SJ v Commission for Children and Young People

[2006] NSWADT 85

CITATION:	SJ v Commission for Children and Young People [2006] NSWADT 85
DIVISION:	Community Services Division
PARTIES:	APPLICANT SJ RESPONDENT Commission for Children and Young People
FILE NUMBER:	054042
HEARING DATES:	9/09/2005, 23/09/2005 & 1/12/2005
SUBMISSIONS CLOSED:	12/01/2005
DATE OF DECISION:	03/23/2006
BEFORE:	Britton A - Judicial Member
CATCHWORDS:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949
REPRESENTATION:	APPLICANT In person (9 September & 23 September 2005) G Moore, barrister (1 December 2005) RESPONDENT D Ward, solicitor (9 September & 23 September 2005) M Higgins, barrister (1 December 2005)
ORDERS:	The Child Protection (Prohibited Employment) Act 1998 is not to apply to SJ in respect of the offence of indecent assault for which he was “convicted” (as defined by section 3 of the Act) on 12 July 1989

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, a “prohibited person” as a consequence of his “conviction” in 1989 on the charge of “indecent assault”, seeks an unconditional order s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (“CP(PE) Act”). On 1 December 2005, the following consent orders were made:
The Tribunal stays the prohibition against the applicant to apply for, undertake and remain in child related employment until further order of the Tribunal subject to the condition that the applicant does not involve himself in “child protection” training.
2 The respondent does not oppose the making of a s. 9(1) order but argues that the same conditions as contained in the stay order ought be imposed. It is argued for the applicant that an unconditional order is more appropriate as the weight of evidence makes clear he does not pose a risk to the safety of children.

3 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, “SJ”. The official copy of the orders provided to the parties will include the name of the applicant.

The Index Offence

4 The applicant is 44 years of age. In 1990 the Wollongong District Court found him guilty of one charge of “indecent assault”. Without recording a conviction the Court placed him on a two-year good behaviour bond himself in the sum of $ 500. This is the Applicant’s sole “conviction”. (Section 3 of the CP(PE) Act defines “conviction” to include a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.)

5 The respondent tendered in these proceedings the respective statements given by the applicant and his victim to the police, the transcript of the committal proceedings, various documents from the District Court trial including, Judge Ford’s summing up to the jury and the applicant’s dock statement. Despite the best efforts of the respondent the transcript of the evidence given in the District Court could not be located.

6 The applicant was 27 years of age at the time of the offence and working as a primary school teacher. His victim was an eleven-year-old schoolboy who was a student in his Year 6 class.

7 The applicant had been appointed by the school to undertake protective behaviours management. To this end he provided his class with instruction on identifying and dealing with inappropriate and/or sexually predatory conduct. This involved, among other things, role-playing where students were required to “act out” how they would respond if confronted by inappropriate conduct. There is no suggestion that the applicant acted inappropriately in this context.

8 It is not in issue that the victim of the assault was a shy and non-assertive boy who at the relevant time was being cared for by his grandmother, as his mother was serving a custodial sentence and his father’s whereabouts unknown. In the early part of 1989 the boy confided in the applicant that an older cousin had sexually assaulted him over an extended period. In the second half of 1989 the applicant attempted to help the boy by providing counselling which consisted of about 20 to 30 one-to-one counselling sessions over a four-month period. According to the applicant, the counselling was designed to equip the boy with strategies to protect himself against his cousin’s unwelcome advances.

9 The index offence occurred during one of those sessions. The following facts were not in issue before the District Court: that in the course of general conversation with the boy the applicant placed him on his knee, undid his fly, and placed his hand inside his trousers. The boy’s evidence was that the applicant placed his hand inside his underpants, on his skin. The applicant denied placing his hand inside the boy’s underpants or touching his penis but admitted feeling the penis “nearby”.

10 At the trial the boy conceded that the applicant’s hand had been inside his trousers for about two to three minutes, not ten, as he had originally claimed. The applicant did not give an estimate of the time his hand was inside the boy’s trousers in either his dock statement or the statement given to police. In these proceedings he claimed that the moment he put his hand inside the boy’s trousers and felt his penis nearby he realised that what he had done was “horrendously stupid”.

11 In the record of interview taken by police the applicant gave the following reason for his conduct:

His zipper was unzipped and I awaited for a reaction from [the victim]. No reaction followed and I then asked him if he liked that, he said no, still no reaction from [the victim], I opened his fly and [he] still had no reaction. My hand was placed on his underpants to which [he] still had no reaction. I asked [him] if he approved of that, to which he replied no, but still no reaction from [him], I explained to him ‘Look what stage I have got to now and still you have made no attempt to prevent me from going on. All that we have learnt this Year you haven’t used.” I rezipped his fly up and I spoke with [him] for about a period of 35 minutes.
12 Throughout the police investigation and the trial the applicant denied that his intentions had been sexual. He has not resiled from that position. In these proceedings he testified that he had wanted to shock the boy and show him how quickly things could go “too far”. He conceded that he had become exasperated with the boy’s failure to assert himself when touched in an inappropriate way despite attending his classes and intensive counselling.

13 In these proceedings the applicant said that he was deeply shocked that he had put his hand in the boy’s trousers and after discussing it with his girlfriend, who was later to become his wife, resolved never to “go down that path again”. He claimed that that was the last occasion he counselled the boy or touched him in an “inappropriate way”. He went on to say, “What I did was totally my fault and my stupidity and I have always accepted that.” When asked what it was that he had done that was wrong he replied, “…by touching the child, no matter what the intent was, that is wrong…”

14 In his summing up to the jury, Judge Ford read the following extract from the applicant’s dock statement:

All I ever tried to do when I had [the victim] and even now is to be the best teacher that I could ever be and to me the best teacher is how I saw a best teacher when I was a student and that is a person who you can trust, who you can relate to and who you can confide in as a friend. Also a person with at least a sense of humour and to me that is my vision of being a teacher.

I only hope that you can see the position I was put in. You put yourself in the same situation. What would you do to a child like [the victim] who really had to revert to a person like myself as the only person he could come and really confide in. I suppose each person reacts differently.

15 The boy made the allegation about seven months after the offending conduct occurred.

16 Buttock Incident It is not in issue that in the course of the counselling sessions the applicant on at least one occasion, placed his hand on the boy’s (clothed) buttocks and instructed him to do the same. The applicant explained that he did this “…so he could illustrate what unacceptable behaviour was, and to illustrate a simple example of this”.

17 No charges were laid in relation to this incident.

18 In evidence in these proceedings the applicant said that the buttock incident(s) preceded the index offence. The boy claimed that the mutual buttock touching happened a couple of days after the index offence.

19 Conduct post index offence Following his trial the applicant removed himself from all child related activities including teaching, sports coaching and playing in a band. He was treated for severe depression. As the psychologist who examined the applicant on behalf of the respondent remarked “…despite the leniency of the sentence it was a remarkable occasion for him and one that created a great deal of trauma”.

20 The applicant married in 1991 and has four children who range in age from five to twelve. His wife died in 2003 and he has been the sole carer of his children since that time. He has not sought paid employment since his wife became ill.

21 Reason for seeking declaration The trigger for the applicant’s decision to seek a declaration was his inability to participate in his children’s sporting and school activities.

22 The applicant stated that it was his understanding that the pending changes to the social security laws relating to single parents meant he might be forced to find paid employment when his youngest child turns six. If that occurred, he stated that his preference would be to find work with “family friendly” hours so he could continue to take his children to and from school and be with them on weekends and during school holidays. This he acknowledged might mean that he could not “rule out” work in some school based or child based activity.

23 He said he has no interest in returning to work as a teacher because he does not want to put himself in a position where “rightly or wrongly” he might find himself accused of something.

24 Expert evidence The applicant was interviewed and assessed by psychologist, Dr Christopher Lennings, at the request of the respondent. Two reports prepared by Dr Lennings, dated 12 November 2005 and 14 November 2005 were tendered in these proceedings.

25 Dr Lennings tested the Applicant using three assessment tools: STATIC-99, structured clinical assessment and personality assessment.

26 STATIC-99 is an actuarial test used to predict recidivism rates among known sex offenders by weighing key static or historical variables. According to Dr Lennings, on this test the applicant fell within the moderate to low range as he knew his victim. However given the length of time since the offence occurred and the absence of any further reoffending, according to Dr Lennings, the applicant would be entitled to the maximum discount, which would place him in the lowest risk category. This finding, according to Dr Lennings, was confirmed on clinical and personality assessment.

27 In his first report Dr Lennings made this observation:

[The applicant] presents as a reasonably well-adjusted man who got himself involved in a quite traumatic event associated with his inappropriate touching of a boy in which he has also paid a significant psychological price. He does not present as a person who represents any significant risk of sexual violence towards children. His history is completely absent of any risk factor that might indicate risk of violence towards children (other than the initiating offence). In the interview he did not express attitudes suggesting obsessive control or a desire to manipulate others that would indicate a risk of psychological damage to children. Rather he appears to be a person who has a very strong commitment to being caring and supportive of children, a commitment he shelved once he experienced the trauma of court case in 1990. Although some of his behaviours (involvement in child protection and coaching) might be construed as grooming, his abandonment of those behaviours for more than a decade after the court case indicates no significant obsessional or driven interest in children. [The applicant’s] account of his re involvement in the world of children's sport as a response to the pressure of his children seems believable, and not a return of grooming like behaviour. As a consequence it does not appear to me that he represents any significant risk in any form to children…
28 Dr Lennings went on to conclude:
The primary issues remain that his denial means he has not accessed treatment, and whether as such a risk remains of sexual deviance. However, I am unable in my assessment to elicit evidence that a sexual deviance remains (and according to [the applicant], never existed). There does not seem to be a pattern of persistent interest in children following the offence, and he denies any interest in paedophile like activities. Paedophilic offences against boys are usually regarded as the most compulsive, yet his history does not reveal such compulsive interests or behaviour. It seems he does not represent a significant or imminent risk of harm to children, as assessed by me. It seems an exemption would be warranted in the circumstances. I do not make any recommendations regarding conditions as I do not perceive a need for such conditions other than the obvious which is that [the applicant] should not reinvolve himself in any forms of child protection training.
29 After receiving his first report the respondent requested Dr Lennings to comment on the significance of the boy’s allegation of “mutual touching” of the buttocks. In his second report Dr Lennings conceded that he had overlooked that evidence and thought it would be a concern if the buttock incident had post dated the index offence, as it would mean that the behaviour was repeated, on the applicant’s account, after he had recognised, and his girlfriend confirmed that he had exceeded proper boundaries. While Dr Lennings thought that while this placed “some doubt” about his assessment of deviance he nevertheless concluded that it had a negligible effect on his ultimate assessment of risk given that “whatever deviance there might have been seems to have been isolated to the one child within a brief period of time”.

30 Character evidence Four testimonials were tendered on behalf of the applicant. All testified to his good character. All but one stated that they were aware of the applicant’s “conviction”.

31 One referee was required for cross-examination. She had known the applicant for over seven years. She testified that she found it difficult to believe that the applicant could hurt anyone, “let alone a child”. She stated that had no concern with her own children being with the applicant. She said she seen him interact with the children of a number of families and this also gave her no grounds for concern.

32 This referee stated that “these days teachers would be much more aware of the need to protect themselves against false accusations…I am certain that [the applicant] was seeking to act in the best interests of the boy rather than protect himself.” She said she “totally believed” that he touched the boy in the manner he did because he was trying to teach the boy and nothing else.

33 Complaints The respondent advises with the exception of material relating to the index offence nothing adverse to the applicant had been produced under directions made under s 14A of the Commission for Children and Young People Act 1998. Nor did any of documents produced under direction by the Applicant’s former employers contain any such material.

34 The applicant testified that to his knowledge no complaint has been made about his treatment of children other than the index offence.

Findings and conclusions

35 Section 9(4) of the CP(PE) Act directs the Tribunal not to make an order under section 9 unless it considers that the applicant does not pose a risk to the safety of children. The applicant carries the onus, on the Briginshaw standard, that he does not pose such a risk. Justice Young in Commission for Children and Young People v V [2002] NSWSC 949 at [42] said 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”. His Honour went on to say that the power to impose conditions under s 9(9) of the Act should not be disregarded in the assessment of risk and 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].

36 It is not in issue that the applicant does not pose a real and material risk to the safety of children except in relation to the teaching of “child protective behaviour”. In the brief oral reasons delivered when stay orders were entered, I indicated that I accepted the proposition that the applicant does not pose a risk to the safety of children at large but reserved on whether he might represent a risk in the narrow area identified by the respondent. That is the issue that falls to be determined.

37 As noted, the respondent does not oppose the making of an order under s 9(1) providing it is made subject to the condition that the applicant not apply for, remain in, or undertake any employment that involves “child protection training”. The applicant presses for an unconditional order.

38 Before considering the evidence, it is to be observed that an unconditional order would appear to be of little utility given the applicant’s stated view that he has no wish to involve himself in anything that might even remotely be connected with teaching or child protection training. It may be that he seeks the form of order he does because of what he sees as the moral opprobrium that could be said to attach to a finding that it is necessary to impose conditions to lift him over the risk threshold. But whatever the reason, in assessing risk I must have regard to the fact that an unconditional order would place no restrictions on the type of work the applicant could undertake.

39 The respondent’s primary submission is that the applicant lacks sufficient insight into his offending conduct and as a consequence there is a risk it could be repeated. It points to the apparent inconsistency between the applicant’s account given to the police and the District Court and that given to the Tribunal and to Dr Lennings. To the former, it is contended that he explained his conduct on the basis that the boy had misunderstood what he was doing and that at all times he was acting on a therapeutic basis. In contrast, he told the Tribunal and Dr Lennings that while he was at all times trying to assist the boy, he immediately realised that what he was doing was foolish and wrong when he put his hand inside his trousers.

40 In addition, the respondent points to the applicant’s stated reason for wanting no further involvement with child related activities, namely, that he might be exposed to a situation where an allegation or accusation and, by inference, a false allegation or a wrongful accusation, could be made. This, contends the respondent, indicates that the applicant to this day does not fully appreciate that what he did in 1989 was wrong as he believes that he was falsely accused. Also argues the respondent, the applicant’s decision to have nothing further to do with child related activities is driven not by an acknowledgement that that sort of behaviour was inappropriate but rather by the fear that further accusations could make his life difficult.

41 Further, the respondent argues, that the veracity of the applicant’s claim that he “saw the light” the moment he put his hand inside the boy’s trousers must be questioned given the evidence of mutual buttock touching a couple of days later.

42 It is not possible to say decisively from what is before me whether at the time of the trial the applicant fully appreciated that what he did was wrong. Certainly he was steadfast in his denial that the conduct was sexually motivated, but this is not the same thing as refusing to accept that the conduct was wrong, whatever the motivation. Even if it is accepted that at the time he did not believe he had acted inappropriately, which is not conceded, it does not follow that his claim that he now does lacks veracity. In these proceeding the applicant has repeatedly stated that he recognises that he had “crossed boundaries”, was “horrendously stupid” and that what he did was wrong and did not resile under cross-examination.

43 While I accept that the applicant now acknowledges that he should never have touched the boy in the manner he did, it is apparent, as noted by Dr Lennings, that at least up to the time he discussed the matter with him, the applicant did not fully appreciate that he might have retraumatised the boy through his actions. Dr Lennings’ opinion that the applicant took this “on board” after hearing his explanation is consistent with the applicant’s evidence given on the final day in these proceedings.

44 I do not accept the proposition put for the respondent that because the applicant has a concern that he might in the future be the victim of a baseless allegation it can be inferred that he believes he was wrongfully accused in 1989. While it is apparent that he continues to maintain that he was falsely accused of having any prurient interest in the boy, his evidence does not suggest that he now believes that the boy levelled a false accusation against him. The applicant broadly accepts the boy’s account of the incident, acknowledges that he should not have touched him as he did and states he would not want something like that to happen to any of his children (Transcript 1.12.05, page 25, lines 17-19). The applicant would not be alone in being concerned that he might in the future be subjected to a baseless allegation. That fear does not mean that he refuses to or is unable to recognise that his conduct in 1989 was wrong and as a consequence that he that he believes he was wrongly accused.

45 I accept the proposition put for the respondent that it is unclear when the buttock incident(s) occurred and accordingly the possibility that the applicant continued to touch the boy on at least one further occasion after the index offence, cannot be excluded. On the worst reading of the evidence from the applicant’s point of view, he touched the boy on up to two occasions within two days of the index offence incident. Whichever incident was later in time, there is no evidence of any further actual or attempted inappropriate conduct. I agree with Dr Lennings’ analysis that in overall terms this is of limited significance.

46 Dr Lennings stated that that he believed that the applicant did not represent a serious or imminent risk to children and as such believed an exemption was warranted. As noted, he made no any recommendations regarding conditions as he did not “… perceive a need for such conditions other than the obvious which is that [the applicant] should not reinvolve himself in any form of child protection training”. Dr Lennings gave no reasons for that recommendation which appears to sit at odds with his ultimate finding that the applicant does not pose a risk to children in general.

47 It goes without saying that child protection training is a highly specialised area and those who undertake it require a particular mix of aptitude, sensitivity, skill and experience. Many would not be suited to this type of work. If, for no other reason that the applicant has no desire to undertake this type of work, I agree with Dr Lennings’ recommendation.

48 The issue however, is not whether this is an area of work for which the applicant is suited, but rather whether his past conduct together with everything we now know about him indicates a predilection to place children at risk. It goes without saying that in 1989 the applicant did pose a risk, be it because of his poor judgement, immaturity, sexual intentions, or a combination of all three. There is not a scintilla of evidence to indicate that he went on to act in an inappropriate manner with children. This absence of any further reoffending cannot simply be put down to a lack of opportunity as the applicant remained teaching for nearly two nearly years after the offence. As Dr Lennings acknowledges that history sits at odds with a diagnosis of any paedophilic interest especially given that such interest in boys is generally regarded as the most compulsive. He is no longer the young and immature man that offended over 16 years ago. Contrary to the view of the respondent I accept that he now fully acknowledges that his treatment of the boy was entirety inappropriate. The humiliation and exposure that he experienced from the trial and his subsequent dismissal from the teaching profession will no doubt act as a powerful deterrent against future reoffending.

49 I accept that the applicant will not involve himself in child protection work, if for no other reason, he would not wish to expose himself to the possibility of repeating such an egregious error. He is so unlikely to do so and given the overwhelming evidence that he poses no threat to children a condition of the type proposed by the respondent seems to me to be unnecessary. It seems inconsistent to contend on one hand that the applicant poses no real and material threat to children in general but to claim he may do so in the context of child protection.

50 I am comfortably satisfied that the applicant does not pose a risk to children at large including any he might come into contact with if he were to engage in child protection training. For these reason I make the form of order sought.

Orders

The Child Protection (Prohibited Employment) Act 1998 is not to apply to SJ in respect of the offence of indecent assault for which he was “convicted” (as defined by section 3 of the Act) on 12 July 1989.