NC v Commission for Children and Young People [2005] NSWADT 139 (23 June 2005)

Last Updated: 23 June 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: NC v Commission for Children and Young People [2005] NSWADT 139


PARTIES: APPLICANT
NC
RESPONDENT
Commission for Children and Young People



FILE NUMBERS: 044022

HEARING DATES: 24/03/2005

SUBMISSIONS CLOSED: 23/03/2005



DECISION DATE: 23/06/2005

BEFORE: Smyth M - Judicial Member





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 of Children and Young People [2002] NSWIR Comm 101

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
P Hamblin, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT
M Higgins, barrister

ORDERS: The Child Protection (Prohibited Employment) Act 1998 is not to apply to NC in respect of the offence of indecent assault for which he was committed to an institution on 30 December 1960


Reasons for Decision:

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

Introduction

1 On 28 December 1960 the Applicant was arrested on a charge of indecent assault on a girl aged 5 years. He admitted the offence and was committed to an institution on 30 December 1960 by the Children’s Court.

2 That offence constitutes a serious sex offence under the Child Protection (Prohibited Employment) Act 1998 (the Act). Consequently the Applicant is precluded from applying for, undertaking or remaining in child related employment.

3 Child related employment means employment of various kinds set out in the Act that primarily involves direct contact with children where that contact is not directly supervised.

4 The Applicant seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 so that he can work unsupervised with persons under the age of 18 years.

5 The Applicant wants to work as a driver of a school bus for a local Pre-School. Those duties involve collecting children aged 3-4 years from the front gate of their homes and driving them to pre-school in the morning between 8-10 am and returning them home between 2-4 pm. There is always another adult attendant on the bus. He wishes to participate in some activities at the school. He also drives a bus to transport single mothers to and from the pre-school so that they can have lunch and spend some time together. He sometimes has lunch with them at the pre-school.

6 The Applicant has also undertaken other work with children and may again wish to in the future. He has worked for a program that provided transport to young people under 12 years driving a bus accompanied by an adult organiser of the program. He worked for a foot patrol in a country town walking around accompanied by a female co-worker assisting young people and providing transport for them when required

7 He also worked as a bus driver for boys aged 12-16 and transported them to football matches. In addition he worked as a coach on some occasions.

Legal Test

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.

9 To succeed in this application the Applicant must satisfy the Tribunal that he is not a risk, as judicially defined, to the safety of children under the age of 18 years. The onus lies with the Applicant on the Briginshaw standard.

10 The meaning of the word "risk" for the purposes 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 of Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focused on:

"not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.

Young J held 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."

11 Section 9(5) sets out a non-exhaustive list of factors to be taken into account: 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:

(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.

12 Section 9(7) of the Act requires the respondent to be a party to any proceedings for an order under s 9 and the respondent may make submissions opposing or supporting the making of an order. The respondent’s position was neutral, neither opposing nor supporting his application.

13 I will now consider the matters set out under section 9(5).

The Seriousness of the Index Offence

14 On 30 December 1960 a charge of indecent assault female was proved against the Applicant in the Children’s Court. The Attorney General’s file related to this offence could not be found however records from the Department of Community Services were located and in evidence before the Tribunal. These included a statement from a Detective that indicated the applicant had removed the victim’s pants, placed his penis between the girl’s legs and rubbed it on her "private part". A medical examination of the victim on the same day revealed bruising around her ‘private part". There was no evidence of penetration. The victim was a girl aged 5 years. The Applicant readily admitted the offence at the time and was committed to a juvenile institution where he stayed for approximately 6 months until he was discharged on the recommendation of the Superintendent.

15 In my view this was a serious offence particularly when the young age of the victim and the bruising sustained are taken into account.

16 The offence occurred 44 years ago.

Age of the Applicant

17 The Applicant was aged 14 years at the time.

Age of the Victim

18 The victim was aged 5 years.

Age Difference

19 The age difference of 9 years is significant given that the victim was such a young child at the time.

Applicant’s Present Age

20 The Applicant is now a mature man of 58 years.

Seriousness of the Applicant’s Total Criminal Record

21 The Applicant has not been convicted of any criminal offences for over 20 years. His last conviction was in 1984 for a PCA offence. He has a number of prior convictions that are alcohol related.

22 In 1966 he was convicted of common assault. He pleaded guilty. The statement of facts indicates that the victim had bumped into the Applicant’s friend and the Applicant had then punched him and fractured his nose. The Applicant stated that he was drunk at the time.

23 In 1967 he was convicted of driving under the influence. He was also charged with negligent driving regarding the same incident however this charge was dismissed.

24 In 1973 he was convicted of behaving in an offensive manner. The statement of facts indicates that he was involved in a fight outside a hotel and intoxicated at the time.

25 In 1974 he was convicted of using unseemly words, resisting arrest and assaulting a police officer. These arose out of an incident in which police attended premises to investigate a domestic argument. When the police were leaving the Applicant swore at a police officer. When police attempted to arrest him he struggled and went back inside the house. The police officer followed and another scuffle occurred. The police officer went to call for assistance and later there was another struggle during which the Applicant was arrested. A police officer stated that he was kicked in the groin by the Applicant and that the Applicant was "under the influence to a moderate degree."

26 In 1983 he was convicted of assault following an incident in which he had visited his previous de facto partner after he had been drinking. He had taken her by the ear and shortly afterwards apparently struck her with several hard blows on her face and neck. He was convicted and the conditions on his recognisance included not drinking alcohol and attending an alcohol clinic.

27 In 1984 he was convicted of a PCA offence.

28 Other than his index offence none of the other offences he has convictions for involved offences against children.

Other Relevant Matters

29 On 2 September 1985 the Applicant was charged with two counts of sexual assault (Category 2) and one count of assault female. He was discharged of these offences at committal in December 1985.

30 The charges concerned allegations made by his ex partner that the Applicant had sexual intercourse without consent and had assaulted her. On 21 December 2004 at a directions hearing before the Tribunal the respondent asked the Applicant whether he knew his ex-partner’s address. He agreed that did and, although initially reluctant to state the address, he did state the street name and town.

31 At the final hearing on 24 March 2005 he was asked by the respondent whether he still declined to provide the address of his ex-partner. He replied that he did not know the address and to this day still did not know it. He was then asked whether he knew the address in 2004. He stated the same street that he had stated in the directions hearing referred to above and then stated words to the effect that he knew that she was no longer in the particular country town they had lived in and that he did not know her whereabouts.

32 In March 1995 the Applicant was charged with common assault. This arose out of allegations made in late February1995 by the Applicant’s younger female cousin that the Applicant had forcefully kissed her and rubbed her upper thigh. When interviewed by Police he declined to answer questions and was charged. The charge was dismissed

33 The Applicant gave evidence about the incident before the Tribunal. At the time he was 51 years old and he thought his cousin was 18 or 19 years although he was not sure about her age. He stated that they went to a park by mutual agreement to sit down and talk. The Applicant was moderately affected by alcohol and they kissed in what the Applicant described as a "semi-passionate way". He stated that it was not fair to say he initiated the kiss and denied that it was a prelude to sexual intercourse.

34 He denied that he kissed her against her will and denied touching the inside of her thigh.

35 When asked had he had an encounter with her previously he said yes. He admitted to kissing her previously 2 to 3 years earlier. When asked by the respondent whether her mother was aware of the extent of the relationship including kissing other than on a friendly basis he said no. He denied meeting her secretly. He stated that he did not kiss her openly at family occasions and said that they would sit together cuddled up "like a niece cuddles an uncle".

36 He stated that after the 1995 incident he stopped meeting her. When questioned about whether he thought there was any problem with the 30 year age difference he stated "No, we had respect for each other". Although he admitted to kissing her he stated that it was a platonic relationship.

Expert Report

37 The Applicant was interviewed and assessed by Dr Lennings, a psychologist on 21 January 2005 at the respondent’s request. Dr Lennings provided a detailed report.

38 Dr Lennings applied the Static 99 actuarial test, a recognised test that assesses the possibility of a sex offender reoffending in relation to the possible reoffending of sex offenders generally. Using this test he found that the applicant fell into the medium-high range risk category. That finding was based on his one prior conviction for a sex offence, having four or more prior sentencing dates for other offences relating to resist arrest, drunk driving and the like, his prior non sexual violence offences and that his victim in the past was unrelated to him and a stranger. Dr Lennings noted that this indicated a significant level of concern but that concern related more to the risk of violence against adult women.

39 Dr Lennings also undertook a structured clinical assessment. Clinical assessments sample a wide number of static and dynamic variables known to predict sexual and or violent crime recidivism. As part of that assessment he considered the risk categories developed by the British Columbia Institute Against Family Violence and supported by the Canadian government.

40 Dr Lennings found that the Applicant’s history provided some concern regarding sexual deviancy but that this was more in relation to a ‘macho" attitude of mind that seemed to emerge when he had been drinking. He noted that the Applicant history suggested a mild to heavy alcohol related problem up until at least 1995.

41 The allegations of violence against previous partners meant he scored on measures that indicated use or threat of force, relationship problems and prior violent behaviour. He also found he had a ranking of some risk on the category of past non sexual violence offences and non violent offences. He also considered that the Applicant’s denials of the use of physical harm when the police facts regarding the 1983 and 1985 assaults indicated that a threat of harm occurred and that the victim was said to have told police that there was a history of violence. He concluded that while there was no reason to believe that had been an escalation of sexual offending the Applicant had a mild risk ranking on denial or minimisation.

42 Although the Applicant denied any attitudes condoning sexual offending Dr Lennings thought such denials sat uncomfortably with the history of charges over the years. He thought that when inebriated the Applicant may revert to more macho attitudes to the role of women. Dr Lennings noted that his future plans appeared reasonable.

43 Dr Lennings found that overall in his clinical assessment he would fall into the medium low risk group and identified the major concern as his potential for aggressive behaviour or sexually aggressive behaviour towards females he would drink with and for whom he had a prior relationship with.

44 Dr Lenning assessed his personality. He found that he did not appear to be anti-social and had a strong orientation to work and a high involvement in his local community. His only concern in terms of personality factors most linked to the risk of harm in others was his prior history of alcohol use and the lack of control when drinking.

45 Dr Lennings also found deterioration of cognitive functioning and considered that the most likely explanation for this was alcohol related brain damage. Dr Lennings notes at paragraph 10 of his report that Applicant told him that "for several years now he’s largely been abstinent, drinking only an occasional drink on celebratory occasions such as birthdays and New Year’s Day, and says that he has no effective use of alcohol for several years now" . Dr Lennings considered that without collateral information caution should be exercised in accepting the Applicant’s self report regarding his alcohol use.

46 Dr Lennings concluded that, if as the Applicant claimed, alcohol had not played any significant role in his behaviour for the past eight to nine years that there was little indication in the personality assessment that indicated a risk of sexual harm.

47 Dr Lennings considered his criminal record. He concluded that the assault on the 5 year old girl seems to have been an isolated event as there are no further charges or convictions for aggressive or sexual behaviour against children. He concluded that this "offence did not seem to be a marker of any ongoing paedophiliac sexual deviation".

48 Dr Lennings considered that aside from this early offence his criminal record divided into two. The first were a series of offences that appeared associated with alcohol use and some low level violence. The second were "related to violence against women including claims of sexual assault that appear to be associated with a sense of ownership or a proprietary relationship with these women."

49 Dr Lennings concluded at paragraph 37 of his report that

".....on the whole an evaluation of his risk potential suggests that his risk is not so much a function of sexual deviance but rather a function of alcohol related disinhibition of impulses surrounding sexual behaviour with women whom he has already had a prior relationship. To that extent the likelihood that genuine risk attains to his job as a bus driver working with young children is relatively low."

50 He recommended that references from people who knew him be sought about his current alcohol use. If he had more or less abstained from alcohol for some years then he concluded that no real risk of harm to children remained. He noted that if it turned out his alcohol use was greater then there was potential for some disinhibition of behaviour. He noted that although there was no reason to believe that would result in a sexual offence against a child it may well result in aggressive behaviour that would be distressing to a child.

51 Overall he concluded that the Applicant did not present as a significant risk of sexual harm or violence against children in the context of his operation as a bus driver. In coming to this view he considered the absence as far as he could tell of any sexual deviation that would target children or young people as a suitable object for him. He also noted that aggression was not something endemic to the Applicant but rather associated with alcohol.

The Applicant’s References

52 The Applicant tendered the following references in the form of statutory declarations.

53 A reference dated 2 March 2005 from the Manager of the University of New England Rural Properties who had known the Applicant since his school days. He had employed the applicant at various times over the past 15 years as a worker in his shearing sheds and contract fencing business and seen him at the local bowling club a number of times over the last decade as well as at work related functions. He stated that he had not seen him affected by alcohol or acting in an aggressive manner. He also stated at the last two end of year work parties he had bought the Applicant lemon squash as the Applicant had not been drinking alcohol.

54 A reference dated 7 March 2005 from a carer for people with disabilities who had known the Applicant for 12 to 13 years. They had met at the local club and she states that on all the occasions at the club he drank very moderately in her company. He has never been aggressive in any way.

55 A reference dated 8 March 2005 from a real estate agent who had known him since school days and who had employed him on a casual basis over the past 15 years. He states that he had not seen him affected by alcohol or acting aggressively toward any one in the time he had worked with him.

56 A reference dated 8 March 2005 from a friend who had know him for nearly 19 years who had attended hotels and clubs with him, along with other people, on social occasions. She also visits his home regularly and he visits hers. She stated that she had not seen him intoxicated during that time, he often had orange juice and she had not seen him have more than one or two beers when he had a meal. She had not seen him act aggressively.

57 A reference from his brother dated 2 March 2005 who stated that he saw him regularly and that he had seen him at 5 or 6 weddings and funerals over the past 10 years where alcohol is usually available. He stated he had not seen him drink more than a couple of beers on these occasions. He stated that he goes to a bowling club once a month but does not recall seeing his brother there. He also states that he had seen him at social gatherings but not seen him affected by alcohol or acting improperly or aggressively at these.

58 A reference dated 8 March 2005 from an employer who states he has know him for nearly 30 years that that over the past 10 years he has done some casual work for him in shearing sheds and as labourer. He stated that he has only seen him in hotels in the town once or twice in the last 10 years and had not seen him affected by alcohol or acting aggressively towards any persons in that time.

59 An undated reference from a previous employer who had known him since he was a child. The reference was positive stating that he was a reliable conscientious worker who is considerate and got on well with his fellow workers and had no hesitation in recommending him for any position.

60 A reference dated 17 June 1992 from a Principal of a public school stating that he had driven the school bus each morning and afternoon for 2 years. He stated that he was punctual, co-operative and very caring for the students and has shown an excellent attitude to his work.

61 A reference dated 14 July 1992 from a community transport scheme co-ordinator indicating that he had been associated with the organisation for two years and had driven a bus transporting frail aged people and people with disabilities. The reference was positive and the writer had no hesitation in recommending him.

62 A reference dated 26 March 1996 from an employer who had known him for 30 years and employed him to do a variety of work including driving and managing a superphosphate terminal. He recommended him as responsible and honest.

63 A reference dated 15 September 2004 from the development officer at the pre-school that the Applicant wishes to work for stating that he has been aware of his work in a voluntary capacity in the town for many years and that they had encouraged him to apply for work as a bus driver. The pre-school had employed the Applicant as a bus driver and found he displayed a professional attitude and inspired students with his kind and gentle nature. The development officer indicated that the pre-school would reemploy the Applicant if a vacancy arose.

64 A reference from the liaison officer for the Aged at the local Home and Community Care Service dated 21 July 1992 that referred to his voluntary work as a bus driver transporting elderly people. The reference stated that he was their driver of first choice as he was liked and respected by all.

65 A reference from the Administrator of the Challenge Foundation dated 9 May 1991 stating that he had been employed as a bus driver since January 1989 transporting adults and children with disabilities. The reference stated that he performed these duties in a most tactful, diplomatic and generous way and he gained the friendship and respect of all involved with him.

Submissions of the Applicant

66 The Applicant submitted that he did not pose a risk to children and that an unconditional order should be made.

67 He referred to the work he had done over a number of years with organisations that had provided statements. All of these indicated that he was conscientious and that there were no concerns about his behaviour.

68 He submitted that the 1995 incident had been dealt with at a local court. He argued that although he had been reluctant to give evidence about old matters he had given evidence honestly and directly.

Submissions of the Respondent

69 The respondent relied on written submissions and made some additional oral submissions. The respondent’s position was neutral, neither in support of or opposed to an order.

70 The respondent submitted that the hypothesis regarding the Applicant, in the absence of further evidence, was that alcohol disinhibits his control measures. The Respondent concluded that there is no evidence that when affected by alcohol the applicant is a risk of harm to children as opposed to adults. The respondent notes that as the further offences each demonstrate adult victims it could not be said that his antecedents demonstrate that when affected by alcohol he is a risk of harm to children.

71 In regard to the 1985 charges of sexual assault and assault female the respondent submits that this incident is relevant to the extent that it discloses conduct by the applicant which is capable of demonstrating violence or sexual misconduct in which alcohol was involved. The respondent submits that the discharge of the Applicant by the court was an administrative rather than judicial procedure where evidence in support of an element of the offence could not be established. The Respondent submits that the conduct disclosed in the police incident report of 3 September 1985 does not necessarily disclose that he is a risk to the safety of children and states that "It demonstrates, at best, that he is violent within interpersonal relationships".

72 In regard to the 1995 incident the respondent argued that this evidence was not to bring into question the dismissal of the 1995 common assault charge but to seek to demonstrate issues about the degree to which the Applicant now has an insight into age appropriate relationships. Although at the time the cousin was over the age of consent the Respondent argues that it gives rise to questions about age appropriate relationships.

73 The respondent submits that the effect of the statutory declarations filed by the Applicant regarding his alcohol use is that he no longer abuses alcohol and had not been witnessed doing so for the last 10 years. The respondent submits that this corroborates the Applicants self reporting to Dr Lennings and makes Dr Lennings report that he is a low risk of offending specific to children more reliable.

74 In written submission the respondent submitted that if the Tribunal considers the applicant to present some risk to children an order may still be appropriate subject to conditions. The respondent stated that

"The evidence before the Tribunal does not suggest a lack of reliability in the evidence of the applicant, and demonstrates that he has been subject to supervisory conditions in the work place."

75 In the Respondent’s view there is sufficient evidence to be satisfied that he would be capable of and committed to complying with conditions and if he complied he would not pose a risk.

76 The respondent submitted that the following conditions should be imposed on the Applicant. He should give the Tribunal a written undertaking that he will not consume or be affected by alcohol while engaged in child related employment and should provide any child related employer as defined in s 3 of the Act with a copy of the order before starting employment. The respondent made no submissions relating to voluntary employment regarding conditions.

77 In oral submissions the respondent referred to the 1995 incident and the Applicant’s evidence about kissing his cousin. The respondent argued that there was evidence from which the Tribunal could infer that the Applicant lacks an insight into age appropriate relationships. Although the Respondent stated that their position was still neutral the respondent opposed an unconditional order on the basis that the Applicant demonstrated little or no insight into age appropriate relationships.

Findings and Conclusions.

78 The Applicant admitted an offence of indecent assault contrary to s 76 of the Crimes Act 1900 in 1960 and was committed to an institution. Although a serious crime on a very young victim the Applicant was a juvenile of 14 years at the time and it occurred over 44 years ago.

79 It is now over twenty years since he has been convicted of any criminal offence. Other than the index offences all of his previous convictions are alcohol related and have not involved any harm to children.

80 In regard to the allegations of sexual assault and assault in 1985 I accept the Commission for Children and Young People’s submission that these allegations do not necessarily disclose that he is a risk to children. At best, if proved, they would demonstrate that he is violent within interpersonal relationships. The Commission argues that declining to provide contact details from the alleged victim in that matter when he is in a position to do so demonstrates a failure by the Applicant to adduce evidence to the contrary of the allegation or to place all relevant information before the Tribunal.

81 In this instance the allegations have not been proved and he was discharged of the offence. Even if all the relevant information was placed before the Tribunal and some findings could be made, at the highest that would demonstrate that approximately twenty years ago the Applicant was capable of demonstrating violence and sexual misconduct to an adult partner from a previous relationship.

82 The last complaint about him, the alleged assault against his younger female cousin, is almost ten years old and the Applicant was discharged by the Court regarding this matter. On the basis of the evidence before me I find that it is likely that the Applicant did kiss his female cousin in 1995 when she was 18 or 19 years of age. His own evidence indicates that he was moderately affected by alcohol at the time. There is insufficient evidence for me to make any finding that he kissed her against her will or that he assaulted her.

83 On the Applicant’s own evidence she may have been 17 or possibly 16 when they first kissed. He denies having a sexual relationship with her and describes it as a platonic relationship. The respondent submits that although his cousin would have been over the age of consent when they kissed that gives rise to a question regarding age appropriate relationships.

84 This conduct occurred over a decade ago. On the Applicant’s evidence he was moderately affected by alcohol at the time of the 1995 incident. The evidence from the expert, Dr Lennings, indicates that his risk potential is not so much a function of sexual deviance but rather a function of alcohol related disinhibition of impulses surrounding sexual behaviour with women whom he has already had a prior relationship. I accept that evidence. He also noted that aggression was not something endemic to the Applicant but rather associated with alcohol.

85 Dr Lennings concluded that the genuine risk that attains to his job as a bus driver working with young children is relatively low.

86 Dr Lennings recommended that references from people who knew him be sought about his current alcohol use. If he had more or less abstained from alcohol for some years then Dr Lennings concluded that no real risk of harm to children remained. He noted that if it turned out his alcohol use was greater then there was potential for some disinhibition of behaviour. He noted that although there was no reason to believe that would result in a sexual offence against a child it may well result in aggressive behaviour that would be distressing to a child.

87 I accept the respondent’s submission that the effect of the statutory declarations filed by the Applicant regarding his alcohol use is that he no longer abuses alcohol and had not been witnessed doing so for the last 10 years. I also accept the respondent’s submission that this corroborates the Applicant’s self reporting to Dr Lennings and makes Dr Lennings report that he is a low risk of offending specific to children more reliable.

88 The Applicant’s references indicate that he has successfully undertaken work with children and with other vulnerable groups such as adults with disabilities or the frail aged with no complaints about him. The evidence is that he is well respected and has displayed caring and responsible behaviour. There is no evidence of any complaints against him regarding work he has undertaken.

89 Taking into account all the evidence before me I conclude that the Applicant does not pose a real and appreciable risk to children. Given that finding it is not necessary for me to consider imposing conditions.

Order

90 The Child Protection (Prohibited Employment) Act 1998 is not to apply to NC in respect of the offence of indecent assault for which he was committed to an institution on 30 December 1960.