RD v Commissioner NSW Commission for Children and Young People
[2011] NSWADT 140
•08 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 Hearing dates: 1 June and 6 December 2010 Decision date: 08 June 2011 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: Pursuant to subsection 33I(1) of the Commission for Children and Young People Act 1998, declare that Division 2 of Part 7 of that Act is not to apply to RD in respect of the offence of which he was convicted in the Parramatta District Court on 13 March 2009.
Catchwords: Declaration - prohibited person - proof by applicant that he/she poses no risk to the safety of children Legislation Cited: Commission for Children and Young People Act 1998
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v Y [2002] NSWSC 949Category: Principal judgment Parties: RD (Applicant)
Commissioner NSW Commission for Children and Young People (Respondent)Representation: Mr Moore (Respondent)
In person (Applicant)
Ms A Paul (Respondent)
File Number(s): 094036 Publication restriction: Section 126 of the Administrative Decisions Tribunal Act 1997
REasons for decision
The applicant, RD, has made an application to the Tribunal seeking an order under section 33I of the Commission for Children and Young People Act 1998 (the Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of an offence of indecent assault of which he was convicted on 13 March 2009.
As the offence for which RD was convicted (i.e. the index offence) is an offence falling within the description of a 'serious sex offence' as defined in subsection 33I(3) of the Act, RD is a 'prohibited person' under subsection 33B(1). Subsection 33C of the Act prohibits a 'prohibited person' to apply for or obtain child related employment, or undertake child related employment, or remain in child related employment. A contravention of this provision constitutes an offence which is punishable by a fine or imprisonment for two years or both.
RD has worked in the security industry and as a result of his conviction his ability to work in that industry has been severely restricted. He has made his application so that he can again pursue his career within the security industry.
The respondent Commission opposed RD's application.
Relevant legislation
As mentioned above, subsection 33I(1) of the Act provides that the Tribunal may make an order declaring that the Act is not to apply to an applicant in respect of a specified offence (i.e. the index offence). That order may be made subject to conditions (see subsection 33I(6)).
Subsection 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 a person the subject of the application does not pose a risk to the safety of children. Subsection 33J(2) provides that it is to be presumed that a prohibited person poses a risk to the safety of children, unless that person proves to the contrary. That is, the onus is on the prohibited person making the application to prove that he/ she do not pose a risk to the safety of children.
In deciding whether or not to make an order under subsection 33I(1) of the Act the Tribunal is required to take into account the matters set out in subsection 33J(3) of the Act. That subsection provides as follows:
33J Matters to be considered in determining review applications
(1) ...
(2) ...
(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, and
(d) the age of each of 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 persons present age,
(h) the seriousness of the prohibited persons total criminal record, and
(i) such other matters as the Commission or tribunal considers relevant.
Section 32 of the Act also provides that the Tribunal is to give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from abuse.
The exercise of the Tribunal's jurisdiction 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 the expression 'no risk to children' has been held to mean '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 preserve reasonable civil rights' see Commission for Children and Young People v V [2002] NSWSC 949 at [22].
Hearing
RD's application was initially heard on 1 June 2010. At the hearing, RD relied on a statement he had prepared and a number of references he had obtained. RD also gave oral evidence and was cross-examined. One of his referees, an Elder of the Church of which RD is an active member, also gave oral evidence and was cross-examined. The Commission relied on the documents that had been obtained by summons (including the police fact sheet of the index offence and the Judge's remarks on sentence) and also a psychological risk assessment report of Dr Casey Seidler, a clinical and forensic psychologist. Dr Seidler's report included an assessment of RD's risk to children, based on the material she had been provided and her observations of RD during a consultation with her at her rooms. RD had voluntarily participated in this consultation. Dr Seidler also gave oral evidence and was cross-examined by RD.
At the conclusion of the hearing of the evidence I made an order for the hearing to be adjourned so as to enable RD to undertake some psychological treatment as suggested by Dr Seidler in her report. I made these orders as I formed the view that a further assessment of RD following this treatment would assist the Tribunal in making its determination. The parties did not object to this course of action.
At the adjourned hearing, on 6 December 2010, the respondent tendered into evidence an updated report of Dr Seidler. The Applicant tendered into evidence a report of Dr John Baron, a clinical psychologist who had treated RD following the initial hearing in this matter. Dr Seidler and Dr Baron also gave oral evidence at the adjourned hearing and were cross-examined.
At the adjourned hearing, the respondent informed the Tribunal that the Applicant's application was still opposed however the respondent indicated that an application, if made 12 months time, would not be opposed.
At the conclusion of the adjourned hearing, I made directions in regard to the nature of the Tribunal's power to impose conditions on an order, if made pursuant to section 33I of the Act. The respondent filed submissions as directed. However, for the reasons set out below I have not found it necessary to have regard to these as I am satisfied that RD has discharged his onus and it is appropriate to make the order sought in so far as it relates to his index offence.
The evidence and submissions that have been made in regard to this application are addressed below.
Consideration
The index offence
The offence of which RD was convicted occurred during the early hours of the morning of 3 May 2008. At the time RD was 22 years of age and the victim was 17 years of age. RD had come to know the victim through his younger brother. RD and the victim also attended the same TAFE, but they were not close friends. On the particular evening of the offence, at about 4.00 am, RD went to the rented home of the victim. She had been renting this home for about 6 months together with her male flatmate. It would appear that the victim's flatmate let RD into the home (see the Court's remarks on sentence). The victim was sleeping on the lounge in the living area. She had fallen asleep while watching television. On entering the lounge, RD approached the victim. The victim awoke and initially thought that it was her flatmate who had woken her. When she realised it was RD she asked him what he was doing there. RD said he was driving past. The victim told him to 'piss off' as she did not like visitors at that time in the morning. The victim then walked outside. RD followed the victim outside. He put his left arm around the victim's shoulder and leaned over to kiss her. The victim was having a cigarette so she quickly put it into her mouth and moved away from RD. RD said 'why not?' The victim said 'cos I have a boyfriend'. RD said 'well he's not here', to which RD responded 'that's not the point.' RD then moved over to where the victim was standing and with his right hand he grabbed her left breast. The victim grabbed RD by his wrist with her left-hand and pushed it away from her. The victim went back inside her home to get her keys and when she returned RD was no longer there.
The victim made a complaint to police and on 19 May 2008, at the request of police, RD attended the local police station. He was placed under arrest and charged with a number of offences. He was charged with two offences of indecent assault under section 61L of the Crimes Act 1900 and an offence of break and enter with intent to commit an indictable offence (i.e. the indecent assault) contrary to section 112(1)(A) of the Crimes Act 1900. The break and enter charge related to RD's entry into the victim's home. This charge was ultimately not pressed. One charge of indecent assault related to the events of 3 May 2008 and the other charge of indecent assault related to a similar incident that had occurred sometime in February 2008. On this occasion RD had seen the victim waiting at a bus stop. It was 11.00 pm. On seeing the victim, RD stoped his car and offered to give the victim a lift. She agreed to go with him and when he reached close to the destination RD stopped his car at the side of the road and after he stopped he leant over and attempted to kiss the victim on the lips. When the victim said 'no', RD again attempted to kiss the victim. At the same time, RD reached out with his right-hand and grabbed the victim on her left breast. It was alleged that the victim said words to the effect 'fuck off' and got out of the car.
When RD's criminal matter reached the District Court, RD pleaded guilty to the single offence of indecent assault in regard to the events that occurred on 3 May 2008. However, the other offence was taken into account for the purposes of sentencing. In the Court's remarks on sentence, the Trial Judge made the following remarks:
- in terms of the range of criminality, RD's conduct fell towards the lower end of the range of conduct of this nature,
- it was clear on reading the facts that RD was infatuated with the victim and that this infatuation impacted on his thought processes,
- there was no substantial injury,
- the incident that had occurred in February 2008 was spontaneous and that it seemed likely that the 3 May 2008 incident was not planned,
- RD had no prior criminal history and he was clearly a person of good character,
- on the material before the Court, RD was unlikely to reoffend and he had good prospects of rehabilitation. It was noted that RD had shown genuine remorse and in this regard the Court took into account the letter RD had prepared for the Court.
The sentencing Judge convicted RD of the offence of indecent assault and deferred, pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999, on the condition that he be of good behaviour for a period of two years from the date of sentence. The sentencing Judge also found that there was no necessity to place a condition of supervision on that bond. That bond expired on 12 March this year and there is no evidence to indicate that RD breached his good behaviour bond.
References and RD's conduct following the index offence
As I have already mentioned, there is no evidence of any other criminal conduct by RD having occurred prior to or after the index offence. RD is now 25 years of age.
In his evidence before the Tribunal, RD once again expressed his deep remorse for what had occurred. He asserted that his actions on the night in question were out of character and not something that he would ever repeat. He acknowledged that for something that took less than 5 minutes, he had hurt a multiple number of people including the victim, his family and also a number of friends. He said that the incident had cost him dearly in that he had lost his job, his position as a volunteer within his Church and a number of friends. He explained that he was currently studying and all he wanted to do was to again obtain fulltime employment within the security industry and once again become involved in his Church youth mentoring work as he had done previously.
During the course of the adjourned hearing, RD also informed the Tribunal of a new relationship he had formed. This relationship he said was an important relationship for him and one where he had disclosed his offences and notwithstanding this the relationship had continued to develop. His partner in the new relationship is 21 years of age and hence closer to his own age.
In obtaining documentation from RD's previous employers, documents were produced identifying an incident, in March 2006, where RD had been counselled by his then employer for alleged offensive and inappropriate remarks he had made to a female work colleague. RD was working part-time at that time and he was not the only person against whom these allegations were made. In any event the documents show that the allegations were established and RD did not at any time during the hearing deny what had been recorded in the documents. RD tendered into evidence a reference from a colleague with whom he worked during this period. That person also gave oral evidence. This person said he never had any problems with RD's behaviour while he was working with him. He said he was aware of the incident that happened in 2006 and that he had accompanied RD when he was interviewed during the course of the investigation of the allegations. He was not able to say how old the complainant was. He thought she could have been 17 or 18, he was not sure. In his oral evidence he also confirmed that RD was otherwise well liked and got on well with both the younger and the older staff members. As a consequence he was promoted quickly to positions of high responsibility within the organisation.
The material produced by the police also noted an incident in 2005 where they had received a complaint from a female who had complained about receiving numerous telephone messages from RD despite her request that he cease doing so. The police spoke to RD and he did not continue with this behaviour. No charges were laid.
RD provided the Tribunal with 7 references from persons who have known RD for many years either through his Church or as a friend. They all make mention of his index offence and indicate that this offending behaviour was totally out of character. They all said that RD was, in their experience, honest, caring, good humoured, supportive, well-liked and respectful of others. One referee stated that he has two younger siblings aged 18 and 15 and that he had no hesitation about their wellbeing when they were together with RD.
One referee, an Elder in the Church that RD attends, also gave oral evidence. This referee explained that RD had been a leader within the youth group of the Church, since he was about 17 to 18 years of age. He was well regarded and respected in this role. It would appear that RD made full disclosure of the charges made against him and as a consequence, the Church took steps to ensure that RD was never left in control over groups containing females 18 years and below. Despite this RD had continued to be involved with the Church. The referee explained that RD has a supportive family and that he is a popular young man within the Church. He said that if the Tribunal were to grant the order sought the Church would review its current policy in regard to RD.
Expert evidence
As mentioned above, RD willingly participated in attended an assessment of him by Dr Seidler, who prepared her initial psychological risk assessment report in March 2010 from that attendance and other documentation. This report of Dr Seidler is comprehensive and her recommendations included the following:
84. On the basis of this assessment, RD is considered to pose a Low-Moderate risk of re-offence ... however, there are a number of issues in this case that raise concerns about the potential for future sexually inappropriately and perhaps abusive behaviour, although the likely target of this is most probably a peer-aged female rather than a child. Further to this, I note that it has only been some twelve months since RD was convicted and, given his presentation and account at interview, he is yet to fully resolve and understand his offending behaviour and the consequences thereof. This obviously contributes to some emotional distress for RD, in addition to him maintaining some emotional and social distance from others most probably associated with shame and embarrassment.
85. As a result of the aforementioned concerns, I believe that granting RD an exemption at this time would be somewhat premature. As such, it is respectfully recommended that RD demonstrate his commitment to the stability and non-abusive behaviour for a longer period post-conviction, possibly another twelve months. Further to this, it is recommended that RD would benefit from a short to medium term of psychological treatment, possibly over 12 to 24 sessions, whereby he might be encouraged to develop a greater understanding of the antecedents to his offending behaviour, in addition to assisting him in developing an awareness of victim impact and in establishing a comprehensive safety or risk management plan. ...
As I have already mentioned, the hearing of 1 June 2010 was adjourned for the purposes of RD being able to seek some psychological treatment and also for a reassessment by Dr Seidler.
Dr Seidler reassessed RD on 25 October 2010. In her updated report, Dr Seidler made reference to RD's new relationship and the fact that he had received treatment from Dr Baron from July 2010. She noted that RD had said that he had learnt a lot through these treatments about his offending behaviour and that he had developed skills in being able to read body language better, especially of women, so as to avoid the situation of his offending conduct. He said he believed will assist him in regard to his future youth monitoring work with the Church. Dr Seidler also noted that she had contacted Dr Baron with the consent of RD. In her risk assessment, opinion and recommendations in this report, Dr Seidler said the following:
32. At the time of my original assessment in March 2010, RD was assessed as posing a low-moderate risk of re-offence. He does not present with a history of anti-social attitudes, peer relationships or behaviours and, rather, RD's sexual offending behaviour was best understood as a function of his limited mature psycho-sexual experience, his confused notion of consent and sexual boundaries and the complications that arose from an obvious entrenched and distorted "infatuation" with the victim. RD's sexual interests appear age appropriate and the age of the victim in this case is considered to have been generally age appropriate. Therefore, I do not consider RD a specific risk to the safety of children and young people and, rather, his risk was more likely confined to an age appropriate female partner whereby he misinterprets their attraction to him, he is confused about their intentions or he distorts his relationship with them and the normal appropriate social boundaries that would apply.
33. RD had engaged in three months of regular psychological intervention since my previous assessment with him and the focus of this intervention has seemingly been on resolving the risk identified in my original assessment report. RD appears to have engaged well and profited from the experience of psychological treatment, such that he is more insightful, calmer, less stressed, more self- confident and more aware of risks, as well as having greater skills in terms of managing these risks. However, I remain concerned about RD's somewhat nave understanding of the antecedents to his offending behaviour, as well as his obvious difficulties clearly articulating these risks and re-lapse prevention strategies. Dr Baron has confidence that RD has demonstrated insight into these issues and it remains that they are unlikely to preclude his exemption as a prohibited person in any case, although these issues may remain a concern in relation to RD's future relationships and the possibility of his engaging in inappropriate behaviours within these relationships.
34. In sum, RD's participation in psychological treatment is positive and has seemingly addressed many of the risks identified in my previous report. As such, I would consider that this risk may have ameliorated slightly to perhaps Low to Low-Moderate depending on the situation. I remain confident that he does not pose a specific risk to children or young people and that, rather, his risk would be to peer aged or age appropriate female partners. Given his experience of psychological treatment, I would have more confidence now recommending that RD be considered for an exemption under the Act such that he may work with children and young people, including returning to his previous employment with a security industry and his previous mentoring role in his local Church. However, my recommendations for risk management made in the original assessment report of March 2010 remain. Specifically, this would include instituting a process of formal support and supervision in RD's workplace with a senior staff member that is aware of his history and who may be able to closely monitor his relationship and behaviours within the workplace. Lastly, it will be important for RD to maintain therapeutic contact with Dr Baron on an "as needs" basis in order to assist him in having access to regular therapeutic support in addressing any outstanding relationship needs or resolving any particular risk issues that may arise that RD struggles to manage safely and independently. Dr Baron is open to this and RD also express a willingness to continue consulting with Dr Baron as needed.
In her oral evidence during the adjourned hearing, Dr Seidler said that she continued to have some slight concern about RD being at risk to age appropriate partners. She explained that by this she meant that he was at risk where young persons became infatuated by him. This she said was particularly so in the Church environment. At the same time she acknowledged that as he aged so too would the age of his partners. Accordingly, his age appropriate partners are now likely to be more than 18 years of age. In regard to RD's offending behaviour, she said that her confidence in him was not with reoffending but would be considerably increased if no further incidences occurred during the next 12 months.
In his report Dr Baron concluded by saying the following:
RD has engaged conscientiously in therapy at the level and intensity recommended in Dr Seidler's assessment report. In my judgment, he has made significant progress in gaining insight into the antecedents of the offence, into addressing areas of risk and vulnerability, and into strengthening various protective factors. On my assessment, he is unlikely of re-offending could be considered at no higher than, and have less than, the average pro-social male of his age group (especially considering the lessons he had learnt as a result of his experience, and his subsequent engagement in therapy).
In his oral evidence Dr Baron confirmed that in his opinion RD now had a greater degree of insight into his offending and otherwise previous inappropriate behaviour. He noted that RD's family history meant that he had few female contacts and very little opportunity for trial and error in regard to intimate relationships with women partners. At the same time he said he was impressed that RD did not have the same attributes as many other males within the community of his age. In his opinion the safeguard in RD reoffending was stronger because of his background and circumstances.
Findings and conclusions
As I have already stated the onus is on RD to rebut the statutory presumption that he poses no risk to the safety of children: see subsections 33J(1) and 33J(2).
The index offence of which RD was convicted is serious. However, I agree with the Trial Judge that it is at the less serious end of the scale for such conduct. At the same time, it was not an isolated incident. I also agree with the Trial Judge that the circumstance giving rise to the index offence and also the earlier indecent assault offence appear to have arisen spontaneously and did not involve any physical violence. The evidence is that the offending behaviour arose in circumstances where RD had become infatuated by the victim and because of this had failed to understand the victim's intentions in that she did not want to have any form of relationship with him.
The offence was committed three years ago, and there is no evidence that there has been any re-offending conduct by RD. On the contrary, RD has fully acknowledged what he did. He has shown ongoing remorse and is clearly embarrassed and ashamed of his behaviour.
At the time of the index offence the victim was 17 years of age. RD was 5 years older than her and there does not appear to be any dispute that RD knew, at the relevant time that the victim was 17 years of age.
RD is now 25 years of age and as observed by Dr Seidler he continues to develop age appropriate relationships. This means that the women with whom he develops or seeks to develop a relationship are within his current age group and hence no longer a young person under the age of 18 years.
In regard to RD's overall criminal record, this does not extend beyond the two incidents in the first half of 2008. As I have already stated, while serious the offending conduct was at the lower end of the scale of this type of conduct.
As I have already noted, Dr Baron has expressed the view that, as of December 2010, RD did not pose a risk to young people that was any greater than that of his non offending peers within the community. Dr Seidler was also of the view that, as at that date, RD posed a low to low-moderate risk to young people. However, she also expressed the view that if there was no further offending behaviour by RD within 12 months she would be more confident in expressing a view that any risk at that time would be low.
In my opinion, having regard to all the material before the Tribunal, the factors set out in subsection 33(3) of the Act and the need to give paramount consideration to the safety and welfare of children, RD has established to the requisite standard of proof that he does not pose a risk to children or young people. In making this finding I have, on balance, been more persuaded by the conclusions reached Dr Baron who has had the benefit of treating RD. At the same time I have found Dr Seidler's opinions to also be very persuasive. Her opinion did not substantially depart from that of Dr Baron and she also provided very useful guidance to RD in her reports.
As I have pointed out, RD has at all times acknowledged his offending behaviour was wrong. He is ashamed about what he has done and Dr Baron and RD are now confident that RD has the insight and skills to ensure that he avoids offending behaviour of this kind towards children or young people in the future. It is now 6 months since the adjourned hearing and the Tribunal has no had any further adverse conduct by RD drawn to its attention.
Accordingly, I find it is appropriate to make the order sought by RD.
I order, pursuant to subsection 33I of the Act, declaring that Division 2 of Part 7 of that Act is not to apply to RD in respect of the offence of which he was convicted in the Parramatta District Court on 13 March 2009.
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Decision last updated: 08 June 2011
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