UB v Commission for Children and Young People

[2006] NSWADT 125

CITATION:	UB v Commission for Children and Young People [2006] NSWADT 125
DIVISION:	Community Services Division
PARTIES:	APPLICANT UB RESPONDENT Commission for Children and Young People
FILE NUMBER:	054057
HEARING DATES:	29/22/05, 22/02/06
SUBMISSIONS CLOSED:	02/22/2006
DATE OF DECISION:	04/27/2006
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 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In person RESPONDENT I Burke, barrister
ORDERS:	Application is dismissed

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 in respect of the offence of ‘possess child pornography’ for which he was convicted in 1997. The Respondent opposes this application.

2 This offence constitutes a ‘serious sex offence’ as defined by the Child Protection Act. By operation of s 5 of that Act, the applicant is a ‘prohibited person’ and it is an offence for him to apply for, undertake or remain in child-related employment.

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 in these reasons by the pseudonym, ‘UB’.

Relevant legislative provisions

4 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 to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).

5 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.

Risk to children

6 The Applicant carries the onus, on the Briginshaw standard, that he is not a risk to 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 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.’ ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)
7 Young J held at [42] 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’. That test is now binding on the Tribunal.

8 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’: par [46].

Index offence

9 The Applicant, now aged 51 years, was convicted in 1997 on one charge of ‘possess child pornography’ after entering a guilty plea. Sentence was deferred and the applicant was placed on a recognisance to be of good behaviour for a period of three years with a condition that he accept the supervision of the NSW Probation and Parole Service, undergo treatment and counselling as directed and pay a fine of $2500.

10 Tendered in these proceedings was a copy of the facts sheet that was before the sentencing court. It stated that a number of computer-generated images had been discovered on the hard drive of the Applicant’s computer and some floppy discs owned by him. The Film and Literature Classification Board classified eight of those images as ‘Refused Classification’ on the basis that ‘they depict in a way likely to cause offence to a reasonable adult, persons (whether or not engaged in sexual activity) who are children under sixteen years of age or appear to be children under sixteen years’.

11 At the time of his arrest the Applicant had been a serving police officer for about 12 years. He resigned from the service shortly before the hearing.

12 In his application to the Tribunal the Applicant described the offence as follows:

The charge of 'Possess Child Pornography' related to me being on a number adult 'chat' lines on the internet when MIRC [ Internet Relay Chat] was first introduced. As a consequence, it was quite common for those involved on those chat lines to exchange what I naively believed were self pictures of the people that I was communicating with. Although some of those photographs were of people in various stages of undress, I truly believed, and in fact still believe that those photographs were of adults, or at the very least, over the age of 18.

Unfortunately, when those photographs were confiscated, the Classification Board was unable to confirm the age of those depicted in the photographs and hence were unable to classify them. At no time was I ever in any child pornography sites, only adult Chat sites e.g. [name deleted] nor were those photographs of any person other than what I believed to be were adults and hence, no way could they have been seen to be children of tender ages.

13 In these proceedings, the Applicant claimed that it had been his understanding that the images had been sent by the girls depicted in them or by their boyfriends. He denied that they depicted pre-pubescent girls or constituted child pornography. He said he thought the girls were young but ‘over-age’.

14 In the history taken by Ms Katie Seidler, the psychologist to which the Applicant was referred by the Respondent for assessment, she recorded that the Applicant admitted finding the offending images arousing and masturbating to them but strongly denied that he was aware that the girls were underage. He admitted to accessing the images three or four times a week over a period of a few months.

15 Following the execution of a search warrant, the Police searched the Applicant’s home and seized his computer. Soon after, the Applicant contacted a friend and asked him to take possession of some floppy discs. According to the Applicant, he had asked the friend to destroy them. In a statement to the Police, the friend claimed he had been asked to mind them. In cross-examination, the Applicant said he did not destroy the discs himself as he was under a great deal of stress, not thinking straight and concerned he might have been under surveillance.

16 A few days before his arrest, the Applicant’s personal computer had been upgraded by a colleague. In a statement given to the Police the colleague claimed that in the course of the upgrade he came across about 200 picture files which clearly depicted ‘[n]ude young female children aged approximately 12 to 18 years of age… The majority of the images were definitely of very young girls, pre-pubescent, and in my opinion certainly under 16 years of age. Most of the images involved these young girls performing sexual acts with adult males’.

17 The evening before the Police searched his home, the Applicant deleted a large number of files from the hard drive of his computer - on his account because of technical problems. He agreed it was possible that the deleted images had been transferred to the CD-ROMs and that he had asked a friend to ‘mind’ them. He denied doing so because he suspected that the Police would be searching his home the following day.

18 The Applicant’s evidence in these proceedings was to the effect that in the period leading up to his arrest he had been under an inordinate amount of stress. He had given evidence in an internal police investigation and placed in the Police Witness Protection program. He was then transferred to the country away from friends and his usual support networks. He said the consequent disruption had placed great strain on his marriage. When arrested he had been married for less than 12 months.

Seriousness of Applicant’s total criminal record (s 9(5)(e))

19 The conviction for ‘possess child pornography’ is the sole conviction on the Applicant’s record.

Other relevant matters (s 9(5)(f))

20 Other complaints Two complaints of a sexual nature about the Applicant were made while he was a serving police officer. Both are strenuously denied. The first involved an alleged incest victim. She complained that in the course of investigating her allegation, the Applicant made a number of unwelcome phone calls to her of a sexual nature. The Applicant denied these allegations and asserts that it was known that the complainant was a ‘nutter’.

21 The second complaint involved an allegation that the Applicant had been caught masturbating in his office while on duty. This is also denied. The Applicant contended that given that the office was in full view of the public, the allegation was simply fantastic.

22 No charges have been laid nor disciplinary action taken in relation to either complaint.

23 The Applicant denied having ever acted in an inappropriate way with children. To both the Tribunal and Ms Seidler, he strenuously denied any sexual thoughts, or feelings of attraction towards children including young teenage girls.

24 There is no evidence of any complaints being made about the Applicant’s treatment of individual children. The Respondent advises that with the exception of material relating to the index offence and the above two complaints, nothing adverse to the Applicant had been produced under the directions issued under s 14A of the Commission for Children and Young People Act 1998. Nor did any of the documents produced under summons by the Applicant’s former employers. These included two post-secondary educational institutions where the Applicant taught for about two years following his conviction.

25 The Applicant claimed that after his arrest he has not accessed, possessed or used pornography of any description.

26 Character evidence The Applicant tendered in these proceedings two testimonials from family friends who had known him for extended periods. Both knew of his conviction but were confident there was no risk he would re-offend. One referee attested to the valuable community work undertaken by the Applicant. He pointed out that for a number of years the Applicant had taught martial arts to both adults and children and he had heard no complaints.

27 The second referee also gave oral evidence. He attested that he had been a regular guest at the Applicant’s home and saw nothing in his observations of the Applicant with the Applicant’s son, friends and acquaintances to cause him concern. He said this was consistent with his observations of the Applicant over the past 35 years.

28 Reason for Application The Applicant told the Tribunal he made the s 9(1) application in order to broaden the pool of employment available to him. He gave evidence of the shortage of suitable full time work in the part of rural NSW where he lived. He said he had obtained some teaching work in tertiary institutions but had been unable to continue because of his prohibited person status.

29 In these proceedings, he said that the main reason he sought the declaration was so he could fully participate in his son’s sport and other activities which to date he was unable to do. He said his son was troubled by his father’s apparent lack of interest.

30 Expert evidence A report prepared by Ms Seidler, dated 12 February 2006 was tendered in these proceedings. In addition, Ms Seidler gave oral evidence.

31 Ms Seidler recorded the factors she considered to be protective against the risk of the Applicant re-offending:

[The applicant] does not present with a well-entrenched pattern of sexual deviancy. [The applicant] has not, to the best of my knowledge, committed any hands-on sexual offences nor does he appear to have sought out contact with under-age children for sexual purposes.

[The applicant] reports that he has not accessed pornography in almost ten years, since he was charged with the offences of interest.

[The applicant] does not have a history of significant intimacy or relationship difficulties.

His lifestyle appears to be “pro-social” and stable and he seems to have enjoyed some academic and occupational success.

[The applicant] does not have a history of Psychological instability or substance abuse.

[The applicant] has not actively participated in an anti-social or substance-abusing culture.

His mood has improved since the period of his offending as it is likely that he was suffering with mild depression at that time.

32 Ms Seidler concluded that the Applicant posed a ‘minimal risk to the safety and children of young people’. She noted:
There is no history of [the Applicant] engaging in inappropriate conduct (of any kind) in the presence of young people. However, given his sexual interest in post-pubertal girls, his risk (even though it is minimal) seems to be more specific to teenaged girls and, in particular those who are more physically developed. This risk is also highlighted by [the Applicant’s] other history of apparently inappropriate sexual conduct and conversations, albeit with adult women.
33 She went on to comment that the Applicant:
[P]resents as a decent man who has led a largely stable and pro-social lifestyle. Whilst his motivations for the present application impress as genuine and appropriate it would be prudent for him to participate in relevant counselling so that he can successfully minimise any risk he may pose to the community through developing appropriate knowledge and risk management strategies to navigate situations that serve to increase his risk.
34 Although Ms Seidler assessed that the Applicant presented a low risk she recommended that he participate in an offender-specific psycho-education/intervention program. She recommended that the Tribunal delay determining the application until such time as the Applicant had undertaken such program.

35 In her oral evidence, Ms Seidler stated that opinion was divided about whether persons who used child pornography went on to ‘hands-on offending’. She considered that the Applicant’s efforts to preserve the CD-ROMs, after his computer had been seized by police, indicated a level of compulsion.

36 Ms Seidler thought it possible that the Applicant has had a life-long, conscious or subconscious interest in young teenage girls, which he generally was able to suppress. She proffered as a possible explanation for the index offence the stressors in the Applicant’s life at the time, which might have temporarily undermined his ability to manage that condition. She thought that if this tentative diagnosis were correct, the condition would be incurable. However, with appropriate treatment, she thought it could be effectively managed.

Findings and Conclusions

37 The key issue to be determined is whether the Applicant has comfortably satisfied the Tribunal on the balance of probabilities that he poses no real and material risk to children or, alternatively, whether that risk can be reduced to one of no material significance by imposing conditions. Under the legislation, the Applicant bears the onus of proof.

38 The Applicant’s denial that the offending images did not depict girls under the age of 16 years is, in my view, implausible for a number of reasons. First, he pleaded guilty to the offence of ‘possess child pornography’. Second, he went to considerable lengths to conceal the CDs, which held the offending images, from police. There is no evidence to suggest that the police were interested in the material for some reason unrelated to the index offence, such as that the CDs were stolen, breached copyright or contained some other form of unlawful pornography. The Applicant’s attempts to conceal the material indicates that he knew or at least suspected that it constituted child pornography. Third, no evidence has been led or argument put to challenge the opinion of the officers of the Classification Board who classified the offending images as ‘Refused Classification’. Fourth, the title of the files in which the images were contained connotes an association with young girls: “11TEENFU”, “TOOYOUNG” “YOUNGGIRL” and “ACUP”.

39 Even if, as I understand the Applicant to suggest, most of the confiscated material was adult not child pornography, it remains the case that for a period of at least three months the Applicant accessed and retained a collection of pornography which include at least eight images of pre-pubescent girls. While the Applicant disputes the ages of the females depicted in the CDs, it is not in issue that he accessed and retained the collection of images for sexual gratification.

40 The issue to be determined is whether the Applicant now poses a material risk to children. I accept that he feels great remorse and deeply regrets the consequences of his actions for his family. The more difficult question is whether his offending conduct indicates a predilection towards young teenage girls and, if so, whether he is capable of and willing to regulate that interest in the future.

41 It is a shameful offence to possess child pornography. Therefore it is quite understandable that a person convicted of such an offence might wish later to deny having committed it. Be that as it may, a plea of guilty is an acknowledgement by an accused person that he or she has committed the offence and that stands as a judgment against the accused in respect of all the elements of the offence.

42 The Applicant’s consistent denial that the offending images depicted ‘under-age girls‘ or that he has ever accessed child pornography cannot stand together with his plea of guilty. Not only does his denial undermine his credibility generally but more specifically it makes the assessment of the likelihood that the offending conduct might be repeated extremely difficult.

43 It also makes it difficult to determine whether there is a risk that his interest in young girls might transmogrify into ‘hands on’ offending in an employment context. The Applicant’s inability or refusal to accept that he had a sexual interest in young teenage girls at least for a short period means that it is not possible to explore in any meaningful way whether that interest was merely an aberration or, as Ms Seidler suspects, a life long pre-disposition and, if so, whether the condition can be managed through treatment. Nor is it possible to explore the veracity of the more innocent explanation suggested by the Applicant to Ms Seidler, that is, that the images somehow inadvertently found their way into his collection. (That suggestion is also inconsistent with his plea of guilty to the offence because proof of the offence requires guilty knowledge or belief.)

44 The Applicant strongly rejects the contention that he has or ever had a sexual interest in young teenage girls. He argues that if Ms Seidler’s hypothesis that he had a life-long interest in young teenage girls is correct, he would have re- offended in the period after his conviction, which had been a one of unremitting torment. He points to the absence of any evidence to refute his claim that he has not accessed any pornography, however described, since his arrest.

45 In all the circumstances, I cannot be satisfied that the Applicant has been frank with the Tribunal. It follows that I cannot be comfortably satisfied that the Applicant poses no real and material risk of hands-on offending in relation to young teenage girls. This is not merely an example of a person who minimises their misconduct for reason of shame or some other reason. It is rather a person who simply says that the images he held were not child pornography but if they were he came to possess them inadvertently. Without an acknowledgement from him that he viewed pornographic images of under-age girls, it is difficult to see how the Tribunal can accept his claim that he will desist from such conduct in the future.

46 The more difficult question is whether any child which the Applicant might come into contact with through child-related employment might be put at risk. There is no evidence of any hands-on offending or complaint of such. The Applicant strenuously denies that he has ever acted in an inappropriate way with children and his referees support that claim. Since leaving the Police Service he has done some teaching work which has bought him into contact with persons under the age of 18 and the Commission’s inquiries reveal no record of any complaint made by these institutions.

47 Ms Seidler thinks it a possibility that the Applicant might have turned to this uncharacteristic behaviour because of the considerable stress he was under after having assisted police in an internal investigation. There is some strength in the Applicant’s submission that as he has not turned to pornography in any guise in the period after his arrest, a period in which he has been under an inordinate amount of stress, he is unlikely to do so again.

48 Nevertheless, the legislation which it is the Tribunal’s duty to apply is protective. It is designed to minimise the risk to children from those whose proven conduct in the past has indicated to the community that they may now present a material risk to children. The Tribunal cannot grant relief from the strictures of the legislation unless it is satisfied that there is no material risk to children or that with the imposition of appropriate precautionary conditions the risk can be minimised to negligible proportions. In order to be so satisfied, the Tribunal must generally be satisfied that applicants have been frank and reliable in their evidence and also be satisfied that there is evidence, usually from psychologists, to support the claims made by applicants that they pose no material risk to children.

49 In this case, where there is no acknowledgement by the Applicant that he had accessed and used child pornography, I cannot be comfortably satisfied that he has told the truth about the past nor that his evidence concerning his present state of mind is truthful or reliable. Ms Seidler’s evidence concerning the desirability of the Applicant undertaking an intervention program, while not advanced by her with any great confidence, nevertheless suggested that the Applicant remains something of an unknown quantity to her.

50 The Applicant therefore remains hard to assess from the Tribunal’s point of view. He may, because of his past behaviour and the evidence from Ms Seidler concerning his propensities, constitute a risk to children. I would not put it any higher than a possibility. Nor is there any cogent evidence to suggest that conditions would eliminate the risk. In reaching that conclusion I have had regard to the Applicant’s undertaking that he will submit to any reasonable conditions formulated by the Tribunal including counselling as recommended by Ms Seidler. It may be that such treatment might address my concerns. However, at this point the Applicant has not, in my view, discharged his onus of proof and the application must be dismissed.