GCN v Children's Guardian

[2024] NSWCATAD 213

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GCN v Children’s Guardian [2024] NSWCATAD 213

Hearing dates:

10 July 2024

Date of orders:

31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

R Bailey, Senior Member
E Hayes, General Member

Decision:

(1) The Applicant's application for an enabling order made 14 October 2023 pursuant to s 28 of the Child Protection (Working with Children) Act 2012 is refused.

(2) The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

Catchwords:

ADMINISTRATIVE LAW - application for enabling order pursuant to s 28 of the Child Protection (Working with Children) Act 2012 – applicant was convicted of a disqualifying offence – conduct of applicant in period since offences occurred – failure to discharge onus – whether the applicant poses a risk to the safety of children

Legislation Cited:

Child Protection (Working with Children) Act 2012

Civil and Administrative Tribunal Act 2013

Crimes Act 1900

Cases Cited:

CYY v Children’s Guardian (no.2) [2017] NSWCATAD 262

CHB v Children’s Guardian [2016] NSWCATAD 214

Commissioner for Children and Young People v V [2002] NSWSC 949; NSWLR 476

Commissioner for Children and Young People v FZ [2011] NSWCA 111

Smith v Commissioner of Police [2014] NSWCATAD 184

ZZ v Secretary of the Department of Justice [2013] VSC 267

Category:

Principal judgment

Parties:

GCN (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitor:
Crown Solicitors (Respondent)

File Number(s):

2023/00432139

Publication restriction:

The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

REASONS FOR decision

Introduction

1. This matter concerns an application for an enabling order by an applicant, who has been refused a Working with Children Check (WWCC) Clearance.

2. The applicant in these proceedings is referred to as "GCN". GCN is the applicant's pseudonym used in these proceedings in conformity with the order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).

3. The application was filed on 29 November 2023, following a decision of the respondent to refuse to grant the applicant a WWCC, because he is a disqualified person. That decision was made on 6 November 2023.

4. There is a presumption that the applicant is a risk to children, because he was convicted (as an adult) of an offence specified in Schedule 2 of the Child Protection (Working with Children) Act 2012 (the Act). He now seeks a finding that he does not pose a risk to children.

5. The applicant was convicted of sexual assault without consent in company, and robbery, on 4 June 1992. The former is the disqualifying offence.

6. On 19 June 1992, the applicant was sentenced to a minimum term of three years imprisonment, with a further 12 months, during which he would be eligible for parole. The sentence was upheld on appeal, but the commencement date was brought forward by three months.

7. The applicant had also been previously convicted of sexual intercourse without consent, and robbery with striking, on 9 December 1985. The offence occurred on 9 May 1985.

8. The applicant does not deny that he has an extensive criminal record. His most recent conviction, for a violent offence, was in 2007.

9. The applicant seeks an enabling order so that he may continue to work as a volunteer and distribute Gideons Bibles in schools and hospitals.

10. The respondent opposes the application.

11. On the basis of the evidence before us, we have decided to affirm the refusal of the WWCC. Our reasons follow.

Non-disclosure

12. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

Factual background

13. The applicant applied for a WWCC Clearance on 14 October 2023. Whilst considering his application, the respondent became aware of the applicant’s history, which included a conviction of a criminal offence.

14. This matter was a ‘disqualifying offence’, as defined in Sch 2 Cl 1 (1) (h) (i) of the Act. The disqualifying offence was:

1. Sexual assault in company (s 61D (1B) (now repealed) Crimes Act 1900 (NSW))

15. The applicant pleaded not guilty. He was convicted and sentenced to three years imprisonment.

16. Consequently, on 6 November 2023, the Children's Guardian issued the applicant with a Notice to Disqualified Person pursuant to s 18 of the Act.

17. On 29 November, the applicant applied to the Tribunal for an enabling order and clearance. In his application, the applicant stated that wishes to volunteer, as a distributor of Gideon’s bibles, in hospitals and schools. In his evidence he said that he may also wish to work in prisons, to help offenders reform, and to drive buses.

18. The Tribunal must decide whether the applicant should be granted an enabling order under s 28 of the Act. The Tribunal is required to determine whether he has rebutted the presumption that he poses a risk to the safety and well-being of children. We must also consider the matters set out in sections 30(1) and (1A). We are mindful of the Superior Court guidance that the risk must be both real and appreciable.

The working with children legislative scheme

19. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant clearance or there is a current application by the person to the Children's Guardian for the relevant clearance. A breach of s 8(1) is an offence.

20. The object of the Act is to protect children, by preventing disqualified persons, or persons without clearances, from engaging in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances (s 3 of the Act).

21. The safety, welfare and well-being of children and, in particular, protecting them from abuse, are the paramount considerations in the operation of the Act (s 4).

22. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)" (s 6(1) (b)). A child related role is set out in s 6(3).

23. Section 18 of the Act mandates that the Children’s Guardian must not grant a clearance to disqualified persons.

18 Determination of applications for clearances

(1) The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

24. It is the Tribunal that must conduct an assessment of a disqualified person’s risk, if an application for an enabling order is made to the Tribunal.

Jurisdiction

25. There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 28 of the Act gives power to the Tribunal to make enabling orders.

26. The jurisdiction of the Tribunal under Part 4 of the Act is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve the protective goal, set out in ss 3 and 4 of the Act.

27. As a preliminary finding, we note that the Children’s Guardian has refused the applicant’s request for a clearance and the conditions of s 28(3)(a) are satisfied.

28. Section 30 sets out the factors that the Tribunal must consider in determining an application. We will address each of the matters under s 30(1) later in these reasons.

Burden of Proof

29. In this case, there is a presumption that the applicant poses a risk to children, because he is a disqualified person. He hHe bears the onus of rebutting that presumption.

Meaning of Risk

30. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. That consideration was made in the context of s 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (the Repealed Act).

31. At [42], His Honour said:

'42 One does not define risk as meaning minimal risk. One would …exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ...'

The Hearing

32. The applicant attended in person. He was not legally represented.

33. The respondent was represented by Ms G Bromwich and Mr A Stavro, who attended in person.

Written evidence

34. The applicant asked the Tribunal to consider his Affidavit sworn on 28 March 2024 (five pages); a personal references from Pastor Steven Kasambalis, dated 28 March 2024 (with earlier reference dated 29 May 2007); Pastor George Sidiropoulos, dated 12 April 2024 (with earlier reference letter dated 29 May 2007); Dr Warren Ling, dated 31 March 2024; and from Takis Manetas, dated 1 April 2024. This bundle totalled 13 pages and was admitted, without objection, as Exhibit 1.

35. The applicant also relied on a document titled “Summary of Legal Arguments and Position”, dated 2 April 2024, drafted by Suzanne Martinez, Solicitor for the applicant at that time. However, she did not represent him at the hearing.

36. The respondent tendered three bundles of documents, without objection. They are described as follows:

• Exhibit A – a bundle of documents received by the Tribunal on 8 February 2024 (131 pages);

• Exhibit B – respondent’s further evidence submitted on 19 April 2024 (74 pages);

• Exhibit C – third bundle of evidence submitted on 20 June 2024 (74 tabs).

Applicant’s submissions

Summary

37. The applicant accepted that the disqualifying offence means that the statutory presumption must be displaced. He does not dispute that he engaged in “concerning behaviour in the past”. However, he maintains that he does not present any risk to children.

38. The applicant’s evidence was provided in his Affidavit, dated 28 March 2024, and in his oral testimony. In his Affidavit, he said that he requires an enabling order so that he can, together with other Gideon members, hand out free Bibles to schools, hospitals, nursing homes, prisons, the armed forces, police, and all emergency services.

39. At about the age of four years, the applicant’s father died, and he was abandoned, in his country of origin, by his mother, who moved from that country to Australia, and left him there with his brother. He was raised for many years in an orphanage.

40. The applicant stated that he moved to Australia when he was 9½ years old with his eldest brother, to be reunited with his mother, who was living here with her new partner, and the applicant’s younger brother and older sister. He described a troubled childhood and conceded that, from the age of 13, he made “a lot of foolish decisions”. He was admitted to Daruk Boys Training Centre when he was 14 years old.

41. He conceded that he had been convicted of an offence in 1992. However, he emphasised that the victim was not a child. He said: “I have made a lot of bad decisions in my life and I am sorry for my past crimes. I acknowledge ongoing trauma occasioned to victims of sexual offending”.

42. He asked the Tribunal to consider that, since 2007, he has not had any further interaction with the criminal justice system.

43. In his oral testimony, he said: “I accept everything I’ve done”. He asked the Tribunal to accept that his past does not define him. He submitted that his offences occurred in the “distant past” and that he is now “a changed man”. The applicant gave evidence that whilst on bail in 1991, awaiting trial for the disqualifying offence, he became a born-again Christian. He testified that he has maintained his Christian faith ever since. He stated that his faith and his family have helped him to become a ‘new person’.

44. He reiterated that his association with his Christian community has had a transforming effect on his behaviour. He said that he has been married for 23 years and has two adult children. He is a godfather and uncle to other children with whom he has regular contact. He also gave evidence that he has had very strong and positive involvement with his wider community.

45. He also said that he is embarrassed and ashamed about his past conduct. The applicant said that, in his younger years, he suffered a sense of abandonment, which he believes may have been a contributing factor to his offending behaviour.

46. The applicant said he sought counselling and therapy, and that he is now a changed man.

47. He conceded that he committed a further offence in 2007, in a road rage incident, which he regrets. He has been a professional driver for over 20 years, without any other incident. He submitted that the 2007 offence was out of character. He asked the Tribunal to consider the fact that in the intervening 17 years, he has not committed any criminal offence.

The disqualifying offence

48. The applicant’s evidence about what occurred on the night he committed the disqualifying offence is vague. In summary, he said he was in the company of his brother and a friend when he encountered the victim, someone with whom he was acquainted. He gave evidence that she agreed to get in the car with him and the other two men in order to obtain drugs.

49. This is inconsistent with the victim’s statement to the Police, dated 24 December 1989. The victim stated that she had been drinking with her flatmate on Saturday, 23 December 1989, at a local pub. She said she had consumed four bourbon and cokes and was evicted at approximately 11:30 pm by two bouncers. She was then driven home by her flatmate. Although her details were also vague, she believed she became involved in an argument with her flatmate and left the house at approximately 3:00 am. She said she walked to a medical centre in Blacktown. It was at the medical centre that she encountered the applicant. She said she had met him four or five times previously. He was with two people that she did not know.

50. The victim was two years older than the applicant.

51. The victim said that the applicant offered her a lift home and she got into the back seat with the applicant. The victim stated that one of the men then said that they were going to buy drugs and she asked them to drop her off at the nearest station. They kept driving. At approximately 3:30 am, they drove into a reserve. As soon as the car stopped, she pushed the door open and tried to get out of the car. One of the men, who was not the applicant, began molesting her and she told him to stop. She said the applicant and the driver got out of the car and came to her door. The applicant then grabbed her arm and pulled her out of the car and “flung her” across the boot with her face down. Someone held her wrists and the applicant had sexual intercourse with her. She said she was struggling, which irritated the applicant, and he stopped.

52. She then stated that the other men tried to engage her in sexual activity but she resisted. She gave evidence that the men verbally abused her and degraded her. She noticed the applicant going through her bag. She said they pulled her into the car and drove her to the local station. Her flatmate then collected her and the incident was reported to the Police.

53. The applicant said that the victim was lying. The applicant set out his recollection of the disqualifying offence in 1989. In his Affidavit (at paragraph 16) he wrote:

“Despite me being found guilty at trial, my account and truth is that I knew the girl and we had consensual sex; when I was 22 years and she was 24 years old. I showed and promised her some drugs if she had sex with me and she agreed if it was me only. She didn’t want to go with the three of us”.

54. The applicant explained that he was in the presence of his late brother and friend. He wrote:

“They wanted to get with her after I finished. She said no, but I withheld my drug offer unless she got with my brother also and she agreed.”

55. The applicant conceded that, during this period, he rifled through the victim’s handbag and stole some coins. He said that she berated him and he did not give her the drugs that he had promised. He wrote: “I also returned the verbal abuse she was giving me”. He said he then dropped her at the local railway station.

56. The applicant said he did not divulge information to the police when he was arrested. He said that the victim lied in Court, and he was found guilty.

57. He said he now acknowledges that his actions were wrong. Despite this, he steadfastly maintained that the sexual intercourse was consensual.

58. When cross-examined, the applicant said that he was “stoned” and possibly drunk at the time. He said that he had known the victim previously. She was someone with whom he used to “catch up for casual sex”. He maintained that he had sex with her on that night but that he “had a bad attitude, got into an argument and kicked her out of the car”.

59. He said that the sexual intercourse occurred in his car, and that there were two other men present. He believes that the victim was under the influence of drugs. He agreed that he offered to give her drugs in exchange for sex.

60. The respondent’s representative asked whether it is still the applicant’s position that the victim had consensual sex with him. The applicant responded: “100%”. When the respondent asked the applicant whether he also maintained his position that the victim had lied in Court, he again answered “100%”.

61. He repeated the evidence in his affidavit that, after he offered the victim drugs to have sex with his brother, she did so.

62. Despite maintaining that the interaction was consensual, the applicant said that he would never again engage in conduct of that nature, because it was not appropriate, because he had drugs, which he had withheld. He agreed that he stole from the victim, abused her, and withheld the drugs. He said: “It was wrong to coerce her to have sex with my brother”.

63. The applicant also agreed, in cross examination, that he had lied to the police. He said: “it wouldn’t have been the first time”.

64. On 17 April 1990, when the applicant was questioned and shown the victim’s statement, he said: “It’s a bullshit job. She let the other blokes fuck her and she gave me a head job”. However, he refused to give the names of the other men present.

65. The respondent submitted that whilst there is no sentencing judgment available, the Tribunal can be satisfied that, at a minimum, there were findings of fact essential for the offence to be proven beyond reasonable doubt. At the time the offence was a breach of s 61D(i)(b) of the Crimes Act 1990:

“any person who, in the company of others, has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse shall be liable to penal servitude for 10 years or, if the other person is under the age of 16 years, to penal servitude for 12 years”.

66. The Tribunal may not make findings of fact which are inconsistent with the findings of facts of the Superior Court. In this instance, it was proven, beyond reasonable doubt, that the applicant had sexual intercourse with the victim without her consent. We note that the applicant pleaded not guilty, which resulted in the victim having to give evidence and no doubt added to her distress.

The 1985 Offence

67. The applicant conceded that he was convicted of sexual intercourse without consent and robbery with striking on 9 December 1985. The offences occurred on 9 May 1985, when the applicant was 17 years old.

68. The applicant said that he was in an apartment building when the victim opened her door, presumably to see who was knocking on a neighbour’s door. He said he later knocked on the victim’s door and asked her for a drink of water. The applicant said he does not remember much about the incident but he is not proud of what occurred. He said he was “stoned” at the time and “I stuffed up”. He agreed that he stole from the victim again.

69. The victim of this offence was a 25 year old woman, not previously known to the applicant. Her account of events is that the applicant knocked on her door and asked her for water. He then carried her over his shoulder into her bedroom and put her on the bed. He put a pillow over her head to stop her screaming and then said words to the effect: “If you don’t stop screaming, I’ll kill you” and “spread your legs”. He removed her underwear, forced her legs open, groped her breasts, and engaged in vaginal intercourse. He then left the premises, after stealing some money from her.

70. The victim’s statement is that she had a shower and then started screaming. She was found by neighbours who contacted the Police.

71. The applicant pleaded not guilty to that offence. However, he was convicted. During the trial, he admitted to theft but not sexual assault.

72. The respondent’s solicitor asked the applicant why he had not included any mention of his earlier conviction for sexual intercourse without consent in his affidavit, dated 28 March 2024. He said that he did not think he had to do so. He said "I thought it was common knowledge. It was referred to in the second trial”.

73. The applicant conceded that, at the time, he denied committing the offence because “I was trying to worm my way out of it”.

74. The Tribunal also asked the applicant about the omission of any mention of this event in his 28 March 2024 affidavit. We note that the applicant has an obligation to provide all necessary information to the Tribunal.

75. The applicant responded that, when the affidavit was drafted, he was legally represented by Ms Suzanne Martinez, solicitor. He said she was aware of the 1985 offence. She assisted him to draft the affidavit and he relied on her advice. He conceded that the information is relevant to his application but maintained that he acted in accordance with legal advice.

76. Miss Martinez did not represent the applicant at the hearing, and we were unable to seek her response to this evidence.

The 2007 Offence

77. The applicant admitted that he struck an elderly victim who, together with his wife, had been a pedestrian in the vicinity of a vehicle driven by the applicant. The applicant told the Tribunal that he has been a professional driver for 20 years and that this is the only incident of road rage on his record.

78. In relation to the 2007 event, the applicant agreed that he struck and injured an elderly man but said that the victim struck him first. He pleaded guilty because he accepted what he did was wrong, but maintained that his actions were retaliatory. The trial judge did not accept that to be the case.

Drug and Alcohol Use

79. According to the applicant’s evidence, drug or alcohol use played a role in each of his sexual offences.

80. The applicant conceded, in cross examination, that he had a history of drug and alcohol use. However, he said that he had abstained from illegal drugs for many years, since 1991, until the 2007 offence, when he relapsed. He sought counselling and has again been abstinent for many years.

81. We had the benefit of a report of Mr Peter Ashkar, Psychologist, dated 9 May 2007, which was prepared for the Court, following the 2007 offence. Mr. Ashkar wrote, at that time, that the applicant still used alcohol. He also reported that the applicant had “no history of alcohol related violence”. In view of his evidence that drugs or alcohol had played a role in both serious sexual offences, the applicant said he was unable to explain why Mr Ashkar had written that.

Counselling or therapy

82. The applicant gave evidence that he had Christian counselling in 1991 and participated in an anger management course in 1992. He still has spiritual counselling. His evidence about whether he sought therapy or counselling form a qualified professional was vague. He said that he “deals with professionals” and talks to friends who are doctors. This, he considers to be counselling. He said he sought such assistance for approximately two years after 1992. However, we note that he was incarcerated for much of that time.

83. The applicant testified that he has learnt, as a result, to be more respectful and avoid certain former associates, who may lead him into bad habits.

84. We asked the applicant whether he agreed or disagreed with Mr Ashkar’s opinion, as set out in his report of 9 May 2007, that the applicant has a conduct disorder and antisocial personality characteristics, and that anger is the main reason for his offending behaviour. He responded: “that could be right”.

85. We also asked the applicant whether he had complied with Mr Ashkar’s recommendation that he seek anger management therapy. He said he responded that he had anger management therapy following the 2007 offence. However, he did not provide relevant detail or evidence to substantiate this assertion.

86. Later, he recalled that he sought psychological intervention following a work accident in the early 2000s. However, this predated the 2007 offence.

Character referees

87. In the written submissions and his affidavit, the applicant asked us to accept the opinion of his character referees. We asked him whether he had disclosed all past offences to the character referees. He said that he had told them about the disqualifying offence and the 2007 offence. However, he did not disclose the 1985 offence. He did not provide any explanation for this omission.

Reason the applicant wants the WWCC Clearance

88. The applicant said he wishes to have his WWCC clearance, so that he can hand out Gideons Bibles in schools and prisons. Although, he has given Bibles to strangers on the street in the past, for which he does not require a WWCC clearance, he has not done so since his clearance was denied.

89. He estimated that in this voluntary role, he would have minimal exposure to children. However, he has been advised by his church group that he will require a clearance in order to engage in prison ministry.

90. Furthermore, he was a member of the Church board for many years. He has been advised that he also requires a WWCC clearance to occupy that position. Whilst this may not be legally accurate, he is concerned that he is prevented from serving his church community because of this policy. Nevertheless, he said that if his application is unsuccessful it “won’t change too much of my life”.

Respondent’s Submissions

91. The respondent’s written submissions set out the statutory framework and applicable principles in detail.

92. The respondent submitted that the disqualifying offence and the 1985 offence perpetrated by the applicant are extremely serious and that the Tribunal should take all the evidence into account, not just the circumstances of the disqualifying offence.

93. Ms Bromwich asked the Tribunal to accept that, even though the victim of the disqualifying offence was not a child, she was a young woman, affected by alcohol or other substances, alone in the company of three men in an isolated location. This means that she was a vulnerable person.

94. Ms Bromwich also asked the Tribunal to accept that the victims of the 1985 and 2007 offences were also vulnerable. The victim of the 1985 offence was a young woman, alone in her own home, and the victim of the 2007 was an elderly man, who used a walking stick to assist mobility.

95. The respondent highlighted inconsistencies in the applicant’s version of events about the disqualifying offence. It submitted that the version of events contained in his Affidavit is inconsistent with the account he gave to the Police in 1990.

96. Furthermore, the respondent asked the Tribunal to accept that a common factor in all the applicant’s accounts is that he denied or minimised his offending behaviour. In the case of the 2007 offence, he classified it as retaliatory. Despite this, the Court preferred the victim’s account of events.

97. Ms Bromwich asked the Tribunal also to consider whether the fact that the applicant conceded that he had lied to Police, called the reliability of his evidence to the Tribunal on this occasion into question.

98. Despite this, Ms Bromwich submitted that there are also significant factors that weigh in favour of rebuttal of the presumption that the applicant poses a risk to children. The last sexual offence was in 1989. Since 2007, the applicant has had a clear criminal record. Ms Bromwich conceded that there is no evidence that the applicant has ever committed a crime against children.

99. Furthermore, the respondent submitted that the Tribunal could find that the applicant’s faith and the network of support that he now enjoys, as a result of his Church community, have enabled him to turn his life around. Ms Bromwich described this, and the fact that the applicant has been married for 24 years and has two adult children, as powerful evidence that he has reformed his ways.

100. Ms Bromwich submitted that for the purpose of assessing risk, the Tribunal steps into the shoes of the Children’s Guardian, which is an institutional authority. She submitted that as the decision maker, considering objective risk, it is open to the Tribunal to find that the presumption that the applicant represents a risk to children has been rebutted.

101. However, Ms Bromwich argued that, even if the Tribunal were satisfied that the presumption had been rebutted, it should still affirm the decision of the Children’s Guardian, dated 6 November 2023, because it could not be satisfied that a reasonable person would allow the applicant to have direct access to a child or leave a child unsupervised in the applicant’s care.

102. Ms Bromwich submitted that, to determine this, the Tribunal must step into the shoes of a very different type of decision maker, namely a parent and not necessarily one who personally knows the applicant, who may encounter him in any type of child related work. The respondent asked the Tribunal to place little weight on the character references.

103. The respondent submitted that a reasonable parent would not make allowances for the applicant’s “lack of nuance in understanding of consent” and would require him to have had counselling and “done more work on himself”. She also said that the reasonable parent would take a poor view of the applicant’s failure to take full accountability for his actions, as evidenced by his persistent view that the victim had consented to have intercourse with him. Ms Bromwich submitted that, whilst the applicant may have had spiritual counselling, there is no evidence that such counselling was targeted for sex offenders, or to assist the applicant to obtain an understanding of consent, which is more consistent with community values. Insofar as the latter is concerned, she submitted that a reasonable parent might have concerns about the values the applicant would impart to young people, as a convicted sex offender.

104. Finally, the respondent submitted that the question of whether it is in the public interest to grant the applicant a WWCC Clearance is one which is finely balanced. She said that there is no evidence of significance to weigh in favour of or against such a finding.

105. The respondent did not dispute the fact that outreach work may benefit the public. However, Ms Bromwich submitted that the issues which may cause parents to have concerns about allowing the applicant to have unsupervised access to their child may also affect the public interest test.

106. She referred to the applicant’s evidence that he does not need to constrain his voluntary activities to working with children. She said that it is unlikely that the applicant requires a WWCC Clearance to engage in religious services (pursuant to s 6 and 7 of the Act) for adults. Therefore, she submitted, there are means by which the applicant could fulfil his philanthropic goals without a WWCC Clearance.

Section 30 (1) considerations

107. Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider, in order to assess whether the applicant poses a risk to children and to determine such an application. We address these here.

(a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar.

108. The legal argument submitted by the applicant’s legal representative, Ms Martinez, dated 2 April 2024, included the statement “However, it is submitted it is not the worst kind of this type of offending”.

109. We do not agree. The offence of sexual assault without consent and robbery is objectively extremely serious. The community regards such an offence as one of the most serious that can be perpetrated on a victim. This view is reflected in the heavy penalty that can be imposed by the Court (12 years in custody).

110. In this instance, we must be satisfied that the elements of the crime were proven beyond reasonable doubt, because the applicant was convicted and sentenced to three years incarceration. We infer that the Tribunal of fact on that occasion preferred the evidence of the victim. The victim described an extremely frightening and humiliating experience.

111. The applicant gave evidence that he was aware that she was affected by drugs or alcohol at the time.

112. On the best interpretation of the evidence available to him, the applicant coerced the victim to have sexual intercourse with him. The conviction suggests that the Court did not accept that version of events. In any event, we must be satisfied that the applicant sexually assaulted the victim, by having sexual intercourse with her without her consent.

113. The seriousness of the disqualifying offence is exacerbated by the fact that he had been convicted of a previous offence of sexual intercourse without consent. He was or ought to have been aware of the seriousness of his conduct and the impact of such conduct on a victim.

114. The 1985 offence is also extremely serious, although it is not the disqualifying offence. The victim on this occasion was assaulted in her own home, by a stranger. The Court accepted evidence that she was threatened with violence if she did not have sexual intercourse with the applicant. The sentencing Judge wrote that the offence was “committed in cold blood and cruelly carried out”. Furthermore, the sentencing Judge found that there was “no demonstrable remorse or contrition" on the applicant’s part. The victim of that offence gave a victim’s impact statement to the Court that described the significant impact of the offence on her psychological well-being.

115. The 2007 offence was also found by the presiding Magistrate to be “very serious indeed”. It was an act of violence. It was perpetrated against an elder member of the public and the victim experienced significant injuries. The Magistrate reflected the seriousness of the offence by imposing a custodial penalty, albeit a suspended one.

116. We find that the seriousness of the applicant’s conduct is further exacerbated by the fact that he made statements after each of the offences, which the relevant Court ultimately found to be false.

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

117. The disqualifying offence occurred 35 years ago. The 1985 offence occurred 39 years ago, and the 2007 offence was 17 years ago.

118. The applicant has not been charged with any offence in the last 17 years. He has never been charged with an offence against children.

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

119. At the time of the offences, the applicant was 17, 22 and 39.

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

120. The victim of the disqualifying offence was an adult who was two years older than the applicant at the time. However, she was a vulnerable woman on her own in the company of three men, in an isolated location. The applicant was aware that the victim was affected by alcohol, which exacerbated her vulnerability.

121. The victim of the 1985 offence was a young adult woman. She was also vulnerable because she was alone in her home and, as described by the sentencing Judge, of a smaller build.

122. Similarly, the victim of the 2007 offence was vulnerable, due to his advanced age.

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

123. The applicant was younger than all his victims.

124. The difference in age between the applicant and the victim was two years.

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

125. The victim was not a child.

(g) The person’s present age

126. The applicant is 56 years old.

(h) The seriousness of the person's total criminal history and the conduct of the person since the offences occurred.

127. The applicant has an extensive and serious criminal history, leading up to and including 1992.

128. Between August 1981 and 1992, the applicant was charged with numerous offences, including, but not limited to stealing, goods in custody, robbery, possession of prohibited drugs, offensive conduct, enter enclosed lands, assault, and escape from lawful custody.

129. A hiatus in the applicant’s criminal activity between 1991 and 2007 is consistent with the applicant’s evidence that his Christian faith has enabled him to reform his behaviour.

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

130. The applicant has not committed a sexual offence since 1989. The respondent conceded that, in these circumstances, the likelihood of him committing a further sexual offence is “in the lower range”.

131. The 2007 offence was an impulsive act of violence against a vulnerable person. It occurred 18 years after his previous offence.

132. If a child were a victim or a witness to such an offence, it would have a very serious impact on the child.

(i1) Any order of a Court or Tribunal that is enforced in relation to the person

133. Not applicable.

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

134. The applicant gave evidence that he had a very traumatic childhood and was abandoned by his mother at an early age. We accept that it is likely that this would have significantly impacted his psychological development and was a contributing factor to his lengthy history of criminal offending.

135. However, it is of concern that, even though the applicant has significantly changed his behaviour, as a result of his Christian faith and support network, he steadfastly maintained his position that the victim of the disqualifying offence engaged consented to have sexual intercourse with him.

136. We have ongoing concern about the applicant’s attitude to women and his understanding of consent. We place little weight on the character references provided by the applicant, because, according to the applicant, they were unaware of the 1985 offence.

137. Furthermore, the character reference of Pastor George Sidiropoulos also reveals a problematic perception of the applicant’s disqualifying conduct and the meaning of consent. We infer that the Pastor came to the surprising conclusion that the applicant’s primary transgression was one of dishonesty rather than sexual assault.

138. His reference suggests that he regarded the withholding of drugs as more serious than the sexual assault. We infer from his statement that he did not regard coercion to engage in sexual intercourse (having evidently accepted the applicant’s version of the events that took place) as sexual intercourse without consent. Pastor Sidiropoulos wrote:

“He told me he promised her drugs if she had sex with him and she agreed. He however acted very foolishly in withholding the drugs unless she also had intercourse with his late brother and friend, which she then did. He acted dishonestly and foolishly…”.

139. However, to the extent that we can place any reliance on the references, they support the fact that the applicant has made valuable contributions to his community and is now highly regarded, and that, as a result of his faith, he has generally reformed his behaviour.

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

140. Not applicable.

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

141. The respondent asked the Tribunal to consider the report of Psychologist Peter Ashkar, dated 9 May 2007, prepared for the Court which heard the malicious wounding charge. In particular, the respondent referred to Mr Ashkar’s recommendation that the applicant engage in anger management intervention and individualised cognitive behaviour therapy that “should target negative thinking, aggression, destructiveness, impulsivity, poor affect, empathy and moral development”.

142. Mr Ashkar also concluded that the applicant requires a treatment program as he “does not have the skills he needs to forestall relapse”. The Magistrate at the time observed that the applicant had not “come to grips” with anger management.

143. Despite the applicant’s vague assertion that he has engaged in such therapy since that time, there is no evidence to support that assertion.

Risk to Children - our decision

144. Our substantive role is to assess whether the applicant poses a risk to the safety and well-being of children and young people.

145. We have based our consideration on all of the evidence provided by the parties in documentary form. We have also analysed the circumstances of the disqualifying offence and the applicant’s subsequent conduct.

146. Although we find that the disqualifying offence and the other conduct for which the applicant has been convicted is extremely serious, we are satisfied that none of his offending behaviour involved children.

147. We accept the applicant’s evidence that he is a father of two adult children, godfather, and uncle, because it is uncontested. We are satisfied, because the applicant’s criminal records confirm, that there has been a marked change in the applicant’s offending behaviour. He has not been charged with any offence for 17 years. We therefore accept that, as a result of his faith and his support network, he has apparently reformed his behaviour.

148. We are, therefore, satisfied that he has rebutted the presumption that he presents a risk to children.

Section 30 (1A) consideration and findings

149. Having made that finding, we are now required to consider section 30 (1A) of the Act, which requires that:

(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b) it is in the public interest to make the order.

Reasonable person test

150. A reasonable person is a parent or guardian of a child. The test requires us to consider whether that person would allow his or her own child to have direct and unsupervised contact with the applicant.

151. The case of CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262 dealt with the ‘reasonable person test’. At paragraph 73, the Tribunal observed the following:

73. The case of CHB v Children’s Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the transcript of the 2012 criminal proceedings, the judgment of the Federal Circuit Court, the exclusion of any other complaints or allegations against CYY other than allegations made by AA and AB and the context of the ongoing acrimonious family law dispute between CYY and AA. It would also include his work record as a serving police officer from 2003 to 2013 and as a high school tutor from 2012 until recently and not being subject to any allegations or complaints of violence or inappropriate conduct. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CYY’s care.

152. Additionally, in our view the reasonable person would approach the matter in the same manner as we have approached the section 30 (1) issues and risk. The reasonable person would consider the relevance and circumstances of the disqualifying matter, as well as the 1985 and 2007 offences, the applicant’s current attitudes to those offences, and his conduct in the intervening period.

153. In our view, a reasonable person would acquaint themselves with all of the evidence and submissions before the Tribunal. A reasonable person would not approach the matter with a closed mind but apply an objective test in consideration of all the material.

154. Regard would also be given to the applicant’s entire criminal history, his use of drugs and alcohol, and recent history. This includes the lack of any evidence of risk to children.

155. It is likely that a reasonable person would view the applicant with compassion, in view of his traumatic childhood, the fact that he was abandoned by his mother and placed in an orphanage at a tender age, and the fact that he appears to have reformed his conduct.

156. However, a reasonable person would also, in our view, have grave concerns about the applicant’s lack of insight into the concept of consent. As a matter of procedural fairness, we put to the applicant the notion that his concept of consent appeared problematic. He disagreed. He steadfastly maintained his position that he did not have non-consensual sex with the victim of the disqualifying offence, despite having conceded that he coerced her to have sexual intercourse with him.

157. Furthermore, a reasonable person would have concerns about the applicant’s history of lying to police and denying or minimising his offences. To some extent, this tendency persisted at the hearing. When recounting the circumstances of the disqualifying offence, to the extent that he did provide any detail, the applicant focussed more on the fact that he acted dishonestly by failing to provide the drugs he says he promised the victim, than the fact that, at the very least, he coerced her to have sexual intercourse with him and his brother (by his account).

158. Although he said that he takes responsibility for his past actions, we are not persuaded that this is possible, if he does not demonstrate that he understands the meaning of consent, in accordance with community standards. This is a matter which has been the subject of much public discourse in recent years. A reasonable person would, in our view, expect the applicant to be aware of this and would be concerned that he would reflect and impart attitudes inconsistent with community standards.

159. For this reason, we cannot be satisfied that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work.

Public Interest test

160. Were the Tribunal to be satisfied that the presumption of risk is rebutted, and the reasonable person test is satisfied, we would need to consider section 30 (1A) (b) that it is in the public interest to make the order. CYY also addressed this issue at paragraphs 74-75.

74. The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount considerations.

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

161. Because we have found that the application does not satisfy the “reasonable person test”, the application must fail. It follows that we do not need to make any findings in relation to this issue.

Conclusion

162. For the reasons set out above, we conclude that the application must fail.

Orders

1. The Applicant's application for an enabling order made 14 October 2023 pursuant to s 28 of the Child Protection (Working with Children) Act 2012 is refused.

2. The Tribunal orders under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that publication of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons is restricted.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

02 August 2024 - Corrected Order 1 to refer to the correct section of the Child Protection (Working with Children) Act.

Decision last updated: 02 August 2024