WD v Commission for Children and Young People

[2006] NSWADT 278

CITATION:	WD v Commission for Children and Young People [2006] NSWADT 278
DIVISION:	Community Services Division
PARTIES:	APPLICANT WD RESPONDENT Commission for Children and Young People
FILE NUMBER:	064004
HEARING DATES:	17/07/2006
SUBMISSIONS CLOSED:	07/17/2006
EXTEMPORE DECISION DATE:	07/17/2006
DATE OF DECISION:	09/22/2006
BEFORE:	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 1998 Crimes Act 1900
CASES CITED:	Commission for Children and Young People v V [2002] NSWSC 949 R v Commission for Children and Young People [2002] NSWIR Comm 101
REPRESENTATION:	APPLICANT In person RESPONDENT G Mahony, solicitor
ORDERS:	The Child Protection (Prohibited Employment) Act 1998 is not to apply to WD in respect of the offence of indecent assault on a female under the age of 16 years (the then s 76A of the Crimes Act 1900) for which he was convicted on 27 May 1975

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 The Applicant seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (Child Protection Act) so that he can work unsupervised with children and young persons.

2 On 17 July 2006 the Tribunal made a declaration that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the Applicant in respect of the offence of indecent assault on a female under 16 years (the then s 76A of the Crimes Act 1900) for which he was convicted on 27 May 1975 before the Minda Children’s Court. The Applicant has requested written reasons for that decision. These are those reasons.

3 Although an order would apply to all work with those under 18 years that is not directly supervised, the application is made as the Applicant is employed by a union. As part of his work he may be called on to interview members who are under 18 years or to visit community facilities such as libraries, swimming pools and other places that young people are likely to attend. He also undertakes community activities on a voluntary basis that may include unsupervised direct contact with children.

4 The Respondent does not oppose the application.

5 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 or anyone referred to in the proceedings (other than the experts). The Applicant is referred to in these reasons by the pseudonym, “WD”.

Issue

6 The Tribunal must determine whether WD is a likely to be a risk to the safety of children and young persons if he is allowed to work with them without direct supervision.

Relevant legislation

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 him or her in respect of a specified offence.

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:

(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.

9 Section 9(7) states that the Respondent is to be a party to any proceedings for an order under s 9 and the Respondent may make submissions in opposition to, or support of, the making of the order.

Standard of Proof and meaning of “risk”:

10 The onus of proof is on the Applicant, on the Briginshaw standard, that he is not a risk to children. The meaning of the word “risk” in s 9(4) of the Child Protection Act has been considered in a number of decisions. It was considered in Commission for Children and Young People v V [2002] NSWSC 949 and in that decision his Honour Justice Young 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:

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.
11 Young J held that risk meant "…. 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". That test is now binding on this Tribunal.

12 Orders made under s 9 may be made subject to conditions: s 9(9) and the ability to impose conditions should not be disregarded when considering risk.

13 Section 9(4) says the Tribunal is not to make an order under this section unless it considers the person, the subject of the proposed order, does not pose a risk to the safety of children.

14 Section 9(5) sets out a non exhaustive list of factors to be taken into account. These include the seriousness of the offence with respect to which the person is a prohibited person, the period of time since that offence was committed, the age of the person at the time the offence was committed, the age of the victim of the offence, the difference in age between the prohibited person and each victim, the prohibited person’s present age, the seriousness of the prohibited person's total criminal record and such other matters as the Tribunal considers relevant. Under s9(7) the respondent is a party to the proceedings for an order and can make submissions.

Index Offence (s 9(5)(a))

15 On 27 May 1975 the Applicant appeared before the Children’s Court charged with committing an act of indecency with a girl under the age of 16, under the then s76(a) of the Crimes Act 1900. The offence occurred in December 1974. The Court released him on probation on condition that he attend school regularly and be of good behaviour.

16 The police report, tendered in evidence indicated that the girl was 12 years old; the Applicant knew the girl socially and was visiting in the school holidays. He and the girl went into her bedroom and attempted to have intercourse. His police record of interview, dated 9 May 1975 and tendered in evidence, stated, “I tried to have intercourse with her but couldn’t because she was still a virgin”. He got dressed and went home. The Children’s Court stated that the girl was a willing and joint enterprise. The Applicant stated that he believed the girl was 14 years old.

The age of the Applicant and victim and period since the offence s9(5)(a1)(b)(c)(d)(d1)

17 At the time of the offence the Applicant was 15 years old, three years older than the victim who was 12 years old.

18 The Applicant is now 47 years old and the offence occurred in 1974, over 31 years ago.

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

19 The Applicant has a number of other convictions. None of these include offences against children or young people under the age of 18. He has two convictions for stealing offences in 1975 and 1977. He has convictions in 1978 and 1982 regarding Indian hemp. He was convicted of prescribed concentration of alcohol in 1981, 1984 and 1987. He was convicted for cultivating a prohibited plant in 1995. In 1979 he was convicted of assault. That conviction arose out of an incident concerning his motor cycle that was parked outside his work. An argument occurred regarding people pulling parts off motor cycles, punches were thrown and the Applicant hit someone with a helmet.

Other relevant matters s9(5)(f)

20 The Tribunal has had the benefit of an expert report dated the 19 June 2006 prepared by Ms Seidler, a clinical and forensic psychologist. Ms Seidler interviewed and assessed the Applicant at the Respondent’s request and took a detailed history from the Applicant. She assessed the Applicant using the Static 99 and an assessment of dynamic risk factors. She concluded he posed a low risk of recidivism of either a sexual or violent nature.

21 Ms Seidler noted that the Applicant had been in the community for over thirty years without a known subsequent sexual re-offence and had not been charged with a violent offence since 1979. She referred to a number of issues that are protective against his risk of further re-offending.

22 Ms Seidler specifically referred to the fact that the Applicant did not have a history of entrenched sexual deviancy, including paedophilic interests. She stated that there was no evidence of his pursuing inappropriate relationships with children and young people. He had not been charged with a subsequent sexual offence since the original charge in 1975. He is involved in a positive and stable relationship with his wife of twenty years. He had successfully addressed his history of problematic drug and alcohol use. He had successfully distanced himself from his anti-social peers and lifestyle and achieved relative stability in the community. He has not been charged with a criminal offence in over ten years. He has a history of positive involvement with community based activities and charities, including those in which he has interactions with children and young people and there are no indications of him engaging in inappropriate conduct through these activities. He also has a stable employment and personal history.

23 Ms Seidler referred to his history and stated that his offending behaviour is best understood as the irresponsible and poorly reasoned behaviour of an adolescent child who grew up in an abusive and dysfunctional home deprived of appropriate affection and attachment bonds. Ms Seidler concluded that the Applicant has resolved many of the pre-existing criminogenic needs present in his life.

Other relevant factors

24 The Applicant has had an admirable work history of stability and achievement and has distanced himself from an anti-social lifestyle. The Applicant tendered a number of references. All of these were positive including those from people in community organisations and those he had worked for. It is apparent that he also told people early on about his past history including the sexual offence. The Respondent made inquiries of a number of organisations that the Applicant had worked for or participated in. No information adverse to the Applicant was revealed, indeed, some include positive statement about him.

Findings and Conclusion

25 The key issue for this Tribunal is does the Applicant pose a real and appreciable risk to the safety of children? The Applicant seeks an unconditional declaration and Respondent does not oppose his application.

26 The index offence occurred when the Applicant was 15 years old. Although the victim was 12 and there was a three year age gap, I accept the Applicant’s evidence that he believed that she was 14 years old. There is no evidence to indicate any force was used or that the girl did not wish to participate. The comments of the Children’s Court support this position.

27 The Applicant’s assault conviction was many years ago and did not involve a child. On the evidence before the Tribunal it was not premeditated or serious. The Applicant’s other offences are relatively minor and do not involve serious or violent conduct. Aside from the index offence none of the offences are against children or young people.

28 I accept the expert evidence of Ms Seidler that the Applicant poses a low risk. Ms Seidler’s report lists many factors that are protective that have been referred to earlier in this decision. He has not been charged with a criminal offence for more than ten years. He has been in a stable relationship for over twenty years and has overcome a difficult childhood and his problems with substance abuse. He has a stable employment history. His references indicate a history of positive employment and community involvement, including his involvement with children and young people, with no complaints about him.

29 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 WD in respect of the offence of indecent assault on a female under the age of 16 years (the then s 76A of the Crimes Act 1900) for which he was convicted on 27 May 1975.