K v Commission for Children and Young People

[2002] NSWADT 74

CITATION:	K -v- Commission for Children and Young People [2002] NSWADT 74
DIVISION:	Community Services Division
PARTIES:	APPLICANT K RESPONDENT Commission for Children and Young People
FILE NUMBER:	004019
HEARING DATES:	23/11/2001, 26/02/2002, 27/02/2002, 28/02/2002
SUBMISSIONS CLOSED:	02/28/2002
DATE OF DECISION:	05/08/2002
BEFORE:	Hennessy N (Deputy President); Gelin B - Member; Monoghan-Nagle L - 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 Child Welfare Act 1989 Evidence Act 1995
CASES CITED:	United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13 Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD Roberts v Balancio (1987) 8 NSWLR 436 R v McLean [1978] 2 NZLR 358 Jennings v Police 1965 NZLR 382 R v Anderson [1978] 2 NZLR 363
REPRESENTATION:	APPLICANT A Amer, barrister RESPONDENT I Bourke, barrister
ORDERS:	The Child Protection (Prohibited Employment) Act 1998 is not to apply to Mr K in respect of the offence of indecent assault for which he was convicted on 26 July 1966.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) …
(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 On 8 December 2000 Mr K applied to the Tribunal for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the CP (PE) Act) should not apply to him in relation to the offence of indecently assaulting a 13 or 14 year old boy for which he was convicted on 26 July 1966. Without such a declaration, Mr K may be committing an offence if he continued to teach or examine children in music or participated in any other “child related employment” as defined by the CP (PE) Act.

2 We refer to the applicant as “Mr K” in this decision. In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person to whom any proceedings before the Tribunal relate. (Administrative Decisions Tribunal Act 1997 (ADT Act) s 126(1).) Although s 126(2) of the ADT Act contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant’s name and to remove any other information which could lead to his identification. The official copy of the orders provided to the parties will include the name of the applicant.

3 The Commission for Children and Young People (the Commission) is a party to these proceedings pursuant to s 9(7) of the CP (PE) Act.

History of these proceedings
4 On 23 January 2001 the Tribunal granted a stay of the operation of the prohibition under the CP (PE) Act subject to the condition that Mr K not undertake any child related employment additional to the employment in which he was currently engaged. On 19 April 2001 the Tribunal varied that decision to add a condition that another music teacher, parent or guardian of the student or Mr K’s wife, be present during the course of Mr K’s employment as a music teacher whenever he has contact with a person under the age of 18 years.

5 On 23 November 2001 evidence was given by Mr K, Mr K’s wife and Mr K’s mother in law. Evidence by video link from Mr K’s two daughters and his first wife was to be given on 26 and 27 February 2002.

6 At the hearing on 27 February 2002, counsel for the Commission, Mr Bourke, confirmed earlier written advice to the Tribunal that Mr K’s two daughters and his first wife would not be giving oral evidence. Mr Bourke sought to tender the affidavits of Mr K’s daughters and his first wife all dated 1 September 2001. These affidavits contained allegations of sexual abuse by Mr K against one of his daughters. In support of that tender, Mr Bourke also sought to tender an affidavit from Ms Barbaro, solicitor for the Commission, dated 25 February 2002. That affidavit set out conversations Ms Barbaro had with Mr K’s daughters and his first wife. Attached to that affidavit were annexures from one of Mr K’s daughters and his first wife setting out their reasons for not giving evidence by video link to the Tribunal. Counsel for the applicant, Mr Amer, objected to the tender of the annexures to Ms Barbaro’s affidavit, but not the affidavit itself, and to the three affidavits dated 1 September 2001.

7 The Commission submitted that the annexures to Ms Barbaro’s affidavit as well as the affidavits from Mr K’s family members should be admitted into evidence, notwithstanding that the deponents/authors would not be giving oral evidence and consequently were not available for cross-examination. The Tribunal decided not to admit this material for the reasons set out below.

8 The three affidavits dated 1 September 2001 are hearsay evidence and would not generally be admissible in civil proceedings. Section 63 of the Evidence Act 1995 contains an exception to the hearsay rule in relation to a document so far as it contains a previous representation, if the person who made the representation is not available to give evidence about an asserted fact. Clause 4 of Part 2 of the Dictionary to the Evidence Act 1995 defines “unavailability of persons” as follows:

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) the person is dead, or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact, or
(c) it would be unlawful for the person to give evidence about the fact, or
(d) a provision of this Act prohibits the evidence being given, or
(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
9 In this case the deponents of the affidavits applied to give evidence by telephone or video link rather than in person. On 16 November 2001, the Tribunal directed that their evidence be given by video link. The three deponents subsequently changed their mind about giving evidence for reasons which appear, in part, in Ms Barbaro’s affidavit. The Commission did not request that the Tribunal issue summonses for the three deponents to give evidence. This would have been a “reasonable step” for the Commission to have taken had they wished to rely on the evidence. Given these circumstances the deponents/authors were not “unavailable to give evidence” for the purposes of s 63 of the Evidence Act 1995. Consequently the affidavits and annexures are inadmissible according to the ordinary rules of evidence generally applicable to civil proceedings.

10 This Tribunal is not bound by the rules of evidence and, in accordance with s 73(2) of the ADT Act, “may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” In United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13 the Appeal Panel of this Tribunal discussed this section at para 24:

Such a provision does not justify any departure from the requirement to observe procedural fairness or the rules of natural justice. Procedural fairness obliges the tribunal to give a fair opportunity to a party to meet material, adverse to that party’s interests, which has been admitted into evidence, by testing that evidence in cross-examination and/or by calling evidence to contradict it and/or being heard in respect of it by way of submissions.
11 At paragraph 27, the Appeal Panel said “An extensive statement of the requirements of procedural fairness in the context of a Tribunal not bound by the rules of evidence appears in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD at 4:”
In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.
12 Mr Bourke relied on two Supreme Court decisions: P v C 11 Fam LR 896 and Roberts v Balancio (1987) 8 NSWLR 436 in support of his submission that the three affidavits dated 1 September 2001 and the annexures to Ms Barbaro’s affidavit should be admitted. In P v C, Allen J decided, in relation to neglect proceedings in the Children’s Court, that the magistrate had fallen into error by not admitting into evidence statements of a 15 year old child. The proceedings were governed by s 81B(2) of the Child Welfare Act 1989 which provides that where a child has been brought before a court as a neglected child and a complaint alleges that the child has been ill-treated, the court “in determining the matter, may act upon any statement, document, information or matter that may, in its opinion, assist to deal with the complaint, whether or not the statement, document, information or matter would be admissible in evidence.” The statements contained allegations that the child’s father had committed incest on her older sister. The child chose not to give oral evidence. Allen J acknowledged that the fact that the child did not give oral evidence would affect the strength of the case, but considered that the statements themselves had sufficient probative value to be taken into account.

13 This decision is distinguishable from the present case. Section 73(2) of the ADT Act makes it clear that the Tribunal is not bound by the rules of evidence, but it does not go as far as s 81B(2) of the Child Welfare Act 1989.

14 In Roberts v Balancio (1987) 8 NSWLR 436 Hodgson J decided that three reports prepared by a counsellor of the Family Court of Australia should be admitted into evidence, even though the counsellor was not available for cross-examination. The proceedings concerned the custody of an ex-nuptial child. Hodgson J decided at p 440, that the reports were inadmissible according to the ordinary rules of evidence, but that when exercising its inherent jurisdiction in relation to custody matters the Supreme Court is not bound by the strict rules of evidence. The Court has a discretion to act on material which is rationally probative, even though excluded by such rules. Hodgson J said at page 441 that “There is a danger in that course (admitting the evidence) of unfairness to the party against whom the allegations made, but in some cases, I think this is outweighed by the duty of the judge to put the interests of the child first, and this may make it appropriate for him to take such a course notwithstanding the danger of unfairness.”

15 The three affidavits dated 1 September 2001 are relevant to an issue in dispute in these proceedings, namely whether Mr K poses a risk to the safety of children. The affidavits and the annexures constitute hearsay evidence and would not be admissible applying the ordinary rules of evidence. We endorse the comments made in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD at 4 that we should not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. The oral evidence of the deponents would be better evidence. In our view on the basis of the affidavit of Ms Barbaro, the deponents were “available” to give evidence by video link even though we appreciate that they had decided against doing so for what may be good reasons.

16 In determining whether to admit the disputed material, we must balance the probative value of the material against the unfairness to Mr K. While the material is relevant to an issue in dispute, and would have some probative value, the content of that material is extremely prejudicial to Mr K. In our view that prejudice means that the material should not be admitted in circumstances where Mr K does not have the opportunity to directly test that evidence through cross-examination.

Legislative framework
17 Offence. Subject to certain defences and transitional provisions, s 6(1) of the CP (PE) Act makes it an offence for a “prohibited person” to apply for, undertake or remain in “child-related employment”.

18 Definitions. A “prohibited person” is defined in s 5 of the CP (PE) Act to mean a person “convicted of a serious sex offence, whether before or after the commencement of this subsection.” “Serious sex offence” is defined in s 5(3), s 5(4) and s 5(5) of the CP (PE) Act. There is no dispute in this case that the offence of indecent assault for which Mr K was convicted in 1966 is a “serious sex offences” or that Mr K is a “prohibited person”.

19 Declarations. By virtue of s 5(2) of the CP (PE) Act, a person is not a prohibited person in respect of an offence if the Tribunal makes an order under s 9 that the CP (PE) Act is not to apply to the person in respect of the offence. So far as is relevant to these proceedings, s 9 states that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.
(2) A relevant tribunal is:
(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.
(3) ...
(4) A relevant 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.
(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(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,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.
(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.
(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.
(9) Orders under this section may be made subject to conditions.
20 Risk to the safety of children. Mr Bourke, representing the Commission, submitted, and we accept, that there is a presumption under the CP (PE) Act that a person who has been convicted of a “serious sex offence” does pose a risk to the safety of children. The Tribunal cannot make an order unless it considers that the person the subject of the proposed order “does not pose a risk to the safety of children.” The level of risk is not expressed as being an “unacceptable” or an “appreciable” risk. Nevertheless, parliament cannot have intended that the Tribunal consider that the person poses absolutely no risk. Everyone in the community poses some risk, however small, because a proportion of the population commits offences of that nature.

21 Onus and standard of proof. The onus is on Mr K to establish, on the balance of probabilities, that the Tribunal should grant a declaration in relation to the offences for which he has been convicted. The civil standard of proof is applicable; however, given the gravity of a finding that a person poses a risk to the safety of children, the Briginshaw standard should be applied. (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.)

Issues
22 On the basis of the legislative framework set out above, the primary issue which the Tribunal must address in determining whether to make a declaration is whether we are comfortably satisfied that the applicant does not pose a risk to the safety of children. If he does not, we must then determine whether to exercise our discretion to grant a declaration.

Evidence
23 The offence. On 26 July 1966, when he was a 22 year old high school teacher, Mr K was convicted of indecently assaulting a male student who was 13 or 14 years old at the time. Mr K is now 59 years old.

24 Mr K’s recollection of the offence is that it occurred after school hours at about 4 pm. Mr K said that he had asked the boy to come and do some homework in his office after school. He said he had no intention of abusing the boy when he gave him the detention. The incident occurred in his office which was adjacent to the music room. The office door was closed. The boy was sitting on a stool at a bench. Mr K was behind him. He reached around and undid the buttons on the boy’s fly and touched his genitals with his hand. Mr K cannot recall if he was talking to him at the time. The boy struggled and pulled away. He eventually grabbed his belongings and left. The boy was upset and said “I have to go home.” Mr K denied that he committed any penetration or fellatio on the boy but does not know whether he intended to go any further than he did on that day. Mr K said that it is possible that he had some sexual attraction to the boy. Mr K denied ever having previously had a sexually intimate relationship with a boy under the age of 16, although he said that he had been sexually attracted to males, as well as to females, for some time. He had already had a child with a young woman at the time of this incident.

25 Mr K was found guilty of indecent assault and sentenced to two years in prison. Mr Bourke asked Mr K whether there were other offences that police were investigating at the time of the offence for which Mr K was convicted. He also asked whether Mr K had committed any other offences of a similar nature. Because of the significance Mr Bourke placed on this exchange, the relevant passages are set out below.

Bourke: I was reading you, Mr K, from the transcript, page 9, 23 January 2001. You were asked this question by me, question “And when you were interviewed by police was it in relation only to this particular offence in the music room or were there other offences that you were interviewed about also”, answer “No, it was only to do with this offence I think”, question “you think”, answer “well, as I recollect, yes”. I suggest to you that in giving those answers and qualifying them with “I think” and “I recollect” you were not completely sure whether there were in fact or not other offences you were being interviewed about.
A. This is to do with the . . . police, I am just trying to work this through my . . .
Hennessy: well, the question is a very specific question. What Mr Bourke is asking you is whether by those answers that you used in January whether you were not completely sure that that was the only matter that you were interviewed about. Is that right or not right?
A: I am not completely sure, I think it was the only matter but. . .
Bourke: there may have been other offences that police were investigating in respect of you as well?
A: I don’t think so.
Bourke: But you can’t rule it out, can you?
A: No, I don’t suppose so.
Q: And in giving that answer do you acknowledge that there may have been other offences of a similar nature that you had committed?
A: I don’t recollect any other offences of a similar nature. . .
Bourke: But do you state that you had never previously committed any such similar offences?
A: Not against – I don’t – well, I haven’t committed any similar offences to children under the age of 18, no.
Q: Well, then why is it that you have had to qualify your answer in January with the words “I think this is the only offence I was being asked about”?
A: I can’t really answer that either. I could, – I probably then I couldn’t recall anything else, any other offences, and I still can’t recall any other offences.
Q: But, sir, if this was a one-off wouldn’t you be definite about it and say this is the only time it happened in my life?
A: Well, I can say that then if you wish me to say that.
Q: But you didn’t say that, did you, you said “I think this was the only offence I was being asked about.”
A: At that time I am sure that it was the only offence.
Q: You are sure now?
A: Well, I am not sure, I don’t recollect having committed any other offences.
26 When asked to comment on this part of the transcript, Professor McConaghy, an expert witness, said that the dialogue indicates that Mr K is a very pedantic, even obsessional, person and that he was making it clear that he was uncertain about whether any other offences were involved and could not rule it out.

27 Mr K spent 18 months of his two year sentence in goal and did not resume teaching children for 17 years. He said that he did not want to teach because he felt he was a risk to children. He is currently teaching music to between 45 and 50 individual students a week. Most of them come after school or on Saturday. In accordance with the conditions of the stay order, an adult is with him for the whole lesson. There has been no complaints of a sexual nature in relation to his teaching. Mr K denies that he has committed any further offences since 1966.

28 Treatment. While in prison Mr K received psychological counselling on a weekly basis for six months and then fortnightly counselling for the following six months. During the last six months of the eighteen months he was in gaol he was going out each day to work. Mr K said that the counselling allowed him to “work through the issues in my life which led to my offending” and “enabled me to develop the resolve to ensure I did not re-offend.” Mr K said that prior to the incident he felt that he was confused about his sexuality and now thinks that at the time he was bisexual.

29 Character references. Mr K tendered a reference from a fellow teacher who has known him for 15 years. This person is aware of Mr K’s conviction and says that he has “a good and honest relationship with his students, and is very caring of their musical needs.” She added that she has “always found (Mr K) to behave and act in a completely professional way.”

Expert evidence
30 Qualifications. Two experts, Professor McConaghy and Dr Allnutt, provided reports and gave evidence to the Tribunal at the request of Mr K and the Commission respectively. Professor McConaghy is a practicing psychiatrist and a visiting Professor within the School of Psychiatry at the University of New South Wales. His assessment was based on written material plus an interview with Mr K. Dr Allnut is a forensic psychiatrist who is currently Clinical Director of Psychiatric Services at Long Bay Hospital. His report was based solely on the written material.

31 Summary of Professor McConaghy’s assessment. Professor McConaghy’s assessment, based on the research of Hanson and Bussiere, summarised below, was that Mr K has an extremely low risk of re-offending. In fact, he has no higher risk than an average person in the population of his age of committing a sexual offence. Professor McConaghy estimated that 5% of the adult male population sexually abuse a child in any one year. Professor McConaghy accepted that this was a speculative figure based on the level of reporting of sexual offences against children.

32 Summary of Dr Allnutt’s assessment. Dr Allnutt concluded that Mr K has a low risk of re-offending but emphasised that even after 35 years of not having committed an offence, Mr K was still “at risk” of re-offending. He added that after that time the rate of recidivism is dramatically less than after five years; however, estimates for long follow-up periods become unreliable because of the reduction in the number of offenders in the remaining years. In addition, many incidents of child molestation are not reported or, if reported, not prosecuted. Dr Allnutt disagreed with Professor McConaghy’s conclusion that Mr K poses no greater risk than the average male of his age. Because the true base rate of child molestation in the general population is unknown any comparison with sexual offenders is difficult. Furthermore, because Mr K has committed a sexual offence, he has an underlying propensity to re-offend.

33 Methods of assessing risk. There is some debate in the literature as to the most reliable methods of predicting whether a person convicted of a sex offence will re-offend. Both Professor McConaghy and Dr Allnutt agreed that the most reliable research available is that of R Karl Hanson and Monique T Bussiere, particularly their article entitled “Predicting Relapse: A Meta-Analysis of Sexual Offender recidivism Studies” which appears in the Journal of Consulting and Clinical Psychology 1998, Vol 65, No 2, 348-362. Static 99, an assessment tool for predicting recidivism among sex offenders, was strongly influenced by this research. Hanson and Bussiere’s article reports on evidence from 61 follow-up studies to identify the factors most strongly related to recidivism among sexual offenders. The findings in regard to the variables which significantly predicted recidivism were:

· of the demographic variables, young age and single marital status;
· of lifestyle variables, anti-social personality and total number of prior offences;
· of sexual criminal history, previous criminal convictions, stranger victim (versus acquaintance), extra-familial victim, began offending at an early age, selected male victim, engaged in diverse sexual crimes;
· of clinical presentation variables, only failure to complete treatment. None of the others, such as denial or clinical ratings of low treatment motivation, were related to recidivism.
34 Static 99 . Static 99 was developed by R Karl Hanson and David Thornton in Canada, and is explained in an article entitled Static 99: Improving Actuarial Risk Assessments for Sex Offenders 1999-02. The article is available on the internet at . Static 99 is designed to predict risk of re-offending at the time when an offender is discharged from goal. Dr Allnutt noted that Static-99 cannot identify whether a particular person will re-offend. The risk is predicted by allocating points to various factors including: prior sex offences, any unrelated victims, any stranger victims, any male victims, age of offender and long term relationships. The total number of points attributable to a particular offender indicates whether they are a low, medium/low, medium/high or high risk. Hanson and Thornton make the important point at page 16 of the article cited above, that the low, medium and high risk labels do not reflect any absolute standard of risk. They note that “An offender with a 10% chance of sexual recidivism over 15 years may be a good candidate for conditional release (ie low risk), but an unacceptable high risk for holding positions of trust over children.”

35 Application of Static 99. In oral evidence, Professor McConaghy calculated Mr K’s score on the Static 99 to be either 3 or 4. One point was allocated because the victim was not related to Mr K, one point because the victim was male, one point because Mr K was between 18 and 24 at the time of the offence and one point because he was single, that is he had not lived with a lover for at least two years. Professor McConaghy was not sure on the basis of the information obtained in the interview, whether the “single” risk factor applied to Mr K. According to Professor McConaghy, the only factors not included in Static-99 which Hanson and Bussiere found to be relevant to risk assessment, were antisocial personality and failure to complete treatment. In Professor McConaghy’s opinion Mr K showed no indication of having any features of an anti-social personality. In addition, Mr K completed the treatment offered to him while in goal.

36 The table at p 13 of the Hanson and Thornton article relating to Static 99 shows that 19% of people with a score of 3, and 36% of people with a score of 4, committed a further sexual offence within 15 years of being released from gaol. Professor McConaghy noted that Static 99 does not predict recidivism beyond 24 years from a person’s release from goal. While the graph on p 12 of the article plots the figures for up to 24 years, the percentages are only recorded in the table at p 13 for the periods of 5, 10 and 15 years. Mr K was released from goal approximately 33 years ago.

37 Static 99 removes an offender from the analysis once he has committed a further offence. This is called “survival analysis” and, according to Hanson and Bussiere, has the advantage of being able to estimate year by year recidivism rates. The survival curves end when there are fewer than 15 offenders exposed to risk for a particular year. Dr Allnutt’s opinion was that recidivism continues to occur as long as the offenders are in the community.

38 Professor McConaghy pointed out that the only study of long term recidivism of child molesters was that of Hanson and others published in 1993 (R Hanson, R Steffy & R Gauthier, “Long-term recidivism of child molesters” Journal of Consulting and Clinical Psychology, 61, 646-652). This study found that those offenders who had no prior offence and who had not re-offended in the following 25 years did not reoffend in the following five years covered by the study. Professor McConaghy expressed the view that the same conclusion can be made for Mr K based on the weight of empirical evidence. On the basis of these figures and the fact that Mr K does not have an anti-social personality and completed treatment, Professor McConaghy expressed the opinion that Mr K has an extremely low likelihood of re-offending.

39 Mr K is now 59 years old. Professor McConaghy drew the Tribunal’s attention to research on age and sexual recidivism by R Hanson. (“Age and Sexual Recidivism: A Comparison of Rapists and Child Molesters 2001-01” available on the internet: That research concludes that the rate of sexual offending decreases with age. Those who abused an extra-familial child showed little decline in their recidivism risk until after the age of 50. After age 60, extra-familial sex offenders were at no risk of re-offending. (See table 2 at page 9 of the article referred to above.)

40 Mr Bourke, representing the Commission, asked Professor McConaghy whether Mr K’s risk level would be higher if he had committed other offences prior to the commission of the 1966 offence. Professor McConaghy agreed that the risk would have been higher at the time of his release from gaol because points would have been allocated for prior offences, but his risk today, after 35 years of not offending, would still be extremely low.

41 Mr Bourke also questioned Professor McConaghy about the significance of Mr K saying that he did not teach for 17 years because he felt that he could have been a risk to children. In response, Professor McConaghy endorsed the comment of Vernon Quinsey at p 639 of an article entitled “A retrospective Evaluation of the Regional Treatment Centre Sex Offender Treatment Program” in Journal of Interpersonal Violence, Vol.13, No 5 October 1998 621-644. Quinsey stated that “The content of the Thorne Sex Inventory Loss of Control Scale and its relationship to sexual recidivism seems to indicate that sex offenders who state that they need to be supervised to not re-offend should be believed.” Professor McConaghy agreed that Mr K probably stayed away from teaching because he perceived himself as being at risk of re-offending, but he has now been teaching for 11 years without supervision and has an extremely low risk of re-offending today. Dr Allnutt expressed the view that Mr K’s decision not to teach may indicate a degree of self-control on his part.

42 Dr Allnutt identified the risk factors relevant in this case as: a previous history of sexual offence involving a male child as victim and onset of offending at a relatively young age. He added that exposure to children in a teaching situation, similar to the situation in which the original offence occurred, was a risk factor, but he would modify this with the fact that even though Mr K has been exposed to the opportunity to re-offend, there has been no complaints in 35 years.

43 Dr Allnutt expressed the view that Mr K is either a paedophile (that is, he has a persistent sexual attraction to children) or the offence he committed was a “one-off moment of madness”. Dr Allnutt commented that if Mr K has successfully resisted any temptation to molest children over a long period, then his risk of offending now would be very low. Dr Allnutt’s conclusion was that compared with other sex offenders, Mr K’s risk of re-offending is very low, and only marginally higher than the average person in the street.

44 Hanson and Thornton acknowledge that Static 99 has some limitations. The authors note, at pages 14 and 15, that while “Static 99 is clearly more accurate than unstructured clinical judgement”, it “does not claim to be comprehensive.” It neglects whole categories of potentially relevant variables such as dynamic (as distinct from static) factors.

45 Professor McConaghy commented in his report that Mr K impressed him as being “open, and frank”. While Professor McConaghy maintained that these attributes are factors which suggest that he has a low risk of re-offending, Dr Allnutt confirmed that there is no research which would support this assumption.

Reasons and decision
46 Relevant and irrelevant consideration when assessing risk. The expert witnesses expressed similar views on factors which are relevant to an assessment of risk. We have decided to take into account the static and dynamic factors that have been identified by research as well as the factors listed in s 9(5) of the CP (PE) Act. The risk factors identified in Static 99 are:

· any unrelated victims;
· any male victims;
· offenders age at time of assessment (if the assessment concerns the offender’s current risk level, this is his current age); and
· single (the offender is considered single if he has never lived with a lover, male or female, for at least two years).
47 Mr K scored 3 or 4 on the Static-99 assessment. The tables at p 13 of the Hanson and Thornton article show that 36% of people with a score of 4 committed a further sexual offence within 15 years of being released from gaol. Mr K did not commit a further offence within that time, nor has he committed an offence since then. The graph on p 12 of the article flattens out considerable for both medium low and medium high risk offenders after 15 years. This indicates that there is an extremely low rate of re-offending after this time. The only data which predicts recidivism after longer non-offending periods is that compiled by Hanson and others published in 1993 (R Hanson, R Steffy & R Gauthier, “Long-term recidivism of child molesters” Journal of Consulting and Clinical Psychology, 61, 646-652). This study found that those offender who had not committed an offence for 25 years, did not commit a further offence during the following five years covered by the study. Dr Allnutt made the point that recidivism continues to occur as long as offenders remain in the community and that any offender has an underlying propensity to re-offend. Based on Static 99 and the 1993 referred to above, offenders in the same risk group as Mr K, have virtually no risk of re-offending after such a long period of non-offending.

48 Findings in relation to commission of other offences. Mr K gave evidence that he could not rule out the suggestion that police interviewed him about other offences in 1966. He also said that he could not recollect having committed any other offences prior to the offence for which he was convicted. Mr Bourke pointed to other cases decided about the same time which, in his submission, indicate that a sentence of two years was much longer than sentences for similar offences. (R v McLean [1978] 2 NZLR 358 - one conviction for indecent assault on boy aged 12: sentenced to 6 months in goal; Jennings v Police 1965 NZLR 382 - single offence on eight year old female student: sentenced to 6 months in goal; R v Anderson [1978] 2 NZLR 363 - offence of indecent assault on a nine year old relative: sentenced to 6 months in goal.) These cases do appear to be cases where significantly lighter sentences were imposed in comparable circumstances to the present case. However, even when coupled with Mr K’s answers on this issue, we are not comfortably satisfied on the basis of this indirect and equivocal evidence, that Mr K was questioned about other offences at the time, or that he had ever committed any other similar offences.

49 The factors identified in s 9(5) which the Tribunal must take into account in assessing risk, are:

· the seriousness of the offences;
· the age of the person at the time those offences were committed;
· the age of each victim of the offences at the time they were committed;
· the difference in age between the offender and the victim; and
· the seriousness of the offenders overall criminal record.
50 Seriousness of the offence . Mr Bourke submitted that the Tribunal could not assess Mr K’s risk because there was no independent evidence of the factual situation surrounding the offence. Because the offence was committed so long ago, the records are no longer available and we only have Mr K’s evidence of the nature of the offence. The fact that independent evidence in relation to the nature of the offence is not available is unfortunate, but we must nevertheless make factual findings on the basis of all the evidence before us. Despite rigorous cross-examination, Mr K did not waiver from his version of events as set out in these reasons. We are comfortably satisfied that the offence occurred as described by Mr K. That offence, while serious, is not the most serious kind of sexual offence that can be committed on a child.

51 Age of offender and victims and difference in their ages. Mr K was approximately 22 years old when he committed the offence for which he was convicted. According to Static 99 his young age at the time of committing the offence is a risk factor. Mr K is now 59 years old. The empirical research referred to by Dr McConaghy suggests that a 59 year old man who has committed offences against victims who are not related to him, and who has not re-offended, are at virtually no risk of re-offending. The victim in this case was aged 13 or 14 years old. The difference in ages between Mr K and the victim was approximately 9 years. It is difficult to assess the weight to be placed on age difference when it is not a factor that has been identified by research as being significant in predicting risk of re-offending. Nevertheless, there is a moderate difference in ages between Mr K and the victim which we must take into account.

52 Seriousness of the total criminal record. The only other offence for which Mr K has been found guilty is a mid range prescribed concentration of alcohol offence in the early 1990s. This offence does not affect Mr K’s risk to the safety of children. Mr K’s current good character was not mentioned as a relevant factor by either of the expert witnesses, nor was it mentioned in the research material to which we have referred. Consequently we do not place any weight on the reference tendered by Mr K.

53 Conclusions. Taking into account all the evidence, we consider that Mr K does not pose a risk to the safety of children. Despite Dr Allnutt’s opinion that recidivism continues to occur as long as offenders remain in the community, all the research which was brought to our attention suggests that a 59 year old man who committed and offence of a similar nature to that of Mr K has virtually no statistical risk of re-offending after 35 years. None of the dynamic or clinical factors associate with risk apply to Mr K. The fact that Mr K did not teach for 17 years and has not re-offended are positive indication that he has been successful in resisting the temptation to re-offend and that he does not pose a risk to the safety of children.

54 We exercise our discretion to declare that the CP (PE) Act is not to apply to Mr K in respect of the offence of indecent assault for which he was convicted on 26 July 1966.