VT v Commission for Children and Young People
[2011] NSWADT 142
•09 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: VT v Commission for Children and Young People [2011] NSWADT 142 Hearing dates: 19 April 2011 Decision date: 09 June 2011 Jurisdiction: Community Services Division 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 1998Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81;
Commission for Children & Young People v UR 173 A Crim R 300;
Commission for Children and Young People v V 56 NSWLR 476;
R v Commission for Children and Young People [2002] NSWIR Comm 101;
Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136.Category: Principal judgment Parties: VT (Applicant)
NSW Commission for Children and Young People (Respondent)Representation: Ms Ghabrial (Applicant)
Ms Ward (Respondent)
- Legal Aid NSW
- Crown Solicitor for New South Wales
File Number(s): 104022
REasons for decision
The Applicant, who in these reasons will be referred to by the pseudonym VT, applies to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 ("the Commission Act"). VT is a "prohibited person having committed a serious sex offence", namely the offence of carnal knowledge which was at the time of the conviction in 1964 an offence contained in s.71 of the Crimes Act 1900. The Applicant was aged 17 at the time of the conviction. Unless the order VT 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, the NSW Commission for Children and Young People, neither consented nor opposed the application as filed.
The Applicant made an Application to the Commission for Children and Young People on 7 August 2008 for a declaration pursuant to s.33H of the Commission Act.
By undated letter in December 2008, the Commission advised the Applicant that it had been unable to determine that he did not pose a risk to the safety of children.
On 21 September 2010, the Applicant made an Application to the Tribunal for an order under s.33I of the Commission Act filed on 27 September 2010. The determination of that application is the subject of these Reasons.
Also, on 21 September 2010, the Applicant made an application for an urgent stay of the prohibition against the Applicant to undertake and remain in child-related employment. He made this stay application so that he could continue to work as a Santa leading up to Christmas of that year. On the occasion of the stay hearing, on 21 October 2010, the Applicant appeared in person before the Tribunal. The respondent consented to the Applicants application for a stay. Member Higgins made orders granting the stay and the proceedings were stood over for further directions and eventually listed for final hearing before the Tribunal on 19 April 2011. The stay period extended from 2 to 24 December 2010 inclusive.
Applicable Legislation
Section 33I 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)).
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".
Section 33J (2) provides that it is to be presumed that the Applicant poses a risk to the safety of children, unless that Applicant proves to the contrary. The onus 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. 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 present age,
(h) the seriousness of the prohibited person's total criminal record,
(i) such other matters as the Commission or tribunal considers relevant.
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 abuse (s.32). 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 2007). 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; 56 NSWLR 476; Commission for Children and Young People v IK & Anor [2005] NSWSC 136; Commission for Children and Young People v UR [2007] NSWSC 1099; 173 A Crim R 300.
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)
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
I have had regard to the Application filed by the Applicant on 27 September 2010 and the Affidavit affirmed by the Applicant on 13 January 2011. The Applicant relies upon the report of psychologist, Dr Katie Seidler dated 8 December 2010. This report was commissioned by the arrangement of the Respondent. I have further had regard to submissions prepared by the Applicant's legal representatives, Ms Ghabrial of counsel.
The Respondent relied upon a number of documents including the Applicant's criminal history and the fact sheet of the index offence, documents concerned with other criminal offences and information from the Department of Community Services, NSW Corrective Services and the Applicants employer. An Outline of Submissions and Chronology was prepared and tendered by Counsel for the Respondent, Ms Ward.
The Applicant was born in Scotland on 15 July 1946 and is the eldest of 12 children. He arrived in Australia with his family in 1960 and lived in a migrant hostel in north western Sydney.
He deposed that whilst at the hostel he met and became friends with the victim of the index offence. He deposes that she was 13 and he was 14 years old at the time they met, that they continued to be friends for a number of years, and the victim became pregnant with his child when she was about 16 years old. The child of the relationship was the subject of an adoption.
The Applicant deposed that he was charged with, what he referred to, as carnal knowledge and he received one-year probation and was not allowed contact with the victim again.
He was variously employed during the 1960s. He joined the Army and served in Malaysia (1967-69). He worked as a taxi driver for approximately 22 years during which time he applied for a disabled taxi licence. He became the first disabled driver in an area of western Sydney and continued to serve disabled passengers until 1998.
He was later employed in the role of Santa Claus at a department store in 2004 / 2005 for a period of 4-6 weeks. He stated that it was around 2007 that he was informed by the Police that he was a prohibited person and no longer allowed to work as a Santa Claus. He deposed to earlier filling out a form for working with children's check for his taxi licence and for the driving of disabled children, and as far as he was aware, his record was, he says, 'expunged'.
He has no convictions for assault other than that the index offence. He has other matters on his criminal record. As I have formed the view that those matters are of no relevance for the purposes of my determination, I have not had regard to them.
The Applicant deposes to an apprehended violence order made in 2000 with respect to the girlfriend of his son. The Applicant deposes to 'consenting' to the apprehended violence order in circumstances where he was seeking for his son's then girlfriend to have no further contact with him and his family. The Applicant has a false instrument offence that occurred in 2005. The circumstances of this offence bear no relevance to the application before me.
In 1970, he married his current wife with whom he has 4 children. He deposes that no family members have ever made any complaints or allegations against him with regard to his behaviour and he deposes to a close relationship with his children and grandchildren.
The Applicant gave evidence in chief. In the course of his evidence he stated that he had no involvement with the child whom was the product of the union between himself and the victim of the index offence. In oral evidence, the Applicant spoke of holding strong feelings for the victim of the index offence at the time, that they had intentions to marry but that the victim married a friend of his. The Applicant deposed to having 2 grandchildren living at his home - one child is 6 weeks old and one child 19 months old. He has been married 21 years, and other than a brief period of separation, he describes the marriage with his wife as excellent.
He deposes drinking 5-6 beers a fortnight and a 'dram' of Whisky at New Year. He deposes to not drinking at home.
Under cross-examination, Ms Ward, counsel for the Respondent, enquired of the Applicant why, in 2008, when completing the Working with Children Check Application, the Applicant failed to disclose all of his offences, specifically the apprehended violence order. The Applicant stated to the effect that in his understanding, the application was with respect to matters concerning children and he did not think that he was required to disclose matters that did not relate to children.
The Applicant relied upon the report of psychologist, Dr Katie Seidler. Dr Seidler is a clinical and forensic psychologist who has extensive experience within the public criminal justice system for many years both in treatment and research. She further holds a doctorate of philosophy in psychology in the area of interpersonal crime. She has undertaken research in the area of sex offenders and interpersonal deficits. There was no question Dr Seidler's expertise in providing a report for the purposes of my determination in these proceedings.
Dr Seidler interviewed the Applicant in December 2010 for in excess of 2 hours by way of a semi-structured interview involving psychometric testing. Dr Seidler noted that the Applicant engaged readily at the interview and impressed her as an affable person who was cooperative throughout the assessment process. He appeared oriented and alert and did not demonstrate any overt evidence of significant psychopathological symptomatology. She noted his thought processes were logical and coherent in both form and content and there was no evidence of formal thought disorder, delusional thinking, ideas of reference, hallucinatory experiences or a loosening of associations. In addition to the interview with the Applicant, Dr Seidler had available to her significant documentary evidence provided to her by the Respondent, all of which I similarly have had regard to for the purpose of this decision.
Dr Seidler identified the background to the assessment and identified the 1964 conviction of carnal knowledge as the index offence. She then considered the family and developmental, educational and occupational history of the Applicant in some detail as well as the medical history and the psychosexual history.
For the purposes of this decision, I do not propose to repeat in detail the findings made by Dr Seidler other than to indicate that Dr Seidler undertook what appears to me to be a detailed consideration of the relevant matters. Dr Seidler also considered a drug and alcohol assessment.
With respect to the index offence, Dr Seidler reports the Applicant stating to her that the victim of the index offence was his first girlfriend and his "first love". He was 14 when the pair began seeing each other and she was just over 12 months his junior. Dr Seidler reports of the Applicant informing her that the pair became sexually active when the Applicant was 16 years of age and his girlfriend was then 15. As a result, she then fell pregnant. The Applicant informed Dr Seidler than when the parents found out, the authorities were notified and the Applicant and the victim were ordered to end the relationship. The Applicant reported to Dr Seidler that the relationship eventually came to an end and the victim accepted a proposal of marriage made by a friend of his which "cut him to pieces". The Applicant stated to Dr Seidler that the baby girl born of this early union was adopted out at birth and he evidenced regret that he never got to meet or know his daughter.
The Applicant informed Dr Seidler that he has been married for over 40 years.
By way of a psychological assessment undertaken by Dr Seidler and noting the charge of violence on his criminal record, the Applicant explained the incident of punching a female taxi passenger on one occasion when he was stabbed with a screwdriver in or around 1985. The Applicant reports he was never charged.
In 1998, Dr Seidler noted that there was a further charge of assault occasioning actual bodily harm. The Applicant explained this charge as circumstances of when he hit an adult male passenger in his taxi who was apparently well intoxicated and aggressive when refusing to pay his fair. The Applicants criminal history documentation shows this charge was dismissed.
Dr Seidler undertook a personality assessment. She considered that the Applicants profile was within normal limits appearing to be well-adjusted and free from psychopathology and whose interpersonal relationships were generally stable and harmonious. Dr Seidler opined that the Applicant appeared to be a confident person who approaches life with a clear sense of purpose.
With respect to Dr Seidler's discussion with the Applicant as to his offending behaviour, Dr Seidler reports the Applicant acknowledging that the police were simply discharging their duty by charging him and that whilst being aware that his behaviour was illegal, he claimed that he was in love with his girlfriend. Dr Seidler reported that the Applicant claimed there had been no subsequent allegations of sexual misconduct against him. Dr Seidler questioned him about the COPS entries relating to an apprehended domestic violence order. The version of events given by the Applicant to Dr Seidler with respect to the ADVO taken out against him is consistent with the evidence given by him orally during his cross examination.
Dr Seidler's opinion is that the "Applicant's sexual offending behaviour is considered to be nave and poorly reasoned behaviour of a young man who was in love with his then girlfriend and who sought to express that love sexually within the confines of what was ostensibly an age-appropriate relationship".
Dr Seidler undertook a risk assessment. Dr Seidler noted the Applicant's score placing him in the Moderate - Low risk category.
Dr Seidler noted a number of issues protective against the Applicant's risk of further offending as follows:
- The Applicant has seemingly not been charged with any other matter of sexually abusive behaviour.
- The Applicant does not present as inherently anti-social.
- The Applicant did not endorse a history of hyper-sexuality, sexual deviancy or paedophilic sexual interests.
- The Applicant did not endorse attitude specific to sexual abuse.
- The Applicant does not present with a history of significant substance abuse or major mental health concerns that are related to his offending behaviour.
- The Applicant has prolonged experience of mature adult intimacy in relationships.
- The Applicant's lifestyle has been one of apparent stability with ongoing engagement in pro-social pursuits.
There was one factor that was considered to elevate the Applicant's future risk of re-offence and that was that his personal routine seemed somewhat unstructured, although this did not appear to be related to an increased risk of sexual re-offence per se.
In summary, Dr Seidler considered that the Applicant posed a low risk of re-offence and noted that given it had been over 40 years since he offended last time, it would be hard to conceptualise how his risk may manifest. Dr Seidler opined that there did not seem to be any tangible risk in this sense. However, she considered it reasonable to suggest that should his personal situation change whereby he would start drinking again or there would be problems with his marriage, the Applicant's assessment of risk would likely change and elevate.
Further, Dr Seidler opined that there was no evidence that the risk would be greater or lower for any particular class of child.
Dr Seidler opined there was no evidence that the Applicant was currently suffering from any diagnosable mental health condition either with respect to his emotional or personality functioning. Dr Seidler opined that based on the present assessment, it did not appear that the Applicant would warrant intervention in any domain in order to further ameliorate risk. She opined that he has been managing his risk for many decades and seemingly without significant incident. She noted the COPS entries in relation to alleged sexually inappropriate behaviour but properly noted the allegations were never founded or pursued and in the absence of other information about potential risk do not appear to warrant concern.
In her final recommendation, Dr Seidler stated the following:
"The Applicant has been assessed as posing a low risk of re-offence. He has seemingly been offence free in a sexual sense for over 40 years and the Applicant's lifestyle has been one of general stability and pro sociality. There does not appear need for intervention in this case in relation to risk. Rather this seemed to be an unfortunate case of teenage romance expressed inappropriately in a legal sense, rather than the act of a deviant or otherwise poorly regulated or dysfunctional man. Now, as a 64 year old man, the Applicant's goals are reasonable and his main priorities appear to be his family and being productive for as long as possible in a rewarding position that allows him to be active and participate in the community."
Under cross-examination, Dr Seidler was unshaken in her view. In Dr Seidler's view, the failure by the applicant to enumerate all offences for the relevant working with children check forms was a reasonable error in the circumstances.
Review of accompanying documentation
The Applicant's criminal history dates back to the age of 17 years when he was convicted in 1964 of the carnal knowledge charge that gave rise to his status as a prohibited person. Since that time he has been charged with offensive behaviour (street fighting) in 1970, PCA in 1972, negligent driving in 1973 (dismissed), stealing in 1983, and assault occasioning actual bodily harm in 1988 (dismissed).
Documentation subpoenaed from the NSW Police Service, Child Protection and Sex Crimes Squad, suggests that the Applicant had been the subject of 5 charges, 15 event reports and 3 intelligence reports. These do not appear to relate to conduct with children. These incidents are confined to an aggressive altercation with his neighbour and allegations made by an adult female who resided with the Applicant for a period that the Applicant had assaulted her.
No adverse records were identified for the Applicant from the NSW Department of Community Services or from the Applicant's current employer.
I now turn to consider the risk indicia contained in s.33J (3) of the Commission Act.
Risk indicia - s.33J (3) matters
The seriousness of the offence - s.33J (3)(a)
The Applicant is 64 years of age having been born on 15 July 1946. On 9 May 1964, the Applicant was arrested and charged with an offence of carnal knowledge of a girl between 10 and 16 years of age under s.71 of the Crimes Act (NSW) 1900. The date of the offence was averred on the Charge Sheet as between 1 June 1963 and 1 September 1963. The victim of the offence was said to be the Applicant's then girlfriend of about 2 years. The victim was born on 28 November 1947. She was 15 years of age at the relevant time. The Applicant was 16 years at the relevant time. There was no suggestion that the sexual relations between the Applicant and the victim was anything other than mutual and consensual. I agree with the opinion expressed by Dr Seidler that the offence appears to be "an unfortunate case of teenage romance expressed inappropriately in a legal sense rather than the act of a deviant or otherwise poorly regulated or dysfunctional man".
The offence is at the less serious end of the spectrum for matters defined as serious sex offences.
Period of time since the offence was committed - s.33J (3) (b)
The offence was committed almost 48 years ago.
The age of the Applicant at the time the offence was committed - s.33J (3) (c)
The Applicant was between the ages of 16 and 17 years of age.
The age of the victim at the time the offence was committed - s.33J (3) (d)
The victim was 15 years of age at the time of the offence.
Difference in age between the Applicant and the victim - s.33J (3) (e)
The difference in age was 1 year and 4 months.
Whether the Applicant knew or could reasonably have known that the victim was a child - s.33J (3) (f)
The Applicant knew the age of the victim and he knew she was 15 years of age. The Applicant admitted to Police in his record of interview at the time that he knew the victim was 15 years of age. Both the Applicant and the victim were children at the time of the index offence.
The Applicant's present age - s.33J (3) (g)
The Applicant is currently 64 years of age.
The seriousness of the Applicant's total criminal record - s.33J (3) (h)
I have referred to the Applicant's total criminal record earlier in these Reasons. There are no other offences other than the index offence that are related to children.
Other Relevant Matters - s.33J (3) (i)
I have also had regard to the documentation available indicating that the Applicant had been subject to apprehended domestic violence orders, and that the Applicant had been subject to separate event reports and intelligence reports. On the documentation available I have determined those matters are not relevant matters for the purposes of my determination.
The Applicant in written submissions referred to a number of matters that he considered are relevant for the purposes of my determination:
That the Commission conceded that the Applicant was not a risk to the safety of children in consenting to the Applicant's application for an urgent stay of the prohibition on employment. I do not agree with that submission. Certainly the Tribunal granted an urgent stay to allow the Applicant to undertake employment in the Christmas period in 2010. The Respondent consented to the stay application. I do not think that the consent by the Respondent to the stay application could be said for the purposes of this application to amount to a 'concession' that the Applicant was not a risk to the safety of children. The order made on 21 October 2010 granting the stay on the prohibition on employment was made without the final consideration of all of the evidence in accordance with the requirements of the Act. The granting of the stay was an interim procedural order made on balance considering a number of factors, but not determining the substantive matter on a final basis. My determination in this regard is supported by a consideration of the section and relevant recent case law. Section 60 of the Administrative Decisions Tribunal Act 1997 ("ADT Act") sets out the Tribunal's stay powers in relation to reviewable decisions. The general rule is that an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision: s 60(1). However the Tribunal can make orders "staying or otherwise affecting the operation of the decision under review" if it considers that it is "appropriate to secure the effectiveness of the determination of the application". Section 60 provides as follow:
60 Operation and implementation of decisions pending applications for review
(1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.
(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.
(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
The Court of Appeal considered the provisions of Section 60 of the ADT Act in some detail in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 ("AVS v Police"). That matter concerned a decision by the Commissioner that revoked the applicants' statutory licences held under the Security Industry Act 1997. At paragraphs [16] ff Basten JA said:
16 What the applicants required, in order to continue their licensed operations, was an order reinstating their licences. That cannot be achieved in terms by a "stay", a somewhat imprecise term which is usually understood to refer to a future event, which has not yet taken place: see McBride v Walton (Unrep, NSWCA, 27 August 1993) (Handley JA).
17 The relevant source of power is found in s.60 of the Administrative Decisions Tribunal Act 1997 (NSW) ("the ADT Act"), which relevantly provides:
...
19 There is no doubt that an order in the nature of a "stay" made pursuant to s.60 is an order separate and distinct from the kind of final order which may be made in determining an application for review of a reviewable decision: ADT Act, s.63(3). Nevertheless, it is a decision made in the course of review proceedings, which will affect, on a temporary basis, the operation of the reviewable decision. It is made in circumstances where the statute provides that the making of an application for review does not itself affect the operation of the decision: s.60(1).
- That the Applicant has 3 children from his current marriage. He has a result of a brief relationship he had with a woman whilst separated from his current wife many years ago.
- That there have been no complaints of abuse made by any of his children against him at any time.
- That two of the Applicant's grandchildren live with him, his wife, his daughter and her partner. There is no material before me of any allegations that he has acted improperly towards his grandchildren. As noted earlier in these reasons, his current employer has written a letter to the Tribunal confirming that the Applicant has been exceptional worker and received many compliments.
- That the Applicant's employer has identified him as honest and hardworking. The Applicant has been a taxi driver for 25 years specialising during that period in carrying disabled children. The Applicant had been performing his current role which involves dealing almost predominantly and exclusively with children for about 5 or 6 years to date without any incident or complaint. The Applicant submits that the Tribunal should 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.
- That the Applicant submitted that he had discharged the onus to prove that he is not a risk to the safety of children.
Findings and Conclusions
Section 33J (2) of the Commission Act creates a rebuttable presumption that VT poses a risk to the safety of children. In determining whether the presumption has been rebutted, I am required to have regard to the matters listed at s.33J (3) of the Commission Act. As stated earlier in these decisions, it falls to the Applicant to prove that he does not pose a risk to the safety of children. The index offence is the only evidence of VT acting in an inappropriate way in relation to a child or young person. The offence was committed nearly 46 years ago when VT was a child and there is no evidence the offence involved any threats of violence or was anything other than a consensual act between two young people who were involved in a relationship. Given the evidence before the Tribunal both from the Applicant and the Respondent, especially that of Dr Seidler, the offence does not in my view indicate that VT has a predilection to prey or on or offend against children. The Respondent's enquiries reveal that no government organisations including the Department of Community Services hold any material that is necessarily unfavourable to VT for the purposes of this application. VT's criminal history reveals that this index offence is the only offence of relevance for the purposes of my determination. Dr Seidler concludes that VT poses a low risk in terms of sexual or violent offending against children. That evidence coupled with the matters I am directed to consider by s.33J(3) leaves me to conclude that VT has discharged the evidentiary burden and rebutted the presumption that he poses a risk to the safety of children.
For these reasons, I have decided to grant VT's application.
I make the following order:
(1) It is declared that the Commission for Children and Young People Act 1998 is not to apply to VT in respect of the charge of carnal knowledge of a girl between 10 and 16 years of age for which he was convicted in the Liverpool Children's Court on 22 June 1964.
Decision last updated: 09 June 2011
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