Ry v Commission for Children and Young People

[2006] NSWADT 51

CITATION:	RY v Commission for Children and Young People [2006] NSWADT 51
DIVISION:	Community Services Division
PARTIES:	APPLICANT RY RESPONDENT Commission for Children and Young People
FILE NUMBER:	054045
HEARING DATES:	10/02/2006
SUBMISSIONS CLOSED:	02/10/2006
DATE OF DECISION:	02/20/2006
BEFORE:	Kelly T (Deputy President)
CATCHWORDS:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949
REPRESENTATION:	APPLICANT I Bruce, solicitor RESPONDENT D Ward, solicitor
ORDERS:	It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to RY in respect of the one offence of indecent assault for which he was convicted on 25 July 2005

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 seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”) so that he can work unsupervised with children and young persons.

2 The respondent neither consents nor opposes the application.

3 It is not disputed that on 25 July 2005 the applicant was convicted of indecent assault of his partner’s 9 year old daughter on one occasion between 15 and 28 August 1997. He was placed on a bond to be of good behaviour for 2 years and fined $2000.

4 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that could identify the Applicant or anyone referred to in the proceedings (other than the experts). The Applicant is referred to in these reasons by the pseudonym, “RY”.

Issues

5 The Tribunal must determine whether RY (the applicant) is a likely to be a risk to the safety of children and young persons if he is allowed to work with them without direct supervision

Relevant legislation

6 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).

7 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person's total criminal record,

(f) such other matters as the tribunal considers relevant.

8 Section 9(7) states that the Respondent is to be a party to any proceedings for an order under s 9 and the Respondent may make submissions in opposition to, or support of, the making of the order.

Standard of Proof and meaning of “risk”:

9 The Applicant carries the onus of proof on the Briginshaw standard, that he is not a risk to the safety of children. The meaning of the word “risk”, for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:

not 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
10 Young J, went on to say
One does not define risk as meaning minimal risk. One could exclude fanciful or theoretical risk. What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on the child.
11 His Honour continued:
A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed
12 His Honour further said:
There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sexual offence and its circumstances. The second is the current danger, if any, posed by the applicant to children. Subsection 5 deals mainly with the first focus. That is, the Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the victim at the time and the difference in the ages. The second involves the assessment of the applicant's character now, which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by 5(e), and any other matter which the Tribunal considers relevant. Subsection 5 then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt a person from the effect of the Act. A decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of the applicant unless there is good reason not to exercise it.
13 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 for Children and Young People 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: par [46]. By implication it would be wrong to impose a condition on an applicant who, without such condition, does not pose a real or appreciable risk

14 Index Offence

For 14 months prior to the index offence and at the time thereof, the applicant resided with the victim’s mother and her 2 children. On the night in question there was an argument between the applicant and the victim about household issues. Later that night when the other members of the household had gone to bed the applicant entered the bedroom of the victim who was in her bed, and knelt beside the bed and kissed the victim on the face and told her to go to sleep. He then lifted the victim’s nightdress and licked and kissed her breasts and ran his hands down her body towards her underpants whereupon the victim rolled over to her side and the applicant desisted these actions and left the room.
15 The offence is in the mid range of serious sex offences.

16 The following day the victim told her mother about the offence and she confronted the applicant who denied it. However when the mother again raised the matter the day after the applicant admitted it. Soon after the applicant vacated the house and his relationship with the victim’s mother ended and he determined to attend Centrecare for counselling in respect of the offence.

17 The applicant attested that he gave full details of the offence to the counsellor from Centrecare and fully cooperated with that counsellor. This is corroborated by the counsellor’s notes that were produced on summons. The counselling continued for 7 months and stopped when the counsellor left the employ of that organisation. The last notes of the counsellor state that he believed that the risk of the applicant re-offending was significantly reduced.

18 Soon after the counselling commenced the counsellor reported the offence to the police and DOCS. Extraordinarily no action was taken against the applicant for this offence until 2005. There is evidence that the victim’s mother disapproved of the counsellor contacting these 2 government agencies and this may account for the regrettable laches in bringing criminal proceedings.

19 Prior to and subsequent to the offence, the applicant was working with the victim’s mother in another government agency. In 2005 the victim’s mother complained to their employer about the victim’s offence and this caused the employer to mount an internal investigation into the allegation, possibly because the nature of the applicant’s work from time to time brought him into contact with children. This resulted in the matter again being referred to the police and the applicant finally facing criminal charges, to which he pleaded guilty at all times. Furthermore, the applicant’s employment was terminated as a consequence, I am informed that is the subject to pending proceedings in the Government and Related Appeal Tribunal (GREAT).

Applicant’s evidence

20 The applicant gave his evidence candidly and readily made concessions in cross-examination. He stated that prior to the offence there was much stress in the household where he was having real difficulties in his role as step parent, it being a role for which he was not able to cope. Although he minimised it, the nature of his employment would also have been stress inducing.

21 In the 6 months prior to the offence he was drinking heavily. On the night of the offence, but prior thereto, there had been difficulties with the behaviour of the victim, which requited the intervention and discipline of the applicant. Furthermore on that night the applicant probably drank 1.5 to 2 litres of wine. The applicant stated that on nights when he was not working he was drinking an average of 1.5 litres of wine. After the offence the applicant reduced his drinking to about half a litre of wine.

22 On 18 August 1998, whist riding his motorcycle the applicant had a serious accident requiring hospitalisation and consequently totally ceased drinking for a period of 6 months. He now drinks about 6 light beers on weekends and sometimes has one glass of wine with meals.

23 The applicant has been in another relationship for some time. However, very recently he has withdrawn from the household on a trial basis. He believes these current difficulties may have been caused by the stress of this application and the pending application in GREAT, as well as his brother’s recent suicide.

Other allegations

24 When interviewed during the 2004 investigation by the applicant’s employer, the victim made 2 additional allegations against the applicant, which he denied, about matters that she claimed occurred about 2 years before the index offence, when she would have been aged about 7 years.

25 The first of these was that the applicant would enter the bathroom when she was showering and engage her in conversation and stare at her. She conceded that it was his role to supervise her showering on these occasions.

26 The second was that on one occasion, he entered her bedroom when she was naked and picked her up and sat her on his shoulders and with out indecently touching positioned her in an indecent way.

27 These allegations were not made by the victim to her mother at the time of they allegedly occurred nor even 2 years later when the victim told her mother of the index offence. The victim was never able to be questioned about them by or on behalf of the applicant or by the Tribunal. They were made 9 years after their alleged occurrence, by a victim who is justifiably angry about the index offence. In 1997 the victim’s mother strongly disapproved of the reporting of the index offence by the counsellor, yet in 2004 she requested and obtained an enquiry, which raises an issue that could be relevant as to the acceptance of these allegations, about which I will not speculate. The Tribunal can not be satisfied to the required standard as the accuracy of these allegations and accordingly should not take them into account when considering whether or not the applicant is a risk.

Ages

28 At the time of the offence the applicant was aged 32 years and the victim a very young and vulnerable 9 years. The differences in their ages was a significant 23 years. The applicant is now aged 41 years.

29 In the eight and a half years since the offence there is no evidence of any subsequent matter that would cause any concern. This includes 7 years employment in a government agency in situations where he would have been working unsupervised with children, which in 2005, conducted an enquiry into the applicant’s behaviour out of which nothing adverse came to light.

Other Criminal Offences

30 On 18 August 1998, 12 months after the index offence the applicant was charged with the offence of driving with his blood alcohol being in the higher prescribed range. He was given a recognisance to be of good behaviour and no conviction was recorded. This offence should be considered in the context of the applicant’s aberrant behaviour and alcohol consumption at the time of the index offence.

Experts

31 The applicant was examined by well recognised experts in the area of predicting risk of sex offenders re-offending, appointed by each party.

32 The applicant’s solicitor referred his client to Dr Stephen Allnut a forensic psychiatrist. He stated in his report that the applicant did not manifest any symptoms of major mental illness such as anxiety, depressive or psychotic disorder. Nor was there any evidence of cogitative difficulties although in the past he may have met the criteria for diagnosis of substance abuse disorder or even dependence.

33 Dr Allnutt assessed the applicant using the Static 99 actuarial risk assessment and this showed a low risk for future sexual recidivism. He further assessed then applicant using the criteria of the most common risk factors known as SVR 20. This also showed that the applicant was in the low risk category of sexual recidivism. His report concluded that having considered the actuarial, structured guided assessment and specific case analysis the applicant fell in the group of sex offenders who are of low risk of future sexual recidivism. He then went on to state that the applicant would benefit from future counselling and that he should be encouraged to maintain his then current relationship. He thought that his current level of alcohol consumption was not concerning.

34 Dr Allnut gave evidence and when informed of the very recent difficulties in the applicant’s current relationship said that he put no great weight on this, and noted that he has spent significant times in the past when not in a relationship with out coming to adverse notice. He stated that he did not think that there was an underlying paedophilic propensity as he admitted the offence quickly, was intoxicated at the time, there have been no other instances and the offence was in the lower end of the spectrum.

35 He stated that he recommended counselling particularly in case he was reinstated to his previous employment which would carry the possibility of difficulties with his work colleagues who know of the index offence. He went on to say as he had not offended in the work place in the past he was in the low risk group to offend in the work place in the future. He concluded his evidence that on balance the applicant was in the low risk group even if there was not any counselling but while it would be prudent for him to pursue counselling but is not absolutely necessary.

36 The respondent caused the applicant to be assessed by Dr Christopher Lennings, a clinical psychologist. He assessed the applicant using Static 99 and came to the same conclusion as Dr Allnut. He also considered the dynamic risk factors and again came to the same conclusion as Dr Allnut. He further concluded that there was little in the way of personality dysfunction in his current presentation. He believed that his behaviour was wrong and peculiar for him, and that there was no evidence of sexual deviation other than the index offence.

37 Dr Lennings went on to say the applicant had drunk too much for a sustained period of 6 months before the offence and then whilst intoxicated had a severe motor cycle accident and was charged with drink driving and that this was the only manifestation of anti social behaviour and that otherwise he appeared to be a some what controlled man with good psychological adjustment. His current drinking is within the current guidelines of the National Health and Medical Research Council and he was now into defensive drinking although he would need to ensure that it did not creep up. Although he has no insight into his drinking pattern he knows that drink nearly killed him and he does not want to go back to that. He has managed his alcohol use successfully for the last 8 years and there is no reason to believe that there will be some change to that in the future.

38 Furthermore Dr Lennings stated that the applicant’s current relationship breakdown was happening when he was interviewed and he was prepared for it. If the relationship breaks down there will be a issue about intimacy and sexual needs but not of reoffending as this needs deviancy which is not there.

Conclusion

39 On the evidence before I am satisfied to the standard discussed in paragraph 9 above that the applicant is not a risk to as judicially defined, to the safety of children. This evidence includes the concurring assessments of 2 recognised experts, the applicant’s contrition and acceptance of responsibility of his actions, and the absence of the precipitating factors that existed at the time of the offence which are not likely to recur.

40 The respondent submitted that a condition that the applicant attend counselling should be imposed on any exemption granted to him. This is rejected. There is no evidence to satisfy me that the applicant is not a real or unacceptable risk without the imposition of such a condition and to accede to this submission would be to act contrary to determination of the Supreme Court as referred to in paragraph 13 above.

Order

It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to RY in respect of the one offence of indecent assault for which he was convicted on 25 July 2005.