CU v New South Wales Commission for Children and Young People [2003] NSWADT 27 (7 February 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: CU v New South Wales Commission for Children and Young People [2003] NSWADT 27

PARTIES: APPLICANT

CU

RESPONDENT

New South Wales Commission for Children and Young People

FILE NUMBERS: 024042

HEARING DATES: 05/09/2002

SUBMISSIONS CLOSED: 05/09/2002

DECISION DATE: 07/02/2003

BEFORE: Kelly T (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Child Protection (Prohibited Employment) Act 1998

CASES CITED: L v the Commission for Children and Young People 2001 NSW IRComm 134

Commission for Children and Young People v V 2002 NSWSC 949

G v J&H 2001 NSWIRComm 69.

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal

APPLICANT REPRESENTATIVE: APPLICANT

CU, in person

RESPONDENT REPRESENTATIVE: RESPONDENT

I Burke, solicitor

ORDERS: 1. The application is dismissed.

2. The applicant is not entitled to make a further application for an order under the Child Protection (Prohibited Persons) Act 1998 until 5 September 2003 in respect of the offence of sexual assault for which he was found guilty on 9 February 1984 at Hornsby Children's Court.

3. The Tribunal shall notify the Commissioner of Police of the terms of this order.

Reasons for Decision:

Introduction

1 In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of (Administrative Decisions Tribunal Act 1997 s 126(1)).

2 Although s 126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, we have decided, because of the sensitivity of the information in this case, not to publish the applicant's name and to delete any other information which could lead to his identification. In these reasons we refer to the applicant as "CU." The official copy of the orders provided to the parties includes the name of the applicant.

3 The applicant who is now 33 years of age has a conviction for a sexual offence within the meaning of the Child Protection (Prohibited Employment) Act 1998 ("the Act") which occurred in 1984 when he was aged 14 years of age. As a consequence he is prevented from engaging in child-related employment unless the Tribunal declares otherwise. The applicant now seeks a declaration in respect of work as a school cleaner and children's soccer coach. The applicant does not dispute that he is a prohibited person as defined by the Act.

Issues

4 There are two questions that must be answered in order for the Tribunal to determine whether a declaration should be granted.

These are:

Does CU pose a risk to the safety of children taking into account the provisions of s.9(5) of the Act?

Should any conditions attach to any declaration the Tribunal makes in favour of the applicant?

The offence

5 On 9 February 1984, at Hornsby Local Court, the applicant was convicted of sexual assault. The offence having been found proven, no conviction was recorded and he was discharged on a recognisance to be of good behaviour for twelve months. He was also convicted of assault female in respect of the same occurrence and he was admonished and discharged. Both these offences occurred on 7 September 1983.

6 The woman victim of these offences when giving evidence stated that she noticed a young boy who was directly behind her when she was walking along the highway who said to her "give me head" and came behind her and put his hand up and touched her "on the crutch". She remonstrated with him, kept walking and further along the street the same boy grabbed both her arms and swung her around and said the her, "You're beautiful. Come to bed with me". She again remonstrated with him. The applicant stated that he did this as a dare.

Legislative provisions

7 In summary, the Act makes it an offence for people convicted of "serious sex offences" to apply for or undertake "child-related employment." The Act also makes it an offence for employers to do certain things in relation to a person convicted of such an offence. However, the Tribunal can make a declaration that the Act is not to apply to a person in relation to a specified offence. Further details are set out below.

8 Subject to certain defences and transitional provisions, the Act makes it an offence for a person convicted of a " serious sex offence" (as defined in s 5(3)) from applying for, undertaking or remaining in child-related employment.

Section 6(1) states that:

A prohibited person must not:

(a) apply for child-related employment, or

(b) undertake child-related employment, or

(c) remain in child-related employment.

Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.

(2) Defence

It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.

9 A "prohibited person" is defined in s 5 of the Act. That section states that:

For the purposes of this Act, a prohibited person means a person convicted of a serious offence, whether before or after the commencement of this subsection.

For the purposes of this Act a person is not a prohibited person in respect of an offence if an order in force under section 9 declares that this Act is not to apply to the person in respect of the offence.

10 "Serious sex offence" is defined in s 5(3), s 5(4) and s 5(5) of the Act. There is no dispute in this case that the offence of sexual assault for which CU has been convicted on 9 February 1984 is a "serious sex offence" or that CU is "a prohibited person".

11 "Child" and "child-related employment" are defined in s 3:

12 Subject to certain transitional provisions, the Act also makes it an offence for an employer to do certain things including knowingly employing a prohibited person in child-related employment.

13 Section 9 of the Act allows the Tribunal to make declarations concerning prohibited persons. So far as is relevant to these proceedings, that section states that:

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence.

(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

(4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

(5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:

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.

(6) On an application under this section, the relevant tribunal may stay the operation of a prohibition under this Act pending the determination of the matter.

(7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.

(8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.

(9) Orders under this section may be made subject to conditions.

(10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

(11) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(a) the Tribunal may not award costs.

(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.

The applicant's employment

14 The applicant is a 33 year old man with a good, varied and long employment history. He currently works casually as a butcher and has cleaned schools in the past and stated that he wished to do school cleaning work again in the future because the hours are more advantageous, there being no Saturday work. He also assists in coaching his daughter's soccer team. Both these employment activities are prohibited to the applicant under the Act because of his conviction.

The applicant's police history

15 The following is a summary of the criminal history and apprehended domestic violence reports obtained by the respondent from the NSW Police Service in respect of the applicant:

9 September 1984, at Hornsby Court, convicted, of sexual assault and assault female, details of which appear in paragraphs 5 & 6 hereof.

22 January 1988, at Castlereagh Street Local Court, convicted of driving with middle range prescribed concentration of alcohol. Fined $200 and disqualified from driving for 12 months.

Unlicensed driver. Fined $100.

3 July 1996, at Hornsby Local Court, convicted of offensive conduct. Fined $250. Court costs $50.Details in the report state:

"The applicant approached a 54 year old female who was sitting on a seat on the platform at a railway station near the applicant's home waiting for a train at 6.30 am on Saturday 8 June 1996. He stood very close to her and she asked him to go away. When he did not move she walked away. The applicant followed her saying "keep me warm". This woman again tried to move away and the applicant followed her. She became distressed and the train arrived. She entered the train and the applicant attempted to follow her into the same carriage whereupon the woman called a railway guard who detained the applicant, and called the police. On the platform the applicant swore loudly in the presence of other members of the public."

He had earlier urinated on the platform. He was intoxicated at the time.

26 September 2001, at Hornsby Local Court, convicted of driving with middle range prescribed concentration of alcohol. Fined $500. Disqualified from driving for 6 months.

11 June 2002, at Hornsby Local Court, convicted of driving with middle range prescribed concentration of alcohol. Fined $900. Disqualified from driving for 12 months.

24 March 2001, apprehended domestic violence order report to Hornsby Police which stated: - "the victim and the POI (ie the applicant) have been in a domestic relationship for the past 3 years. The victim has a 12 year old daughter to a previous relationship. The relationship has recently began to deteriorate due to the POI's drinking. On the odd occasion after drinking he would become aggressive and abusive. These occasions would not result in violence. On the afternoon of 24 March 2001, the POI and victim have attended a nearby BBQ where the POI has commenced to drink heavily. Upon returning home the POI has begun to become abusive for no apparent reason and has grabbed the victim on the chin with his hand and pushed her away as she was standing in front of him in the hallway. Nil injuries visible. He has then commenced to throw numerous items around the house before leaving the house driving a motor vehicle while intoxicated".

8 September 2001, apprehended domestic violence report to Hornsby Police which stated: - "the PINOP (the applicant's partner) and the POI (the applicant) have been involved in a defacto relationship for the last 4 years. On Saturday 8 September 2001, the POI has returned home in an intoxicated state and an argument has ensued at the front door where it is alleged that the POI grabbed the PINOP and she has fallen onto some rocks out the front injuring her left hand. The POI (sic) called out to her daughter and both have left the house where the PINOP's father was contacted. The POI could be heard inside the house grabbing things and yelling out. The PINOP's father has gone into the house where he spoke to the POI. The PINOP has gone back into the house and was sitting in the lounge room where she was again confronted by the POI who has yelled at her and turned over a table. The PINOP's father has stepped in and separated both parties. At no time did the PINOP's father hold any fears or concerns for his safety from the POI".

The above narrative related to a police attendance at 7.40 pm. The applicant had left the premises by the time the police arrived. At 2.00 am next morning, a police patrol car which was driving past the applicant's premises observed the applicant driving past and apprehended him for driving with a blood alcohol level beyond the prescribed limit.

Applicant's evidence

16 The applicant gave evidence that the 1983 sexual assault was committed as the result of a dare from his friends. He stated that the 1988 driving offence occurred after he had drunk "loads of beer and scotch, probably 10 beers and 6 scotches which was usual for a Friday or Saturday night". He stated that this drinking session occurred between 7.00 pm and 2 or 3.00 am and that he had driven from a suburb on the edge of Sydney to Kings Cross. He further stated that in March 2000 he had had an argument with his wife while sober which caused him to go out and drink at 2 hotels 10 to 12 beers and a few scotches over a 5-6 hour period.

17 The applicant stated that the 1996 railway station offence occurred about 6.30 am and that he had "drunk loads" starting at a hotel that evening where he drank until 3 or 4.00 am but he did not return home and cannot remember where he was from the time the hotel closed at 3 or 4 am and the occurrence at the railway station at 6.30 am. He did not deny the facts as set out in the police statement quoted above. He stated that he behaved this way towards the woman victim as a joke.

18 The applicant stated that the most recent drink driving charge on 13 April 2002 occurred 3 months after his previous disqualification period had expired and was precipitated by traumatic events in the lives of his partner and brother.

19 The applicant did not deny the contents of the police facts sheets in relation to the two apprehended domestic violence order matters and volunteered that during one of those occurrences he threw an item that smashed some glass in the house which "freaked out" his step-daughter. In respect of the other apprehended domestic violence incident, the applicant stated that he and his partner had attended a BBQ and that he had drunk a 6 pack of beer and 2-3 pre-mixed vodka and orange drinks after which he had an argument with his partner and he drove off. He stated this alcohol consumption "is moderate drinking", which in respect of the applicant may well have been true.

20 In regard to the damage done by him to items in the house on 8 September 2001 the applicant stated that "all relationships have problems". He further stated that he had not had a drink for the last 5 or 6 weeks but intended drinking the next Sunday as it was his daughter's Presentation Day. The applicant also stated on 2 occasions that he did not have a drinking problem and denied having an aggression problem under the influence of alcohol. He did finally agree that sometimes he could be aggressive and abusive from drinking but went on the say "if you have 6 beers and the wife hassles you about driving you get cranky".

21 The respondent cross examined the applicant on documents summonsed from a former employer being a supermarket which had terminated his employment. These documents suggested that the applicant did not interact satisfactorily with fellow staff to which the applicant responded that this was a reference to a personality clash with a supervisor. There was also some reference to a customer complaint to which the applicant replied that this related to an elderly customer who had been difficult and unreasonable. The applicant stated that he left this employment because of work conditions. As the only adverse evidence in regard to this employment was some typewritten lines in documents produced from a large supermarket chain for which no evidence in support was produced from any witness, and in view of the applicant's sworn denials, I draw no adverse conclusions therefrom.

22 The applicant produced several positive character references, one of which was an old work reference from someone who was not aware of his criminal history. The other was from a neighbour who had never seen him drinking. Accordingly the Tribunal can not put much weight on these references but accepts that save for the adverse matters raised during the hearing of this application the applicant is generally well regarded.

23 The applicant presented as a difficult witness whose demeanour demonstrated mood swings. In response to some of the more personal cross-examination he stated that "I am getting cranky" and "I am frustrated". When the Tribunal informed him that his application was unsuccessful and began outlining its reasons, the applicant became abusive and stormed out of the room.

Respondent's evidence

24 The respondent produced a report dated 7 February 1994 from Jancie Low a Psychologist attached to Bidura Children's Court which stated inter alia "(the applicant) tended to minimise his behaviour in his account of the episode which brought him to court. This appears to be a highly immature expression of sexual assertion and the presence of a peer to whom he appeared to have been "showing off" was a significant factor. As indicated he lacks insight into what constitutes socially appropriate behaviour and indeed appeared to have been surprised when his behaviour led him to being charged. (The applicant) does not appear as being an aggressive lad but is highly impulsive and gives little thought to the likely consequences of his behaviour and its effects on others".

25 (a)The respondent caused the applicant to be interviewed by Dr Christopher Lennings a psychologist.

(b) Dr Lennings stated that the applicant reported a binge drinking style and that he stated that he drank approximately monthly but had not had a drink for a month before his interview. He told Dr Lennings of drinking about 9 standard drinks or 6 schooners at a time and that he did not think that alcohol represented any kind of problem for him. However, on the one hand he reported not thinking he had a problem and on the other hand was making strong efforts to reduce a perceived problem with drinking. Dr Lennings' assessment of the applicant's overall alcohol use identified a risk of occasional binges with a history which suggested that the applicant's drinking was likely to result in disinhibition and loss of consequential thinking.

(c) Dr Lennings discussed the1983 sexual offence with the applicant who he said was upset by what he saw as a silly prank being regarded as a crime. He went on to say that the applicant had almost no recognition of the shock or trauma that his behaviour may have caused his victim. He stated that the applicant had great difficulty in accepting that his behaviour had represented any kind of deviancy or problem. The three drink driving charges demonstrated a consistent theme of disinhibition when inebriated.

(d) Dr Lennings administered the WASI test of intelligence which placed the applicant in the average range for ability or better than the bottom 39% of the population. He also administered the Trail Making Test which showed the applicant's performance as adequate for his age and intelligence and showed no problems with executive function or planning.

(e) However Dr Lennings believed that the applicant had experienced significant personality change when he drank. He administered the Personality Assessment Inventory Test which revealed a number of anti-social features. He stated that the applicant reported a marked need for stimulation and excitement. Further the applicant's behaviour was likely to be reckless and he could be expected to entertain risks which were potentially dangerous to himself and those around him. On the positive side, the applicant had been able to maintain a stable work history and had reported only a few long-term relationships. Dr Lennings said that the applicant was a rather volatile man who lacked insight into his behaviour and possessed contradictory personality elements the worst features of which are anti-social behaviours, recklessness and risk-taking which were more likely to emerge when under great stress or when he used drugs or alcohol.

(f) Dr Lennings administered the STATIC-99 Test which is an actuarial risk-assessment tool which can assist in predicting the risk of sexual offending. This concluded a risk loading of medium high. However, Dr Lennings was of the view that this risk loading may have been exaggerated because the sexual offence was so long ago and was "relatively trivial as far as sexual offences go".

(g) Dr Lennings also administered the British Columbia Institute Against Family Violence Assessment which concluded that the applicant was a medium-low risk to full sexual offending.

(h) Overall, Dr Lennings thought the applicant was a medium risk of general recidivism. Factors which indicated this were his unwise drinking, the presence of anti-social behaviour in the past, lack of empathy or ability to appreciate the effects of his behaviour on others, lack of insight into the adversity of his earlier life and the way this had made him feel angry and irritable, and his reactive and easily irritated personality. The assessment did not conclude that the applicant represented a significant risk of sexual danger but it did identify a constellation of problems which increased the possibility of his acting out or of anti-social behaviour. Specific risks would be the breakdown of his relationship; alcohol use; his capacity to be easily irritated especially by school children who can be irritating and impudent.

(i) Dr Lennings recommended that should an exemption be granted a condition should be imposed that the applicant not consume alcohol between Sunday night and Friday night as alcohol would be likely to be the most immediate trigger factor and this would go a long way to reducing any risk. He also recommended a trial exemption for 3 months of child-related employment. Thereafter a review should be undertaken of his work and personal situation.

(j) Dr Lennings finally concluded that the risk of a sudden deterioration in the applicant's behaviour would remain but it would be unpredictable.

(k) The applicant dismissed Dr Lennings' report stating that the psychologist had spent only two and a half hours with him.

Reasons and decision

26 On the applicant's own evidence I am comfortably satisfied in finding that the applicant has a serious binge drinking problem which has existed for very many years and which occurs about once per month. On these occasions he becomes extremely drunk and, at least on the occasions that have been drawn to the Tribunal's attention, he engages in unlawful behaviour that can be dangerous, anti-social, or offensive. Of particular concern is the fact that most of the incidents that have resulted in police activity have occurred in the last 2 years.

27 The applicant's sexual offence in 1984 would be insufficient to warrant refusing his application. However s9(5)(e) of the Act also directs the Tribunal to consider "the seriousness of the prohibited person's total criminal record", and s95(f) thereof directs consideration of "such other matters as the Tribunal considers relevant". The non-sexual criminal convictions, the apprehended domestic violence orders, Dr Lennings' concerns, and the strong inference that the problematic drinking and associated belligerent behaviour is accelerating, all fall within the ambit of these sub-sections of the Act.

28 It is only the 1994 and 1996 criminal charges that contain sexual elements. Whilst there may be some risk that when drunk the applicant may engage in sexually inappropriate behaviour with females under 18 years of age with whom he may be working or who are nearby, of greater concern is the risk of inappropriate aggressive non-sexual behaviour with such persons.

29 The evidence before the Tribunal is strong that on the occasions when the applicant drinks an extraordinary amount of alcohol, his capacity for sound judgement diminishes greatly and in inverse proportion to his propensity for aggression which is directed at those who annoy him. Such aggression has not yet led to serious physical harm but it has certainly been such as to alarm and concern people who are present when it occurs. Thus far, these victims have been his partner and several women who are older than him, all of whom because of their maturity had superior capacity to deal with his behaviour than would school children.

30 The available evidence shows that the incidents of concern have not yet occurred during working hours although the railway station offences occurred about the time that the applicant could be starting work as a cleaner. However it is possible that there could have been incidents of concern that have not come to the attention of the police and were accordingly not brought to the Tribunal's attention. The accelerating incidence of these events over the last several years raises the prospect of their extension to the applicant's work hours if this has not already occurred. Dr Lennings was of the opinion that the personality of the applicant contained elements of volatility and anti social behaviour irrespective of alcohol consumption but which will be more likely to emerge with the use of alcohol.

31 The applicant's regularly driving whilst intoxicated also leads to the conclusion that he has a diminution of judgement on such occasions that could easily lead to unintended but serious injury or worse. Furthermore, the potential for dangerous but unintended consequences was certainly evident when the applicant threw an object during a rage at his home and broke a mirror which consequently terrified his step-daughter, something for which the applicant, when giving evidence about this incident, demonstrated genuine regret. However regret upon reflection does not mean that such behaviour will not reoccur when the applicant is out of control.

32 These instances fit easily into what Peterson J referred to as "an exposure to a situation which involves a recognised potential for harm". L v the Commission for Children and Young People 2001 NSW IRComm 134. The Tribunal believes that there is a real and appreciable risk to the safety of children from the behaviour of the applicant when intoxicated. In this regard the Tribunal must look to the pattern of behaviour that is consistent and ongoing as well as the increasing frequency thereof.

33 Risk has been described by Young CJ in Equity as follows: "One would exclude fanciful or theoretical risks but what one is looking for is whether in all the circumstances there is a real or appreciable risk in the sense that a risk that is greater than any adult preying on a child." His Honour, who saw risk as extending beyond risk of sexual offending went on to say: "One, however, must link the word "risk" with the words that follow, namely, "to the safety of children" ... I would have thought a more 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." Commission for Children and Young People v V 2002 NSWSC 949.

34 In this regard Kavanagh J stated: "the Macquarie Dictionary 1991, 2^nd ed defines "pose" as "examination by putting a question"; defines "risk" as "an exposure to the chance of injury" or "a dangerous chance"; "safety" is defined as "freedom from injury or danger". The Commission must therefore examine the question whether the applicant in child-related employment gives to the children freedom from exposure to the chance or dangerous chance of injury". G v J&H 2001 NSWIRComm 69.

35 The evidence suggests that the elements of the applicant's personality that give rise to concerns of risk are of considerable duration. Not only does Dr Lennings refer to the applicant's volatility and lack of insight but Ms Low the psychologist who saw the applicant in 1994, before alcohol consumption was an issue, also refers to his volatility and lack of insight.

36 Dr Lennings made the constructive suggestion that "should an exemption be considered, it should be required of CU that he agree not to consume alcohol between Sunday night and Friday night. Alcohol remains the most immediate trigger factor for the applicant's behaviour and the control of alcohol should go a long way to reducing any risk. Secondly, should an exemption be given, a review of CU should be undertaken within 3 months of starting his work. This review should concentrate on the amount of interaction CU has with his students and evidence of abrasiveness CU has in interactions with other staff or not. It should also assess the stability and quality of his relationship with his partner".

37 I considered the imposition of such a condition but, leaving aside the difficulties of policing it, it seems pointless in imposing a burdensome non-drinking condition on a man with such a serious alcohol problem which he can not recognise, and in respect of which he has taken no steps nor given any indication that he would consider taking such those steps, to address. In view of this, a 3 month trial represented a risk that the Tribunal was not prepared to allow.

38 S9(8) of the Act prevents the applicant from making a further application for an exemption from the provisions of the legislation for a period of 5 years from the time an application is dismissed. The Tribunal has determined to shorten this period to one year, which will expire on 5 September 2003. This is because most of the reasons for refusing this application are connected with the applicant's alcohol problem. If the applicant was to address this issue in a meaningful way, by seeking assistance from an appropriate agency, any subsequent application he might make would be very likely to succeed. One useful first step in this regard would be for the applicant to take a copy of this decision and Dr Lennings' report to his local doctor and seek advice on addressing matters raised therein.

Orders

1. The application is dismissed.

2. The applicant is not entitled to make a further application for an order under the Child Protection (Prohibited Persons) Act 1998 until 5 September 2003 in respect of the offence of sexual assault for which he was found guilty on 9 February 1984 at Hornsby Children's Court.

3. The Tribunal shall notify the Commissioner of Police of the terms of this order.