U v Commission for Children & Young People

[2002] NSWADT 84

CITATION:	U -v- Commission for Children & Young People [2002] NSWADT 84
DIVISION:	Community Services Division
PARTIES:	APPLICANT U RESPONDENT Commision for Children & Young People
FILE NUMBER:	014010
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	05/14/2002
DATE OF DECISION:	05/23/2002
BEFORE:	Britton A - Judicial Member
APPLICATION:	Declaration that applicant not a prohibited person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Briginshaw -v- Briginshaw (1938) 60 CLR
REPRESENTATION:	APPLICANT N Dawson, barrister RESPONDENT I Bourke, barrister
ORDERS:	1. The Child Protection (Prohibited Employment) Act 1998 is not to apply to "U" in respect of the offences of sexual intercourse with a child between the ages of 10 and 16 years under his authority, and indecent assault, for which he was convicted on 17 May 1996 subject to the condition that he not undertake any child related employment as defined in the Child Protection (Prohibited Employment) Act 1998, apart from his current substantive position as a driver /library assistant with Campbelltown City Library Service, Campbelltown City Council.; 2. That a copy of this order be served upon the Manager, Library Services, Campbelltown City Library Service, Campbelltown City Council and the Commissioner of Police, New South Wales Police Service.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) …
(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.

1 The applicant is a “prohibited person” as defined by s 5 of the Child Protection (Prohibited Employment) Act 1998 (“Child Protection Act”). He seeks a declaration pursuant to s 9(1) of the Act that the Child Protection Act not apply to him. This Act makes it an offence for a prohibited person to apply for, undertake or remain in child-related employment.

2 The applicant has been convicted of two offences each of which constitutes a “serious sex offence” for the purposes of the Child Protection Act. On 17 May 1996 he was convicted of two offences: sexual intercourse with a child between the ages of 10 and 16 yrs under his authority, and indecent assault.

3 With the consent of the parties, this application has been determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (“Tribunal Act”).

4 Section 126(1) of the 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. Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings, because of the sensitivity of this matter I have elected not to publish in these reasons the applicant’s name and to omit any details from these reasons that may identify him. Similarly any details that might allow the victim and the applicant’s employer to be identified have been omitted. In the published reasons for this decision the applicant is referred to as “U”. The official copy of the orders provided to the parties will include the name of the applicant.

Stay Application
5 On 22 January 2001 the applicant applied for a stay to be granted under s.9(6) of the Child Protection Act. On 15 June 2001 I made consent orders granting a conditional stay. Relevantly, the applicant was ordered to undertake counselling with a suitably qualified professional.

Material before the Tribunal
6 In this application I have before me and have taken into account the material filed by the parties for the purpose of the stay application and some more recently filed documents. This material includes: the applicant’s criminal history; statements given to the police by the applicant, the victim, her mother and others; four characters testimonials attesting to the applicant’s good fame and character; two psychiatric reports concerning the applicant tendered in the original criminal proceedings concerning the two sex offences for which the applicant was convicted (“original criminal proceedings”); reports prepared by psychologist Jenny Howell dated 5 June and 14 June 2001 and 10 April 2002; a detailed description of the tasks undertaken by the applicant for his current employer; transcript of the original criminal proceedings; and, a report about the applicant by psychologist Raymond Rudd dated 11 February 2002.

Relevant legislative provisions
7 Section 9(1) of the Child Protection Act provides that on the application of a prohibited person, a relevant tribunal may make an order that this Act is not to apply to the person in respect of a specified offence. Section 9(4) provides that the Tribunal is not to make an order under s 9 unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

8 Section 9(5) provides that in deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person,
(b) the 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,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
9 Section 9(9) provides that an order made under s 9 may be made subject to conditions.

10 Section 9(7) provides that the Commission for Children and Young People is to be a party to any proceedings for an order under s 9 and may make submissions in opposition to or in support of the making of the order.

Onus of Proof
11 The onus of proof lies upon the applicant. In determining whether the applicant does pose a relevant risk to children I have applied the civil standard of proof. However I have taken into account the gravity of the matter to be determined: see the remarks of Dixon J in Briginshaw -v- Briginshaw (1938) 60 CLR at 361-362.

Issues
12 Both parties propose that the Tribunal make an order under s 9 (1) subject to conditions. The proposed order would provide that the applicant not undertake any child-related employment as defined by the Child Protection Act other than his substantive position as driver/ library assistant with his current employer. Accordingly the issue to be determined whether the applicant poses a relevant risk while he remains so employed. The compass of my enquiry is thus somewhat narrower than that required where the applicant seeks an unconditional order pursuant to s 9(1) of the Child Protection Act. Where an unconditional order is made under s 9(1) the applicant is free to work in any child-related employment irrespective of the level of supervision and the nature of that work. Therefore in such applications any safeguards that might exist in the applicant’s current employment will be of limited relevance.

13 By implication I understand the respondent to submit that, in its view, the applicant does not pose a relevant risk to children in the context of his current employment. While relevant, the views of the respondent are not determinative. Section 9(5) of the Child Protection Act makes clear that it is the Tribunal that must be satisfied that the applicant does not pose a relevant risk. In a case such as this where the parties agree on the form of the proposed orders and each consent to the matter being dealt with “on the papers”, the Tribunal is not relieved of its statutory duty to thoroughly examine the material before it and determine whether it can be comfortably satisfied on the evidence before it that the applicant does not pose a risk to the safety of children.

Evidence and Findings
14 The applicant pleaded guilty to the two offences which bring him within the ambit of the Child Protection Act, namely sexual intercourse with a child between the ages of 10 and 16 yrs under his authority, and indecent assault. He was sentenced to two years periodic detention.

15 Both offences involved the same victim, namely the niece of the applicant’s then de facto wife. The first incident involved the applicant touching the victim on her vagina, the second, which occurred about six months later, involved the applicant performing oral sex on the victim. The accounts of these offences respectively given to the police by the victim and the applicant differ in some significant respects. The victim claimed she did not consent to either act, and that in respect of the latter the applicant used physical force, which she unsuccessfully resisted. While the applicant did not seek to deny either incident, he claimed both incidents were consensual and strenuously denied using any physical force.

16 At the time of the indecent assault the victim was aged 13 yrs 11 months old. At the time of the offence of unlawful sexual intercourse the victim was 14 yrs 4 months old. At the relevant times the applicant was in his late thirties. The offences are especially troubling as the applicant was in a position of power and breached his relationship of trust with the victim. These offences are obviously serious in nature.

17 The applicant’s criminal history is otherwise unremarkable and includes no offences of a violent or sexual nature.

Expert Evidence
18 As noted above, I had before me two reports by psychologist Jenny Howell. Ms Howell conducted clinical interviews with the applicant and assessed the risk of his re-offending using the Static-99 test (Hansen and Thornton, 1999), an actuarial measurement tool used to predict the risk of male sex offenders re-offending. In a report dated 5 June 2001 Ms Howell concluded, “while I cannot say that the applicant will never act in a sexually inappropriate way again, based on his interview and the results of the Static-99 it is my opinion that such a risk is low”.

19 In answer to a number of issues raised by the respondent, Ms Howell provided a supplementary report, dated 14 June 2001. Significantly, in the supplementary report Ms Howell qualified her original risk assessment of the applicant. She stated that while the applicant had accepted responsibility for his sexual offending behaviour, statements made by him “suggest a level of minimisation of his behaviour… [the applicant] attributes blame to the victim in that he believes she [the victim] flirted with him, did not resist and was a willing participant”. She concluded,“ by understanding his sexual offending behaviour in terms of an ‘affair’ which suggests a mutually consensual arrangement, [the applicant] not only minimises harm to the victim, he also displays cognitive distortions”. In the supplementary report Ms Howell suggested that the applicant would benefit from treatment in respect of what she characterised as his “cognitive distortions.”

20 In accordance with the conditions of the stay the applicant attended seven counselling sessions with psychologist Raymond Rudd throughout August and September 2001. In Mr Rudd’s opinion, as a result of these sessions the applicant had gained insight into his offending behaviour and now recognised that it had not been “an affair” and that the victim had been too young to fully understand the implications of what they were doing. In the opinion of Mr Rudd, the applicant is now genuinely remorseful for his behaviour and accepts full responsibility. According to Mr Rudd the risk of the applicant sexually re-offending is minimal.

21 Ms Howell again interviewed the applicant in March 2002 and observed a marked shift in the applicant’s view about his offending behaviour. According to Ms Howell he now demonstrated insight into why his relationship was abusive and the effects of the abuse on his victim. She concluded that while “it is not possible to rule out a risk of further sexual offending behaviour, however, it is also not possible to say the increase in risk that applies to [the applicant] because of his past behaviour is significantly greater than would apply to the general adult population”.

Current Duties
22 In light of the orders now sought, the type of work undertaken by the applicant for his employer is highly relevant. The applicant’s employer is a large local council that provides, amongst other things, a library service to its local community. The applicant is employed as part-time driver/ library assistant. Exhibit C tendered at the stay hearing on 15 June 2001 provided details of the daily, weekly and occasional tasks undertaken by the applicant. A copy of the applicant’s job description was also tendered.

23 It is apparent from this material that the applicant has few duties which involve him in any unsupervised direct dealings with the public.

Findings and Conclusions
24 The sex offences for which the applicant has been convicted are serious in nature. He offended on two separate occasions some six months apart; his victim was only 14 years of age (13 yrs 11 months at the time of the first offence); the age disparity between the two was significant; at the relevant time he occupied a position of authority with the victim; he abused her trust. However it does not follow that because the applicant has committed a “serious sex offence” that the Tribunal must find that the applicant represents a future risk to children. If this were the case then s 9(1) of the Child Protection Act would have little work to do.

25 In the applicant’s favour the evidence before me reveals that these two offences are the only offences for which he has been convicted of a sexual nature. The evidence of both experts makes clear that, as a result of counselling received in 2001, the applicant has gained some insight into his offending behaviour and now better understands that his behaviour was entirely inappropriate and an abuse of his relationship of trust with the applicant. Ms Howell’s concerns, ventilated in her original report, have apparently been addressed to her satisfaction.

26 The expert evidence is at one in assessing that the risk of the applicant re-offending is low.

27 Relevantly, the orders sought will only permit the applicant to work in his existing position with his current employer where it would appear that he has extremely limited direct contact with children.

28 Taking into account all relevant factors I am comfortably satisfied that the applicant does not pose a risk to the safety of children and therefore make the consent orders sought.

Orders

(1) The Child Protection (Prohibited Employment) Act 1998 is not to apply to “U” in respect of the offences of sexual intercourse with a child between the ages of 10 and 16 years under his authority, and indecent assault, for which he was convicted on 17 May 1996 subject to the condition that he not undertake any child related employment as defined in the Child Protection (Prohibited Employment) Act 1998, apart from his current substantive position as a driver /library assistant with Campbelltown City Library Service, Campbelltown City Council.

(2) That a copy of this order be served upon the Manager, Campbelltown City Library Service, Campbelltown City Council and the Commissioner of Police, New South Wales Police Service.