there will be no error of law. While the other allegations are not proof that Mr G committed further offences, they are evidence that complaints were made and that there were concerns within the community about his behaviour. These concerns are relevant to an assessment of his risk today.

69 Age of offender and victims and difference in their ages. Mr G was approximately 44 years old when he committed the offences for which he was convicted. The children were aged 8 and 11 at the time of the offences. Mr G was much older than the victims and the difference in ages between Mr G and the victims was significant (at least 33 years).

70 Seriousness of the total criminal record. Mr G has never been charged with or convicted of any criminal offences other than the eight offences for which he was convicted in 1986. Consequently this factor does not affect his risk to the safety of children. Mr G’s current good character or support within the community was not cited as a relevant factor by either of the expert witnesses, nor was it mentioned in the research material to which we have referred. Consequently we do not place any weight on those matters.
71 Conclusions. There is a presumption under the CP (PE) Act that a person who has been convicted of a “serious sex offence” does pose a risk to the safety of children. The Tribunal cannot make an order unless it considers that the person the subject of the proposed order “does not pose a risk to the safety of children.” The level of risk is not expressed as being an “unacceptable” or an “appreciable” risk. Nevertheless, parliament cannot have intended that the Tribunal consider that the person posed absolutely no risk. Everyone in the community poses some risk, however small, because a proportion of the population commits offences of that nature.

72 Our conclusion in relation to the expert evidence is that while Professor McConaghy had an excellent understanding of the research in this area, he over-emphasised the static risk factors at the expense of the dynamic variables and those factors which are relevant to a structured clinical assessment. We have concluded that Dr Lennings misapplied some of the research, but he was more comprehensive than Professor McConaghy in considering all the risk factors.

73 While the results of Static 99 indicate that Mr G has an extremely low risk of re-offending, the factors taken into account in that assessment are merely the static, as opposed to the dynamic and clinical factors which have been shown by research to be relevant to an assessment of risk. For example, Mr G’s emotional attachment to children and his lack of intimate, age appropriate, relationships is a significant concern. In addition, his lack of insight into his behaviour means that he will fail to recognise the situations that trigger offending behaviour and, even more significantly, he has not developed strategies to resist offending in those situations.

74 Taking into account all the evidence and submissions, we consider that Mr G poses a risk to the safety of children. Consequently we must not declare that the CP (PE) Act is not to apply to Mr G in respect of eight offences of indecent assault for which he was convicted on 25 November 1986. The application is dismissed.