GY v Commission for Children and Young People

[2004] NSWADT 123

CITATION:	GY v Commission for Children and Young People [2004] NSWADT 123
DIVISION:	Community Services Division
PARTIES:	APPLICANT GY RESPONDENT Commission for Children and Young People
FILE NUMBER:	034030
HEARING DATES:	06/02/2004
SUBMISSIONS CLOSED:	02/06/2004
DATE OF DECISION:	06/25/2004
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In person RESPONDENT P Singleton, barrister
ORDERS:	1. The matter to be set down for a further half-day hearing at a date to be fixed by the Registrar to hear submissions from the parties on the issue of conditions; 2. The parties may elect to put on written submissions on the issue of conditions. Such submissions are to be filed and exchanged no later than 7 days before that hearing

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) This section applies only to the following:



(a) proceedings in the Community Services Division of the Tribunal,


(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,



(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,


(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983


(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:


(a) who appears as a witness before the Tribunal in any proceedings, or


(b) to whom any proceedings before the Tribunal relate, or


(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 The Applicant, seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”) so that he can apply to return to work as a teacher with his former employer, TAFE. The Respondent opposes this application.

2 In 1984, the Applicant was convicted of sexual assault and indecent assault. In 1995, he was convicted of the offence of wilful and obscene exposure. The former constitutes a “serious sex offence” as defined by the Child Protection Act. By the operation of s 5 of that Act, the Applicant is a “prohibited person” and as such, it is an offence for him to apply for, undertake or remain in child-related employment.

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

Relevant legislation

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

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

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

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

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

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

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

(d1) the prohibited person's present age,

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

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

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

Onus of Proof

7 The Applicant carries the onus, on the Briginshaw standard, that he is not a risk to children. The meaning of the word “risk”, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of “risk” in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:

“…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.” ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)
8 Young J held at [42] that “risk” in the context of s 9(4) meant “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child”. That test is now binding on the Tribunal.

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

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

10 Sexual Assault As noted, in 1984 the Applicant was convicted at the Sydney District Court of the charge of “indecent assault”. Sentence was deferred and the Applicant was placed on a two-year good behaviour bond under the supervision of the NSW Probation and Parole Service. The Applicant was 21 years of age at the time he committed the offence. His victim was six years of age.

11 The police facts sheet, which was tendered in evidence in these proceedings and in the District Court sentencing proceedings, sets out the details of the charges to which the Applicant pleaded guilty. It reveals that the Applicant invited the victim, his neighbour, a six-year-old girl, into his home to watch a movie. “After showing her part of the movie he asked her to show herself, meaning her vagina, after taking her to his bedroom. [the victim] pulled her pants down to her knees after which [GY] took his pants down to his knees and exposed himself, he then touched her in the area of her crotch with his penis and ejaculated into his hands. The victim’s mother then called for her and she pulled up her pants and left.” It is not in issue that that evening the victim’s father confronted the Applicant, who admitted he had assaulted his daughter.

12 Approximately two months later the Applicant was admitted as a voluntary patient to a psychiatric hospital were he remained for about six weeks.

Applicant’s Age (s 9(5)(d1))

13 The Applicant is now 41 years of age.

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

14 Wilful and Obscene Exposure In 1995 the Applicant was convicted at Waverley Local Court of the charge of “Wilful and Obscene Exposure”. He was sentenced to 80 hours community service.

15 The relevant court documents could not be located for this offence. The evidence given in these proceedings was that the Applicant while sitting in a car, exposed his penis and masturbated in front of a passing group of teenage girls.

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

16 Conduct before 1995 The Applicant gave evidence that when he was 14 years of age he became obsessed with a girl then aged six and remained so until the girl was 14. He was then 22. He told her he loved her and was rejected. According to the Applicant, he was devastated. The 1984 sexual assault, which led to his conviction, occurred a few days after the rejection.

17 On the Applicant’s account, about three or four months after the assault he became obsessed with another girl whom he thought was about eight or nine at the time. That obsession continued for about 10 years. He claimed he never acted on those feelings. He reported to Dr Allnutt that he fantasised about having sex with her.

18 Conduct after 1995 According to the Applicant, he has now learnt to control his feelings of sexual attraction towards young girls through a combination of therapy and counselling provided by his general practitioner, Dr Mendelsohn. In addition, he received psychiatric treatment from Professor Neil McConaghy, whom he saw regularly for a period of six months throughout 1995. On Professor McConaghy’s recommendation, the Applicant learnt and employed a technique called “Imaginal desensitisation”. He claimed that after a month or so of practicing this technique he no longer experienced any desire for young girls or any need to expose himself. He said the last occasion he felt a need to employ this technique was in 1996.

19 The Applicant claims he is now in a relationship with an adult woman, whom he met in 1996, and that they have a three-year-old child. He said that he would very much like to marry his partner but cannot because he is unable to financially support her at the moment. He said he had not told her about his criminal record because he feared rejection. It was for this reason, he claimed, that he did not call upon her to corroborate his claim that he had enjoyed a long-term, age-appropriate relationship.

Expert evidence

20 The Applicant tendered in these proceedings a report of Dr Mendelsohn dated 9 August 2003. In that report, Dr Mendelssohn stated that in the late 1990’s the Applicant, who had been his patient from 1974 to 1998, undertook a course of long-term counselling with him for psychological/sexual problems. In Dr M’s opinion, this treatment was very successful and the Applicant was able to resolve a large part of his sexual difficulties. According to Dr Mendelsohn the Applicant’s life has now improved considerably. He is in a long-term relationship and is a good father to his daughter. Dr Mendelsohn asserts that the Applicant is committed to his partner, is no longer attracted to very young women or children and is very much in control of his behaviour.

21 Importantly, according to Dr Mendelsohn, the Applicant now has considerable insight into his past behaviour and emotional state and feels enormous remorse and shame. Dr Mendelsohn states that the Applicant reported to him that his past behaviour “makes me sick”. In Dr Mendelsohn’s opinion, the risk of the Applicant re-offending is “extremely unlikely”.

22 The Applicant was interviewed and assessed by psychiatrist, Stephen Allnutt, at the request of the Respondent. A report prepared by Dr Allnutt dated 6 October 2003, and a supplementary report dated 5 November 2003 was tendered in these proceedings. Dr Allnutt also gave oral evidence.

23 Dr Allnutt is of the opinion that the Applicant has developed a better understanding of his “cognitive distortions” which resulted in his sexual offences. Dr Allnutt assessed the Applicant using among other things, STATIC-99, an actuarial test used to predict recidivism rates among sex offenders. On that test the Applicant’s risk of re-offending was assessed to be medium-low. According to Dr Allnutt, the recidivist rates of known sex offenders with similar risk ratings to the Applicant, reveals that between 8% to 19% of this group will re-offend.

24 The Applicant’s early onset of strong romantic/erotic attraction to pre-pubescent (under 13 years) girls, according to Dr Allnutt, demonstrates that he has an underlying biological drive in the direction of pre-pubescent and adolescent girls, which is now adequately and appropriately under control. In Dr Allnutt’s view, therapy has been effective in altering the Applicant’s “cognitive distortions” and assisting him to exercise control. However, his condition, namely paedophilia, may persist throughout life. While the Applicant now recognises that relationships with pre-pubescent girls to be inappropriate, Dr Allnutt believes there would be cause for concern if he were to teach girls in this age group. He also believes that the Applicant might pose a risk, albeit a lesser one, to older girls, up to 18 years of age. Dr Allnutt believes that the Applicant presents no greater risk to males than that represented by the general male population. While Dr Allnutt sees the Applicant’s current risk as low, he believes that if he were to become lonely, depressed or psychological distressed, that risk might increase.

Findings and Conclusions

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

26 It is not in issue that for just under twenty years until he reached 33 years of age, the Applicant was sexually interested in, and attracted to, young girls. He claims that following treatment he now has insight into what caused him to act in that way and that he is no longer overcome by inappropriate sexual urges. He says that period is well behind him. In support, he points to the eight-year relationship with his current partner, something that would have not been possible before he sought help from Dr Mendelsohn. In short, the Applicant says he has grown up. He disagrees with Dr Allnutt’s assessment that he has a biological urge towards young girls. He contends that therapy has not merely assisted him to control these old urges but has enabled him to eradicate them.

27 The Respondent submits that the Tribunal could not be satisfied to the requisite standard that the Applicant does not present a risk to children for the following reasons: first the Applicant’s claim that he is “cured” is unsupported; second, even if accepted, insufficient time has passed to test whether there might be a relapse; third, Dr Allnutt’s opinion that he remains a risk, albeit at the low end of the scale, ought be preferred over that of Dr Mendelsohn.

28 I turn first to the apparent conflict in the expert evidence. Dr Allnutt’s assessment rests on the assumption that, first, the Applicant suffers from the condition of paedophilia and second, that persons who suffer from such condition have a life-long biological predisposition to be attracted to young children. In the Applicant’s case this attraction is to female children. In Dr Allnutt’s view this drive is now appropriately under control but could re-emerge in certain circumstances. Dr Mendelsohn expresses no such reservations in his report.

29 As the Respondent correctly points out, there are a number of shortcomings in Dr Mendelsohn’s evidence. He does not disclose his qualifications and expertise in the area of sex offenders nor does he offer a diagnosis. However, in my view his opinion cannot be as easily dismissed as the Respondent contends. As the Applicant’s treating doctor, Dr Mendelsohn has had the benefit of observing first-hand how the Applicant has responded to treatment over an extended period. His opinion about the success and durability of the therapy undertaken deserves some weight.

30 Dr Mendelsohn’s report pre-dated that prepared by Dr Allnutt and therefore he did not have the opportunity to explain why he reached a different conclusion to his colleague on the issue of future risk. The Applicant explains that he was not in a position to obtain a more detailed report from Dr Mendelsohn or, call him as a witness, because of the attendant cost. It may be that Dr Mendelsohn does not agree with Dr Allnutt’s diagnosis of paedophilia or, that he is of the opinion that any urge will always be controllable. From what is before me, I have no way of knowing. It is unfortunate that these questions were unable to be put to Dr Mendelsohn. However, I am left nevertheless with an expert opinion which provides limited assistance in fully understanding what factors Dr Mendelssohn took into account in reaching his assessment that the Applicant poses an extremely low risk.

31 A further difficulty with the Applicant’s evidence is that his claim of a recent long-term adult relationship, central to his claim that he is now rehabilitated is largely uncorroborated. It is to be noted that Dr Mendelsohn refers to the relationship but he does not explain how he came to know about it. The Applicant tendered an unsworn statement by his mother, which corroborated his claim. She was required for cross-examination but was unavailable. On the final day of hearing, the Applicant was offered a further opportunity to put on supporting evidence and a short adjournment was granted to allow him to consider that option. The Applicant advised that his brother could give evidence by phone but as it turned out he could not be contacted. He then indicated that his mother could give evidence but at a later date. In the end he said he did not want an adjournment but wanted the matter “over and done with”.

32 The Applicant’s explanation for not calling his partner for fear their relationship might be jeopardised, is entirely understandable. No doubt feelings of embarrassment played some role in his reluctance to involve family members in these proceedings until the eleventh hour. The Applicant seemed to me to be a truthful witness. His account of his past conduct was candid, there were no apparent inconsistencies in his evidence and he made appropriate concessions. I accept his claim that he is now repulsed by his former conduct. However, it cannot be overlooked that the central claim on which his case largely rests was not supported by any independent evidence.

33 The factors that in combination indicate that the Applicant might not represent a risk to children are these: first, there no is history of any re-offending since 1995; second, the Applicant demonstrates insight and remorse; third, he has received treatment over an extended period which all experts agree to date has been successful.

34 Against this, it must be acknowledged that this is not a case of a one-off offence, which can be put down to uncharacteristic behaviour brought on by a momentary lack of impulse control. The Applicant was attracted to children for a period of nearly 20 years. It is against that background, and taking into account the severity of the index offence, that the assessment of future risk must be made. In making that assessment, I must also take account of Dr Allnutt’s opinion that if the Applicant’s life were to change for the worse he may once again find himself in a position where he became attracted consciously or otherwise to young girls.

35 On the material before me, I cannot be reasonably satisfied that the Applicant would not present a risk to children in any circumstances and I therefore decline to grant an unconditional declaration under s 9(1). Having made that finding, I must now consider whether it is possible to impose conditions in order to lift the Applicant over the risk threshold. The Applicant has indicated that his sole interest in obtaining a declaration under the Child Protection Act was to allow him to return to work as a teacher at TAFE.

36 The Applicant has not put forward any proposed conditions which would allow that assessment to be made. This is not intended as a criticism. He represented himself throughout these proceedings a task he clearly found to be difficult. He has indicated he would be willing to submit to appropriate conditions. The Respondent has requested to be heard on the question of suitable conditions.

37 Dr Allnutt has proposed a risk management plan, which in my view provides a useful starting point for considering the issue of conditions. It would be inappropriate at this stage to pre-judge what, if any conditions might be formulated, however in fairness I should signal my preliminary view that if I were to grant a declaration under s 9(1), reasonably restrictive conditions under s 9(9) would be required. They would include that the Applicant be barred from working with girls under the age of 18. It may be that ultimately such order would be of little practical use to the Applicant. Whether the Applicant wishes to continue with his application in these circumstances is a matter for him. It is open to him to contact the Tribunal and advise if he does not wish me to proceed to consider the issue of conditions.

38 Accordingly, the matter will be set down for a further hearing to hear submissions on the appropriateness of the conditions proposed by Dr Allnutt and or any other conditions that the parties might propose. It is open to the parties to put on written submissions.

Directions

1. The matter to be set down for a further half-day hearing at a date to be fixed by the Registrar to hear submissions from the parties on the issue of conditions.

2. The parties may elect to put on written submissions on the issue of conditions. Such submissions are to be filed and exchanged no later than 7 days before that hearing.