Ik v Commission for Children and Young People

[2005] NSWADT 56

CITATION:	IK v Commission for Children and Young People [2005] NSWADT 56
DIVISION:	Community Services Division
PARTIES:	APPLICANT IK RESPONDENT Commission for Children and Young People
FILE NUMBER:	034043
HEARING DATES:	12/10/2004 & 14/10/2004
SUBMISSIONS CLOSED:	01/19/2005
DATE OF DECISION:	03/17/2005
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 IK RESPONDENT A Healey, Counsel
ORDERS:	The Child Protection (Prohibited Employment) Act 1998 does not apply to IK in respect to two offences of “indecent assault male” for which he was convicted on 9 May 1975

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

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

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

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

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

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


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

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

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

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


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 The Applicant, seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”) in respect of two offences for “indecent assault male” for which he has been convicted. The Respondent opposes this application.

2 Each offence constitutes a “serious sex offence” as defined by the Child Protection Act. By the operation of s 5 of that Act, the Applicant is a “prohibited person” and as such, it is an offence for him to apply for, undertake or remain in child-related employment.

3 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, “IK”. 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 to 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 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].)

7 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.

8 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))

9 Indecent Assault In 1974 the Applicant was convicted at the Sydney District Court of two charges of “indecent assault” after entering a guilty plea. Sentence was deferred and the Applicant was placed on a recognisance to be of good behaviour for a period of three years subject to the following conditions: accepting the supervision of the NSW Probation and Parole Service, undergoing certain medical treatment and paying a fine of $500.

10 The Applicant was 20 years of age at the time he committed the offences. His victims were two boys, aged three and five. They were the sons of a woman he had been boarding with for about ten months. At the time of the offences he was babysitting the boys and their eight-year-old sister.

11 Tendered in these proceedings was the police record of interview of the Applicant which had been made shortly after the offences were committed. It records that the Applicant initially denied the incident but, on further questioning by police, confessed. He claimed at interview that the older boy, Child 1, had said to him “give me a look at your dickie” and, after initially refusing, “gave into him”, pulled his trousers part way down and allowed both children to play with his penis. He claimed that Child 1 then pulled his own pants off and said “do it to me” and shortly later his brother, Child 2 followed suit. He admitted masturbating the boys. According to the Applicant, while Child 1 was out of the room, Child 2 knelt on the floor and put his mouth over his penis. The boy’s sister then entered the room and asked what was happening. Shortly later the Applicant took a phone call from the boys’ mother and then resumed sexual activity with the boys. After he put the boys to bed he masturbated himself and ejaculated. He stated he was sorry for his behaviour and was depressed at the time.

12 The record of interview with the older brother was also tendered in these proceedings. He claimed that the Applicant had performed fellatio on him (and his brother) and he tried to push him away without success.

Applicant’s Age (s 9(5)(d1))

13 The Applicant is now 49 years of age.

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

14 The Applicant’s criminal record includes a number of convictions that post- date the index offence, none of a sexual nature. They include break and enter with intent and various dishonesty offences. All but a recent conviction for driving with low range PCA were committed when the Applicant was in his twenties. The Applicant has served four separate custodial sentences.

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

15 Current relationship The Applicant is happily married. He and his wife met in 1996 through a parents group and have been in a relationship since 1999. They have an eighteen months old daughter. Mrs IK has two children from a previous marriage, aged eight and ten. The Applicant also has two children from a former marriage, a daughter aged ten and son aged seven. The Applicant is in regular contact with them and they routinely stay with the IK family on weekends and during holidays.

16 Mrs IK gave evidence in these proceedings and was not required for cross-examination. She is a primary school teacher and has attended training courses through the Department of Education designed to assist identify and recognise children who have been abused.

17 She testified that she has observed her husband over an extended period interact with her own, and other children, in a wide variety of circumstances. She asserts that she has never had any reason for concern. She said that when he came to live with her family (initially as a boarder) he looked after her children from time to time and his conduct was exemplary. Throughout 2001 he cared for her four year old son, three days a week while she was at work.

18 She said her first husband had been abusive (not sexually). She claimed when she left that marriage she had resolved not to expose her children to that type of conduct again. She said she was confident that in her belief that the Applicant posed no risk to her children.

19 Mrs IK had been a close friend of the Applicant’s first wife. According to Mrs IK, when the Applicant and his first wife were together, the latter had never expressed any concerns about how the Applicant had behaved towards his children.

20 Character evidence An affidavit sworn by Reverend A was tendered in these proceedings. Reverend A also gave oral evidence. Reverend A has been a neighbour of the Applicant and his family for the past three years. The two families are in close and regular contact. Reverend A said that when the Applicant told him about the index offence he had told him he deeply regretted what he had done. After this disclosure, Reverend A raised the issue with Mrs IK and asked if she felt safe with the Applicant. According to Reverend A, Mrs IK reassured him she did and replied “there is no way I would allow him to be around if there was any repeat of that past behaviour”.

21 Reverend A testified that the Applicant’s stepchildren and biological children appeared comfortable and happy in his presence and he observed no sign of abuse.

22 The Applicant also tendered a testimonial from a female schoolteacher with whom he had boarded for five months in 1999. She stated that she had observed him to be a good father and had trusted him to look after her own children.

23 A reference was also provided by a family friend who had lived with the IK family on and off over a four year period. On his account, the Applicant was an exemplary father, often caring for Mrs IK’s children and his own while she was away at work. He stated he had seen no evidence of any behaviour that might arouse suspicion or doubt. He claimed that, while he was extremely surprised to learn that the Applicant’s [unspecified] ‘trouble with the police’, his trust of him had not been disturbed.

Applicant’s evidence

24 Index offence The Applicant claimed in evidence that the index offence was the only time he has acted inappropriately towards a child. He claimed that to this day he does not know “what came over him”. He denied any sexual thoughts, or feelings of attraction towards children.

25 In his initiating application to the Tribunal the Applicant described the index offence as one involving two boys, aged eight and ten, who while watching television, “started to fondle me and I reciprocated”.

26 In cross-examination the Applicant was questioned about the discrepancy between the actual ages of his victims and the ages he gave on the application. He claimed that at the time he filed out the application form he believed the information he had provided to be correct. It was put to him that it was simply implausible that he could have simply forgotten the details of the offence. He denied inflating the children’s ages to make the incident look less serious. He suggested that his recollection may have been unreliable as he had tried to ‘block’ out the incident.

27 In these proceedings the Applicant repeated his claim that the children initiated the sexualised conduct. He agreed that there was oral fellatio and claimed he did not mention that in his application as he had forgotten about it.

28 Bath incident The Applicant gave evidence of an incident involving his daughter when she was aged about six or seven. According to him while they were bathing together she touched him on the penis and he immediately got out of the bath. On his account she was upset and said “why doesn’t daddy like it…[Applicant’s former wife’s boyfriend] does.” The Applicant then made a complaint to DOCS. The complaint was made at a time when acrimonious custody proceedings were on foot.

29 Reason for Application The Applicant gave as the reason he made the application was so that he could work as a bus driver.

Expert evidence

30 Professor David Greenberg and Dr Christopher Lennings gave evidence in these proceedings.

31 The principal point of difference between the evidence of the two experts was in relation to their diagnoses. Professor Greenberg formed the view, on the basis of his understanding of the history of the index offence, that, at the time of the offence, the Applicant “had a paedophilic arousal with pre-pubescent children” and that he had an underlying paedophilic sexual attraction towards young children.

32 Dr Lennings had “no doubt” that at the time of the offence the Applicant’s paedophilic “interests had been aroused”. Like Professor Greenberg he considered the incident to be an “extremely significant deviant act”. He also agreed with Professor Greenberg that paedophilia is an incurable condition, but was not convinced that this was an appropriate diagnosis in the Applicant’s case. The index offence was committed when the Applicant was 20. Dr Lennings commented:

[It] would be very rare that a person at the age of 20 would normally have established their sexual identity. At the age of 20, particularly an immature person such as The Applicant appears to have been, is still in the process of developing their sexual identity and it seems to me that the offence was an isolated act that occurred as a consequence of psychological pressures and does not appear to have been reflective of an ongoing sexual identification.

33 He noted the possibility of “some kind of erotic paedophile fantasies” occurring before the Applicant committed the offence but also that there appeared to have been no development of a paedophilic sexual orientation once he had been brought to account for his behaviour.

34 His view was that the behaviour could be explained plausibly as coming about due to the Applicant’s early sexualisation (having been abused by relatives during his early teenage years), his immaturity and psychological stress. Professor Greenberg did not directly address these matters but stated:

[I]n in a 20-year-old adult man who has been sexually active with peer aged female partners and who becomes sexually aroused (penile erection) with a 4- and 7-year-old boy, the likely diagnosis is paedophilia. Underlying past sexual motives (aetiology) is the best predictor of future sexual behaviour.

35 Professor Greenberg’s opinion does not, however, refute the possibility advanced by Dr Lennings that the behaviour is explicable on the basis of other factors combining, nor does his opinion explain the apparent contradiction in the fact that the Applicant’s sexual relations up to the time of the offence had been with peer-aged females, a pattern that has apparently prevailed ever since. While it is no doubt correct to say that “underlying past sexual motives” are the best predictors of future sexual behaviour, perhaps the evidence points just as readily to the primary underlying sexual motives operating in the Applicant’s youthful mind as being those of a normal, but immature, heterosexual male, with this offence being a one-off incident committed in unusual circumstances.

36 Dr Lennings and Professor Greenberg made the same findings on the Static 99 predictive test they applied to the Applicant. Static 99 is a well-known and authoritative test designed to assess the probability of sexual offenders re-offending. Both experts applied the test, among others, but noted certain qualifications ought be placed on the results. Professor Greenberg, for example, said:

The severe limitation with actuarial scales, such as the Static 99, lies in the fact that although they inform about a risk group of sex offenders relative to other sex offenders, they do not identify as to which specific sex offender will actually re-offend and which specific sex offender will not re-offend… Specific individuals in each group with a similar score cannot be identified as to which are recidivists and will not be recidivists.

37 Professor Greenberg also noted that the Static 99 test had not been validated for the Australian population.

38 Dr Lennings also registered another caveat in relation to the Static 99 test. He referred to research by the Australian Institute of Criminology suggesting that between 4 and 17 per cent of Australian males had sexually abused children (to a greater or lesser extent) and that between about 14 and 33 per cent of girls and between 9 and 20 per cent of boys in the Australian population reported having been sexually abused, in the majority of cases by persons close to their families. From this he argued that it is probably reasonable to assume that about 15 per cent of the Australian male population constitute some sort of sexual risk to children and that those men will mainly offend against small numbers of children to whom they have easy access, usually within the context of a close relationship. From this he argued that, compared with a base population of this kind, the Applicant’s risk rating is not high.

39 Professor Greenberg’s response was that the research upon which Dr Lennings based his opinion is not authoritative in respect of paedophilia. In any event, it seems to me that if Dr Lennings is correct, there is a material risk to children from 15 per cent or so of the general population and that, as a matter of commonsense, if a person has committed an offence once, all other things being equal, the probability of him or her committing a similar offence again is demonstrably higher than for a person who has never committed that kind of offence. How much higher that probability is will depend on circumstances. Given the apparent rubberiness of the figures, however, I do not think Dr Lennings’ argument on the question of the propensity of the general population to abuse children is of assistance here.

40 Both found the Applicant to fall within the “low-medium” risk range according to Static 99 criteria. From an actuarial point of view, that seems a reasonable assessment.

41 Both Dr Lennings and Professor Greenberg noted that, in his younger years, the Applicant had acted in an anti-social fashion for some time. Dr Lennings, unlike Professor Greenberg, scrutinised this behaviour in some detail. Dr Lennings’ view was that it was very likely to have had its root cause in a fractured and angry relationship with his mother, whom he blamed for the premature death of his father.

42 Professor Greenberg did not closely analyse that anti-social behaviour but regarded it as a significant factor in considering the question whether the Applicant posed an actuarial risk of re-offending against children. Viewed baldly within the context of the Static 99 test he is, of course, correct. If, however, that behaviour is not indicative of a generally anti-authoritarian or anti-social outlook but of a particular stressor which, as Dr Lennings suggests, has been identified and dealt with, it ought no longer be taken into account when considering the level of risk, if any, the Applicant may pose to children.

43 In my opinion, the weight of evidence seems to suggest that the Applicant is a stable, mature, law-abiding person and that he does not suffer from a personality disorder. There is no evidence of violent non-sexual offences, nor of any mental illness or other factors suggesting that he constitutes anything other than a low risk of sexual recidivism. Those who know him well and have observed him over years relating to children have confidence in him.

44 Dr Lennings noted that in the 30 years since the commission of the offence the Applicant has apparently had numerous opportunities on which to act out any paedophilic predilections and that nothing suggests he has availed himself of those opportunities in that way. While there would probably be increased opportunities for the Applicant if he attended school camps or related activities, and this is an important factor to be taken into account when weighing the risk he may pose to children, Dr Lennings was of the view that the risk remained low. He did, however, recommend that the Applicant ought not drink alcohol in such circumstances as it is “undesirable to have disinhibited adult behaviour around children” even if the adults have no history of prior sexual offending.

45 Professor Greenberg maintained his view that the Applicant posed a low, but material, risk to children.

Findings and Conclusions

46 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.

47 It is uncontestable that the index offence was, as the experts agree, an “significant deviant act”. It involved two very young boys. This was not a case of a momentary grope but unambiguous sexualised conduct over an extended period, which included fellatio. Despite the Applicant being disturbed on two occasions, first by the sister and later by the phone call from the children’s mother, he persisted in this deviant conduct. Looking at the offence as a whole it is somewhat surprising that he received the lenient sentence he did.

48 Counsel for the Respondent, Ms Healey identified a number of discrepancies in the description of the offences provided by the Applicant in his initiating application and the police record. In these proceedings the Applicant conceded that the latter account is correct. Ms Healey argues that these discrepancies, together with the persistence of his view that the children “started it”, must at the very least raise some doubts about the truthfulness of his evidence. Dr Lennings’ diagnosis rests largely on the acceptance of the Applicant’s self report that he is not aroused or interested in children, which cannot be objectively verified. In these circumstances it cannot, Ms Healy argues the Applicant has discharged his evidentiary onus.

49 In my view it is not clear that the Applicant was deliberately untruthful in relating the ages of the children concerned. The discrepancy is plausibly explained by the fading and distortion of memory over a long passage of time. In any event, on either version, the Applicant admitted abusing young children. Even if he intentionally sought to diminish the gravity of the offence to some degree, and that is not obvious to me, it was only by a relatively small margin. He did not, for example, claim that they were sexually developed teenagers. He was frank at the time of the offence itself and it appeared to us that he was frank in the way he gave evidence before the Tribunal. I think that is probable that this was an inadvertent error on the Applicant’s part rather than some amateurish attempt to deceive the Tribunal. In my opinion, the Applicant appeared to be an honest witness.

50 On the question of risk, the Respondent’s case is that the opinion of Professor Greenberg ought be preferred over that of Dr Lennings. The Respondent argues first, that Professor Greenberg has significantly more clinical and research experience in the field of psychiatry including paedophilia; second in contrast to Professor Greenberg who saw the Applicant on three occasions, for about an hour on each occasion, Dr Lennings saw the Applicant on only one occasion and then only for about one and half hours; third, given the reference in Dr Lennings’ report to ‘a single offence’ there is some uncertainty that he was aware of the number, and more importantly the ages of the children, at the time he made his assessment; fourth, as Dr Lennings acknowledges his diagnosis rests largely on the Applicant’s self report that he has no impulses that fit the paedophilic criteria.

51 Professor Greenberg and Dr Lennings are both highly experienced and well-respected practitioners. Although Professor Greenberg is more experienced than Dr Lennings, the latter’s experience is not so great as to make the difference immaterial for our purposes. I do not agree, as I understand Ms Healey to imply, that the erroneous reference in Dr Lennings’ report to the offence itself [two acts of sexual abuse on a young boy] means that his opinion should be approached with caution. In evidence Dr Lennings clarified that his clinical notes referred to “two boys” and while he had not made a note of their ages he had noted “different [Applicant’s account] to what is in the statement”. He explained that it was his practice to rely on the police file and court documents and not the account given by the person he is assessing.

52 Nor do I accept the contention that Dr Lennings’ evidence is necessarily any less valuable because he spent less time with the Applicant than Professor Greenburg. Counsel for the Respondent has not taken me to any procedural defect in the manner Dr Lennings’ assessment was carried out or any tests that should have been carried out that were not. Nor does a fair reading of the report indicate that he failed to take a proper and comprehensive history.

53 While I accept Professor Greenberg’s general assessment that the Applicant, from an actuarial point of view, constitutes a low but material threat to children, that assessment must be placed in the balance with what we know of the individual and the reasonable possibility that the Applicant committed his offence as a result of a combination of psychological factors excluding a paedophilic orientation. The observations of those who know him and whose children have been placed in his care over the past several years are critical. Their confidence supports the Applicant’s claim that he has not acted inappropriately towards children for an extended period.

54 It is common ground that paedophilia is almost invariably an incurable, lifelong sexual orientation. Anyone suffering from the condition, no matter how self-disciplined he or she may be, therefore poses some degree of material risk to children. According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994) (“DSM-IV”), a manual accepted in Australia as an authoritative psychiatric text, the diagnostic criteria for paedophilia include “recurrent, intense sexually arousing fantasises, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally age 13 years or younger)” over a period of at least six months.

55 One of the gaps in the evidence, of course, is that, apart from the Applicant’s own evidence and the evidence relating to the index offence itself, we do not have an indication of how long he had sexual fantasies or urges in respect of children. Dr Lennings was not prepared to discount the possibility that the Applicant had “erotic paedophile fantasises” prior to the index offence, however concluded that there had been no development beyond that time. Even if Dr Lennings’ suspicions are correct there is nothing to suggest that these fantasies continued beyond the time of the offence. While Professor Greenberg’s qualified diagnosis may be correct, it is necessarily tentative because of the gap in the evidence. Dr Lennings’ analysis is that the stronger possibility is that the Applicant was simply a stressed, immature young semi-adult when he committed the offence in question and that there is insufficient evidence to suggest a diagnosis of paedophilia.

56 In my opinion, the opinion of Dr Lennings is to be preferred in this case. One does not lightly reject the arguments of a psychiatrist as learned and eminent as Professor Greenberg but, in this case, it seems to me that Dr Lennings’ analysis is more consistent with what is known of the Applicant’s behaviour over the last 30 years and, indeed, with commonsense than is Dr Greenberg’s. Dr Greenberg gave significant weight as a risk factor to the anti-social behaviour exhibited by the Applicant as a young man. In my opinion, he gave too much weight to that and not enough to the probable explanation for it and the obvious stabilisation of the Applicant’s behaviour as he matured and apparently came to the realisation that his mother was not to blame for his father’s death.

57 The view I have formed is strengthened by the fact that there is no evidence that the Applicant meets the DSM-IV criterion of six months of recurrent fantasy about pre-pubescent children. True it is both that this criterion is in itself arbitrary and that the only person who can really tell us whether or not he meets the criterion is the Applicant himself, but the absence of evidence contradicting his claims, such as complaints against him or even evidence of suspicious behaviour on his part, is noteworthy and supports his contention. It is, of course, always difficult to prove a negative but the Applicant has a powerful argument when he says that he has done nothing to children since 1975 and there is not a scintilla of evidence advanced to contradict him. While those who gave character evidence for the Applicant could not possibly know what was going in his mind (conscious or otherwise) each were well placed to observe first hand over an extended period whether his claims lack veracity. While as the respondent points out none are experts in the field of paedophilia, Mrs IK and Reverend A each have had some training in identifying abuse and therefore could be expected to have some ability to identify untoward conduct. This suggests that Professor Greenberg’s tentative diagnosis, whilst not unreasonable, is, nevertheless, tenuous.

58 It is also worth noting here also that the Applicant has had the humiliating experience of being exposed and punished for committing a serious sex offence against children. Part of the sentencing process is to impose penalty of such severity as is likely to deter the offender from committing further offences. On all the evidence before the Tribunal, that object has been achieved in the Applicant’s case. His successful rehabilitation, presumably achieved to some degree by deterrence, is something that ought to be placed in the balance on his side.

59 In all the circumstances, I am comfortably satisfied that the Applicant does not constitute a real and material risk to children.

Orders

The Child Protection (Prohibited Employment) Act 1998 does not apply to IK in respect to two offences of “indecent assault male” for which he was convicted on 9 May 1975.