XG v Commission for Children and Young People [2006] NSWADT 289

CITATION: XG v Commission for Children and Young People [2006] NSWADT 289

DIVISION: Community Services Division

APPLICANT PARTIES: XG RESPONDENT Commission for Children and Young People

FILE NUMBER: 064010

HEARING DATES: 15/08/2006

SUBMISSIONS CLOSED: 08/15/2006

DATE OF DECISION: 10/04/2006

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

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 S Free, solicitor

ORDERS: The Child Protection (Prohibited Employment) Act 1998 is not to apply to XG in respect of the offence of indecent assault on a female under the age of 16 years for which he was convicted on 11 July 1972

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 The order would apply to all work with those under 18 years that is not directly supervised. However, the application is made as the Applicant wishes to continue with his work as a bus driver. In addition to driving buses for the general public the Applicant may also drive school buses from time to time. 3 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, I have decided not to publish any details that could identify the Applicant. The Applicant is referred to in these reasons by the pseudonym, "XG". 4 The Tribunal must determine whether XG (the Applicant) is a likely to be a risk to the safety of children and young persons if he applies for, undertakes or remains in child-related employment. 5 The Applicant was convicted in the Sydney Quarter Sessions Court on one count of indecent assault on a female under the age of 16 years on 11 July 1972. 6 The offence occurred on 4 July 1971. The victim of the offence was a fourteen year old girl. She visited a house that the Applicant was present in. The girl and another man entered a bedroom. The other man called in the Applicant and the Applicant put his hand over the girl's mouth to prevent her screaming. The men undressed her and touched her breasts and genitals. The girl was screaming and kicking. According to the girl both men attempted intercourse with her. 7 The offence was a serious one and the Applicant was given a custodial sentence. His original sentence was reduced on appeal to 18 months with a six month non parole period. Relevant legislation 8 Section 3 of the Child Protection Act defines child-related employment as any employment of the kind set out in that section that primarily involves direct contact with children where that contact is not directly supervised. 9 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). 10 Section 9(4) of the Child Protection Act 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. 11 Section 9(7) of the Child Protection Act states that the Respondent is to be a party to any proceedings for an order under s 9 and that the Respondent may make submissions in opposition to, or in support of, the making of the order. 12 The Respondent does not oppose the application. Standard of proof and meaning of "risk" 13 The Applicant carries the onus of proof, on the Briginshaw standard, to show that he is not a risk to the safety of children. The meaning of the word "risk", for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on: 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. 14 Young J, went on to say: One does not define risk as meaning minimal risk. One could exclude fanciful or theoretical risk. What one is looking for is whether in all the circumstances there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on the child. 15 His Honour continued: A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. 16 His Honour also made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. 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 [at 46]. By implication it would be wrong to impose a condition on an applicant who, without such condition, does not pose a real or appreciable risk. The index offence (s 9(5)(a)) 17 As set out above the index offence was the Applicant's conviction on one count of indecent assault on a female under the age of 16 years on 11 July 1972. I accept the Respondent's submission that this offence constitutes a serious sex offence under section 5(3) of the Child Protection Act. The age of the Applicant and victim (s9(5)(a1)(b)(c)(d) 18 The offence occurred over 35 years ago when the Applicant was 20 years old. The victim was fourteen, six years younger than the Applicant at the time. The Applicant is now aged 55 years. Seriousness of Applicant's total criminal record (s 9(5)(e)) 19 The Applicant's criminal record includes two other offences. He committed an assault occasioning actual bodily harm when he was fifteen years old and was placed on probation for nine months. He also has a conviction for driving unlicensed when aged 24 years. He has not been convicted of an offence for almost thirty years. Other relevant matters s9(5)(f) 20 The Applicant's evidence and submissions. The Applicant gave oral evidence. He told the Tribunal that he had worked as a bus driver for the past nine years. When driving he is a sole operator of the bus so no-one else is present other than any passengers. The buses are fitted with video surveillance. Since finding out that he is a "prohibited person" he has not driven school buses. He previously worked as a care taker manager of a tennis centre where there were many young people. He is the deputy captain of a volunteer fire fighting unit and as part of that role does fire fighting, hazard reduction and training. On occasion he has trained young people in that role. He told the Tribunal that there have never been any complaints about his conduct with children. 21 He has been married since 1978 and has two children. In regard to the index offence he submitted that this occurred a long time ago and in his application filed on 30 May 2006 he stated that it was "an act I have always regretted". In oral evidence he stated that he was "young and stupid" at the time. 22 He submitted that he did not pose a risk to anyone. 23 Expert Evidence. The Applicant was interviewed and assessed by Dr Lennings, a clinical psychologist, at the request of the Respondent in these proceedings. A report prepared by Dr Lennings, dated 1 August 2006 was tendered in these proceedings. 24 Dr Lennings stated that he undertook three separate risk assessment analyses. The first used the Static 99, an actuarial tool. Dr Lennings concluded that the Applicant's score on the Static 99 corresponded to a low risk group. 25 Dr Lennings then used a dynamic risk assessment, sampling variables from both static and dynamic risk factors. Dynamic risk factors are variables that can be moderated by treatment or supervision and include observations and conclusions reached during a clinical assessment. He considered the categories developed by the British Columbia Institute Against Family Violence. He concluded that "Overall the assessment on dynamic risk factors does not indicate any significant risk of sexual deviation or likely recidivism" [para 28 of his report]. 26 Dr Lennings assessed personality risk factors by using a Personality Assessment Inventory (PAI). Dr Lennings described the PAI as a "self administered objective inventory of adult personality". While Dr Lennings stated that the Applicant's performance on this assessment revealed a measure of idiosyncratic as well as defensive responding, he stated that the PAI did not reveal any significant psychopathology. Dr Lennings noted the major personality determinants of sexual recidivism and concluded that the Applicant did not appear to have any significant loading on any of them. 27 Dr Lennings concluded that there was little risk of any sexual or violence recidivism, the risk was low and he saw no requirement for treatment. He stated that the Applicant presents as a man with no obvious risk factors more than what might be expected from someone of his age and position within the general society. His adjustment in his adult years appears to have been effective and pro-social and despite some potentially lingering minimisation of his role in the sexual offence he does not seem to represent any recurrent risk of recidivism. [At paragraph 39 of his report] Submissions of the Respondent 28 The Respondent provided helpful written and oral submissions. The Respondent submitted that the Applicant was a prohibited person as he has been convicted of a serious sex offence and that the index offence was a serious one. The Respondent also referred to Dr Lennings report and his conclusion that the Applicant "does not seem to represent any current risk of recidivism". As stated earlier the Respondent did not oppose the application. 29 In response to the Applicant's evidence that there had been no complaints about his conduct with children the Respondent stated that they had made enquiries of the Applicant's former employers and no documents were produced. Findings and Conclusion 30 On 11 July 1972 the Applicant was convicted of indecent assault on a female under the age of 16 years. I accept the Respondent's submission that this offence constitutes a serious sex offence under section 5(3) of the Child Protection Act. That conviction makes him a prohibited person. 31 The onus is on the Applicant, on the Briginshaw standard, to prove that he does not pose a real and appreciable risk to the safety of children. 32 The index offences occurred in 1971, over thirty-five years ago when the Applicant was 20 years old. The offence was a serious one committed against a fourteen year old girl. He had a previous conviction for assault from several years earlier. 33 His only other conviction was for driving unlicensed in 1974. That offence that has little relevance for determining whether the Applicant poses a risk to children. 34 The Applicant is now 55 years old. He has had nothing on his criminal record for over thirty years. The Applicant has acknowledged his regret and stated that he was young and stupid at the time. 35 The Respondent made enquiries of his previous employers and nothing adverse was produced. I accept the Applicant's evidence that there have been no complaints regarding his conduct with children. 36 The Tribunal has had the benefit of the report of Dr Lennings, an experienced clinical psychologist. His report is summarised above. Dr Lennings concluded that there were no obvious risk factors than might be expected from someone of the Applicant's age and position in the general population. He stated that the Applicant did not seem to represent any recurrent risk of recidivism. I accept that evidence. 37 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 XG in respect of the offence of indecent assault on a female under the age of 16 years for which he was convicted on 11 July 1972.

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.