UD v Commission for Children and Young People

[2006] NSWADT 194

CITATION:	UD v Commission for Children and Young People [2006] NSWADT 194
DIVISION:	Community Services Division
PARTIES:	APPLICANT UD RESPONDENT Commission for Children and Young People
FILE NUMBER:	054059
HEARING DATES:	24/05/2006
SUBMISSIONS CLOSED:	05/24/2006
DATE OF DECISION:	06/23/2006
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
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 I Latham, barrister RESPONDENT N Steele, barrister
ORDERS:	It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to UD in respect of three counts of the offence of “commit an act of indecency with a person under 16 years” for which he was convicted in the Sydney District Court on 25 February 1987, on the following conditions:; 1. That the Applicant not be permitted to apply for, undertake or remain in child-related employment that involves girls under the age of 16 years; 2. That the Applicant not be permitted to apply for, undertake or remain in child-related employment that involves boys under the age of 13 years; 3. Notwithstanding Order 1, the Applicant is permitted to apply for, undertake and remain in employment at TAFE as a teacher subject to the following conditions:; i) That he undertake a course of sex offending counselling conducted by a person accredited under the NSW Commission for Children and Young People’s Child Sex Offender Counsellor Accreditation Scheme.; ii) That, as recommended by Dr Stephen Allnutt in his report dated 3 October 2003, the Applicant undertake training in ‘professional relationships and boundary management'; iii) That any employment with TAFE is supervised, but not necessarily directly supervised, and the relevant supervisor is provided with a copy of these Orders; iv) That the Applicant serve a copy of these orders on the Managing Director of the TAFE Commission in the event that he seeks or obtains employment in TAFE; 4. Leave is granted to the Applicant to apply at any time for these orders to be amended

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’), he having been convicted of three offences constituting ‘serious sex offences’ as defined by the Act. By the operation of s 5 of the Act, the Applicant is a ‘prohibited person’ and it is an offence for him to apply for, undertake or remain in child-related employment.

2 The Respondent opposes this application.

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, ‘UD’.

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’: para [46].

Background

9 The Applicant is a 47-year-old man. He is married with four children.

10 In 1987 he was convicted at the Sydney District Court on three charges of “commit an act of indecency with a person under 16 years” after entering a guilty plea. He has no other criminal antecedents.

11 At the time of the subject offences, the Applicant was a 27 year old schoolteacher. His victims were three schoolgirls aged eight and nine (2). Tendered in these proceedings was the Police facts sheet. It reveals that over a two-month period in the late 1985 the Applicant fondled the girls on the inside and outside of their underpants. All offences occurred within the school, two in front of, but not in the view of, the Applicant’s class. It is common ground that the inappropriate touching extended beyond two months.

12 The pre-sentence report tendered by the Respondent records that the Applicant had witnessed the sudden death of his father twelve months before the offences were committed and he still appeared to be grieving. Following his father’s death the Applicant cared for his mother whose health deteriorated following her husband’s death.

13 The report noted that the Applicant was “[u]nable to explain his behaviour … but says he feels they are related to the incredible losses in his life and the enormous strain he was under in his work situation. He states he sincerely regrets his action.”

14 Tendered in these proceedings were copies of over 20 testimonials that had been tendered in the District Court proceedings. These include letters of support from former colleagues of the Applicant and parents of former students. All referees stated they were aware of the nature of the offences for which the Applicant had been charged, saw the conduct as being entirely out of character and attested to his good character and dedication as a teacher. The principal of a school where the Applicant had taught for a period of five years before the offending conduct wrote, “[t]here was never so much as a whisper reaching me that [the Applicant] had assaulted or interfered physically with any child in any way”.

Reasons for Application

15 The Applicant stated that he made this application to the Tribunal primarily so that he can work at TAFE as a teacher. He resigned from TAFE in 2001 when asked to sign a prohibited person declaration. His evidence is to the effect that since leaving TAFE his income has dropped dramatically and his family is struggling financially. It is common ground that the minimum enrolment age for TAFE is 15 years and the majority of students are over 18 years of age.

16 In addition the Applicant stated that he made this application so that he can participate in his children’s school and extra-curricula activities, from which he is currently barred because of his “prohibited person” status. Three of the Applicant’s four children are of primary school age.

Expert Evidence

17 The Applicant was seen by psychiatrist, Dr Stephen Allnutt in 2003 and more recently at the request of the Respondent in March of this year. Two reports prepared by Dr Allnutt dated 3 October 2003 and 17 March 2006 were tendered in these proceedings.

18 In the first report Dr Allnutt recorded that the Applicant had “considerable difficulty” recalling the details of the offending conduct but was able to provide a general account. According to Dr Allnutt, he denied any recollection of sexual arousal or masturbatory fantasies in relation to the offences.

19 Dr Allnutt wrote that the Applicant described feeling “amazed and embarrassed” about his offending conduct and voiced regret and remorse. According to Dr Allnutt the Applicant attributed his behaviour to the depression and distress he suffered following the death of his father but was unable to explain why he chose to become “promiscuous” with children rather than adults if he needed an emotional outlet at that time.

20 Dr Allnutt noted that the Applicant denied any paedophilic masturbatory fantasies or interest in child pornography.

21 In Dr Allnutt’s opinion the Applicant met the criteria for a diagnosis of the paraphilic disorders, paedophilia and frotteursim (touching behaviour). Central to that diagnosis was the finding that the Applicant had engaged in behaviours of a paedophilic nature for a period exceeding six months.

22 Dr Allnutt assessed the Applicant’s risk to children using two assessment tools- STATIC-99 and clinical assessment.

23 STATIC-99 is an actuarial test used to predict recidivism rates among sex offenders. According to Dr Allnutt, on application of this test the Applicant fell within the low risk group of known sex offenders, placing him in a group of individuals, 7% to 13% of whom it is predicted will sexually re-offend within 15 years.

24 Dr Allnutt identified two factors that might be associated with a risk of sexual recidivism in this case: a history of frotteuristic and paedophilic behaviours and access to young people in relatively unsupervised situations. He went on to identify the following risk factors that were absent: no history of child abuse; no history of sex offending before or after the subject offence; exclusively female victims; no evidence of antisocial/paedophilic associates; a history of long term relationships with mature women; and no history of substance abuse or a personality disorder.

25 Combining the results of both clinical and actuarial assessment, Dr Allnutt concluded that the risk the Applicant presented to children was low. However, he qualified that opinion by pointing out that, while there no history of any inappropriate conduct for over 17 years, the Applicant had had limited opportunity to offend in that period.

26 According to Dr Allnutt, the group of children at the greatest risk from the Applicant is girls under the age of 13. He considered that children between the ages of 13 to 16 would be at less risk. His view was that the risk the Applicant presented to children 16 years and over is no greater than that posed by the general population.

27 Dr Allnutt recommended a number of strategies to reduce any risk the Applicant might pose. These included training and education on the “management of professional relationships and boundary management”; supervision and review of the Applicant to supervision at work, and, if he did return to teaching, focusing on children over the age of 16 [by which I take him to mean teaching children no younger than that].

28 In a second report prepared at the request of the Respondent, Dr Allnutt confirmed his original opinion that the Applicant posed a low risk of sexual recidivism. He pointed out that since his first report, STATIC 99 had been amended and, as a consequence, the Applicant’s risk level had “dropped”, placing him in a group of individuals, 1.5 % of whom it is predicted will sexually re-offend within five years and 5.8% after ten years.

29 Dr Allnutt was questioned by both parties about where the “cut-off point” lay, that is, the age at which children could not reasonably be considered to be at risk from the Applicant. He conceded that the three categories he had nominated (i.e. children under the age of 13; those between the ages of 13 and 16; and those over the ages of 16) were somewhat arbitrary. He had no doubt that the group at greatest risk were girls who had not developed secondary sexual characteristics. He said that while a person meeting the diagnosis of paedophilia is usually exclusively attracted to pre-pubertal children, some members of this group were found to be attracted to post-pubertal children. Dr Allnutt said he did not know whether this cross-over phenomenon was explicable on the basis of the physiological ambiguity (divergence in chronological and physiological ages) of some of the children within the older age group. He agreed with the proposition that the risk presented by the Applicant could be looked at as a continuum diminishing the older the children concerned. He thought he was in no better position to judge whether the Applicant represented a risk to 16 year olds than a lay person is. While he could not entirely discount the possibility that the Applicant might present a risk to boys he placed that risk at significantly less than that he presented to girls.

Findings and conclusions

30 The key issue to be determined is whether the Applicant poses a real and material risk to children and, if so, whether that risk can be reduced to one of no material significance by the imposition of appropriate conditions. The Applicant bears the onus of demonstrating that he poses no material risk to children.

31 Dr Allnutt acknowledged that the risk the Applicant presents to children is low but assessed it as being higher than that presented by an adult who had not committed a “serious sex offence”. He identified a number of powerful factors, which in his opinion, would guard against further sexual offending but, nevertheless, went on to conclude that, as the Applicant met the criteria for a diagnosis of paedophilia and frotteursim, he could not exclude the possibility that he might re-offend.

32 According to Dr Allnutt, persons who meet the criteria for the diagnosis of paedophilia have a life-long sexual attraction to children. While controllable, the condition, in Dr Allnutt’s opinion, is incurable. It persists throughout life. It is for this reason that Dr Allnutt was not prepared to exclude the possibility that the Applicant might re-offend notwithstanding a number of strong factors guarding against that risk in this case.

33 If Dr Allnutt’s opinion is accepted in its entirety, it must be concluded that the Applicant poses a low but material risk to girls under of 13 years. His opinion on that point is unequivocal.

34 As Dr Allnutt acknowledges, it is far less clear whether the Applicant poses a material risk to boys or post-pubertal girls. While Dr Allnutt is confident of his opinion that the Applicant might pose a risk to girls under the age of 13 years, on the basis that the Applicant meets the clinical diagnosis of paedophilia his opinion about the risk posed by the Applicant to boys and post pubertal is guarded. It is not entirely clear on what basis Dr Allnutt concluded that the Applicant’s condition, characterised by sexual interest in pre-pubertal girls, might cross over to boys or to girls who have reached puberty.

35 The Respondent argues that this is somewhat besides the point as there is no expert opinion to contradict Dr Allnutt’s opinion that the Applicant might pose a risk to boys and post-pubertal girls and, accordingly, the Applicant has failed to discharge his evidentiary onus.

36 This evidence, by Dr Allnutt’s own concession somewhat speculative, raises the question whether the Applicant poses a risk to boys and post-pubertal girls. Notwithstanding his concerns, Dr Allnutt places the Applicant in a low-risk category even for that group he identifies to be at the greatest risk from the Applicant.

37 There is not a scintilla of evidence that the Applicant has acted in an inappropriate way with girls over the age of nine years or boys of any age. Nor is there any evidence of a repeat of the offending conduct which led to the Applicant’s conviction. While, as Dr Allnutt pointed out, since his conviction the Applicant has not had the same opportunity to offend given his removal from the primary school system, he has, however, had ready access to children under the age of the 16 over an extended period through the social networks of his own children. In addition, he has taught at TAFE for eight years without complaint. While, the absence of evidence of any re-offending is not conclusive, given that as a matter of common knowledge child sex abuse is notoriously underreported, that fact must be seen as highly relevant in any assessment of the Applicant’s risk to children.

38 The Respondent does not oppose the making of orders which would allow the Applicant to work with children over 16 years of age. However, it submits that while Dr Allnutt concedes that he presents a lesser risk to 16 year olds than to younger children, his opinion that the Applicant presents some risk cannot be disregarded. The Applicant contends that Dr Allnutt’s assessment ought not be characterised in this way and he was candid in acknowledging that in no better position to judge whether the applicant presented a risk to 16 year old girls than is any other person.

39 The relevance of 15 / 16 year old debate in the proceedings is that the Applicant wishes to return to teach at TAFE which has a minimum enrolment age of 15.

40 A real issue in these proceedings, therefore, the point, if any, at which it can reasonably be said that the Applicant no longer constitutes a material threat to the safety and welfare of children. Dr Allnutt places the level of risk the Applicant presents to persons 16 years and over as being no greater than the risk presented by an adult who does not have a history of sex offending.

41 I consider that the evidence shows that there is a material risk posed by the Applicant to pre-pubertal girls, that the risk he may pose to the children of 15 years he may encounter in a position as a TAFE teacher is too vague to be assessed in any usefully probative way. Dr Allnutt candidly concedes that there is nothing to show that the Applicant has any predisposition or sexual orientation towards post-pubertal children. His evidence, taken at its highest, is simply that there are known cases of persons with the Applicant’s proven condition (which in his case appears to have manifested itself exclusively in sexual behaviour with pre-pubertal girls) also showing sexual interest in post-pubertal children.

42 On the other hand, the known conduct of the Applicant strongly suggests that he has no such orientation or interest. I have enumerated the various factors above which imply this, and Dr Allnutt himself pointed out those factors in his reports which he considers guard and will continue to guard against the Applicant re-offending.

43 A further factor not referred to by Dr Allnutt but which should be given full weight is the powerful deterrent effect the applicant’s convictions for the offences must have had upon him. The Tribunal is entitled to infer from the absence of any evidence of recidivism over a considerable period of time that the salutary deterrent effect intended by the judge when sentencing the applicant in the District Court was achieved. This is not to say that the sentence rehabilitated the Applicant in the sense of achieving a psychological “cure” of his condition but that it has aided the Applicant in seeking to control his condition and will continue to do so in future. That is a very relevant matter to take into account in assessing the future risk he may pose to children at TAFE colleges.

44 I consider that the combination of these protective factors and together with the imposition of some of the conditions recommended by the Respondent would reduce any risk he may pose to children to one of insignificance. It follows therefore that the application should be granted on the following conditions:

1. That the Applicant not be permitted to apply for, undertake or remain in child-related employment that involves girls under the age of 16 years.

2. That the Applicant not be permitted to apply for, undertake or remain in child-related employment that involves boys under the age of 13 years.

3. Notwithstanding Order 1. the Applicant is permitted to apply for, undertake and remain in employment at TAFE as a teacher subject to the following conditions:

i) That he undertake a course of sex offending counselling conducted by a person accredited under the NSW Commission for Children and Young People’s Child Sex Offender Counsellor Accreditation Scheme.

ii) That, as recommended by Dr Stephen Allnutt in his report dated 3 October 2003, the Applicant undertake training in ‘professional relationships and boundary management’.

iii) That any employment with TAFE is supervised, but not necessarily directly supervised, and the relevant supervisor is provided with a copy of these Orders.

iv) That the Applicant serve a copy of these orders on the Managing Director of the TAFE Commission in the event that he seeks or obtains employment in TAFE.

4. Leave is granted to the Applicant to apply at any time for these orders to be amended.