UZ v Commission for Children and Young People

[2006] NSWADT 281

CITATION:	UZ v Commission for Children and Young People [2006] NSWADT 281
DIVISION:	Community Services Division
PARTIES:	APPLICANT UZ RESPONDENT Commission for Children and Young People
FILE NUMBER:	054064
HEARING DATES:	2/02/2006, 18/04/2006, 8/06/2006
SUBMISSIONS CLOSED:	07/11/2006
DATE OF DECISION:	09/27/2006
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 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Child
REPRESENTATION:	APPLICANT A Canceri, barrister RESPONDENT I Bourke, 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 Last year the Applicant was convicted for possession of child pornography. By the operation of the Child Protection (Prohibited Employment) Act 1998 it would be an offence for him to apply for, undertake or remain in child-related employment. He has applied to the Administrative Decisions Tribunal for an order which if granted would allow him to work with children. He told the Tribunal that the reason for making the application is to allow him among other things to embark in a career in television production, which could involve persons under the age of eighteen. For the reasons set out in this decision I have decided to refuse this application.

2 The Department of Education and Training applied to be joined to these proceedings but leave was not granted. The Department was given leave, however, to make submissions. The Department opposed the application as did the respondent.

3 Written submissions were received from all parties and the Department.

4 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, ‘UZ’.

Relevant legislative provisions

5 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).

6 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

7 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].)
8 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.

9 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].

The index offence

10 The Applicant was convicted in 2005 on one charge of ‘possess child pornography’ (s 578B(2) of the Crimes Act 1900). He entered a guilty plea and was sentenced to a term of imprisonment of twelve months, suspended under s12 of the Crimes (Sentencing Procedure) Act 1999. The section 12 bond expired on 31 March 2006.

11 Possession of child pornography is self-evidently a very serious offence. The maximum penalty upon conviction for an offence under s 578B was two years imprisonment. To reflect the seriousness with which the community and Parliament regard this type of activity, the Crimes Act 1900 was amended in 2004 to increase the maximum for this offence to five years imprisonment. It is a matter of common knowledge now that the offence is a prevalent one. Further, it is a secretive offence which is hard to detect and is both directly and indirectly exploitative of children in this country and overseas. Those who merely possess child pornography are nevertheless involved in the exploitation of children because as purchasers and publishers of the material they are the market which the persons who make the images and who directly exploit and abuse the children in question supply. Tendered in these proceedings were a copy of the police fact sheet, court attendance notice and bench papers that were before the sentencing court. The court attendance notice bears a handwritten notation ‘agreed 6,000 to 8,000 images’. These documents disclose that the majority of images appeared to be mainly of pre–teen boys posing in sexually suggestive positions. Also before the Tribunal was a copy of the classification certificate issued by the Office of Film and Literature Classification regarding the images found in the Applicant's possession. The synopsis to that report states that the images found in the Applicant's possession consisted of ‘jpg’ images and ‘mpg’ movies of children engaged in various highly sexualised poses. The report contained a description of some of the images found in the Applicant's possession.

12 The Applicant is now 51 years of age. He was 48 years of age at the time the offence was committed.

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

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

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

14 Other complaints The Applicant worked as a teacher in both primary and secondary schools in NSW and Tasmania for over twenty years. He has also worked as a professional soccer coach, coaching both adults and children, for roughly the same period.

15 The Respondent has made enquiries of the Applicant’s known former employers and various government agencies, including the Department of Community Services and Department of Eduction. No material adverse to the Applicant has been produced other than that relating to the index offence.

16 Character evidence Two character references were tendered on behalf of the Applicant. One was from a prominent sportsperson who has known the Applicant for over twenty years and had worked with him in developing coaching camps and clinics both here and overseas. He stated that in all his dealings with the Applicant he found him to be reliable, hardworking, responsible person and a law-abiding citizen.

17 He went on to state that he believed that the Applicant did not pose a risk to children, adding that the Applicant had direct contact with children throughout the period of their twenty year association.

18 The referee went on to state that he was surprised to hear about ‘the charge’ and that it is ‘uncharacteristic for the Applicant to be in trouble with the law’. He considered the incident to be totally out of character. He stated that he would be prepared to employ the Applicant in any type of child-related employment and to recommend him to any other person who might offer him child-related employment.

19 The second referee is a school principal who has worked with the Applicant for over ten years. He claimed that that the Applicant enjoyed a reputation as a dedicated teacher and educator. He stated that that there has not been the ‘slightest hint’ of any allegation, complaint or suggestion made against him by students, parents or teachers in the ten years he has known the Applicant.

20 While evidence of previous good character is significant, it is, in such cases, less significant than it might otherwise be because of the necessary secretiveness of this type of misconduct. These offences are quite typically found to have been committed by persons of apparent excellence of character. In many cases they have been able to keep their offensive secrets to themselves for very lengthy periods precisely because they are the types of persons who are generally above suspicion.

21 The length of time since the commission of the offence. If an index offence is very old by the time the application is made, that may be a significant factor in reaching a determination that an Applicant poses little risk to children. In this case, however, the Applicant was convicted only in 2005. The offences are only about two years old.

22 Reason for Application The Applicant told the Tribunal he made the Application to so that he could embark on a career in the film and television industry. He said he had formed a relationship with a number of agents in the USA who had shown interest in a treatment for a script he had written.

23 He said he was having discussions with a colleague about the possibility of setting up an acting school for budding actors in Australia.

24 In addition he said he had made the application so that it would be open to him to continue his long involvement with soccer coaching.

Expert evidence

25 Dr Roberts Two reports prepared by the Applicant's treating psychiatrist, Dr John Roberts, were tendered in these proceedings. In a report dated 9 December 2004, Dr Roberts diagnosed the Applicant as suffering from the psychiatric condition, paraphilia-subtype paedophilia. He recommended that the Applicant:

‘[s]hould not engage in any activities that are likely to bring him into contact with young persons and I would consider that such a restriction should remain regardless as to treatment.’
26 Dr Roberts noted that the object of a person's sexual drive (whether homosexual, paedophilic or other) is extremely difficult if not impossible to change. Dr Roberts stated that he had prescribed the drug Androcur. He explained that the aim of such treatment is to ‘[r]educe the intensity of the sexual drive in such a manner that it becomes less difficult for a person prone to inappropriate sexual behaviour to control such drives…’.

27 The Applicant on the advice of Dr Roberts continues to take Androcur and expects to do so indefinitely.

28 In a more recent report, dated 17 January 2005, Dr Roberts noted that under his medical management, the Applicant's prognosis was ‘good’ and his potential for re-offence diminished by a substantial degree. In that report he did not comment on his original diagnosis of paraphilia-subtype paedophilia.

29 Mr Alan Hegarty The Applicant tendered two reports prepared by psychologist Mr Alan Hegarty, whom he has consulted regularly since November 2004. In a report dated 29 January, 2005, Mr Hegarty stated that in his opinion the Applicant's

‘[s]ituation is far more amenable to correction than that of individuals who were in denial of their actions and their consequences. [Mr UZ] is a model client in that he accepts responsibility for his actions and has a reasonable and insightful approach to life and a willingness to face issues honestly.’
30 In a second report Mr Hegarty stated that the Applicant did not pose a threat to the ‘safety or well being of any minor’. He noted that he had diligently attended for treatment and had actively participated in an internet offenders group organised by the NSW Probation and Parole Services. He commented on the disparity between the Applicant’s position and that of serious offenders he had worked with in the past and, on that basis, ‘strongly supported’ the removal of any restrictions on Mr UZ working with adolescents.

31 Dr Anita Duffy The Applicant was seen by Dr Duffy on two occasions, for the purpose of assessment and tendered two reports prepared by her, the first dated 1 March 2005 and the second, 28 March 2006. Dr Duffy noted that the Applicant had been diligent in seeking treatment since his conviction. In her most recent report she stated that he was ‘[w]ell aware of the inappropriateness in viewing child pornographic material, and reports he has little difficulty in resisting the temptation to do so again’. She thought that as a result of his supervision and treatment by Dr Roberts and participation in an internet offenders’ program, it was extremely unlikely that he would again access child pornography. She thought it even ‘less likely’ that he would pose a threat to children in ‘overt paedophile behaviour’. However she noted Dr Stephen Allnutt’s concern that writing scripts, specifically with children in mind, may expose him to risk situations.

32 Dr John Baron Dr Baron is a psychologist currently employed by the Department of Corrective Services, who has been working on sex offender programs since 1998. He recently organised and ran an educational program for Internet sex offenders, involving twelve two-hour sessions, which was attended by the Applicant. He described the program as an educational one, specifically psychosexual education, and explained that while the program did not involve therapy, nevertheless he hoped it was therapeutic for the participants.

33 He explained that while not a lot of research has been conducted into the people who have accessed child pornography through the internet (internet offenders), a great deal of preliminary research was underway. He understood that the eight year project conducted by the University College, Cork - ‘Combating of Paedophile Internet Networking in Europe’, (COPINE) - was the leading research in the area. (See Quayle, E, and Taylor, M, ‘Paedophiles, Pornography and the Internet: Assessment Issues’ in British Journal of Social Work, (2002), 32, pp 863-875; Quayle, E and Taylor, M, ‘Model of problematic Internet use in people with a sexual interest in children’, (2003), CyberPsychology & Behavior, 6(1), pp 93-106).

34 Before giving evidence in these proceedings, Dr Barron contacted Dr Ethel Quayle, the director of COPINE and asked for her opinion on the likelihood that someone involved with Internet child pornography would also be involved in ‘hands-on offending’. Dr Quayle replied: ‘The issue of risk of progression to contact offences is a thorny one and there is no published data that relates to offenders who've used the Internet outside of police operations and the prison study by Hernandez’. [A copy of this research paper was tendered in these proceedings, A Hernandez, Self-Reported Contact Sexual Offences by Participants in the Federal Bureau of Prisons, Sex Offender Treatment Program: Implications for Internet Sex Offenders, November 2000. This research according to Dr Barron, looked at a group of incarcerated offenders, some of whom had contact offences, some of whom said they hadn't, then compared the number who, before therapy, said they had no contact offences, with the number who, after therapy, said they had contact offences. They found that, in their sample, a significant number disclosed contact offences that otherwise hadn't come to light.]

35 Dr Barron’s understanding of the clinical, as distinct from the research evidence thus far, is that there is a number of people with no known contact offences, who had viewed and possessed and had collections of child pornography but who have not progressed to hands-on offences. This group according to Dr Barron, appeared to be at low risk of progressing. He understood that there was an unknown percentage within this group where there would be concerns that they could progress.

36 Dr Barron believed that what the limited research did show was that where there was a predisposition to commit a contact offence, then viewing pornography exacerbated this. He thought that if a person had a risk management strategy firmly in place, which would at least include: a solid understanding of their risk factors; their vulnerabilities; and their established patterns of Internet use, then there probably was a low risk that that person would move on to hands-on offending.

37 Under questioning Dr Barron agreed that a first step in any risk management strategy was the acknowledgement by the offender of the nature of the problem - or the nature of the attraction that had caused them to use child pornography - or, to use his words, ‘an understanding of their psychosexuality’. He thought it troubling that the Applicant’s evidence in these proceedings suggested that he had limited insight into the motivation for accessing child pornography.

38 Dr Barron made very made clear that he had not conducted a risk assessment of the Applicant. He offered the opinion however that media-related work, potentially with children and young people, would present a ‘risky’, and ‘extraordinarily imprudent’ situation for someone who had demonstrated an apparent sexual attraction to children.

39 Dr Stephen Allnutt The Respondent tendered two reports dated 21 and 31 March 2006, prepared by psychiatrist, Dr Stephen Allnutt.

40 Dr Allnutt noted that a number of strengths guarded against the Applicant re-offending or moving to hands-on offending. These included: no history of prior complaints; no history of child abuse; no manifestation of anti-social personality or any other personality disorders; proven motivation to pursue and engage in treatment; acceptance of a sex drive suppressant medication. He thought that the Applicant fell into a category of individuals with a low risk of physical offending against children. However he believed there was some risk that he might return to child pornography because of the limited insight he had into the factors that led him to offend in the first place.

41 He concluded that the Applicant has an ‘underlying propensity to paedophilia’. He also noted in that report (page 11) that the Applicant's sexual interest appears to be predominantly in the direction of male children, and that, of the paedophilic sex offender group, sex offenders who offend against male children are associated with the highest rate of recidivism. In his oral evidence, Dr Allnutt noted that although there is as yet, limited research into recidivism rates for child pornography offenders, it seems reasonable (with caution) to apply these earlier findings of high recidivism rates to child pornography offenders.

42 Dr Allnutt identified the following risk factors present in this case: a diagnosis of paedophilia with specific attraction to male children; lack of insight; an intention to work in media, potentially with young people.

Findings and Conclusions

43 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.

44 Mr UZ has made his application because, among other things, he wants to make a television program involving children. While it is perhaps never too late to enter the television industry, he has had little or no experience in that highly competitive environment. He also hopes to be involved in coaching aspiring young actors. It is, perhaps, a measure either of his naivety or his disingenuousness - probably the former - that he cannot see, or refuses to understand, the problematic nature of his application. He, of course, implicitly denies that he sees the projects he is hopeful of developing as a means of gratifying any sexual attraction he feels towards children. Despite being convicted of possessing over 6000 pornographic images of children, the Applicant claims not to have a sexual interest in children. That, frankly, is implausible and one does not need expert evidence to make that finding: it is simple common sense.

45 In any event, the expert evidence does not help the Applicant. While evidence of this type is inherently inexact, nothing in that evidence suggests that the risk Mr UZ presents to children at present is immaterial or insignificant.

46 While Mr Hegarty believed that the Applicant had developed insight into what caused him to offend, the Applicant’s evidence given in these proceedings indicated otherwise. He was not prepared to admit to any sexual attraction towards children. Both Drs Baron and Allnutt saw this lack of insight as grounds for concern.

47 As was pointed out for the Applicant, there is a growing body of research which indicates that child pornography users will not necessarily move from that sort of activity to physical abuse of children. The real issue, however, is whether Mr UZ constitutes a risk to children. Unless he can demonstrate by evidence - notwithstanding an interest in child pornography - that he does not, the application must in all likelihood fail.

48 I accept that all the experts who assessed him have commented on his willingness to embrace treatment. It may be that he is a person who, having accepted treatment, will not re-offend. His unwillingness in evidence before the Tribunal to acknowledge his true motivation in downloading and keeping pornographic images, however, makes it difficult to assess him as a risk to children and difficult to accept his evidence that he is not one.

49 Even if it could be established that the Applicant would not himself physically abuse children, that does not prove that he is not a risk to children at large. Consumers of child pornography by definition put children at risk. They are the market for those who produce the pornography in the first place. Without that market many of the children who are victims of the pornography industry would not suffer the abuse they do.

50 No one suggests that treatment is always successful. Even if it were, it would be premature to conclude that an Applicant presents no material risk to children given the relatively short period since the offending occurred. Naturally, if the Applicant were allowed to work in television or film with children, he would immediately gain ample opportunities to make still and moving images of children and young people in all sorts of situations and poses. The risk is not insignificant or, if it is, he has not demonstrated it to be so.

51 The Applicant bears the onus of proving, on the balance of probabilities, that he presents no material risk to children. His possession of over 6000 pornographic images of children only two years ago, his implausible denial of sexual interest in children, and the expert evidence, all combine to defeat the application. It is dismissed.