MA v Commission for Children and Young People

[2009] NSWADT 167

CITATION:	MA v Commission for Children and Young People [2009] NSWADT 167
DIVISION:	Community Services Division
PARTIES:	APPLICANT MA RESPONDENT Commission for Children and Young People
FILE NUMBER:	094007
HEARING DATES:	2 June 2009
SUBMISSIONS CLOSED:	2 June 2009
DATE OF DECISION:	30 June 2009
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Declaration that applicant not a prohibited person
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136 Commission for Children & Young People v UR [2007] NSWSC 1099).
REPRESENTATION:	APPLICANT In person REPSONDENT M Higgins, barrister
ORDERS:	It is declared that the Commission for Children and Young People Act 1998 is not to apply to MA in respect of the charge of ‘Detain for advantage in company inflicting actual bodily harm’ for which she was convicted in the Parramatta District Court on 20 February 2004.

1 The applicant, who in these reasons will be referred to by the pseudonym, MA, has applied to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act1998 (‘the Commission Act’). MA is a ‘prohibited person’ having committed a ‘serious sex offence’, namely the offence of ‘Detain for advantage in company inflicting actual bodily harm’. Unless the order MA seeks is granted, it will be an offence for her to apply for, undertake or remain in ‘child-related employment’ (s 33C of the Commission Act).

2 MA makes this application so she can pursue a career in social work.

3 The respondent Commission does not oppose MA’s application.

History to application

4 In November 2008 MA made an application to the Commission for Children and Young People for an order under s 33H of the Commission Act. By letter dated 11 February 2009 the Commissioner of the Commission for Children and Young People decided not to make the order sought, on the grounds that ‘on the information available’, it had been unable to determine that [she] ‘does not pose a risk to the safety of children’.

5 MA subsequently made an application to the Tribunal for an order under s 33I of the Commission Act. In addition she made an application for a stay of the operation of the prohibition under the Commission Act. On 2 March 2009 a stay was granted with conditions, the effect of which was to allow MA to complete a placement necessary to complete a degree in social work. MA was supervised throughout the placement.

What MA must prove

6 Section 33I(1) of the Commission Act provides that the Administrative Decisions Tribunal may make an order declaring that the Commission Act is not to apply to an applicant in respect of a specified offence. That order may be made subject to conditions (section 33I(6)).

7 Section 33J(1) provides that the Tribunal is not to make an order on a review application (an application made under section 33I(1)) unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) provides that it is to be presumed that MA poses a risk to the safety of children, unless she proves the contrary. In deciding whether or not to make an order under section 33I the Tribunal must take into account the following (section 33 J(3)):

(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.

8 In determining MA’s review application, the Tribunal must give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from abuse (s 32 of the Commission Act).

9 The test set out in section 33J(1) of the Commission Act is in similar, but not identical terms to the corresponding provision in the now repealed Child Protection (Prohibited Employment) Act 1998 (the CPPE Act). The relevant provisions of the Commission Act came into effect on 2 January 2007 (Commission for Children and Young People Amendment Act2005). The operation of the test under the CPPE Act has been considered by the Supreme Court (see for example, Commission for Children and Young People v V [2002] NSWSC 949; The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136; Commission for Children & Young People v UR [2007] NSWSC 1099).

10 While great care should be taken in applying principles developed to deal with different, albeit similar, legislative provisions, those decisions provide guidance on the application of section 33J(1) of the Commission Act. Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949 considered the meaning of the word ‘risk’ in s 9(4) of the CPPE Act. His Honour adopted Haylen J’s analysis in R v Commission for Children and Young People [2002] NSWIRComm 101. Haylen J said that s 9(4) was focussed on:

‘[N]ot 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].)

11 Young CJ held [at 27] that ‘risk’ in the context of section 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’.

Risk Indicia – section 33J(3) factors

12 MA is 24 years of age.

13 Index offence In November 2004, MA was convicted of the offence of ‘Detain for advantage in company inflicting actual bodily harm’ (the index offence). At the time of the offence MA was 17 years of age. The victim was aged 16 years. The offence occurred in 2002.

14 MA entered a guilty plea.

15 A copy of the police facts sheet was tendered in these proceedings. It states that while in the company of two other young people, MA forced the victim into the back of a car and drove her to a nearby park. MA and the co-offenders ordered the victim to get out of the car and then proceeded to hit, slap and verbally abuse her. The victim was stripped of her clothes, punched and kicked, including in the face, and her hair was cut. The offenders eventually drove off leaving the victim naked in the middle of the park. The victim sought help and was taken to hospital for treatment.

16 When interviewed by Police shortly after the assault, MA admitted that the attack had been planned. She stated that it was an act of retribution because she and her co-offenders believed the victim had been unfaithful to a friend of the group.

17 On appeal her sentence was reduced to three years in a juvenile detention centre with an 18-month non-parole period.

18 Conduct following the index offence She was released on parole in August 2005 and supervised by the NSW Probation and Parole Service. The parole order expired in February 2007.

19 The index offence is the sole offence for which MA has been convicted.

20 The Commission advised the Tribunal that section 14A notices had been issued to a number of government agencies, including the Department of Community Services and with the exception of the material relating to the index offence, nothing adverse to MA was produced.

21 MA provided the Tribunal with a statement, which was to effect that after her release from detention she has pursued her studies and been in stable and regular part-time employment. On her account she no longer associates with the people that were involved in the index offence.

22 MA claimed that while serving her sentence she did not pose a risk to any of the other girls many of whom were younger than her. That claim is consistent with the records produced to the Tribunal by the Centre in which she was incarcerated.

23 She also claimed that she has frequent contact with her extended family, which includes many children and ‘at no point has there been any concerns and worries from family members’.

24 References MA provided to the Tribunal a number of references from friends, family members, employers and teachers. All attest to her reliability and good character. One referee stated that MA had regular interaction with her two young children and in her opinion was ‘unselfish and diligent in the care of the children’. The referee recommended that she be ‘exempted from the children prohibited register’. MA claimed that the referee knew of the nature of the offence. No other referee mentioned the index offence.

25 Treatment While serving her custodial sentence and throughout the period she was on parole, MA attended counselling sessions and various programs designed to address her offending behaviour. Reports prepared by some of the counsellors and psychologists involved in these programs were provided to the Tribunal. All indicated that MA fully participated in counselling and was consistent in her attendance. None saw her as posing a risk of reoffending.

26 Expert evidence A report prepared by psychologist, Dr Christopher Lennings, dated 4 April 2009, was tendered by the respondent. Dr Lennings had been asked to provide an opinion on whether MA posed a risk to the safety of children and young people. Dr Lennings also gave oral evidence.

27 Dr Lennings explained that an assessment of risk in this case is difficult given the dearth of empirical evidence about recidivism rates among female offenders convicted of violent and/or sexually violent offences. He noted that while in recent years there has been an increase in female offending rates, they remain well below those of male offenders. According to Dr Lennings, most actuarial risk assessment tools are based upon studies involving male offenders. The limited research available in his opinion, suggests that the factors predictive of risk for males are not necessarily predictive of risk for females. Given the lacuna of reliable evidence Dr Lennings formed the view that an actuarial risk assessment could not be undertaken

28 Dr Lennings undertook an assessment, in which he examined dynamic risk factors. Undertaking that analysis he saw nothing to suggest that MA may pose a risk of violent or sexually violent reoffending, noting that there was no evidence of psychosocial/ dysfunctional factors such as unstable accommodation, unemployability, substance abuse, mental illness, personality disorder, or high impulsivity. Nor in his view, apart from the index offence, was there any evidence of factors suggestive of anti-social attitudes or criminogenic behaviours.

29 In his view while the offence was not a ‘sexual offence’ in the usual sense, there was nonetheless a sexual element to it, noting among other things that the victim had been forced to strip. He saw MA’s conduct as a ‘nasty attempt at humiliation’ at the ‘very severe end’ of the bullying spectrum.

30 He told the Tribunal that he was unable to find any evidence that MA held sexually deviant thoughts or had participated in sexually deviant behaviour.

31 He concluded:

29. Formulation. [MA] presents as a young woman who experienced a form of crisis in her adolescent years and had some problems in her adjustment accordingly. However, she did not reveal significant rebellion or anti-social behaviour. Her offence appears to be hard to understand, although there is no doubt even on what she admits that she acted in a brutal and callous way. Her involvement does seem to have taken herself by surprise and does appear to have been an isolated case of brutal behaviour arising from an excess of loyalty to her peer group. She seems to have experienced genuine remorse for it and accepted her punishment and made as good use as possible of her detention and supervision by the Department of Juvenile Justice. It seems that she used that time to develop a sense of purpose for herself and perhaps to find some meaning for her own actions. The vulnerability in her personality appears to have matured and is no longer evident. She has gone on to reveal consistently pro-social behaviours and no subsequent risk factors have emerged. Given the generally low recidivism rates revealed by females and the absence of risk factors in her life it appears that [MA’s] risk of further offending is genuinely low.

30. As noted there are no concerns in relation to her psychological functioning and despite some ongoing discomfort in interpersonal relationships she does not reveal behaviours or traits indicating problematic behaviours. [MA] is applying for an exemption as her chosen field is social work [and] her work experience will provide her with significant opportunities to work with vulnerable young people. Despite the high level of risk involved in her work related activity, it does not appear to me that an ongoing pattern of risk behaviour exists such that her work choice should qualify the risk assessment. Due to the low risk and the absence of obvious risk factors no recommendations are made about ways to further manage her risk.

32 In evidence, Dr Lennings was taken to some records which indicated that the history MA provided materially understated her role in the assault. He pointed out that he recorded in his report is his view that MA had sought to minimise her involvement to a degree. He said he had taken that into account in his ultimate conclusion about risk.

Findings and conclusions

33 It falls to MA to rebut the statutory presumption that she ‘poses a risk to the safety of children’: see ss 33H(7), 33J(1) and 33J(2).

34 The index offence is the only evidence of MA having acted in an inappropriate way in relation to a child or young person. While a one-off incident, this does not undermine its seriousness — the attack was unprovoked, premeditated and violent. While the victim apparently recovered from her physical injuries, her statement to Police indicates, not surprisingly, that she was traumatised by the attack. I agree with Dr Lennings’ view that while the offence was essentially violent in nature there was also a sexual element to it — the stripping and taunting of the victim about her alleged infidelity.

35 While indisputably serious in nature the offence was committed when MA was 17 years of age and at the time, by all reports, a very immature and indulged teenager. The evidence before the Tribunal indicates that she has made a conscientious attempt to rehabilitate herself. There is no evidence of any further offending or complaints; the records provided by the Department of Juvenile Justice and the Probation and Parole Service support the view held by the counsellors and psychologists who treated MA, that she is now more mature and has made impressive progress in her life.

36 While noting the very positive changes in MA’s life, the assessment of risk must take into account the fact that her chosen career, social work, could bring her into direct contact with extremely vulnerable children and young people. After a careful examination of relevant factors, Dr Lennings concluded that even in circumstances where the opportunity to put children at risk would be high, MA would not pose a risk, even to those who might be considered to be among the most vulnerable. I share that view.

37 In the absence of any factors which might indicate that MA has a propensity to put children at risk and taking into account the positive changes she has made in her life since the index offence, I am comfortably satisfied that she has rebutted the statutory presumption that she poses a risk to the safety of children.

38 For these reasons I have decided to grant MA’s application.