KQ v Commission for Children and Young People
[2012] NSWADT 62
•11 April 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: KQ v Commission for Children and Young People [2012] NSWADT 62 Decision date: 11 April 2012 Jurisdiction: Community Services Division Before: S. Higgins, Deputy President Decision: 1.The applicant's application for an order is refused.
2.The applicant may bring a further application for an order at any time after 2 years from the date of this decision.
Catchwords: Declaration - prohibited person - whether applicant has discharged his onus that he poses no risk to the safety of children Legislation Cited: Administrative Decisions Tribunal Act 1997
Commission for Children and Young People Act 1998
Child Protection (Prohibited Employment) Act 1998 (repealed)
Crimes Act 1900Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8
Commission for Children and Young People v V [2002] NSWSC 949 (2003) 56 NSWLR 476
R v Commission for Children and Young People [2002] NSWIR Comm 101
UB v Commission for Children and Young People [2006] NSWADT 125Category: Principal judgment Parties: KQ (Applicant)
Commission for Children and Young People (Respondent)Representation: KQ (Applicant in person)
Crown Solicitors Office (Respondent)
File Number(s): 104018 Publication restriction: s 126 of the Administrative Decisions Tribunal Act 1997
REasons for decision
Introduction
COMMUNITY SERVICES DIVISION: S Higgins, Deputy President. These proceedings fall within the terms of section 126 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). By reason of that section, the applicant's name is substituted with the pseudonym 'KQ'.
KQ seeks an order under section 33I of the Commission for Children and Young People Act1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of an offence of which he was convicted, in the Local Court of New South Wales, on 29 March 2007. The offence was an offence of 'assault with act of indecency' contrary to section 61L of the Crimes Act 1900. For the purpose of this application, this offence is referred to as the 'index offence' as it is the offence that brings KQ within the terms of the Commission Act.
As a consequence of this index offence, KQ is a 'prohibited person' and is prohibited from applying for, obtaining or remaining in 'child-related employment' (see sections 33B and 33C of the Commission Act), unless he obtains an order under section 33H or 33I of the Commission Act.
The respondent, the Commission for Children and Young People (the Commission), opposes an order being made in favour of KQ under the Commission Act.
KQ is 55 years of age and wishes to work as a translator and interpreter. In July 2010, he sought to work as a contractor in the Kurdish languages for the Translating and Interpreting Service (TIS). I understand that TIS provides interpreting services to the Department of Immigration and Citizenship. KQ was unable to take up a position with TIS, unless he obtained a declaration that the Commission Act did not apply to him in regard to his index offence. As a consequence, in August 2010, he lodged this application with the Tribunal. When lodging his application for a declaration, KQ also made an application for an urgent stay pursuant to section 33K of the Commission Act. The stay application was heard on 20 September 2010 before Judicial Member Leal. On 21 September 2010, Judicial Member Leal refused KQ's stay application and made directions for the filing and serving of evidence and set the matter down for hearing on 19 November 2010.
In 2009, KQ had made a similar application for a declaration under section 33I of the Commission Act. The Tribunal dismissed KQ's stay application, on 10 March 2009. In dismissing the application, the Tribunal granted KQ leave to make a further application, at any time, for a declaration under Part 7 of the Commission Act with respect to the index offence.
KQ's current application has been protracted as, in October 2010, he requested that the 19 November 2010 hearing date be postponed. KQ's application was then listed for directions on 10 February, 26 May and 7 July 2011. On 7 July 2011, by consent, I listed the matter for hearing on 29 August 2011. At the commencement of the hearing, KQ again sought an adjournment. As he did not appear to be well I listed the matter for further directions on 20 October 2011. At this directions hearing, KQ indicated that he wanted his application to proceed and that he only wished to cross-examine Dr Allnutt, the psychiatrist, instructed by the respondent, to assess KQ and to prepare a risk assessment report. So as to accommodate KQ's request, with the consent of the Commission, was set down for further hearing on 7 November 2011. The parties agreed that the matter could otherwise be determined on the papers.
For the reasons set out below, I am not satisfied that KQ has discharged the onus that is placed on him to establish that he does not pose a risk to the safety of children. There is no question that he has had a difficult life and suffers from depression and anxiety. Despite considerable adversity KQ has obtained a University degree and has previously successfully worked as an interpreter and translator here in Australia and in Iraq prior to migrating to Australia as a refugee in 1993. However, as identified by the experts, Dr Lennings and Dr Allnutt, KQ has not been able to show that he has taken the necessary steps in addressing his contravening conduct, the subject of his index offence, and developing skills that will enable him to recognise and avoid circumstances of this nature arising in the future. As a consequence, the experts, Dr Lennings and Dr Allnutt both expressed the opinion that KQ poses a low to moderate risk to the safety of children. That risk they say arises at times when KQ experiences emotional distress or mood disturbances. For the reasons set out below, I agree with the opinions expressed by the experts.
Relevant legislation
As I have mentioned, the legislation relevant to KQ's application is Part 7 of the Commission Act. Section 33C of that Part contains a statutory prohibition on 'prohibited persons' applying for, undertaking or remaining in 'child-related employment'. Section 33E prohibits an employer from employing a 'prohibited person' in 'child-related employment'. Section 33D requires an employer to ascertain whether an employee is a 'prohibited person' if employing that person in a 'child-related employment.'
The term 'prohibited person' is defined in section 33B of the Commission Act. So far as it is relevant, subsection 33B(1)(a) provides that a 'prohibited person' means a person 'convicted of a serious sex offence' (i.e. an index offence). The word 'convicted' is defined in section 33(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.'
The term 'serious sex offence' is defined in subsection 33B(3) of the Commission Act. It relevantly means 'an offence involving sexual activity or acts of indecency that were committed in New South Wales and that were punishable by penal servitude or imprisonment for 12 months or more.' In this application, there is no dispute that the index offence of which KQ was convicted is an offence falling within this definition and therefore a 'serious sex offence'.
The term 'child-related employment', is broadly defined in section 33(1) of the Act. It relevantly provides as follows:
child-related employment:
(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment:
(i) ...,
(ii) ...,
(iii) ...,
(iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999),
(v) employment in refuges used by children,
(vi) ...,
(vii) employment in clubs, associations, movements, societies, institutions or other bodies (including bodies of a cultural, recreational or sporting nature) having a significant child membership or involvement,
(viii) employment in any religious organisation,
(ix) ...,
(x) ...,
The word 'employment' is also broadly defined in subsection 33(1) to include self-employed persons. The word 'children' is defined in section 3 of the Commission Act to mean a person under the age of 18 years. Consequently, the word 'child' in Part 7 should be given the same meaning.
As I understand it, KQ's employment with TIS was child-related employment in that the service that was provided by this agency had a significant child involvement.
The section 33C statutory prohibition on working in child-related employment does not apply where the 'prohibited person' obtains an order under section 33H or 33I of the Commission Act declaring that Part 7 does not apply in regard to the index offence of which the person has been convicted (or there has been a finding of guilt)(see subsection 33B(2)). It should be noted that an order under section 33I can be made subject to conditions (see subsection 33I(6) of the Commission Act and ADV v Commission for Children and Young People [2012] NSWADT 8). No such orders were sought in this application.
Section 33H makes provision for such orders to be made by the Commission and section 33I makes provision for such orders to be made by the Tribunal or the Industrial Relations Commission. Subsection 33G prescribes a number of offences for which a 'prohibited person' is not entitled to make an application for an order under section 33H or 33I. The index offence of which KQ was convicted is not an offence of this kind.
Section 33I of the Commission Act relevantly provides as follows:
33I IRC and ADT may make declarations concerning prohibited persons
(1)On the application of a prohibited person, a relevant Tribunal may make an order declaring that this Division 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)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.
(4)An applicant must fully disclose to the relevant tribunal any matters relevant to the application.
(5)If the 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 or section 33H in respect of that until after the period of five years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of the refusal.
(6)Orders under this section may be made subject to conditions.
(7)The following applies to proceedings before the Administrative Decisions Tribunal under this section:
(a)the Tribunal may not award costs, and
(b)an appeal lies on a question of law to the Supreme Court of any party to the proceedings.
Section 33J of the Commission Act sets out the matters that are to be considered by the Tribunal in determining an application by a 'prohibited person' under section 33I. That section provides as follows:
33J Matters to be considered in determining review applications
(1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children.
(2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
(3) In deciding whether or not to make an order in relation to a person, the Commission or 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 period of time since those offences were committed,
(c) the age of the person at the time those offences were committed,
(d) the age of each victim of the offences at the time they were committed,
(e) the difference in age between the prohibited person and each such victim,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the prohibited person's present age,
(h) the seriousness of the prohibited person's total criminal record,
(i) such other matters as the Commission or tribunal considers relevant.
Section 32 of the Commission Act provides that 'the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of' Part 7.
The Court of Appeal has recently confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. That is, the purpose of this Act is not to impose additional punishment on a person, but to eliminate possible risks to children. The repealed Child Protection (Prohibited Employment) Act 1998 (the repealed Act) had a similar purpose: see R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].
The word 'risk' in the context of prohibited persons working in child-related employment was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour said that in the context of subsection 9(4) of the repealed Act, 'risk' did not mean 'minimal risk', 'fanciful, or theoretical risk' to children. His Honour went on to say:
'...[what] one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children ''.
In making these remarks His Honour adopted the analyses that had been given by Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101, at [104]. Some care must be taken in applying the entirety of this analysis, as the provisions of the Commission Act are not in exactly the same terms as the repealed Act. However, the Tribunal has continued to follow the above remarks of Young CJ (Equity) since the Commission Act has come into force.
Evidence
In support of his application KQ relied on the following material:
- a number of references from people who have worked with him or who know him personally,
- a statutory declaration made by him and filed on 11 March 2011,
- a document, filed 11 March 2011, containing KQ's comments on the report of Dr Lennings, psychologist, dated 15 February 2009. Dr Lennings had prepared a report, at the request of the respondent, for the purpose of KQ's 2009 application to the Tribunal,
- a copy of a letter KQ had sent to TIS on 14 January 2011, and
- a report of Dr K Attia-Soliman, a psychiatrist, dated 6 February 2011.
KQ also filed and served a two-page letter, addressed to me, which he signed on 18 November 2011. The content of the letter was primarily in the form of submissions, the majority of which were not of little, if any, assistance in determining the matters in issue, as set out in the Commission Act.
The Commission tendered into evidence two volumes of documents which included the following:
- a report of Dr S Allnutt, dated 7 July 2011 together with a copy of Dr Allnutt's CV, the letter of instructions to Dr Allnutt and copies of the documentary material provided by the Commission to Dr Allnutt for the purpose of making his report. That material included a copy of the report of Dr C Lennings of 15 February 2009,
- a Crimtrack Check Report, relating to KQ, dated 24 June 2011, and
- a copy of the transcript of the 2007 proceedings before the Local Court in regard to KQ's conviction for the index offence.
I have considered all the material that has been filed. Set out below are my findings in regard to the matters set out in section 33J of the Commission Act.
Seriousness of the index offence
As I have indicated KQ was convicted of an offence under section 61L of the Crimes Act 1900 which relevantly provides:
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for five years.
The offence of which KQ was charged occurred late afternoon on 28 May 2006. It was alleged that, on this day, at about 5.30 pm, KQ, while driving his taxi near a suburban railway station, was flagged down by a sixteen year old girl. The girl got into the front passenger seat of KQ's taxi and asked that she be taken to a nearby suburb. There were no other persons in the taxi. During the journey, KQ was alleged to have said to the girl 'you are a very pretty girl'. It was also alleged that KQ made a number of comments to the girl about picking up passengers and taking them to his home and stating that he was a 'very lonely guy and had a lot of money'. The girl said she tried to ignore KQ's comments. However, he put his hand on her thigh to which she said 'don't' and pushed away his hand. The girl alleged that KQ did this several times more and tried to slide his hand up her thigh. The girl alleged at one point she grabbed his hand to move it and he put her hand on his crutch. The girl asked KQ to stop the taxi, which he did, and she paid and left.
On 16 July 2006, KQ was charged with the offence of assault with acts of indecency. After a two-day defended hearing, on 16 January and 8 February 2007, KQ was convicted of the offence as alleged. He was subsequently sentenced, on 29 March 2007, with a good behaviour bond for a period of two years under the supervision of probation and parole. KQ appealed the conviction to the District Court, which he was entitled to do. On 22 April 2008, the District Court dismissed his appeal and confirmed the original conviction.
I note from the transcript of the proceedings before the Local Court, that KQ was legally represented. I also note from the remarks of the Magistrate made on 8 February 2007, that KQ's major attack on the prosecution's evidence was that the girl had incorrectly identified KQ as the driver of the taxi. The Magistrate rejected this assertion and accepted the evidence of the girl and other evidence of the prosecution that KQ was the driver of the taxi on the day in question. The Magistrate also rejected the suggestion that the girl's evidence was unreliable in that she had given inconsistent evidence as to when the touching had occurred. Again the Magistrate was satisfied that the girl had given reliable evidence.
On 29 March 2007, the Magistrate made the following remarks when sentencing KQ:
'HER HONOUR: ...Yes, I give you credit for not having any previous convictions on your record and you deserve and get credit for that, and I accept that you are a person who has had a life which is an understatement to call difficult and also to your credit have made a significant contribution to the Kurdish community when you were in Australia and I accept that goes to your character. I also accept that you are suffering from depression and according to the precedence report it has been exacerbated by this case, but certainly according to the references that you have handed me, particularly the reference from Queensland - or the quote from Queensland Health, it is something that has been ongoing for some time.
It does put me in a difficult position for sentencing because this is a serious offence. I know you deny it but I have found you guilty of it and it is a serious offence.
ACCUSED: Serious offence.
HER HONOUR: Very serious.
ACCUSED: Very serious.
HER HONOUR: But it seems to me that with the good things that you have got going for you and the fact that you have got no previous convictions that I could safely proceed by way of a supervised bond, and I intend to do so.'
During the course of this application, KQ seemed to accept that it was not the role of the Tribunal to look behind his conviction and the findings of the Magistrate. Instead, he contended that the conduct of which he was charged and convicted was at the very lower end of seriousness of such offences. This he submitted was reflected in the sentence he received, which has long expired. However, as the Tribunal 's jurisdiction is protective and not punitive, the seriousness of KQ's criminal conduct must be viewed in the context of possible risk to the safety of children.
The Commission contended that the offence for which KQ was convicted was a 'serious offence as it involved an assault with an act of indecency where the girl was, because she was travelling in a moving vehicle, relatively powerless to get away.' At the same time, the Commission acknowledged that KQ stopped the taxi when the girl insisted he should do so.
I agree with the contentions of the Commission that KQ's offending conduct was serious. I agree it was not at the most serious end of the scale of such offences. Nevertheless it occurred at a time KQ was in a privileged position - that of a licensed taxi driver. That is, he was in a position of trust.
The period of time since that offence was committed
It is now eight years since the index offence was committed and he has not been charged with or convicted of an offence of this nature since that time.
The age of KQ and the girl at the time the offence was committed
At the time the offence was committed, KQ was 50 years old and the girl was 16 years old.
Whether KQ knew, or could reasonably have known, that the girl was a child
The Commissioner submitted that KQ must have known that the girl was under 18 years of age. KQ gave no evidence in this regard. However, in cross-examining Dr Allnutt, he did ask Dr Allnutt a general questions about the appearance of young girls today. These questions went along the lines of a girl aged about 16 can look much older, particularly where she was wearing makeup. I note the day on which the offence occurred was a Sunday. The evidence before the Local Court was that the girl was on her way to work at McDonalds. The girls' evidence was that she had caught a train from home to the suburban station and walked over to the plaza side of the railway station. When there were no buses for her to catch she went to catch a taxi. It was her evidence that when she got into the taxi she said to KQ 'Can you take me to [name of suburb] McDonald's?'. It was also her evidence that she gave him instructions on how to get there, as KQ did not know where it was. The evidence of other witnesses at the Local Court proceedings was that the girl worked at McDonalds and on this particular day she was on her way to work.
Having regard to the circumstances, KQ clearly knew that the girl was young. The question is whether he could reasonably have known that she was under 18 years of age. In my view, the inference from the evidence before the Magistrate as to the circumstances in which the contravening conduct occurred, he could have reasonably known that she was under 18 years.
KQ's present age
As I have already stated, KQ is now 55 years of age.
KQ's total criminal record
KQ has only one other conviction. This conviction occurred subsequent to the index offence, on 15 July 2010, before the Local Court. On this day, KQ was convicted of an offence under section 33D(2) of the Commission Act in that he made a false statement in the 'Prohibited Employment Declaration' he signed, on 29 July 2008, when applying for his interpreter service position. In signing the Declaration, KQ failed to disclose that he was a 'prohibited person'. The Department of Education and Training's risk assessor subsequently identified that KQ was in fact a prohibited person and contacted him by telephone. During the telephone conversation KQ confirmed that he had been convicted of the index offence and agreed to withdraw his application for employment. It was not until 12 November 2009 that police charged KQ for this offence. It would appear that he voluntarily attended his local police station on that day, upon which he was arrested and charged. On 15 July 2010, KQ, through his solicitor, pleaded guilty to one of the offences of which he was charged in relation to the false statement. He was convicted of that offence and fined $500.00. The Magistrate, in sentencing KQ said the following:
'[KQ], matters of this kind objectively are extremely serious, and you would understand that. But in the context in which this has occurred, I would tend to place it at the lower end of the scale, particularly seeing you have disclosed the offence itself at the time you applied for the job. I also take into account the time that you have spent in custody while this matter has been awaiting determination. I also take into account that there has been no further offending of any kind or allegations pursuant to this legislation, and I think under all the circumstances, it is appropriate to deal with it by way of fine.'
It is the Commission's submission that this conviction is indicative of KQ failing to appreciate the significance of his 2006 contravening conduct (i.e. the index offence). In my opinion, this is not borne out by the remarks of the Magistrate in sentencing KQ. It would appear that he had in fact disclosed the index offence to his prospective employer, however he had not fully understood the implications of signing the Declaration as he did. While KQ speaks English well, it is not his first language. He migrated to Australia, with his daughter, as refugees, in 1992.
Other matters
The other matters relevant to this application are the reports of a number of psychologists and psychiatrists in regard to KQ's risk to the safety of children. Each of these reports highlight KQ's difficult life and his history of ongoing depression and anxiety.
KQ was born in the Kurdish area of Iraq. His parents were poor and operated a home base popcorn baking business. As a child, KQ said he had experienced significant child abuse and witnessed domestic violence. In 1976 KQ married his cousin. It was an arranged marriage against his will. KQ's daughter from this marriage was born in 1978. At the time of his marriage he was at high school. He was the only person in his family who was educated, graduating with a University degree in 1981. In 1984 he divorced his wife, but remained the primary carer for his daughter. In 1991 KQ and his daughter left Iraq and ran to Iran where he worked with refugee groups. In 1993, he and his daughter came to Australia as refugees. He initially lived in Queensland and then moved to New South Wales a few years later, where he has remained.
KQ's history of ongoing depression and anxiety dates back many years and I note he has received some treated for this on and off since he has been in Australia.
This history of ongoing depression and anxiety does not of itself mean that KQ poses a risk to the safety of children. As I have explained, by reason of having been convicted of the index offence, KQ is presumed to pose a risk to the safety of children. This is a statutory presumption that applies to all 'prohibited persons' within the meaning of the Commission Act and the onus is on the 'prohibited person' to prove that he/she does not pose a risk to the safety of children.
In this regard, there are a number of factors, which support KQ's contention that he may not pose a risk to the safety of children. These are the fact that KQ only has 2 convictions, one of which is the index offence. The index offence was committed almost 6 years ago and KQ has not committed another offence of the same nature since that time. Another factor in his favour are that he has good work history as a Kurdish interpreter and translator and there is no evidence of any complaints having been made against him during this time. He is of course not prohibited from working as an interpreter and translator for an organisation that does not fall within the description of a child-related employment in section 33(1) of the Commission Act.
I also note the references KQ has provided, including a reference from his daughter. The referees all state that in their view KQ is courteous, honest and trustworthy. In some cases, the referees comment that KQ has proven to be a reliable and capable friend in looking after their child(ren). However, it is apparent that these referees have little, if any, appreciation of KQ's contravening conduct, the provisions of the Commission Act, or the opinions of the experts in these proceedings.
At the same time, there area a number of factors, as identified by the experts, which remain unresolved and while unresolved it is not possible to find that KQ poses no risk to the safety of children. These include KQ's failure to address his contravening conduct involving the young girl, including the ability to recognise and avoid circumstances, which might lead to him re-offending in the future.
In February 2010, Dr Tony Award, a consultant psychologist, assessed KQ for the purpose of his 2010 conviction. He noted KQ's 'depressive moods, stress/anxiety reactions, agitation ...' and recommended ongoing counselling and referral to a psychiatrist.
A year prior to this, in February 2009, Dr Lennings had assessed KQ at the request of the Commission. KQ participated in this assessment by being interviewed by Dr Lennings in person for about 1½ hours and a subsequent brief telephone interview.
In his report, Dr Lennings noted that KQ was quite agitated at interview and remained anxious and frustrated by what he saw as a miscarriage of justice in that he could not accept the conviction and found his situation to be very frustrating. Dr Lennings states that KQ said he had no real recollection of the events that led to his conviction for the index offence.
In making his risk assessment of KQ, Dr Lennings looked at KQ's historical or static variables, the dynamic factors such as substance of abuse, mental illness, employment and the like and the psychological and psycho social variables. In regard to 'dynamic risk' Dr Lennings concluded as follows:
32. On the assessment of dynamic factors there appears to be some risk factors, albeit at a mild level. Such risk factors indicate a degree of maladaptiveness in his behaviour rather than reflecting entrenched deviant behaviour per se. On the whole the assessment of dynamic risk factors indicate a moderate risk. In examining the modus operandi of the offence (and possibly the alternate incident where he was assaulted on the train) [KQ] presents as a man who has intimacy needs that he cannot reliably or satisfactorily, and, thus, he may take advantage of a situation of being close to, and one on one with a young female in order to meet these needs, which could include sexual behaviour. Where there is risk, it seems to me it would be towards a sexually mature person. (That is there is no paedophile deviance).
In his formulation as to risk Dr Lennings concluded as follows:
34. [KQ] presents as a man who has had considerable adversity in his life from a young age. He has no record of criminal behaviour until recently. Given the vehemence of his denial the assessment has to choose the version of events provided by the court documents. ... [KQ's] assessed risk of sexual harm falls into the low to moderate risk range. There seems no risk associated with risk of violence. His denial of the offence makes it hard to assess to what extent the offence was simply opportunism or to what extent it represented some deviancy surrounding unmet intimacy needs. However, my hypothesis is that [KQ] is a psychologically unstable man who acted out of frustrated sexual need in the context of significant psychological maladjustment and disturbance of inhibitory control thereby. He presents with significant psychological mobility and despite the sympathy I feel for him given his terrible life to date, it is obvious that his untreated psychological trauma continues to make problems for his adjustment. Despite his obvious intelligence he lives on the margins of life in Australia and is suffering accordingly. He is unable to acquire insight to his needs, and this I think does pose some element of risk as he is prone to impulsivity and in the wrong situation (that is high opportunity with a vulnerable person) an offence may take place.
35. ... [in] the current situation a greater level of emphasis I believe needs to be placed on [KQ's] psychological state. I believe he is suffering so severely that from time to time he may act out of character and his strong denial of such out of character actions may mean that he presents with a magnified risk because he will not be able to inhibit his behaviour, despite his highly developed moral sense. It is unlikely that such impulsive acts can be predicated and therefore managed by conventional risk management strategies.
35 Given [KQ's] main skills line the welfare and education area, his inability to gain an exemption will be crucial to his future and will effectively stymie his ability to have meaningful work or to gain a sense of self-esteem. The consequence of not getting an exemption is likely to be quite catastrophic for his psychological state. Given that my overall conclusion in this assessment is that despite the low actuarial risk his risk remains moderate, and fuelled in my mind, by his untreated trauma, advising him of the need for some treatment to help stabilise his personality may be useful. I have provided the contact details for STARRTS which to my mind is probably the best place to start in order to gain some support. It is possible that if he receives appropriate treatment and reapplies when his psychological state is more settled his assessed risk will be less of a concern.
Despite the recommendations of Dr Lennings and those of Dr Award, KQ appears not to have sought ongoing counselling or treatment to address his contravening conduct and developing skills to recognise and avoid circumstances, which might lead to him reoffending. However, he did see Dr Karima Attia-Soliman, a psychiatrist, in January and February 2011. In his report, Dr Attia-Soliman expressed the view that KQ had gained insight into his contravening conduct and that he regrets it. He also noted that the devastating effect of this contravening conduct has had on KQ's career. He said he did not believe that KQ would pose a risk to the community if he were to work with children and suggested that a condition might be placed on KQ that he continue with treatment and counselling for his depression and anxiety.
I am mindful of the Commission not having had an opportunity to cross-examine Dr Attia-Soliman. Nevertheless, in my view, his conclusions are difficult to accept, as they are not based on accepted risk of harm indicators. Furthermore, they are based, in part, on what is in the best interest of KQ. Namely, his ability to be a productive member of society working in gainful employment to raise his morale in his career in interpreting. I do not believe there is any disagreement between the experts about this as a general proposition. However, as I have already stated section 32 of the Commission Act, places paramount consideration in regard to the operation of Part 7 of that Act on the safety and welfare of children' and not the interests of the applicant.
The most recent assessment of KQ is that Dr Steven Allnutt, who assessed KQ, on 2 May 2011, at the request of the Commission. In making his assessment, Dr Allnutt was provided with all the relevant material that is before the Tribunal, including the report of Mr Aoud, Dr Lennings and Dr Attia-Soliman.
In his report of 5 July 2011, on page 11, under the heading 'Mental Status Examination', Dr Allnutt said the following:
'[KQ] presented as somewhat tense in the interview; he maintained good eye contact; he did not manifest evidence of side effect to psychiatric medication or neurological illness; he was well groomed; he spoke in a clear and coherent manner; his affect was expanded; he communicated his perspective with a high level of intensity; he was clearly anxious and at times distressed by his circumstances; he had a tendency to want to discuss detail which he thought was relevant, but was nonetheless easily redirected; he endorsed some neurovegetative features of depression and anxiety but none of mania or hypomania; there is no evidence of acting symptoms of psychosis other than some disorganisation in his thinking; he manifested adequate cognitive capacity on many mental state examination; his capacity for insight and judgment appeared to be adequate.'
Dr Allnutt then provided his opinion in regard to psychiatric illness and risk. His conclusion, at page 15, was in the following terms:
'... [my] overall final subjective opinion based on consideration of all the material is that he [i.e. KQ] would be regarded as falling into a group of individuals causing concern for future sexual recidivism involving females probably over the age of 16 at times when he is experiencing increased emotional distress, mood disturbance or psychosis when he might be more prone to impulsive behaviour, as compared with other sex offenders, and should pursue some form of rehabilitation.'
Dr Allnutt concluded by making recommendations along the following lines:
... [KQ] pursue psychological counselling preferably cognitive behaviour therapy with a therapist expert in sex offenders to assist him in addressing both his anxiety and his prior sexual offending.
[KQ] should continue to see a psychiatrist and should continue to take his anti-depressant ...
[KQ] requires ongoing psychiatric treatment.
The notes with regard to [KQ's hospitalisations] need to be made available to his treating psychiatrist.
In my view, on the basis of the opinions of all the experts, while KQ's failure to address his contravening conduct and equip himself with the necessary skills to recognise and avoid circumstances where he might pose a risk to children it is difficult to be satisfied that he poses no risk to children. Regrettably, his failure to do so appears to be tied up with his ongoing history of depression and anxiety. KQ also seems to believe that this depression and anxiety arises from an inability to work as an interpreter and translator, following his conviction. He believes he has done what has been required of him in regard to his contravening conduct in 2006. However, Dr Lennings and Dr Allnutt both express a contrary view. This does not mean that they have expressed an adverse view about KQ's achievements in other respects. For example, his many qualifications. These may assist him in working in non-child related employment.
The inference to be drawn from the reports of Dr Lennings and Dr Allnutt is that with appropriate counselling and treatment, KQ may be able to establish that he poses no risk to the safety of children. This is a matter for KQ to pursue and should he decide to do so it is clear that it will require counselling and treatment for some time.
Accordingly, for the reasons I have stated, I am not satisfied that KQ has discharged his onus that he does not pose a risk to the safety of children. On this basis, the appropriate order is to refuse KQ's application for the order sought. In this regard it is noted that KQ did not at any time seek an order subject to conditions.
This leaves the issue as to whether the Tribunal should make an order under subsection 33I(5) of the Commission Act enabling KQ to make a further application for an order prior to 5 years from the date of this decision. The Commission submits that no such order can or should be made. KQ has not made any submissions in this regard. Nevertheless, as he has been unrepresented, in my view, it is appropriate to consider this issue.
While KQ's application is the further application made pursuant to the order made by the Tribunal when determining KQ's initial application, in my view subsection 33I(5) cannot be construed to mean that it has no application to these proceedings.
I am also of the view that it is appropriate to make a further order under subsection 33I(5) that KQ be at liberty to make a further application prior to the 5 year limit. However, prior to making a further application, it is essential that KQ address the recommendations of Dr Lennings and Dr Allnutt that he undergoes ongoing counselling and treatment. Even if addressed immediately, this is likely to take some time. Accordingly, a period of 2 years from the date of this decision appears to be appropriate. That further application, if made by KQ, will of course be assessed as at the time it is made and it will be assessed in accordance with the provisions of the Commission Act (as it applies at that time). A failure by KQ to address the recommendations of Dr Lennings and Dr Allnutt, will be a relevant factor to be taken into account, should KQ make a further application.
I also suggest that KQ seeks to obtain legal assistance in the event he decides to make a further application.
Decision last updated: 11 April 2012
0
3
4