JH v Commission for Children and Young People

[2004] NSWADT 131

CITATION:	JH v Commission for Children and Young People [2004] NSWADT 131
DIVISION:	Community Services Division
PARTIES:	APPLICANT JH RESPONDENT Commission for Children and Young People
FILE NUMBER:	034052
HEARING DATES:	29/03/2004
SUBMISSIONS CLOSED:	03/29/2004
DATE OF DECISION:	07/06/2004
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
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 M Higgins, barrister
ORDERS:	Application is dismissed.

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 seek employment as a bus driver and work as a Santa Claus over the Christmas period. The Respondent opposes this application.

2 In 1983, the Applicant was convicted of one count of rape and another of attempted rate. Each of these offences constitute 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 therefore 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 may 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, “JH”. 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 of a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or to 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 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 they 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. He held at [46] 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”.

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

10 Rape and Attempted Rape In 1983 the Applicant was convicted by the Supreme Court of Queensland of one count of rape and another of attempted rape. He was sentenced to nine years for each charge, to be served concurrently. The Applicant was 24 years of age at the time and his victims were 13 and 12 years of age.

11 He entered a guilty plea for each charge. The Respondent was unable to locate the police facts sheets tendered in the sentencing proceedings.

12 The Applicant’s evidence given in these proceedings was that he approached the girls in his car and asked if they wanted to make some money and give him directions. They agreed and got in the car. He then drove to a deserted laneway and asked for sex. They refused. After locking the car he forced himself on one girl and had penile vaginal intercourse. He attempted to have sex with the second girl but could not achieve an erection.

13 Each girl in their respective statements given to police shortly after the incident claimed that the Applicant mentioned a gun and threatened to harm them if they did not cooperate. This was denied.

Applicant’s Age (s 9(5)(d1))

14 The Applicant is now 45 years of age.

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

15 The Applicant was convicted for three offences the index offence.

16 In 1974, at the age of 15, he was convicted of the offence of “use unseemly words”.

17 In February 1979, he was convicted of the offence of “wilful and obscene exposure”. The police facts sheet tendered in the sentencing court and these proceedings states that the Applicant was seen masturbating in his car in view of two 14-years-old girls. Immediately before that incident, the principal of a nearby primary school had made a complaint that a man had approached students aged 12 to 14 years, offering capsules containing unknown substances.

18 In evidence in these proceedings, the Applicant denied offering children capsules but confirmed he had masturbated in sight of two teenage girls. He reports that in the morning before that incident he had been drinking heavily.

19 In October 1979, he was again convicted of the offence of “wilful and obscene exposure”. In these proceedings, he testified that on that occasion, while working on the railways, he masturbated in the signal box in sight of a young woman whom he later found out to be a teenager. The court documents relating to that offence were not before me in these proceedings.

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

Conduct after offence

20 Employment history Since his release from gaol in 1987, the Applicant has held various positions and obtained a number of qualifications. Between 1988 and 1990 he worked as a concrete pipe maker. In 1990 he worked as a store manger for a short period at a computer games arcade. He left that position to work in a medical centre where he was responsible for a number of tasks, including administrative matters and basic medical procedures. After about 18 months he left that position for a similar position in another medical centre. He then worked for a brief period in a public hospital as a technician. After that contract expired he returned for a short period to the first medical centre where he had worked. He left that job to work at a computer games arcade for nine months and then to work as a ride attendant at Australia’s Wonderland. He then returned again to the first medical centre to work as a cardiac technician/ supervisor. He stayed there at for about four years.

21 He worked as a volunteer during the Sydney Olympics. Since that time he has held various casual jobs. He makes this application so that he can work as a bus driver where, among other tasks, he would be required to transport school children to and from camping holidays. For about four years until 2000, the Applicant worked as a Santa Claus in large department stores and at a children’s hospital.

22 The Applicant tendered five references from former employers. Four were from medical practitioners all of whom attested to his diligence, enthusiasm and aptitude for his work. A manager of the games arcade where he had worked in 1996 provided the fifth reference. None of the referees refer to the index offences or comment on his suitability to work with children.

23 The Respondent made enquiries of the Applicant’s current and former employers, the Police and the Department of Community Services. No information adverse to the Applicant has been revealed through these enquiries for the period since 1990.

24 Rehabilitation The Applicant gave evidence that since his release from goal he has made serious efforts to get his life on track. He claims that since the early 1990s he has not had any sexual thoughts involving young girls, nor has he acted in an improper way with children, nor has anyone made a complaint to that effect. By way of example, he cited his experience while working in a public hospital in the 1990s. There he claims he was exposed to patients, male and female, in various stages of undress and on no occasion was he cautioned or reproached about his behaviour.

25 He denies the claim that he was not remorseful for the 1983 offences. He claims that the reason he entered a guilty plea was to spare the girls the experience of a criminal trial. He said that the pre-sentence report incorrectly attributed to him comments which indicated that he lacked contrition. He explained he did not challenge the report at the time as he did not have an opportunity to do so.

26 According to the Applicant, counselling was not available when he was first admitted into custody. He claimed that between 1984-86, he saw Sue McCullough who helped him develop communication and insight skills. Psychologist Mike Edwards then assisted him for about 12 months. Upon his release from custody he saw another psychologist for about two years.

27 Religion The Applicant gave evidence that in 1992 he became a member of the Church of Latter Day Saints and since that time has followed Mormon teachings, which forbids the use of alcohol and sex outside marriage.

28 Relationships According to the Applicant, he has not been in a long-term relationship but is hopeful that this might change. He gave evidence of a couple of relationships that he was in a few years ago but says that he has not had any significant relationships since that time. He does, however, have a number of female friends.

Expert evidence

29 The Applicant was interviewed and assessed by psychologist, Dr Christopher Lennings, at the request of the Respondent. A report prepared by him dated 30 January 2004 was tendered in these proceedings. In addition, Dr Lennings gave oral evidence.

30 In Dr Lennings’ opinion the essential elements of the index offences were the Applicant’s sexual frustration at the time, his inability to form age-appropriate relationships and his excessive use of sexual fantasy. In his view, the Applicant’s self-report reveals ongoing sexual deviancy up until at least the early 1990s.

31 Dr Lennings tested the Applicant using three assessment tools: STATIC-99, structured clinical assessment and personality assessment. STATIC-99 is an actuarial test used to predict recidivism rates among known sex offenders by weighing key static risk variables. According to Dr Lennings based on STATIC 99, the Applicant fell within the very highest range for risk, given the nature of the index offences, the Applicant’s history of multiple offending and the fact that his victims were strangers. However in Dr Lennings’ opinion given that 22 years had passed since the last offence, based on Static 99, the risk of re-offending was now reasonably low.

32 Dr Lennings also used structured clinical assessment, which he explained takes account of both static and dynamic risk factors. According to him, from the late 1970s until the early 1990s, the Applicant demonstrated certain behaviours that indicate levels of deviant sexual behaviour or risk of same.

33 Dr Lennings assessment of the Applicant’s personality reveals him to be a somewhat immature and inadequate man. He notes, however, that the Applicant has none of the primary features that might indicate a risk of recidivism - namely an anti-social personality disorder, substance abuse, or anti-social peers. According to Dr Lennings, he presents as someone likely to be impulsive who takes ill-considered risks from time to time. In Dr Lennings’ opinion, the Applicant’s inability to develop satisfying relationships with adult females will continue to create an element of frustration in his make-up, although he appears to have internalised a religious code that inhibits acting-out behaviours.

34 Dr Lennings is of the view that the Applicant’s past history indicates a significant paedophilic orientation. Although he now reports no deviant sexual thoughts, nor any behaviour that might indicate such thoughts, he continues to reveal a mild level of sexual deviation. His continued work in areas that bring him into contact with young people, in Dr Lennings’ view, potentially indicates the ongoing workings of a paedophilic process of which the Applicant may be unaware. The Applicant disputes this hypothesis and points out that throughout the 1990s he was mostly employed in medical centres where his contact with children was minimal and almost entirely supervised. He claims that he came to know of vacancies in various game arcades because of his interest in computer games.

35 In Dr Lennings’ opinion, overall the Applicant presents a degree of risk to children, especially young pubescent girls. In Dr Lennings’ view, he continues to have deviant sexual impulses despite the fact that in recent times he has been able to restrain himself. Dr Lennings notes that his adoption of the Mormon religion has assisted the Applicant in maintaining self-control. However, Dr Lennings believes that there is no guarantee that this will continue into the future. In his view, the only way to further reduce the Applicant’s level of risk is for him to avoid situations where he might re-offend in the future.

36 In oral evidence, Dr Lennings said that he accepted the Applicant’s claim that he was no longer “tempted” when he saw “half-naked” girls and no longer objectified teenage girls or young women. Dr Lennings explained that his concern was that if a relationship with an emotional component were to develop between the Applicant and a young girl he might lose perspective of what constitutes responsible adult behaviour.

Findings and Conclusions

37 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.

38 As Dr Lennings noted, the Applicant’s history indicates a history of sexually deviant behaviour up until the early 1990s. The Respondent submits that on the basis of Dr Lennings’ opinion that the Applicant has a paedophilic orientation, the Tribunal could not be satisfied that he did not pose a risk to children.

39 As I understand it, the Applicant submits, first, that the index offences (and, indeed, the other relatively minor sex offences on his record) were committed a long time ago. Second, he contends that his history since his release from gaol demonstrates that he is no longer a risk to children. He points to his varied employment history throughout the 1990s which brought him into contact with children of varying ages without complaint. He argues that since his convictions in 1983 he has not acted in an inappropriate way towards women or children and, in support, points to the results of the Respondent’s enquiries.

40 It is, of course, notoriously difficult in situations such as this for an applicant to prove the negative, but the burden is laid upon applicants for sound public policy reasons. Parliament has concluded that the public interest in the protection of children from potential harm outweighs the interests of the individual and legislated accordingly. In many instances people convicted of sex offences are thus denied the opportunity to work in a field they might otherwise choose, and this can have adverse effects upon them. However, the vulnerability of children demands that they be protected from any potential risk that such an offender could pose.

41 I acknowledge that the Applicant has, since his release from custody, apparently conducted himself lawfully and appropriately in his dealings with children. He deserves credit and, indeed, commendation for this. It may be that his conversion to the Mormon faith, as well as the obvious deterrent effect of a lengthy gaol term, has steeled his resolve never to commit offences against children again. The question here, however, is not whether he will or is likely to commit further offences against children (which is, of course, unanswerable) but whether, taking into account all the relevant evidence, the Tribunal can be comfortably satisfied that, either with or without the imposition of appropriate conditions, he poses no material risk of harm to children.

42 Notwithstanding those factors in the Applicant’s favour, the evidence of Dr Lennings is troubling. Dr Lennings concluded that the Applicant, despite his self-control, still suffers from a paedophilic sexual orientation. (This is denied by the Applicant.) Dr Lennings’ assessment is that the Applicant has exhibited classic “grooming” behaviour and has consistently manoeuvred himself into situations in which he is close to children. His fear is that the external controls (such as his Mormon faith) which support the Applicant’s efforts at self-control may not operate permanently and that he may, at some time in the future, give way to paedophilic impulses. He has diagnosed the Applicant as having impulsive tendencies and as being emotionally vulnerable. Dr Lennings regards him as having difficulties establishing and maintaining relationships and as being unstable in his “psycho-social adjustment”.

43 In summary, Dr Lennings concluded that “it appears that a greater than usual degree of risk continues to exist for [the Applicant].” He recommended that Mr JH “not be put into positions that increase his risk of acting out on his interests” and that he not be granted an exemption.

44 Dr Lennings has presented compelling evidence that Mr JH, despite his best efforts, remains a risk to children. Disappointed as the Applicant will no doubt be by this decision, it is, in my view, both in his best interests and those of the community that the application be dismissed.

Orders

Application is dismissed.