Ut v Commission for Children and Young People

[2011] NSWADT 71

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	UT v Commission for Children and Young People [2011] NSWADT 71
Hearing dates:	On the papers
Decision date:	06 April 2011
Before:	L Goodchild, Judicial Member
Decision:	Declaration that Commission for Children and Young People Act 1998 does not apply to the specified offence.
Catchwords:	Declarations; prohibited person.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Commission for Children and Young People Act 1998
Cases Cited:	Commission for Children & Young People v UR [2007] NSWSC 1099 Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIRComm 101 Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136
Category:	Principal judgment
Parties:	UT (Applicant) NSW Commission for Children and Young People (Respondent)
Representation:	Counsel Ms Ward (Respondent) Whitelaw McDonald (Applicant) State Crown Solicitor (Respondent)
File Number(s):	104013

reasons for decision

1. The Applicant, who in these Reasons will be referred to by the pseudonym, UT, applies to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 ("the Commission Act"). UT is a "prohibited person having committed a serious sex offence", namely the offence of aggravated indecent assault on a child under 16 years for which he was convicted in February 1997. Unless the order UT seeks is granted, it will be an offence for him to apply for, undertake or remain in child related employment (s.33C of the Commission Act ). The Respondent, NSW Commission for Children and Young People, does not oppose the application.

1. The Applicant made an application to the Commission for Children and Young People for an order under s.33A of the Commission Act by letter dated 26 June 2009. The Commissioner of the Commission for Children and Young People decided not to make the order sought on the grounds that on the information available, she has been unable to determine that he does not pose a risk to the safety of children.

1. UT subsequently made an application to the Tribunal for an order under s.33I of the Commission Act filed with the Administrative Decisions Tribunal on 8 July 2010. That application is the subject of these Reasons.

Applicable Legislation

1. Section 33(I) of the Commission Act provides that the Administrative Decisions Tribunal may make an order declaring that the Act is not to apply to an applicant in respect of a specified offence. That order may be made subject to conditions (s.33I (6)).

1. Section 33J (1) provides that the Tribunal is not to make an order on a review application (an application made under s.33I (1)) unless it is satisfied that the person who is the subject of the application "does not pose a risk to the safety of children" .

1. Section 33J (2) provides that it is to be presumed that the Applicant poses a risk to the safety of the children, unless they prove to the contrary. The onus then in applications such as these is on the Applicant to prove that he or she does not pose a risk to the safety of children.

1. In deciding whether or not to make an order, the Tribunal must take into account the following (s.33J(3)):

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

b)The period of time since those offences were committed,

c)The age of the person at the time those offences were committed,

d)The age of each victim of the offences at the time they were committed,

e)The difference in age between the prohibited person and each such victim,

f)Whether the person knew, or could reasonably have known, that the victim was a child,

g)The prohibited person's age,

h)The seriousness of the prohibited person's total criminal record,

i)Such other matters as the Commission or Tribunal considers relevant.

1. In determining this application, the Tribunal is required to give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from child abuse (s.32 of the Commission Act ).

1. The test set out in s.33J(1) of the Commission Act is in similar but not identical terms to the corresponding provision in the now repealed Child Protection (Prohibited Employment) Act 1998 ("the CPPE Act"). The relevant provisions of the Commission Act came into effect on 2 January 2007 ( Commission for Children and Young People Amendment Act 2005 ). The test under the CPPE Act has been considered by the Supreme Court (see for example, Commission for Children and Young People v V [2002] NSWSC 949; Commission for Children and Young People v IK & Anor [2005] NSWSC 1136; Commission for Children and Young People v UR [2007] NSWSC 1099).

1. Care of course should be given in applying the principles developed to deal with different albeit similar legislative provisions, however, those decision provide useful assistance on the application of s.33J(1) of the Commission Act . Young CJ (in Equity) in Commission for Children and Young People v V considered the meaning of the word "risk" in s.9(4) of the CPPE Act . His Honour adopted Haylen J's analysis in R v Commission for Children and Young People [2002] NSW IR Comm 101. Haylen J said that s.9(4) was focused 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 [2002] NSW IR Comm 101 at 104)

1. Young CJ held (at [27]) 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.

Evidence before the Tribunal

1. I have had regard to the Application filed by the Applicant and the Affidavit of the Applicant sworn 13 December 2010. I have further had regard to the very helpful submissions prepared by the Applicant's legal representative, Mr Hetherington. I have had regard to the documents produced under subpoena from employment and voluntary organisations. I have regard to the documents produced under subpoena from the NSW Department of Human Services (Deputy of Community Services). I have further had regard to the very helpful submissions of the Commission prepared by Ms Ward of counsel. I have further had regard to the report prepared by Dr Steven Allnutt dated 19 October 2010 and the supplementary report prepared by Dr Allnutt on 4 February 2011.

Expert Evidence

1. The two reports prepared by Dr Steven Allnutt were tendered by the Respondent. Dr Allnut had been asked to provide an opinion on whether UT posed a risk to the safety of children and young people. Dr Allnutt's primary report thoroughly considered the background history and he reviewed the documentation provided to him. Dr Allnutt employed a combination of clinical and actuarial assessment tools to assess UT. In employing the professional guidelines for assessing risk of sexual violence, Static 99 (which is an instrument designated for the prediction of sexual recidivism in sex offenders through the examination of static risk variables), Dr Allnutt opined that UT would have scored 1, placing him in a group regarded as low risk of future sexual recidivism and violence towards children as compared to other offenders.

1. From a clinical assessment, Dr Allnutt identified what factors of sexual recidivism are absent with UT and identified a number of matters including the absence of evidence for significant sexual deviant behaviour or paraphilia, the lack of diagnosis of a major mental illness, no evidence of significant substance abuse or dependence disorder, no evidence of suicidal ideation in the past, no evidence of prior offending in the form of non-sexual violence or non-violent offending, no evidence of past supervision failures, his offence pattern is not consistent with high density, multiple offending and there is no escalation in offences; and he presents as a person with realistic plans and would not meet the criteria for having negative attitudes towards treatment because treatment at this stage is not necessary.

1. Dr Allnutt's overall clinical and actuarial assessment led him to conclude that UT falls into a group of individuals who would be regarded as low risk for both sexual and violent behaviour towards both male and female children under the age of 18 as compared to other sex offenders. Dr Allnutt in his supplementary report of 4 February 2011, prepared after he received further documentation - in particular, the Affidavit of UT, opined that his overall original opinion remains largely unchanged. He would, however, vary his opinion stating that there was evidence of an aggressive behaviour in childhood, some inter-personal conflict in adulthood, and an individual with a tendency to impulsive behaviour. In the preparation of this supplementary report, Dr Allnutt was provided with notes of a case conference that occurred in August 1989 and documentation dated from 1990 and 1991. He confirms, however, that overall his opinion remains largely unchanged.

1. I now turn to a consideration of the risk indicia contained in section 33(J)(3).

Risk Indicia - s.33J (3) matters

The seriousness of the offence - 33(J)(3)(a)

1. The Applicant is 30 years of age. On 11 February 1997, the Applicant was convicted at Singleton Children's Court on one count of aggravated indecent assault. The assault took place on school premises where the Applicant and victim attended high school. The victim was a 12 year old student who had a mild intellectual disability. Counsel for the Respondent provided very helpfully in their submissions the provision of the Crimes Act at the date of the offence, relevantly s.61M(3):

"(b) The alleged victim is under the age of 16 years, or

...

(e) The alleged victim has a serious intellectual disability."

1. The Respondent submits that presumably the circumstances of aggravation related to the victim's age because there does not appear to be any evidence to suggest that she had a serious intellectual disability.

1. There is certainly a suggestion that the victim had a mild intellectual disability but not a serious intellectual disability. I accept the Respondent's submissions in that regard. The Respondent further submits that the offence is at the less serious end of the spectrum for matters defined as "serious sex offences" although it does not fall within the least serious category. I accept that submission.

Period of time since the offence was committed - s.33J (3) (b)

1. The offence was committed almost 15 years ago.

The age of the Applicant at the time the offence was committed - s.33J (3) (c)

1. The Applicant was almost 16 when the offence was committed.

The age of the Victim at the time the offence was committed - s.33J (3) (d)

1. The evidence from the fact sheet discloses that the victim was 12 years old at the time of the offence.

Difference in age between the Applicant and the victim - s.33J (3) (e)

1. The difference in age was somewhere between 3 and 4 years.

Whether the Applicant knew or could reasonably have known that the Victim was a child - s.33J (3) (f)

1. The Applicant and the victim attended the same school. The Dr Allnutt reports that the Applicant told him that the victim was a student at his school and that he knew her through a girl who lived on his street as she was a cousin of this girl and that he had some prior but brief contact with her before the incident. I find that the Applicant would have known that the Victim was in Year 7 and 12 years of age.

The Applicant's present age - s.33J (3) (g)

1. The Applicant is 30 years of age at the date of the hearing.

The seriousness of the Applicant's total criminal record - s.33J (3) (h)

1. The subject offence is the only matter on the Applicant's criminal record.

Other relevant matters - s.33J (3)(i)

1. The Applicant told Dr Allnutt, and this is confirmed in his affidavit evidence, that his memory of the offence was poor - it having occurred 14 years ago. Dr Allnutt reports that the Applicant stated to him that he unequivocally accepted that sexual behaviour with children was wrong, he understood that he had been convicted because he had touched her inappropriately, he accepted that it was wrong because he was a lot older than her and the entire event was inappropriate.

1. In the Applicant's Affidavit, he deposes to being requested to leave his high school after the incident. He says he was subject to various forms of harassment and bullying and called names at school by other students and by their parents. He further deposes that the family home had rocks and eggs thrown at it. He deposes that he did not want to leave school but he felt that he really did not have a choice. Since leaving school, he worked at various jobs and when he left school he also was subject to abuse by people in his local small town in New South Wales.

1. He is now married and has been so for nearly 2 years. He reports a stable and supportive relationship with common plans with his wife to have a family and buy their own home. The Applicant wishes to obtain employment with the Ambulance Service, the Rural Fire Service or the Defence Forces, but his current prohibited status prevents him from pursuing those careers.

1. The legal representative of the Applicant, Mr Hetherington, submits that the Respondent has made extensive enquiry with respect to the Applicant's work history and history of volunteering and no relevant information was retained.

1. The Applicant submits that the Tribunal could be comfortably satisfied that the Applicant does not pose a risk to the safety of children and should make an order that the division of the Act does not apply to the Applicant.

Findings and Conclusions

1. Section 33J (2) of the Commission Act creates a rebuttable presumption that UT poses a risk to the safety of children. In determining whether that presumption has been rebutted, I am required to have regard to the matters listed at s.33J (3) of the Commission Act . As indicated previously, it falls to UT to prove that he does not pose a risk to the safety of the children.

1. The index offence is the only evidence of UT acting in an inappropriate way in relation to a child or young person. The offence was committed nearly 15 years ago when UT was a young adult and by all accounts the offence did not involve any threats or violence. Given the evidence before the Tribunal from both the Applicant and the Respondent, especially that of Dr Allnutt, the offence does not in my view indicate that UT has a predilection to prey on or offend against children. (There is no evidence that UT has, since the offence, had any complaints against him or reports of him acting in an inappropriate way in respect of children.) The Respondent's inquiries reveal that no government organisations including the Department of Community Services hold any material that is necessarily unfavourable to UT. UT's criminal history reveals this index offence as the only offence on his criminal record. Dr Allnutt concludes that he poses no appreciable risk in terms of sexual or violent offending against children. That evidence coupled with the with matters I am directed to consider by s.33J(3) leaves to me to conclude that UT has discharged the evidentiary burden and rebutted the presumption that he poses a risk to the safety of children.

1. For these reasons, I have decided to grant UT's application.

1. I make the following order.

(1) It is declared that the Commission for Children and Young People Act 1998 is not to apply to UT in respect of the charge of aggravated indecent assault (1 count) for which he was convicted in the Singleton Children's Court on 11 February 1997.

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Amendments

11 May 2011 - slip rule

Amended paragraphs: para 33

Decision last updated: 06 April 2011