Ux v Commission for Children and Young People
[2006] NSWADT 68
•03/08/2006
CITATION: UX v Commission for Children and Young People [2006] NSWADT 68 DIVISION: Community Services Division PARTIES: APPLICANT
UX
RESPONDENT
Commission for Children and Young PeopleFILE NUMBER: 054063 HEARING DATES: 22/02/2006 SUBMISSIONS CLOSED: 02/22/2006
DATE OF DECISION:
03/08/2006BEFORE: Smyth M - Judicial Member CATCHWORDS: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Child Protection (Prohibited Employment) Act 1998CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101REPRESENTATION: APPLICANT
RESPONDENT
In person
R Bhalla, SolicitorORDERS: The Child Protection (Prohibited Employment) Act 1998 is not to apply to UX in respect of the offence of indecent assault on a female under the age of 16 years and the two offences of indecent assault on a female for which he was convicted on 12 September 1977
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,
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(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.(a) who appears as a witness before the Tribunal in any proceedings, or
whether before or after the proceedings are disposed of.
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
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”) so that he can work unsupervised with children and young persons.
2 The order would apply to all work with those under 18 years that is not directly supervised. However, the application is made as the Applicant wishes to continue with his business as an electrician. A major part of his work is the provision of electrical maintenance and repair services for schools.
3 The Respondent does not oppose the application.
4 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (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. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, we have decided not to publish any details that could identify the Applicant. The Applicant is referred to in these reasons by the pseudonym, “UX”.
5 The Tribunal must determine whether UX (the Applicant) is likely to be a risk to the safety of children and young persons if he applies for, undertakes or remains in child-related employment.
Relevant legislation
6 Section 3 of the Child Protection Act defines child-related employment as any employment of the kind set out in that section that primarily involves direct contact with children where that contact is not directly supervised.
7 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).
8 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:
9 Section 9(7) states that the Respondent is to be a party to any proceedings for an order under s 9 and that the Respondent may make submissions in opposition to, or in support of, the making of the order.
(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.
Standard of proof and meaning of “risk”
10 The Applicant carries the onus of proof, on the Briginshaw standard, to show that he is not a risk to the safety of 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. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:
11 Young J, went on to say:
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.
12 His Honour continued:
One does not define risk as meaning minimal risk. One could exclude fanciful or theoretical risk. What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on the child.
13 His Honour further said:
A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed.
14 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, the NSW Commission for Children and Young People, 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]. By implication it would be wrong to impose a condition on an applicant who, without such condition, does not pose a real or appreciable risk.
There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sexual offence and its circumstances. The second is the current danger, if any, posed by the applicant to children. Subsection 5 deals mainly with the first focus. That is, the Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the victim at the time and the difference in the ages. The second involves the assessment of the applicant's character now, which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by 5(e), and any other matter which the Tribunal considers relevant. Subsection 5 then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt a person from the effect of the Act. A decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of the applicant unless there is good reason not to exercise it.
Index offences
15 The Applicant was convicted in the Court of Petty Sessions on one count of indecent assault on a female under the age of 16 years and 2 counts of indecent assault on a female on 12 September 1977. I accept the Respondent’s submission that these offences constitute serious sex offences under section 5(3) of the Child Protection Act.
16 The indecent assault on a female under the age of 16 years involved the Applicant walking past a 15 year old school girl and grabbing her right breast. A short time later he again approached her, exposed his erect penis and said “You look as if you need some sex, put your hand on that”. The Applicant pleaded guilty to the offence and sentence was deferred on his entering into a recognisance to be of good behaviour for three years. He was also placed under supervision.
17 On the same day the Applicant approached a 16 year old school girl and grabbed her breast. Ten days later he walked past a 16 year old schoolgirl and put his hand up under the front of her uniform and touched her underpants between the legs. He was fined $250 (or 50 days hard labour) in respect of each of these assaults.
18 The index offences occurred in June 1977 - over 28 years ago. The victims of the index offences were aged 15 and 16 years. The Applicant was aged 22 years at the time. The age difference between the Applicant and his victims was either 6 or 7 years. The Applicant is now 50 years old.
Seriousness of the Applicant’s total criminal record
19 There was no dispute in these proceedings about the Applicant’s criminal record. The Applicant had other convictions in addition to the index offences. On the 12 September 1977 the Applicant was also convicted of 8 counts of assaulting a female. All these assaults occurred between 11 June and 23 July 1977. In one incident he assaulted a 17 year old female by approaching her in a park and grabbing her in a bear hug. In another incident he assaulted four school girls. He grabbed a 13 year old on the buttock, another 13 year old between the legs, and a 15 and 16 year old by pushing his hand between their legs. In a following incident he ran up behind a 16 year old on the footpath and grabbed her thigh and shoulder. He subsequently pinched a 15 year old schoolgirl on her buttock.
20 On 21 March 1978 the Applicant was convicted of entering land without reasonable cause with intent to peep or pry upon another person. The Applicant had been engaged to mow lawns for a property. He leaned through an open window and observed a woman who had just finished a shower and was undressed at the time. He was sentenced to 6 weeks’ imprisonment. The District Court reduced that sentence on appeal and the Applicant was released on entering a recognisance of $200 to be of good behaviour for 18 months and placed under supervision.
21 On 19 February 1980 the Applicant was convicted of being near a building without reasonable cause with intent to peep or pry upon another person. In December 1979 the Applicant had walked down the driveway of premises and stood looking at a woman sunbaking in a bikini in the backyard. He was sentenced to 6 weeks imprisonment.
22 He was called before the District Court for sentencing on breaching his recognisance and on 20 May 1980 sentence was deferred on him entering another recognisance for two years.
23 I agree with the Respondent’s submissions that the index offences are at the lower end of the scale in terms of seriousness. However, there was a pattern of offences of a sexual nature that occurred in the period June and July 1997. He was subsequently convicted of peep or pry offences arising out of incidents in 1977 and 1979. There is nothing further on his criminal record.
Applicant’s evidence
24 The Applicant gave oral evidence. He is the director of a company that provides electrical services. He employs three electricians and two apprentices aged 22 and 24. Electrical repair and maintenance work for schools is a major part of the work which his business undertakes. He is a subcontractor for that work and as part of that contract his work in schools is done under a protocol. That protocol requires that students are not present when electrical work is being undertaken in a classroom. Similarly, any work in the playgrounds of schools usually occurs while children are in class. Procedures are also in place regarding any work undertaken in toilet blocks to ensure that a teacher is present.
25 The Applicant stated that he had done this electrical contracting in schools for 26 years and there had never been any complaints against him. He also told the Tribunal that he had coached children in roller skating and that there had been no issues regarding his conduct as a coach.
26 When referring to his criminal record, the Applicant stated that he had made a stupid error in the past at a time when things in his life were not as they should have been. He described his offences as stupid and horrific. His evidence was to the effect that he realised how wrong his conduct had been. Now, when mature, he could think about what he had caused his victims to go through and he expressed regret for his offences. He also stated that he had received treatment from a Dr Kee.
27 He and his wife now have the care of his wife’s granddaughter who is nine years old. A placement assessment report completed by the Department of Community Services in December 2004 regarding the placement of that child in the care of his wife and himself was in evidence in these proceedings. That Department was aware of his criminal record. On the basis that the Applicant had not been charged with any offences in the past twenty years, that the child identified living with the Applicant and his wife as a safe place and there had been no concerns regarding the child’s care in three years, the author of that report was satisfied that the child was not at risk of harm from the Applicant. The Applicant stated that he and the child got on very well.
28 None of the Applicant’s evidence was in dispute.
Expert Evidence
29 The Applicant was interviewed and assessed by Dr Lennings, a clinical psychologist, at the request of the Respondent. A report prepared by Dr Lennings, dated 24 January 2006, was in evidence in these proceedings. Neither party required Dr Lennings to give evidence at the hearing. The Tribunal took some brief oral evidence from him.
30 In his written report of 24 January 2006, Dr Lennings stated that he used the STATIC 99, an actuarial tool, to gauge risk. This method uses key variables which research has shown discriminate between sexual offenders who recidivate and those that do not. These are referred to as static variables because they are not likely to change in response to treatment or supervision. Mr UX’s score on the STATIC 99 indicated a moderately high risk rating.
31 Dr Lennings reported that the STATIC 99 provided for a discount on the risk rates on the basis of time free of an offence. As Mr UX had not offended for almost thirty years Dr Lennings concluded that he was entitled to a maximum discount and Mr UX’s risk ranking would fall to moderately low.
32 Dr Lennings then used a structured clinical assessment, sampling variables from both static and dynamic risk factors. Dynamic factors are variables that may be able to be moderated by treatment or supervision and include observations and conclusions reached during a clinical assessment. He considered the categories developed by the British Columbia Institute Against Family Violence and supported by the Canadian government. These divide risk assessment into three areas of Psychosocial Adjustment, Sexual Offences and Future Plans allowing a guided assessment of the potential for sexual violence.
33 Dr Lennings reported that Mr UX’s responses to those risk categories indicated a low risk of recidivism. He reported that
34 Dr Lennings stated that these variables were historical and only ascribed a mild loading to them. He noted protective factors such as his openness about admitting his behaviour, the evident remorse and the understanding he had about the need not to abuse privileged positions with vulnerable children.
The only categories he has any loading on are for relationship issues, and this pertains to his first relationship, his offence history (which is noted to be 26 years old now with no further charges or complaints), the fact that he had both indecent assault and peep and pry offences (different offence types) and the escalation in his sexual offending that was present in 1977 and 1978.
35 The final risk assessment process used was an analysis of personality factors. Dr Lennings concluded that he could not find any evidence of the key personality issues thought to be associated with risk.
36 Overall he reported that there was a low likelihood of recidivism and stated that in his opinion the Applicant’s
37 Dr Lennings stated that he was aware that Mr UX was the sole proprietor of his company and that there was no likelihood of a condition for supervision. In his oral evidence he confirmed that he had taken into account that much of the Applicant’s work would be in schools and that he was largely a sole provider of services. That did not alter his conclusion that Mr UX’s level of risk was no greater than the average male of his age. His assessment indicated that the Applicant was quite a different person now to the person he was at the time of his offences.
“level of risk is no greater than the average male of his age. It does not seem to me there is any basis for predicting a risk of violent behaviour towards children, and I could find no evidence that Mr [UX] is a particularly manipulative or exploitative person who might seek to emotionally or psychologically abuse children.”
Applicant’s submissions
38 The Applicant’s submissions were in accordance with his oral evidence. He regretted his offences and recognised the damage that he had done. He had worked in and around schools for many years since he commenced his business, with no issues. Similarly there had been no issues when he had been a roller skating coach. He was now a mature man and had not offended for over 26 years. He submitted that he did not pose a risk to the safety of children.
Respondent’s submissions
39 The Respondent provided written submissions to the Tribunal at a stay hearing in this matter in January 2006. These were in evidence before me in these proceedings and the Respondent made some modifications to these in oral evidence. At the time of the stay hearing, the Respondent had reserved its position until proper inquiries could be undertaken. In these proceedings, following the psychological assessment by Dr Lennings, the Respondent determined not to oppose the application.
Findings and Conclusions
40 On 12 September 1977, the Applicant was convicted of one count of indecent assault on a female under the age of 16 years and 2 counts of indecent assault on a female. Those convictions make him a prohibited person.
41 The onus is on the Applicant, on the Briginshaw standard, to prove that he does not pose a real and appreciable risk to the safety of children.
42 The index offences occurred in 1977, some 28 years ago, when the Applicant was 22 years old. He offended against young women aged 15 and 16. Although he committed a number of offences in the period 1977 to 1979 the offences were not at the more serious end of the scale. His pattern of offending ceased in 1979 and it is over 26 years since he has committed an offence.
43 The Applicant is now a mature man of 50. He has acknowledged the harm he caused the young women that he offended against and how wrong that conduct was. He has expressed regret for his actions.
44 The Applicant claims that he has carried on his business and worked unsupervised doing electrical maintenance works in schools for many years without any complaints against him. He stated that his work as a roller skating coach has not led to any complaints against him. He and his wife have the care of his wife’s granddaughter and have done so for a number of years without incident. I accept his evidence.
45 The Tribunal has had the benefit of the report of Dr Lennings, an experienced clinical psychologist. His report is summarised above and he concluded that the Applicant’s level of risk was no greater than the average male of his age. His evidence was that the Applicant is now a different person to the person he was at the time of his offending. The fact that much of the Applicant’s work is undertaken in schools did not change Dr Lenning’s conclusion regarding risk. He did not think it necessary that the Applicant be supervised. I accept Dr Lennings’ evidence.
46 The Respondent does not oppose his application.
47 In my view, on the evidence before me, the Applicant has satisfied the onus on him to prove that he does not pose a real and appreciable risk to the safety of children.
Order
The Child Protection (Prohibited Employment) Act 1998 is not to apply to UX in respect of the offence of indecent assault on a female under the age of 16 years and the two offences of indecent assault on a female for which he was convicted on 12 September 1977.
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