WN v Commission for Children and Young People [2007] NSWADT 26

CITATION: WN v Commission for Children and Young People [2007] NSWADT 26

DIVISION: Community Services Division

APPLICANT PARTIES: WN RESPONDENT Commission for Children and Young People

FILE NUMBER: 064005

HEARING DATES: 15/09/2006 & 28/09/2006

SUBMISSIONS CLOSED: 20 November 2006

DATE OF DECISION: 1 February 2007

BEFORE: Britton A - Deputy President

CATCHWORDS: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED : Crimes Act 1900 Nurses and Midwives Act 1991

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

APPLICANT In person REPRESENTATION: RESPONDENT L Dive, 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 The applicant has applied to the Administrative Decisions Tribunal for an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 (Child Protection Act). By the operation of s 5 of the Act, the applicant is a 'prohibited person' having committed a 'serious sex offence' and therefore, unless the order he seeks is granted, it is an offence for him to apply for, undertake or remain in 'child-related employment'. 2 The applicant advised the Tribunal that he wishes to return to nursing. He advised that he would be prepared to submit to whatever conditions the Tribunal considers appropriate and has proposed a number of conditions for consideration. 3 The respondent opposes the application. 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. Where necessary, the applicant is referred to in these reasons by the pseudonym 'WN'. 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 the Tribunal is obliged to take 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, '[n]ot 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': para [46]. The index offence 10 The applicant is now 46 years of age. 11 In 1990 the applicant was convicted by the Newcastle District Court on two charges of 'Indecent Assault' (s 61E (1A) of the Crimes Act 1990) (the index offences) after entering a guilty plea. In respect of the first charge it was alleged that he had indecently assaulted his stepson, over a two-year period, from 1 January 1984 to December 1985. The boy was about eight years of age in January 1984. The victim of the second charge was the applicant's stepdaughter. It was alleged that the applicant had indecently assaulted the girl, who was then about 11 years of age, throughout the period, 1 July 1988 to 30 September 1988. 12 On the applicant's motion the matter was remitted to the Local Court where it was decided that he was suitable for admission to the Pre-Trial Diversion of Offenders (Sexual Assault) Programme. After attending 12 sessions of therapy conducted under the auspices of Cedar Cottage the applicant was expelled from the program primarily because he continued to have contact with his stepchildren despite having agreed that he would not so for the duration of the program. A copy of a report prepared by the Director of Cedar Cottage, Dale Tolliday, setting out the reason for that decision was tendered by the respondent. Mr Tolliday wrote that the applicant had been found present at the family home on a number of occasions despite verbal assurances that he would not be, and 'showed no recognition of the pressure on his stepdaughter to keep this [the contact] "secret" or, the effect of the breach and the subsequent "secret" on his stepson'. Mr Tolliday observed that the applicant 'offered no reason for the breach except to say that he maintains that he decides what rules and law are good for him' and 'demonstrated that he had not given consideration to the negative impact his exclusion from the program might have upon other family members'. 13 After being expelled from the program the matter came back before the District Court for sentence. In relation to the first count, his Honour, Freeman J, sentenced the applicant to imprisonment for three months to be served by way of periodic detention. In relation to the second count, sentence was deferred and the applicant placed on a recognisance for a period of five years and an amount of $5000. In addition he was placed under the supervision and guidance of the Probation and Parole Service and required to continue to 'undertake such counselling and therapy as the Service might consider necessary'. In addition he was required to live apart from his family until the Service gave written permission and not to contact the victims without the approval of the Service. 14 The respondent tendered a copy of the police record of interviews with the applicant and his stepchildren. The stepson stated to police that 'about three years ago' the applicant showed him a 'dirty magazine with photos of a man and a woman with no clothes on'. He said that the applicant then performed fellatio on him and asked him to do the same but he refused. He said the following day he confronted his stepfather and told him, 'You better promise not do it to [my younger brother or sister] because it's pretty bad'. The boy stated 'I never told anyone about it because I was really embarrassed'. 15 The applicant's then 11 year old stepdaughter told police that one evening she awoke to find herself being kissed 'on the chest' and 'inside my 'jamies... on the skin' and when she turned on the light discovered it was the applicant. She said she was very upset and went to sleep with her mother. 16 When interviewed by the police the applicant immediately admitted to the offences. After reading the statements prepared by the children he said 'Yes they are both basically right. But I don't think I asked [the stepson] to do anything to me and I think it might have been four years ago'. He went on to say, 'I know I have a problem. It's not just with any kid as I have worked closely with children and I have never had these feelings for them… I know I have hurt the children'. 17 The applicant was about 23 years old when he indecently assaulted his stepson making him about 15 years older that the boy. He was about 27 years of age when he indecently assaulted his stepdaughter, making him about 16 years her senior. 18 Other criminal offences In 1980 the applicant was convicted in Queensland of the offence of stealing, for which he was fined $20. In 1982 he was charged in NSW with causing serious alarm or affront and resisting arrest. On appeal the convictions were set aside by the District Court but the applicant was placed on good behaviour bonds for three years. In 1986 he was convicted of three charges, again in Queensland: 'unlawful use of a motor vehicle', 'possession of a prohibited plant' and 'drive motor vehicle while blood alcohol content was 0.11%'. 19 Reasons for Application The applicant stated that the reason he had made the application to the Tribunal was so he could return to work as a registered nurse. He claimed that he did not intend to work with children. Rather his interest was in the areas of mental health, alcohol and substance abuse. He explained that it was his understanding that most of the patients would be over 18 years of age but a number might be 16 and 17 years of age and therefore he would not be considered for work in that area unless he obtained an exemption under the Act. [The Child Protection Act defines a child to be a person under 18 years of age.] Expert Evidence 20 The applicant was seen by psychiatrist, Dr Stephen Allnutt, at the request of the respondent. A report prepared by Dr Allnutt dated 24 August 2006 was tendered in these proceedings. Also before the Tribunal was a supplementary report prepared by Dr Allnutt following a request from the respondent's legal representative for clarification about a number of matters arising out of the first report. In addition Dr Allnut gave oral evidence. 21 Dr Allnutt recorded that the applicant had told him that he first became aware of being attracted to his stepson when the boy was about eight or nine years of age. He said that it was about this time he began to fantasise about being sexually involved with both children when they were adults. The applicant disclosed to Dr Allnutt that he then started 'covert sexual touching' such as showering with the children and 'accidentally' touching his penis and that this touching and fantasising persisted for somewhere between six to twelve months. 22 Dr Allnutt recorded that the 'offending gradually escalated … beginning with fantasies, progressing to frotteristic touching and then oral sex with the male victim. He kissed the female victim on her breast.' According to Dr Allnutt the sexual offending appeared to have escalated over a relatively short period of time. He thought that while the applicant had not engaged in any overt physical coercion or force, given his position in the family it was reasonable to assume that he had engaged in 'psychological coercion' and had abused his position of trust and authority. 23 Dr Allnutt stated that while the documentation indicated that after being charged the applicant tended to justify his offending behaviour, in interview with him he did not manifest any 'overt attitudes that supported or condoned sexual offending'. 24 When he wrote his first report Dr Allnutt felt unable to 'definitely conclude' a diagnosis of paedophilia 'based on the DSM-IV criteria'. He noted however that the applicant did 'experience recurrent sexually arousing fantasies and manifested behaviours involving a pre pubescent male and female child, to the extent that his behaviour could be described as paedophilic and arousal of a paedophiliac nature'. [The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994) ("DSM-IV"), is a manual accepted in Australia as an authoritative psychiatric text. It gives the following diagnostic criteria for paedophilia: recurrent, intense sexually arousing fantasises, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally 13 years or younger) over a period of at least six months.] 25 In a supplementary report prepared after receiving information from the respondent's legal representative, which indicated that the applicant's sexual interest in the children had extended beyond six months, Dr Allnutt revised his tentative diagnosis and reached a concluded diagnosis of paedophilia. 26 Dr Allnutt described paedophilia as an aberrant sexual arousal response to an immature body type. People with a paedophilic tendency, according to Dr Allnutt have recurrent sexually arousing fantasises of sexual interaction and contact with pre pubescent children. According to Dr Allnutt the condition generally persists throughout a lifetime but can fluctuate in intensity. In some people however the tendency disappears altogether and in others it might not re emerge for many years. 27 While Dr Allnutt believed it was not possible to state with any degree of accuracy the number of adults within the community who suffered from the condition of paedophilia, he believed it to be much larger than the number charged or convicted for child-related sexual offences. He thought that this apparent discrepancy was explainable on the basis that some people were able to successfully control their paedophilic arousals. While not possible to prevent arousal according to Dr Allnutt some people were able to control the urge to act on it. 28 Dr Allnutt used, among other things, STATIC-99 to assess the applicant's risk of re offending. An actuarial test, STATIC-99, is based on information derived from a sample of 1300 known sexual offenders in the UK and Canada. In Dr Allnutt's opinion STATIC-99 is probably the 'most reliable predictor of risk' in Canada and the UK and is therefore useful in the Australian environment. 29 Tested under STATIC-99, the applicant scored one out of a possible ten, placing him in the lowest risk group. Of those in the sample surveyed who also scored one, 1.4% were sexually recidivist in five years, seven per cent in ten years and seven per cent in 13 years. 30 Dr Allnutt went on to conclude that the risk of the applicant re-offending was low based of both actuarial and clinical assessment. He stood by that assessment even after having made a concluded diagnosis of paedophilia. It was relevant in his view that the offending was of an incestuous nature and that there was no evidence of any further offending since 1989. He pointed out that incest offenders have the lowest recidivism rate of any group of sex offender. Dr Allnutt was concerned however with he what he identified as possible 'risk factors' namely the applicant's alleged poor history of adherence to conditions, his continued use of drugs and alcohol and history of depressive illness. 31 In his second report Dr Allnutt wrote that given that the offending conduct had occurred in a 'non-employment context' whatever risk the applicant posed would be attributable to that context. He also thought that as the applicant's victims were pre pubescent, it was likely that the age group at greatest risk from him were children under 13 years. However he believed that the applicant also posed a risk, albeit a lesser one, to older children, given that he could not exclude the possibility that the applicant's stepdaughter might have had some secondary sexual characteristics at the time of the offending. 32 While Dr Allnutt thought the risk that the applicant might re-offend was low, he nevertheless recommended that he not work as a nurse with people under the age of 18. In oral evidence he stated that he believed it relevant that nursing could involve close physical contact with patients. 33 According to Dr Allnutt only a minority of incest offenders go on to offend against non-family members and that the research put the number at around 20 per cent. He said it was not clear why this was that the case but thought a possible explanation might be that with incest offenders, sexual interest in children might only be aroused in circumstances where an intimate relationship exists, such as that which commonly exists between a parent and child. He thought another explanation might simply be lack of opportunity: as the offender's children grow up, their contact with children outside the family decreases. History of alcohol and substance abuse 34 The applicant admitted to heavy drug and alcohol use prior to and throughout the period of the offending. On his account he stopped binge drinking in the late nineties and about that time also cut back on drug consumption. He admits to the now occasional glass of wine and infrequent use of cannabis. 35 Dr Allnutt believes alcohol and cannabis can impede impulse control in some people. For that reason he recommended that the applicant discontinue all alcohol and drug use. 36 The applicant gave evidence that after reading Dr Allnutt's report he decided to follow his recommendation to cease cannabis use. He claimed that to date this had not proved difficult. He stated that he intended to continue to have the occasional glass of wine and did not see that this presented a problem but if it did, that he would seek out professional help. Further counselling 37 The applicant had received some sex offender specific counselling but as noted above the Cedar House program had been prematurely terminated. Dr Allnutt thought it advisable that the applicant complete a sex offender program notwithstanding that he had received counselling from a range of professionals, since his conviction. Dr Allnutt also recommended that the applicant consult a psychiatrist whom he could call upon at short notice in the event any stressors re-emerged in his life. 38 In written submissions dated 7 November 2006 the applicant advised that he had acted on Dr Allnutt's recommendation and was now seeing a counsellor who was accredited to treat sex offenders. Nurses and Midwives Board 39 Nurses in NSW are regulated by the Nurses and Midwives Act 1991. The Act provides that it is unlawful for a person to work as a nurse in NSW unless they are registered with the New South Wales Nurses and Midwives Board ('the Board'). Nurses must renew their registration with the Board on an annual basis. 40 At the request of the applicant, the Registrar of the Board, Mr Ronald Dwyer, gave evidence in these proceedings about the role of the Board and its practices. 41 Mr Dwyer explained that the Board required all persons seeking to renew their registration to complete a pro form application which, among other things, required them to disclose whether they had been convicted of any offence or if there were any criminal proceedings pending for an alleged sex/violence offence or an offence relating to child pornography. 42 A nurse who for whatever reason has allowed their registration to lapse is required to apply to the Board to have their registration restored. This class of applicants is required to disclose all the information required of renewal applicants (criminal history etc) and, in addition, information about their former employment. That application is then referred to the Board to determine whether the applicant's name should be restored and, if so, whether any conditions ought be imposed. Mr Dwyer cited as examples of common conditions that the person: (i) advise the Board of the name of their employer, and (ii) provide the Board with regular reports, prepared by their employer, attesting that their work is satisfactory. 43 According to Mr Dwyer, on occasion the Board will make its own independent enquiries about restoration or renewal applicants. 44 The Board operates an 'Impaired Nurses Programme' which Mr Dwyer explained, is designed to assist nurses with drug, alcohol or mental health problems. Where a nurse is suffering from such a problem the Board can refer the matter to its Conduct Committee. The Committee can institute disciplinary proceedings or, as an alternative, the nurse can enter into an agreement on a voluntary basis designed to address the problem: the subject of the referral. Examples of conditions that might be agreed to by an impaired nurse include that they submit to regular urine analysis to detect drug use and provide the results of those tests to the Board. Another example cited by Mr Dwyer was that the nurse provide evidence to the Board that they were undertaking regular counselling. According to Mr Dwyer the Board can and does monitor compliance with these agreements. Proposed conditions 45 Dr Allnutt recommended that the applicant: (i) Discontinue the use of substances absolutely (ii) Pursue a drug and alcohol rehabilitation programme, and (iii) Consult with a psychiatrist during periods of time when he becomes depressed. 46 He went on to recommend that if the applicant were to return to nursing that he: (i) Not work with male or female children under the age of 18, (ii) Inform his supervisor of his offending history to ensure that he is not placed in a position where he has contact with children under the age of 18, (iii) Be monitored by the Nursing Board, (iv) Meet regularly with a supervisor who has been informed of his prior history. 47 The applicant told the Tribunal that he would be prepared to submit to all of the above recommendations except that he not work with children under the age of 18 years and undertake a drug and alcohol rehabilitation programme. He made clear that it was his intention to work with adults not children and that the reason he was seeking a clearance to work with children over 15 was because some adult wards might include a small number of people who were just under 18 years of age. Findings and Conclusions 48 While the applicant contends that he now poses no risk to the safety of children, he has, nevertheless, elected to have his application determined on the basis that any order made will be made subject to s 9(9) conditions. Accordingly, the key issue to be determined is whether he poses a risk to the safety of children in child-related employment where the conditions he has indicated he is prepared to submit to are imposed. The applicant bears the onus of demonstrating that he does not pose a real and material risk to children in that environment. 49 The respondent opposes any order being made. It argues that, on the evidence, the Tribunal could not be satisfied to the requisite standard that the applicant would not pose a risk to children even if the conditions proposed by Dr Allnutt were incorporated in the orders made. It argued, first, that there was no evidence to contradict Dr Allnutt's diagnosis of paedophilia; second, that the applicant had a poor history of compliance with conditions and an apparent lack of respect for authority; third, that despite having the benefit of Dr Allnutt's advice, the applicant nevertheless refused to countenance total abstinence from alcohol, arrogantly believing he knew best; fourth, that the area he had elected to work in would bring him into contact with especially vulnerable children. 50 I deal first with the issue of conditions. As the respondent points out, sometimes there can be practical difficulties with monitoring s 9(9) conditions. In this case, however, a third party exists, namely the Board, that is in a position to, and has experience in, monitoring the type of conditions recommended by Dr Allnutt. For the purpose of these reasons I proceed on the basis that enforceable conditions could be formulated along the lines of those to which the applicant has indicated he is willing to submit. 51 There are a number of factors in the applicant's favour: First, in these proceedings he has not attempted to minimise the gravity of his conduct. It is notable that when confronted by police he immediately confessed the offence and entered a guilty plea at trial. Second, he has demonstrated a capacity to form age-appropriate relationships as evidenced by the long-term, loving relationship he enjoys with his wife. Third, there is no evidence that the offending conduct continued after he was charged. Fourth there is no evidence of any offending outside the family. Fifth, the applicant has demonstrated a willingness to undertake steps to further reduce any risk he might present including engaging in counselling and abstaining from further drug use. Sixth, his chosen area of employment would bring him into only limited conduct with children and then only with those in the age group to whom, in Dr Allnutt's opinion, he poses the lowest level of risk — children over 15 years of age. Seventh, his firm belief that he does not pose a risk to children and has not done so for over a decade is shared by his wife who has had the benefit of observing him with children, including her own, throughout this period. 52 Despite these compelling factors it is disturbing that the applicant was sexually interested in children for a period of more than six months. While the six-month criterion is arbitrary, it is currently used in psychiatry as a critical measure to determine whether a person is likely have a life-long, rather than temporary, pre-disposition to be sexually aroused by children. It goes without saying that psychiatry is an inexact science and that the body of knowledge about the condition of paedophilia is very much in its infancy. Nevertheless, from what is known today, evidence of sexual interest over an extended period cannot be ignored and must be taken into account in any assessment of risk. 53 Dr Allnutt was careful to point out that a diagnosis of paedophilia is not determinate. He believes that there is an unknown number of people within the community who might be sexually aroused by children but do not act on that predilection. He also pointed to research that indicates that incest offenders have the lowest recidivism rates of any sex offenders, who themselves have a low recidivism rate compared to other offenders. He also highlighted that only a small number of incest offenders will 'progress' to extra-familial offending. 54 Nevertheless, he concluded that while the risk of the applicant re-offending was low, it was inadvisable that the applicant work with children even with the safeguards he recommended. One of the reasons he gave for this recommendation was that that nursing will sometimes involve a degree of physical intimacy between patients and nurses. 55 The applicant has strenuously denied ever being sexually interested in children outside his family and, as the record of interview with police reveals, he has asserted this since the day he was arrested for the index offences. He cannot, however, corroborate that self-report. At best, he can point to the absence of any evidence of any further offending or any adverse report or complaint. 56 The evidence in this matter is finely balanced. On the one hand, the applicant falls within a group which has the lowest recidivism rate of all sex offenders and whose members are unlikely to move on to extra-familial offending. Added to this, the evidence is at best inconclusive as to whether his aberrant interest extended to children with secondary sexual characteristics, the group against which the assessment of risk must be judged. 57 From the evidence before me it would seem that it is simply not possible to determine with any certainty whether the applicant falls into that small group of incest offenders who may go on to re-offend outside the family. Even if his uncorroborated self-report is accepted — that he has never had any sexual interest in children outside the family and, since his conviction, no sexual interest in his own children —Dr Allnutt's opinion suggests that it is possible that such interest might re-emerge in the future. 58 I accept the applicant's contention that, having regard to all the evidence, he poses a low risk of re-offending. No doubt there is a fine line to be drawn between a risk that is low and one that is not, 'real and appreciable'. While the applicant has demonstrated a willingness to address the factors that caused him to offend in the first place, and falls within a group of offenders that statistically are unlikely to re-offend or offend against non-family members, I nevertheless cannot be comfortably satisfied that he will not fall within that small group who could pose a risk to children in an employment environment. In reaching that decision, I have given careful consideration to the fact that the assessment of risk is not to be undertaken against children 'at large' but rather in the context of a restricted employment environment. 59 Section 9(4) of the Child Protection Act requires the applicant to discharge a heavy evidentiary burden. Having regard to all the evidence, I cannot be satisfied that the applicant does not pose a 'real and appreciable' risk to the safety of children. 60 For these reasons the application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.