RV v Commission for Children and Young People
[2007] NSWADT 299
•19 December 2007
CITATION: RV v Commission for Children and Young People [2007] NSWADT 299 DIVISION: Community Services Division PARTIES: APPLICANT
RESPONDENT
RV
Commission for Children and Young PeopleFILE NUMBER: 054039 HEARING DATES: 23 May 2007, 12 and 14 June 2007 SUBMISSIONS CLOSED: 6 July 2007
DATE OF DECISION:
19 December 2007BEFORE: Britton A - Deputy President CATCHWORDS: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED: Commission for Children and Young People Act 1998
Commission for Children and Young People Amendment Act 1998
Child Protection (Offenders Registration) Act 2000
Child Protection (Prohibited Employment) Act 1998CASES CITED: Commission for Children & Young People v UR [2007] NSWSC 1099
Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101
TZ v Commission for Children and Young People [2006] NSWADT 229
ZM v Commission for Children and Young People [2007] NSWADT 148REPRESENTATION: A Tibby, barrister
M Higgins, barristerORDERS: 1. It is declared that the Commission for Children and Young People Act 1998 is not to apply to RV in respect of the offence of rape for which he was convicted in the Central Criminal Court in Sydney on 31 May 1976, subject to the following conditions:; a. That he not apply for, undertake or remain in ‘child-related employment’ as defined by section 33(1) of the Commission for Children and Young People Act 1998, other than that which he currently undertakes in the course of his employment with the NSW Department of Commerce;; b. That in the course of the employment referred to in paragraph (a) above he work at all times in the company of another adult;; c. That RV provide a copy of these orders to his immediate supervisor.; 2. The Registrar is requested to provide a copy of these orders to the Director General, NSW Department of Commerce.
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
REASONS FOR DECISION
1 The applicant, who in these reasons will be referred to by the pseudonym, RV, applies to the Administrative Decisions Tribunal for an order under the Child Protection (Prohibited Employment) Act 1998 (the CPPE Act). RV is a ‘prohibited person’ having been convicted of the offence of rape in 1976. The respondent opposes that application.
2 On 12 September 2005, the Tribunal (differently constituted) stayed the operation of the prohibition under the CPPE Act on the condition that RV not apply for or undertake employment other than with his current employer and undertake that work in the company of another adult. That work involves building maintenance carried out primarily in primary and secondary schools.
3 In these reasons, because of the sensitivity of this matter, I have decided not to provide any details that could identify the applicant or anyone referred to in the proceedings other than the experts. The applicant is referred to by the pseudonym ‘RV’ and his wife, as ‘Mrs RV’.
Applicable legislation
4 A preliminary issue arises for determination namely the legislation under which RV’s application should be determined. This arises because the initiating application was lodged in August 2005 when the governing legislation was the now repealed CPPE Act. Since 2 January 2007, the Tribunal’s power to make declarations concerning prohibited persons is found in the Commission for Children and Young People Act 1998 (the Commission Act): s 5(1) of the Commission for Children and Young People Amendment Act 2005.
5 Before deciding this question it is necessary to make some brief comments about the Commission Act and its predecessor. Both make it unlawful for ‘prohibited persons’ i.e. persons convicted of certain types of offences, to apply for, undertake or remain in ‘child related employment’. Both statutes give prohibited persons a right to apply to the Tribunal for an order declaring that the prohibition under the legislation, which makes it unlawful to engage in child-related employment, does not apply to them in respect of a specified offence (section 33I(1) of the Commission Act; s 9(1) of the CPPE Act). Both provide that the Tribunal cannot make such an order unless it is satisfied that the applicant ‘does not pose a risk to the safety of children’(s 33J(1) of the Commission Act and s 9(4) of the CPPE Act). Both instruct the Tribunal to take into account a non-exhaustive list of factors when making that determination.
6 In ZM v Commission for Children and Young People [2007] NSWADT 148 at [8] to [18] I concluded that where an application was lodged before 2 January 2007 the resolution of the question of which legislation should apply turned on whether the applicant would be adversely affected if the matter proceeded under the Commission Act.
7 It seems to me that RV would not be adversely affected if his application was determined under the Commission Act. First, he does not fall within that class of prohibited persons, who because of the nature of the offence committed, are barred from making an application (s 33G of the Commission Act). Second, as both parties concede, there appears to be no material difference between the statutory test that needs to be satisfied under the CPPE Act and the Commission Act, or the factors required to be taken into account when applying that test.
8 One important caveat applies – the type of harm to be taken into account in determining whether an applicant poses a risk to the safety of children, would appear to be wider under the Commission Act than the CPPE Act. In my view the phrase ‘a risk to the safety of children’ as it appeared in the context of s 9(1) of the CPPE Act did not catch the vast range of possible physical or emotional harms that adults may inflict on children but rather had a narrower compass, namely, harm in the sense of conduct that posed a ‘risk to the lives or sexual safety of children’. (See TZ v Commission for Children and Young People [2006] NSWADT 229 [at 32]). The expanded class of offenders now brought within the scope of Division 2 of the Commission Act suggests that the type of harm to be taken into account in assessing risk now extends to ‘physical harm’. The CPPE Act caught persons convicted of a ‘serious sex offence’ and ‘registrable persons’ (Child Protection (Offenders Registration) Act 2000). The Commission Act extends the definition of ‘prohibited person’ to include a person convicted of a child-related personal violence offence: s 33B(1). A ‘child related personal violence offence’ is defined to mean an offence committed by an adult involving intentionally wounding or causing grievous bodily harm to a child, or of attempting, or of conspiracy or incitement to commit such an offence but does not include an offence committed by an adult who is not more than three years older than the child concerned: s 33B(3).
9 Whether RV would be adversely affected if his application were to proceed under the Commission Act, will in my view turn on findings of fact. If it were found that he did not pose a risk to the lives or sexual safety of children but did pose a risk to the physical safety of children then it would be arguable that RV would be adversely affected if his application were determined under the Commission Act.
10 Applying this reasoning I proceed on the basis that the Commission Act is the applicable legislation and will revisit that decision if I find that RV satisfies the statutory test as it has been interpreted to mean in TZ v Commission for Children and Young People, but not in the broader sense as described in paragraph [8] above.
Relevant statutory provisions
11 Section 33J(1) of the Commission Act provides that the Tribunal is not to make an order on a review application (an application made under s 33I) 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 the applicant poses a risk to the safety of children, unless s/he proves the contrary. In deciding whether or not to make an order under s 33I the Tribunal must take into account the following:
12 In determining a review application the paramount consideration is the safety and welfare of children and, in particular, protecting them from abuse: s 32.
(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.
13 The test set out in s 33J(1) of the Commission Act is in similar, but not identical terms to the corresponding test in the now repealed CPPE Act, i.e. s 9(4). The Supreme Court has considered the latter on a number of occasions but not to date, as far as I am aware, s 33J(1) (see for example, Commission for Children and Young People v V (2002-2003) 56 NSWLR 476; Commission for Children & Young People v UR [2007] NSWSC 1099). While great care must be taken in applying principles developed in relation to different, albeit similar legislative provisions, those authorities which have considered s 9(4) of the CPPE Act, nonetheless provide useful assistance on the application of the corresponding provisions of the Commission Act.
14 The meaning of the word ‘risk’, for the purpose of s 9(4) of the CPPE Act was considered by Young CJ (in Equity) in Commission for Children and Young People v V. His Honour agreed with Haylen J’s analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:
15 Young CJ held [at 27] that ‘risk’ in the context of s 9(4) meant ‘a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child’.
‘[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].)
16 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an applicant ‘who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children’: [at 46].
Admission of evidence
17 There was much argument in these proceedings about the admissibility of various documents produced to the Tribunal under the direction of the respondent (s 14A of the Commission Act). The dispute centred around three alleged incidents. Two involved offences RV was charged with but not convicted, namely alleged rape and sexual assault. The third involved the disappearance of a woman. No charges have ever been laid against RV in relation to that incident.
18 It was argued for RV that the disputed material was of no probative value. The respondent submitted that the material should be admitted not for the purpose of determining if the alleged or suspected conduct occurred but rather because it is relevant to conduct about which RV has admitted.
19 At the direction of the Tribunal the parties developed a statement of agreed facts and broad agreement was reached about the admission of the disputed material. The agreed facts are set out below. Minor editorial changes have been made to put them in context and preserve the anonymity of the victims and other people involved.
20 No Bill for Rape In August 1975 RV met Ms A for the first time. The following day they had sexual intercourse. RV was charged with rape. Fifteen months later at the recommendation of the Crown, the charge was ‘No Billed’. At the time of the alleged offence RV was in a relationship with another woman.
21 Charge of Sexual assault In April 1983 RV met Ms B in a bar, and introduced himself using a fictitious name and claimed to be a police officer. He was charged and convicted of the offence of assuming the designation of a police officer. He was charged with the sexual assault of Ms B and found not guilty by direction.
22 Disappearance of Ms C In September 1983 RV met Ms C in a bar and left in her company a few hours later. RV admits to having sexual intercourse with her in his car. He was the last person known to have been seen with Ms C. He admits that the day after the sexual encounter with Ms C, he laundered the seat covers of his car and hosed the boot of his car. He does not admit to washing the interior of the boot.
23 The respondent asserts the following facts are also relevant: Ms C had a steady boyfriend when she met RV; traces of blood were found on multi grips kept in the boot of his car; RV was in a relationship with another woman at the time. In these proceedings RV testified that he had hosed the boot’s exterior not interior because there had been evidence of a leak which he was taking up with the manufacturer.
Risk Indicia –s 33J matters
24 Age RV is 55 years of age.
25 Index offence In 1976 RV then aged 24, was charged with the offence of rape. While the exact age of the victim cannot be discerned from the documents before me it is not in issue that she was an adult and probably about the same age as RV. RV pleaded guilty to the offence and sentenced to six years imprisonment. He was released after serving a 12-month non-parole period.
26 Passage of time since index offence RV was convicted of the index offence over thirty years ago.
27 Criminal history The following is a summary of RV’s criminal history:
28 The 1978 conviction involved an assault on a young woman in her home. RV pleaded guilty. He was fined $100 and ordered to pay witness expenses. RV admitted in those proceedings that he had threatened to force the woman to have sex with him.
Year of conviction Offence 1970 Assault 1970 Theft (4 counts) 1972 Stealing 1973 Unseemly words; assault police; not cross lines with safety 1974 Possess Indian hemp 1975 Neg driving; receiving; assault male; GIC 1976 Rape 1978 Assault female 1984 Assume designation police officer; possess Indian hemp 1984 Mid range PCA 1984 Serious alarm and affront; resist arrest (2 counts) 1997 Larceny 2004 Assault police officer in execution of duties 29 In 1997 RV was convicted of the offence of larceny. He admits to stealing eight pieces of timber from a building site. He concedes that this was a serious error of judgement.
30 In 2004 RV was convicted of ‘assault police’. He claimed that in the early hours of the morning eight police arrived at his home without notice and demanded that he provide a DNA sample. RV’s children witnessed the incident. He claims to have been embarrassed and humiliated. He claims that the assault occurred when an officer barged in while he was using the toilet. Mrs RV corroborates that account.
Family and social history
31 RV had a troubled childhood - a brutal father and an unsupportive mother. At 12 he was sent to a juvenile detention centre. As a juvenile he spent four and half years in detention – served over three separate periods – for offences relating to property. RV was effectively abandoned by his family throughout this period.
32 RV reports to having been a heavy drinker from the age of 17 until his early thirties. He claims that he has been a moderate drinker for the past decade and now has the occasional weekend drink. He claims that cannabis is the only illegal drug he has used which he did on an occasional basis until his early thirties.
33 RV has been married twice. He was 18 years of age when first married - a marriage which lasted for just over a year. At 25 he entered into a de facto relationship, which ended after about 12 months when he commenced serving a custodial sentence. In 1983 RV met his current wife. They married five years later after living together for five years. Both claim that it is a happy and stable marriage. There are four children of that marriage, described by RV as ‘wonderful children’. The children are reported to be well adjusted and successful.
34 Mrs RV testified that she has never felt physically threatened by her husband. She claims that her husband has been a loving and considerate father and that she never witnessed him mistreat them in anyway.
35 RV claims that he started to put his anti-social past behind him at about the time he met his wife. That coincided with a move into stable employment, a pro-social peer group and an involvement in various sporting and community organisations.
36 The RVs have had a long and active involvement with their children’s schools and various community and sporting organisations. They have a strong social network and regularly take holidays with other families.
Employment history
37 RV is barely literate and holds no formal qualifications. Until the early eighties he held a succession of short-term jobs. Since 1985 he has been employed by the Department of Commerce and its predecessors. For the past 20 years he has worked predominately on school sites. According to his manager throughout that time RV has not been involved in any ‘incident of note’.
38 A decade ago RV suffered a work injury. He believes that the subsequent incapacity has limited the class of employment available to him.
Complaints against RV
39 The respondent advises that with the exception of the material relating to RV’s criminal history and the two incidents summarised below no material adverse to RV was contained in any of the documents produced under its direction (s 14A of the Commission Act). Notices to produce were issued on, among others, the Department of Community Services, RV’s employer and various schools, community and sporting organisations in which he has been involved.
40 About ten years ago two unrelated complaints were made about RV to his employer. The first involved a Year 5 student who allegedly taunted and swore at RV, squirted him with a water pistol and said, ‘I’m a good shot’. According to RV, he squirted the child back and said under his breath, in an ironic tone, ‘I’m a good shot with a hammer’. RV was counselled and agrees he acted inappropriately.
41 In the second incident, RV while working at a secondary school asked a group of girls what their parents thought of the fact that their hair had been dyed in outlandish colours. The principal complained about RV speaking to the students.
42 RV testified that to his knowledge no other complaint has been made about his treatment of children.
When RV met his wife
43 The respondent argues that RV’s claim that his life seemed to fall into place about the time he met his current wife must be viewed with a degree of scepticism given that the evidence suggests that the incidents involving Ms B and Ms C occurred after he met his wife.
44 RV was cross-examined at length on this point. His wife testified that she did not meet RV until a month or two after her return from overseas. She produced records to verify when she arrived in Australia. I accept her evidence on this point.
Expert evidence
45 Tendered in these proceedings were reports prepared by psychologists, Mr William Taylor (10 April 2007) and Dr Christopher Lennings (26 September 2005 and 30 May 2007). Each gave oral evidence. In addition both provided the Tribunal with various articles containing research about recidivism rates among sex offenders.
46 In his first report Dr Lennings concluded that RV posed ‘no risk of sexually related violent behaviour’. In a subsequent report he departed from that view and stated that despite the positive changes RV had made in his adult years his risk remained ‘measurably higher’ than that posed by an adult in the general population. Mr Taylor on the other hand believed that RV did not pose a significant risk of recidivism.
47 To understand these conflicting opinions it is necessary to look at the expert evidence in some detail.
48 Method of assessment Both experts used actuarial assessment and assessed dynamic risk factors in their respective assessments. Each used different assessment tools.
49 Actuarial assessment estimates the probability of future offending for particular groups of offenders, based on the criminal histories of groups of offenders with similar characteristics such as the number and types of offences. It relies on so-called ‘static risk factors’. Static factors commonly include: the sex and age of the perpetrator and victim, the perpetrator’s criminal history and their relationship with the victim.
50 Dynamic risk factors in contrast change or are capable of changing over time. They are diverse and often intangible and can include: substance use and abuse; procriminal/anti-social attitudes; mental illness; personality; quality of personal relationships; social environment and social networks; evidence of sexual deviancy and general social skills. Dynamic risk factors can be assessed in a number of different ways.
51 Both experts agree that while actuarial assessment is a useful predictive tool it is far from reliable. Its shortcomings include: it predicts the recidivism risk of groups of offenders, not individual offenders - it cannot nor does it purport to, predict whether a particular individual is likely to recidivate; it ignores dynamic or situational factors which is especially problematic where the assessment involves a person such as RV who has apparently undergone a major and sustained life change.
52 Actuarial assessment Employing STATIC-99 - an authoritative actuarial tool used to predict recidivism rates among known sex offenders - Dr Lennings concluded that RV fell within a group of sex offenders whose risk of reoffending was predicted to be ‘moderate to high’ i.e. he belongs to a group of convicted sex offenders of whom it is predicted that 27 out of each group of 100 are likely to reoffend. Dr Lennings explained that this does not mean that there is a 27% chance that RV will reoffend but rather that he belongs to a group whose members are at a higher risk of offending than the general population.
53 Mr Taylor in contrast employed different actuarial assessment tools namely:
54 Mr Taylor found these tests provided ‘somewhat mixed’ results predicting a ‘low to moderate’ risk of recidivism. The SIR-RI test indicated that RV posed a low risk; the PCL-R - a low to moderate risk; the SAQ and VRAG - a moderate risk.
Statistical Information on Recidivism Scale-Revised 1 (SIR-R1)
Hare Psychopathy Checklist -Revised (PCL-R)
Self-Appraisal questionnaire
Violence Risk Appraisal Guide (VRAG)
Sex Offender Risk Appraisal Guide
55 Dr Lennings thought the actuarial tests used by Mr Taylor were all ‘good robust measures’. He believes however that Mr Taylor erred by using the 1976 rape as the ‘index offence’, rather that the 2002 ‘assault police officer’.
56 As observed by Dr Lennings, despite the different actuarial assessment measures used, the results he found were not materially dissimilar to those found by Mr Taylor – placing RV in a group of offenders who broadly posed a moderate risk of sexual reoffending.
57 Dynamic Risk assessment Both experts also took into account dynamic risk factors and again employed different assessment tools. They concurred that the following factors were predictive of risk and favourable to RV:
58 To assess these factors Dr Lennings used structured clinical assessment (detailed in par. [36] of his first report). While recognising that this assessment method was largely reliant on self-reporting, Dr Lennings believed given the large amount of material he had before him that he could assess the reliability of RV’s report. He thought that while RV might occasionally drink to excess, (a claim strenuously denied by RV and his wife) he did not present as a person dependent on alcohol or one who loses control when drinking. He thought it highly relevant that there was no evidence of age inappropriate sexual relationships or any offending or misconduct involving children.
Passage of time since index offence or any other offence involving violent and/or sexual conduct;
Demonstrated ability to maintain durable social and personal relationships;
Absence of evidence of sexual deviancy;
Absence (or diminution) of psychopathy;
Absence of evidence of substance (including alcohol) abuse;
Evidence of involvement with pro-social, family oriented peer group;
Stable employment record.
59 Mr Taylor also assessed dynamic risk factors. He made the following findings based on various tests (some of which are, strictly speaking, actuarial assessment tools):
60 Psychopathy The experts agree that up until the early 1980s RV probably had psychopathic aspects to his personality. It is my understanding that both use this term to mean a personality dysfunction or disorder that can include anti-social behaviour and/or attitudes or characteristics such as lack of empathy, impulsivity, poor interpersonal relationships and criminal and/or anti-social behaviours.
Diagnosis and Personality Organisation Results on testing were consistent with RV having been diagnosed with a personality disorder earlier in his life. Some anti-social characteristics in his personality adjustment. No indication that he is suffering any emotional disturbance.
Substance abuse RV has an above average predisposition to engage in substance abuse.
Impulse control RV in the past had inadequate controls over drive and impulse.
Aggression Mild anger pathology but does not support a diagnosis of an anger disorder. RV is not likely to act out feelings of anger in an impulsive manner.
Anti-social tendencies Some anti-social characteristics have been present in RV since adolescence; he had a Conduct Disorder in his early teenage years.
The results indicate that he has an average tolerance for legal violations, and he does not identify with anti-social attitudes. He has some feelings of ambivalence with regard to authority and may be prone to feeling that authority figures are unfair and not to be trusted. However he does not appear to have feelings of alienation toward authority.
Social relationships He does not have a great deal of insight concerning this aspect of his functioning but denied difficulties in interpersonal functioning.
61 Both agree that an apparent personality change occurred around the time that RV formed a relationship with his current wife. The only material point of difference is whether elements of a psychopathic disorder or anti-social characteristics persevere.
62 Mr Taylor believed that a succession of events in the early 1980s - taking on a full time job and joining a sporting club, both for the first time - signalled that the psychopathic elements of RV’s personality had or were in the process of waning. According to Mr Taylor these events are relevant as a characteristic of people suffering from anti-social personality disorders is their inability to form affiliations and they generally operate on the periphery of society.
63 Mr Taylor believes that in RV’s case the disorder has probably gone into remission. He asserts that it is not unknown for personality disorders of this type to remit in middle age, and cited in support of that proposition the following extract from the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th ed, 1994 (‘DSM-IV’), pp 632, 648:
64 Mr Taylor testified that he had first hand experience of this phenomena, having worked with men with long criminal histories some of whom nonetheless went on and managed to create ‘significant stability in their lives’.
Some types of Personality Disorder (notably, Antisocial and Borderline Personality Disorders) tend to become less evident or to remit with age. …Antisocial Personality Disorder has a chronic course but may become less evident or remit as an individual grows older, particularly by the fourth decade of life. Although this remission tends to be particularly evident with respect to engaging in criminal behaviour, there is likely to be a decrease in the full spectrum of antisocial behaviours and substance abuse.
65 Mr Taylor thought it significant that the results from tests used to measure Anger Disorder and Criminal Sentiments showed that RV now had only mild pathology and no significant anti-social attitudes. According to Mr Taylor the test results showed that he had an average tolerance for legal violations; did not identify with significant anti-social attitudes or have feelings of alienation towards authority.
66 In his first report Dr Lennings wrote while in general ‘schematic changes in function’ are rare, RV appeared to have achieved this in his life. He thought that while there was some concern raised by RV’s ‘past behaviour in relation to the measure of psychopathy’ the evidence indicated that it had not persisted beyond meeting and marrying his current wife. He concluded that RV’s current presentation did not indicate psychopathic or deviant attitudes but that a caveat must continue because of his history.
67 In his final report Dr Lennings stated that while he agreed with Mr Taylor that some personality disorders ‘burn out’ with age, the perseverance of callous and insensitive attitudes can still be seen in some individuals who once suffered from the disorder despite the reduction in offending. He thought that he could not rule out the possibility that in this case elements of the disorder remain.
68 Absence of child victims The experts agree that the absence of any evidence of RV having offended against or having any sexual interest in children is relevant and favourable to him. They disagree however on the weight this evidence should be afforded in light of the published research in this area.
69 Dr Lennings thought the evidence of RV’s criminal history was at best inconclusive given what he described as the phenomena of ‘offender versatility’ that is, in the context of sex offenders, targeting adult and child victims. Mr Taylor on the other hand believed that where a preference for victims of a particular age was established early in life it was highly probable it would continue.
70 Mr Taylor argued that the weight of international research supported his view and cited a report prepared by the Australian Institute of Criminology for the Office of Status of Women (‘the AIC report’) - Lievore, D, Recidivism of Sex Assault Offenders Rates, Risk Factors and Treatment Efficacy, May 2004.
71 The author of the AIC report, after reviewing the international literature on recidivism patterns among sex offenders, concluded [at p 36] that the international literature broadly concurs on several points:
72 Dr Lennings asserted that recent studies raised doubts about the prevailing orthodoxy that a sex offender’s preference for victims of a certain age was generally entrenched ‘early on’. In his final report he referred to an unpublished study conducted among sex offenders attending a treatment program in Colorado, referred to by Dr Lennings as the ’Colorado Corrections’ study. He claimed that that study revealed marked inconsistencies between the answers given by known sex offenders about the age and sex of their victims when polygraph testing was used. That study according to Dr Lennings showed that where polygraph testing was used offenders admitted to a far broader range of paraphilia behaviours than they otherwise admitted to.
- Rates of sexual recidivism are low relative to other offence types. Most sex offenders are not reconvicted or reimprisoned for sex crimes, although a sizeable group continues a general criminal career.
- There is considerable continuity between sexual and violent offending, particularly among rapists, many of whom have extensive general criminal histories.
- Subgroups of sex offenders recidivate at different rates. In general, incest offenders are least likely to reoffend and extra-familial child molesters are most likely to be reconvicted.
- Sexual recidivists often specialise in their choice of victims or behaviours and the likelihood of reoffending is contingent to some extent upon the offender’s particular sexual criminal career.
- While most sex offenders recidivate within two to three years of release from prison, the risk of sexual recidivism remains low after.
73 It was argued for RV that the Colorado study could not be given any great weight as it had not been published and therefore subjected to peer review; was based on a statistically small sample; and dealt with ‘versatility’ of sex crimes in general not versatility in terms of cross over from adult to child victims.
74 Dr Lennings thought that the chronic underreporting of child sex offending demanded that great caution should be exercised in accepting those studies which report that the overwhelming majority of offenders with a reported history of offending against adults do not also target children.
75 Each expert claimed that their observations through clinical practice supported their respective view. Dr Lennings asserted that the majority of people who work with sex offenders in Australia would agree with him. Dr Taylor disagreed.
76 Dr Lennings' revised opinion Dr Lennings’ initial position broadly corresponded with that held by Mr Taylor. A live issue in these proceedings was Dr Lennings’ decision to abandon that opinion.
77 As noted two reports prepared by Dr Lennings were admitted into the proceedings. A further report dated 11 November 2006 prepared in the intervening period between those two reports was not admitted into evidence on the ground that it was based in part on material subsequently ruled inadmissible. (See paragraphs [17] – [23] of these reasons).
78 In his first report Dr Lennings concluded that RV:
79 In his final report Dr Lennings wrote that he no longer stood by that assessment and concluded that despite the positive changes RV had made in his life, the risk he posed was ‘measurably higher’ than that posed by an adult in the general population. He thought that his original decision to give RV the ‘benefit of the doubt’ could no longer be justified for two main reasons. First he had concluded that it was unwise to override an actuarial assessment to the extent he had, that is, from moderate to low. Second, he claimed that on review he was troubled by RV’s apparent lack of feelings of responsibility or concern for Ms C. He claimed that various remarks made by RV in the course of the assessment implied a ‘residual callousness’ if not ‘outright anti social lack of feeling’ that was at odds with the overall impression he had been given.
[P]resents as a man who’s undergone a significant sea change approximately 20 odd years ago when he married his current partner. Prior to that he presents as a person who was avowedly anti-social in character, somewhat psychopathic in his manner, and a person who may not have had an intentional sexual deviation as such, but was certainly somewhat misogynistic and opportunistic in his approach to women, and prepared to respond to conflict in crises with the use of force as and when he saw necessary. It does appear however that a significant alteration occurred when he married his current partner and over the years he has significantly changed aspects of his psychological functioning. He is now far more prosocial, and he appears to have been able to establish stability in his life both in terms of employment as well as accommodation. His relationship appears to have altered fundamentally some of the more negative and anti-social attitudes he held particularly towards women, but also towards society as a whole. Despite having some elements of anti-authoritarianism still in his make up, I note that his work record is essentially one of support.
[RV’s] presentation and contradictory history presents a rather difficult assessment in as much as traditional indicators of risk such as the actuarial assessment and even the structured clinical assessment are heavily influenced by his prior history. As a result the risk loading he achieved is a moderately high one which under normal circumstances should not be ignored and would lead to a strong argument for rejection of his claim for an exemption. However, the psychological assessment does indicate that a genuine change in character and a genuine change in attitudes of orientation to society appears to have taken place. Factors that might mitigate this essentially positive evaluation of [RV] include undisclosed matters indicating uncontrolled and aggressive behaviour when drinking, reports of marital strife and tension suggesting less settled and less supportive behaviour than he reports, or undisclosed matters indicating the perseverance of anti-social and anti-authoritarian behaviour.
Currently, I perceive no risk of sexually related violent behaviour on the part of [RV]. There does not appear to be a sufficient carry-over of a psychopathic or remorselessness and callous attitudes to indicate that there is a continuum with his earlier history, nor does he appear to possess any significant sexual deviant behaviours. The most significant risk factor continues to be a residue of anti-authoritarian behaviour and a tough mindedness in his approach to others. Such a residue is likely to lead him to at times respond verbally in an angry way to others, although on the basis of the history this appears to have been relatively infrequent in recent years. The exception to this judgment is the violence that occurred in 2004. I am sufficiently persuaded by [RV] that this was probably an incident in which a considerable degree of provocation took place. It does not appear to me that his history over the last 20 years and particularly over the last 10 years suggests that he remains of risk of violence to others. Nonetheless it would be sensible for his work environment to continue to require the necessity for him to be under supervision when in schools. I understand that that is the way in which he currently operates, that all employees have at least one other employee present with them at all times. It seems useful that [RV] be provided with an opportunity to debrief should he go into a school where students are teasing or verbally provocative in their behaviour towards him. I am not concerned so much about provocative in terms of any sexual behaviour, but provocative in terms of attempting to irritate the workmen. In such circumstances [RV] should be encouraged to acknowledge the emotional state he might be in with his colleagues.
80 In cross-examination Dr Lennings was asked what RV had told him about Ms C that has caused him to change his mind. He conceded that he could not remember the exact words but thought it was to the effect that it had been a case of mistaken identity and any involvement on his part was scuttlebutt. He said on reading the material concerning her disappearance it became apparent to him that this was not entirely correct as by RV’s own admission he had had a sexual encounter with her the night she disappeared.
81 Dr Lennings was asked whether he would continue to endorse the conclusions outlined in his final report if he was able to disregard the material ruled inadmissible. He considered this a 'difficult question' and conceded that the disputed material might have impacted on his conclusions but 'not greatly'.
82 In evidence-in-chief Dr Lennings was invited to comment on the type of risk, broadly defined, RV might pose to children. He commented that the concept of 'risk at large', as opposed to physical violence and /or sexual harm was an 'undefined area' and could potentially take a number of different forms, including neglect, potential for abuse, emotional and physical and sexual violence. He said he was unaware of any specific risk prediction instrument that could be used to measure 'risk at large' however applying that measure he thought RV was the sort of 'bloke who if a kid gave some cheek [to]... might respond in kind'. He thought it unlikely that that conduct would cause 'lasting damage' to the subject child and for that reason thought it not really significant.
83 Dr Lennings thought that of greater concern was the risk of verbal rather than physical violence within the workplace. He thought RV was a person who remained somewhat 'emotionally volatile' and would need to exercise 'considerable self control' to avoid engaging in relatively hostile banter with people who he perceived might be 'having a go at him'. Dr Lennings thought it illustrative that in relation to the water pistol incident RV while recognising that his actions had been inappropriate nonetheless justified his conduct on the basis that the child had been a nuisance.
84 Mr Taylor disagreed with Dr Lennings’ opinion that the risk RV posed to young people ‘remains hard to gauge’. He thought it highly relevant that there was no history of RV engaging in any ‘inappropriate, or illegal activity with young people’ or any evidence that he had any paedophilic activity. He thought it significant that there was nothing in the available documents to suggest that RV’s preferences have been for anything other than adult females.
85 He concluded that there was no reason to believe that RV would revert to engaging in the anti-social conduct characteristic of his younger years and thought it more likely that his current stable functioning would continue into the future.
Findings and conclusions
86 Section 33J(2) of the Commission Act creates a rebuttable presumption that RV poses a risk to the safety of children. In deciding whether that presumption has been rebutted I am required to have regard to the factors listed at s 33J(3). The evidentiary onus of establishing that he no longer poses a relevant risk lies with RV.
87 The evidence in this case is finely balanced. Many of the s 33J(3) factors are favourable to RV, most notably the passage of time since the index offence was committed; the fact that it was the sole conviction for a sexual offence; the absence of child victims; and the closeness in age between RV and his victim. It is also relevant that all incidents of reported violent conduct and/or sexual misconduct was accompanied by heavy drinking and RV no longer drinks to excess. On the other hand RV’s application is not assisted by the seriousness of the index offence, the circumstances surrounding the 1978 offence; his age when the offence occurred and his criminal record as a whole.
88 It is uncontroversial that up until about 25 years ago RV was an immature, narcissistic young man who suffered some form of anti-social personality disorder. It is also uncontroversial that since or shortly after forming a relationship with his current wife RV underwent, what in these proceedings has been coined, an ‘epiphany’. RV’s claim that his anti-social past is behind him and he has become a responsible and loving family man is supported by his wife and uncontradicted. That claim is bolstered by the absence of any material adverse to him in any of material produced in these proceedings (other than that relating to his criminal history) including that provided by DoCS and RV’s current employer. Whatever the explanation might be for this apparent change –age, the development of self-esteem or as Mr Taylor believes, the remission of a personality disorder – the evidence points to it having been sustained over a significant period.
89 Two eminent psychologists with extensive experience in the treatment and assessment of sex offenders have assessed RV. Despite much common ground they do not agree on whether RV now poses a risk to children. They differ on three key points: first, whether any traits of a personality disorder persist; second, whether the assessment of dynamic risk factors should trump the results of actuarial assessment; and third, given to the absence of children among RV’s victims, the weight to be given to that evidence.
90 While pivotal to their ultimate assessment the difference in opinion on the personality disorder issue is one of degree. Both agree that evidence of psychopathy or an anti-social personality disorder is a strong indicium of risk. Likewise they agree that until the early 1980s RV suffered from a form of the disorder. Their point of difference is whether the condition is in remission. Mr Taylor is confident that it is; Dr Lennings is not prepared to exclude the possibility that it is not.
91 It was argued for RV that the inadmissible material surrounding the disappearance of Ms C contaminated Dr Lennings’ opinion and caused him to revise his initial assessment. Counsel for RV, Ms Tibby, contends that it is telling that the reference to ‘persistent anti-social behaviour’ only appears in Dr Lennings’ evidence after he read the offending material. She further contends that it is telling that Dr Lennings could not recall the words RV purportedly used about Ms C which he claimed ‘tipped the balance’ against his initial findings.
92 The respondent disputes the suggestion that Dr Lennings’ evidence was tainted. Counsel for the respondent, Mr Higgins, argues that the answers given by RV in cross-examination ‘I don’t blame her [the rape victim] I don’t wish her any harm’, confirm Dr Lennings’ misgivings. Those remarks, argues Mr Higgins, read together with comments made by RV shortly after the offence such as ‘[the rape victim] was just a slutty looking girl’, indicate a lack of empathy: a strong indicium of psychopathy.
93 In my view the callous views expressed by RV over 20 years ago are of little relevance. They merely confirm a point conceded for RV that at that time he probably suffered from a significant personality disorder.
94 His answers given in cross- examination referred to by Mr Higgins lend themselves to any number of interpretations. They could indicate a lack of empathy; equally they might be a clumsy attempt by a not especially articulate man to reduce complex emotions and thoughts to words. Care should be taken not to take comments out of context and as Ms Tibby pointed out, RV went on to say that he hoped his victim had gone on to be happy and have a family which puts the disputed comments in a more favourable light.
95 While I decline to draw the inference the respondent urges me to draw, nonetheless the submissions on this point highlight the practical difficulty of reliably assessing behavioural characteristics indicative of an anti-social personality disorder – such as shallow emotions, anti-social attitudes, lack of empathy or remorse – given their intangible and subjective nature.
96 I do not agree with the proposition put for RV that Dr Lennings’ evidence has been tainted by the inadmissible material and by inference rendered unreliable. In evidence Dr Lennings in effect conceded that the offending material caused him to review his earlier opinion. That does not mean it was based on that material. A fair reading of Dr Lennings’ first report indicates that while he felt confident enough to provide an assessment of low risk, he had some reservations. While the inadmissible material might have consciously or otherwise triggered his decision to revisit that opinion, Dr Lennings has nonetheless provided a strong and compelling explanation for abandoning that assessment.
97 On the issue of the relevance of the absence of any children among RV’s victims, despite the focus it received in these proceedings and the tomes of material tendered, when stripped back it is apparent that the opinions of the experts are again not that far apart. Their respective views on the research must be seen in light of these agreed facts: sexual deviation is a strong predictor of recidivism; there is not a shred of evidence to suggest that RV has, or ever has had, deviant sexual preferences or interests. The weight of research in my view would appear to support Mr Taylor’s contention that where a preference for a particular age of victim is established that preference is generally life-long. However that research puts it no higher than this is generally the case. That research it must be acknowledged is muddied to a degree by the chronic underreporting of child sex offending.
98 The experts agree that while the actuarial assessment indicates that RV is more likely than the general population to sexually offend a significant number of factors predictive of recidivism are favourable to him. As noted they agree that many of those factors are favourable to RV. The principal point of difference in relation to the assessment of dynamic risk factors is whether any remnants of antisocial behaviour or attitudes linger. Mr Taylor is confident that this possibility can be excluded. Dr Lennings initially was of that view but is now equivocal. While there are a large number of reliable indicators that suggest that these anti-social traits have petered out —such as RV’s stable employment record and evidence of durable personal relationships — RV’s more recent criminal history does not assist him in establishing that those traits have now been extinguished. Even if the 2002 offence is disregarded, the 1998 offence would seem to support Dr Lennings belief that some elements of anti-social attitudes and conduct persist. While an offence of this nature does not indicate a propensity to offend against children, it nonetheless sits uncomfortably with RV’s self report that he is a changed man and the disorder, which led him to offend as a young man, is no longer present. Added to that is the evidence that testing of dynamic risk factors revealed that RV had some scores of concern. (See for example, the results of the Self Appraisal Questionnaire administered by Mr Taylor.)
99 RV’s case rests heavily on a finding that no remnant of an anti-social personality disorder perseveres. It goes without saying that this presents RV with a high evidentiary hurdle given the consensus of expert opinion that a condition of this sort is generally life long. While the evidence is finely balanced he has not in my view established that no traits of the disorder linger on.
100 The assessment of risk under s 33J(2) must have regard to the opportunity to place children at harm. If the order RV seeks is granted he would be free to work in any type of child related employment including that, which involves working with the most vulnerable children. Given the inconclusive evidence about the remission of RV’s personality disorder together with the consensus of expert opinion that its existence or otherwise in this case is pivotal to an assessment of risk, I could not be satisfied that RV has rebutted the presumption that he no longer poses a real and material risk to children in all types of child-related employment.
101 Having made that finding it is necessary to consider whether conditions could be imposed under s 33I(6) to reduce any risk RV might pose to one that is not real and material (see Commission for Children and Young People v V [at 46]).
102 There is no evidence of RV putting a child at risk of harm, however defined, even at the lowest point in his life. He has now been working in schools for over two decades and in that time there have been no adverse reports other than the two relatively minor incidents referred to at paragraphs [40]-[41] of these reasons. Even if as the respondent contends the term ‘safety to children’ in section 33J(1) extends to ‘emotional harm’ those two examples in my view do not indicate that RV poses a real and material risk to the emotional safety of children. Coupled with the compelling evidence of the stability RV has achieved in his life and the passage of time since the index offence it seems to me that if conditions were imposed restricting the type of child related employment RV could undertake, any risk he might pose could be reduced to one that is not real and material. In reaching that conclusion I note that his current employment does not bring him into direct contact with children and he generally works in company of another adult.
103 I am satisfied that RV would not pose a real and material risk to the safety of children if the following conditions were imposed: that the only child-related employment he undertakes is that involved in his current position; and in the interests of abundant caution, he work at all times in the company of another adult.
Orders
1. It is declared that the Commission for Children and Young People Act 1998 is not to apply to RV in respect of the offence of rape for which he was convicted in the Central Criminal Court in Sydney on 31 May 1976, subject to the following conditions:
2. The Registrar is requested to provide a copy of these orders to the Director General, NSW Department of Commerce.
a. That he not apply for, undertake or remain in ‘child-related employment’ as defined by section 33(1) of the Commission for Children and Young People Act 1998, other than that which he currently undertakes in the course of his employment with the NSW Department of Commerce;
b. That in the course of the employment referred to in paragraph (a) above he work at all times in the company of another adult;
c. That RV provide a copy of these orders to his immediate supervisor.
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