Ie v Commission for Children and Young People

[2003] NSWADT 266

CITATION:	IE v Commission for Children and Young People [2003] NSWADT 266
DIVISION:	Community Services Division
PARTIES:	APPLICANT IE RESPONDENT Commission for Children and Young People
FILE NUMBER:	034042
HEARING DATES:	17/11/03
SUBMISSIONS CLOSED:	12/02/2003
DATE OF DECISION:	12/16/2003
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Child Welfare Act 1989
CASES CITED:	A v Commissioner for Children and Young People [2000] NSWADT 151 AG v Commission for Children and Young People [2002] NSWSC 582
REPRESENTATION:	APPLICANT H Ginges, solicitor RESPONDENT R McIllwaine, solicitor
ORDERS:	1 The Applicant is not a prohibited person within the meaning of the Child Protection (Prohibited Employment) Act 1998 and accordingly the Administrative Decisions Tribunal is without jurisdiction to entertain this application.

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

1 In this case, a question arises whether the applicant is a “prohibited person” within the meaning of s 5 of the Child Protection (Prohibited Employment) Act 1988 (“the Child Protection Act”). If he is not, the application should be dismissed as the Tribunal lacks jurisdiction.

2 For the purposes of this question, a “prohibited person” means, in s 5(1), a person who has been convicted of a “serious sex offence”. In the Child Protection Act, “conviction” carries with it an extended definition. It includes “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

3 In September 1965, the applicant, then a boy of 17 years, was charged with an offence of “Carnal knowledge” with a 15 year-old girl (whom he later married). From the court record it appears that the act was consensual although consent was no defence to the charge. The applicant made full admissions to the investigating police and the Parramatta Children’s Court. The court’s order was entered in these terms: “Without proceeding to a finding of guilt, young person is discharged conditional upon entering into a recognizance and in the sum of £20 with one surety in £20 or two sureties in the sum of £10 conditioned to be of good behaviour for 12 months and to appear for a finding of guilt to be further dealt with in accordance with the provisions of section 83(3) of the Child Welfare Act 1939 if called upon at any time during that period”.

4 Pursuant to s 83(3) of the Child Welfare Act, if the child before the court admitted the offence or the offence was proven, it was open to the Children’s Court, without proceeding to a finding of guilt, to make orders dismissing the charge, admonishing and discharging the child, discharging the child conditionally upon his or her entering a recognizance to be of good behaviour and to appear for a finding of guilt and to be further dealt with if he or she breached the bond. It is clear from the record that the court opted in the applicant’s case for the last alternative. The applicant did not breach his recognizance (or “bond”) and consequently a formal finding of guilt was never entered. The making of such a finding, and any sentence which would flow from it, were deferred upon the applicant entering his bond to be of good behaviour. In other words, he gave a solemn promise to the court that he would be of good behaviour for 12 months in the knowledge that a breach of that undertaking would result in the loss of £20 and his being called up to be formally found guilty of the offence (having admitted it) and sentenced.

5 It is common ground that the charge itself was a “serious sex offence”. The issue for determination here is whether the Parramatta Children’s Court’s order constitutes a “conviction” according to the extended definition laid down in s 3 of the Child Protection Act. There is no argument that no formal conviction was entered. Did the Children’s Court, however, make finding that the charge was proven or that the applicant was guilty of the offence?

6 It has been argued by the applicant that as the court did not proceed to a finding of guilt, there were no findings by the court that the offence was proven or that the applicant was guilty of the charge. The respondent argues the contrary. It argues that there is no substantial difference between an admission of guilt (accepted by the court) and a finding by the court that the person concerned is proven to have committed the alleged offence.

7 The respondent also argues for an interpretation of the definition of “conviction” which is consistent with the purpose of the legislation. It cites dicta of Dowd J in AG v Commission for Children and Young People [2002] NSWSC 582. He said:

It was submitted that whilst the Act does not express its objectives but it is primarily concerned with the protection of children. I would add to that, that it is primarily concerned with the protection of children from people who have had convictions [for serious sex offences], not just the protection of children.
8 The difficulty here, however, is that the respondent’s argument begins to take on a circular aspect. If a purposive construction is given to the legislation, it is that children be protected from persons “convicted” of serious sex offences. This does not help us determine whether or not the applicant has been so convicted.

9 We must also purposively interpret the provisions of the Child Welfare Act 1939. The Child Welfare Act specifically empowered the Children’s Court to deal with children and young people in ways which are generally inconsistent with the conventions of the criminal law and the criminal justice system. The Child Welfare Act was hybrid legislation, embracing both criminal justice and welfare or social work philosophies. The Child Welfare Act 1939 was largely discredited in the 1980s and was repealed but the underlying ethos is evident in s 83(3). For all their faults, the Act and the Children’s Court sought to treat children and young people who admitted or were proven to have committed criminal offences as redeemable. The legislation and the Children’s Court saw crimes committed by children as a manifestation of underlying social ills and welfare problems or even of mere immaturity. In this case, the District Officer of the child welfare authority recommended that the court admonish and discharge the applicant. It is implicit in the report that the District Officer did not regard the applicant as a criminal “sex offender” but as a teenager with some growing up to do but good prospects for the future.

10 It is manifest in the court record that the Magistrate was anxious not to record to a conviction or make a finding of guilt. Clearly the Magistrate was seeking to place emphasis on the welfare-oriented options available to him under the legislation but was also anxious to ensure that the applicant understood that a breach of the bond would be likely to result in the criminal justice face of the Child Welfare Act being turned towards him. The Magistrate made a deliberate choice not to make a finding of guilt in respect of the offence. No doubt this was in large part due to the fact that the applicant had admitted his behaviour (in an adult court this would be equivalent to a plea of guilty), had demonstrated remorse but had also manifested honourable intentions towards the girl who, with the blessings of both families, later became (and remains to this day) his wife and mother of their four children.

11 The Children’s Court could not, in 1965, have foreseen the passing of the Child Protection Act but it was obviously attempting in its deliberations and decision to encourage the applicant’s rehabilitation (if that was necessary) by seeking to defer the imposition of sanctions upon him, including any additional social penalties, such as reduced employment possibilities, which might flow from a finding of guilt being made and recorded. This was perfectly consonant with the ethos of the Child Welfare Act with its complex arrangement of carrots and sticks for children drawn into the jurisdiction of the Children’s Court.

12 I have been referred to this Tribunal’s decision in A v Commissioner for Children and Young People [2000] NSWADT 151 in which the Tribunal took the view that “there is no difference in substance between finding that a charge is proven and a defendant admitting the offence… Consequently the ordinary meaning of ‘a finding that the charge for an offence is proven’ includes the situation where an offence is admitted and the defendant is sentenced.” A is distinguishable on its facts. In that case, A was given what was effectively a suspended sentence to an institution following admissions being made whereas in this case sentence was deferred. I would concede, though, that the distinction may not be a great one.

13 More importantly, however, I respectfully disagree with the finding in A. At first blush, the decision in A seems self-evident but, in my view, a closer analysis of the two competing interpretations yields a more complex picture as I have suggested in my analysis of the actual decision in the applicant’s case in 1965. In my opinion, where the Children’s Court has deliberately chosen to make no finding of guilt we can infer that it has done so because a child or young person stigmatised with an offence (of whatever nature) is likely to be more difficult to rehabilitate than a child or a young person who has been given an opportunity to redeem him or herself. If that child takes the opportunity and the Children’s Court does not call him or her up to have the stigma of guilt formally imposed, it does not appear to me that it was Parliament’s intention in the Child Protection Act retrospectively to do so.

14 For these reasons, the applicant is not, in my opinion, a prohibited person under the Child Protection Act because he has not, for the purposes of s 5, been “convicted” of a serious sex offence.