VI v Commission for Children and Young People [2006] NSWADT 339 (30 November 2006)

Last Updated: 30 November 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: VI v Commission for Children and Young People [2006] NSWADT 339


PARTIES: APPLICANT
VI
RESPONDENT
Commission for Children and Young People



FILE NUMBERS: 064001

HEARING DATES: 26/05/06

SUBMISSIONS CLOSED: 26/05/2006



DECISION DATE: 30/11/2006

BEFORE: Smyth M - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Child Protection (Offenders Registration) Act 2000
Child Protection (Prohibited Employment) Act 1998

CASES CITED: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
I Bourke, Barrister

ORDERS: The application is dismissed.


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

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 An order would apply to all work with those under eighteen years that is not directly supervised. At present the Applicant is not employed, is caring for a family member in another State and has no plans to return to NSW.

3 His main employment for almost twenty years has been in the music industry. He has managed bands and worked on community music festivals. His work on festivals has included liaising with young band members aged fourteen to twenty-five years and working with them on stage during their performances. He said he may wish to work with children and young people in the future in the State he now lives in. He believes that being a prohibited person in NSW may impact on his ability to undertake work with people under eighteen in that State.

4 The Respondent opposed the application.

5 Section 126(1) of the Administrative Decisions Tribunal Act 1997 [Tribunal Act] makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have not published any details that could identify the Applicant or anyone referred to in the proceedings other than the expert. I refer to the Applicant by the pseudonym, "VI".

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

Relevant legislation

7 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).

8 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(a1) the period of time since those offences were committed,

(b) the age of the person at the time those offences were committed,

(c) the age of each victim of the offences at the time they were committed,

(d) the difference in age between the prohibited person and each such victim,

(d1) the prohibited person's present age,

(e) the seriousness of the prohibited person's total criminal record,

(f) such other matters as the tribunal considers relevant.

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

Standard of Proof and meaning of "risk":

10 The Applicant carries the onus of proof on the Briginshaw standard [Briginshaw v Briginshaw (1938) [1938] HCA 34; 60 CLR 336 at 362], 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.

11 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.

12 His Honour 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: par [46].

Index offence – s9(5)(a)

13 The Applicant pleaded guilty to an offence of sexual intercourse without consent. He was convicted of that offence at the Sydney District Court on 30 July 1998. The Applicant managed a band that the victim was a member of and the victim had lived in the Applicant’s house for nearly a year up until a few days before the offence occurred.

14 A statement made by the victim to Police on 2 March 1998, tendered in evidence, stated that he had gone to the Applicant’s home for dinner at the end of December 1997. He stated that he had two scotch and cokes during the evening. He finished his last drink in the lounge room while watching a video and stated "I remember feeling okay then suddenly it all closed in on me." He woke up on the floor of the Applicant’s place the next day without his shoes on. He described feeling really drunk and his girlfriend came and collected him.

15 The police facts sheet, dated 4 March 1998 and tendered in the proceedings, alleged that a fellow band member visited the Applicant’s home a couple of months later and noticed a framed photograph of an exposed penis in the Applicant’s bedroom. He found other photographs that depicted the victim asleep on the floor with the victim’s penis exposed and the Applicant with the victim’s penis in his mouth. The band member took the photographs to police. The police conducted a search of the Applicant’s property and found additional photographs of the victim, a ring belonging to the victim depicted in one of the photographs and some diary notes in the Applicant’s writing expressing what was described as "his obsessive feelings towards the victim". The diary notes were in evidence before the Tribunal.

The age of the Applicant and victim (s9(5)(a1)(b)(c)(d))

16 The offence occurred in 1997 when the Applicant was thirty-six years old. There is some inconsistency in the evidence regarding the age of the victim. In his statement to police dated 2 March 1998 the victim said he was 24 years old. The Applicant and Respondent both referred to him as 27 years old at the time of the offence. If he was 24 years old the age difference was 12 years at the time of the offence, if 27 years the age difference was 9 years. The Applicant is now aged 45 years.

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

17 The Applicant’s criminal record includes a number of other offences. In 1978 he was placed on a recognizance by the Children’s Court for stealing.

18 In 1992 a charge of assault occasioning actual bodily harm was proved and dismissed under s 556A of the Crimes Act. The Applicant was working as a casual teacher. The Applicant stated that he was in a music class which was noisy and rowdy. He had a flute box in his hand and was waving it in the air and it came out of his hand and hit a child in the head. He pleaded guilty to that offence and told the Tribunal that it had been an accident.

19 In 1992 he was convicted of driving offences as a cancelled driver and an unregistered driver.

20 In 2003 he was convicted of 26 counts of obtain money by deception. He received a community service order for 500 hours, was fined $2000, ordered to pay compensation of $36, 446.42, placed on a three year bond and given a twelve month suspended sentence. The offences occurred while the Applicant was the treasurer of a music society. An audit revealed 26 cheques that the Applicant had signed that lacked invoices. Some of those cheques were paid into the Applicant’s own account and others were used to pay his and his company’s debts. The Applicant pleaded guilty to the offence. He stated that he had used the money to repay debts and had intended to pay back the money.

Expert Evidence

21 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 29 April 2006 was tendered in these proceedings by the Applicant. Dr Lennings also gave oral evidence at the hearing.

22 In his written report of 29 April 2006 Dr Lennings stated that he utilised STATIC 99, an actuarial scale, to gauge risk. This method used key variables research has shown discriminate between sexual offenders who recidivate and those that do not. These are referred to as static variables because they are not likely to change in response to treatment or supervision. Mr VI’s score on the STATIC 99 indicated a medium high range for a re-offence. Dr Lennings took into account the eight year period since the index offence and allowed a discount for the opportunity to offend without a known offence bringing his risk ranking to medium low. He did not consider the Applicant represented any risk of a violent offence.

23 Dr Lennings then used a structured clinical assessment, sampling variables from both static and dynamic risk factors. Dynamic 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 and supported by the Canadian government. These divide risk assessment into three areas of Psychosocial Adjustment, Sexual Offences and Future Plans allowing a guided assessment of the potential for sexual violence.

24 Dr Lennings referred to the Applicant’s view of the offence stating that he "views the offence as no offence at all, but an experimental act on the part of (the victim)" in the sense that the victim "was drawing on repressed homosexual impulses that finally came out after a night of heavy consumption of alcohol".

25 Although the Applicant denied any sexual deviation Dr Lennings stated that the circumstances around the offence (the index offence) "made such denial somewhat unconvincing". However he stated that "it does not appear there has been any persistent element of sexual deviancy" in the Applicant’s life and that "there appears no reason to believe he harbours deviant sexual impulses about children." [at paragraph 33]. He did not consider that the Applicant had substance abuse problems or a mental illness.

26 He stated that;

"the overall risk assessment on the SRV20 questionnaire indicates a low to medium low risk of recidivism and is broadly consistent with the modified Static-99 score he obtained."

27 His final risk assessment strategy was personality. In his opinion the Applicant did not have the factors of narcissism, psychopathology and substance abuse. He stated that

"What is of concern, however is the demonstrated problems he has around relationships. It seems to me (the Applicant) has not resolved many of the intimacy needs, and difficulties around relationships. It is probable that as he emerges from what is, in effect, a kind of exile, he will again engage in problematic relationships and there is no guarantee that he will not, once again find a dysfunctional relationship and revitalise his self-defeating behaviours. It is probable, in fact, that he will. For these reasons he may yet again recidivate in some way. However in the absence of any significant sexual deviance, it is less likely a sexual offence will occur. Even if one did, it is hard to see what elements of his behaviour would result in an offence against a person under the age of 18."

28 In his oral evidence Dr Lennings was asked to expand on the concern he had expressed regarding the problems the Applicant had around relationships. He referred to the Applicant’s difficulty in maintaining relationships and his involvement in relationships that became conflictual and volatile. He stated that

"As a consequence his behaviour, as those relationships deteriorate he becomes somewhat more frantic and he does silly things to try and preserve those relationships."

Dr Lennings’ concern was about the Applicant’s apparent reduction in consequential thinking as a relationship started to deteriorate.

29 Dr Lennings stated that the risk to children and young people was low as he believed the Applicant when he told him that his needs for sex were associated with his needs for a relationship and he did not think the Applicant was opportunistic in his sexual behaviour. Dr Lennings went on to say:

But I could see a situation occurring where he is vulnerable, where a young person comes to him, a young person finds him attractive and the young person is for whatever reason seeking to have some kind of contact with him and then there could be some distortion of boundaries. To date there’s been no evidence that this occurred but it’s not outside the realms, in my view, of possibility.

30 Dr Lennings stated that the Applicant’s

"understanding of age barriers seems good, his explanation that a sexual relationship must be preceded by an emotional one, and his discussion about that did not indicate he was at risk of distorting the age or competence of teenagers to substitute for adults. Thus whilst a further offence cannot be ruled out, there is, in my view, a low likelihood that such an offence would be against a young person. [at paragraph 38]

31 Dr Lennings qualified this conclusion by saying that the Applicant’s capacity to be clear about boundaries when not in a relationship and not pressured

"may differ markedly from a time when he is pressured by relationship failure and a need for intimacy. I remain concerned about his denial of what must be regarded as quite obsessional interest in (the victim of the index offence) and the concern that such obsessionality could arise in other contexts. [at paragraph 38]

32 He stated that

" There was a reasonable risk of recidivism for a criminal offence (non violent and non sexually violent) and low, but possible, risk of sexual offence against an adult. His risk against a child or young person under the age of 18 seems low."

33 Dr Lennings noted that the Applicant had an interest in the popular music industry and working with young people and that some young people engaged in the music industry are disadvantaged and vulnerable. He stated that the Applicant would have a high status and high opportunity with a young vulnerable population. In his opinion risk was not just a function of internal predisposition

"but also a function of opportunity and the constraints against offending in the environment. In an industry not noted for its restraint, but in fact noted for its out there behaviour, experimentalism, substance abuse, vulnerable people and high emotionality, even a relatively low risk rating might still be of concern. It is my view that even though the risk of an offence against a young person is low, and lower than the risk that may occur for an adult, the fact of the vulnerability of the population he is likely to work with, means that even a low risk rating may have to be viewed quite cautiously. I believe that the relationship volatility and his (the Applicant’s) history of loss of judgement around his behaviour at such times may represent a risk that has to be considered.

34 He went onto say that

Should the concern arise that the intersection of risk and opportunity is something that has to be considered, the risk can be modified somewhat if (the Applicant) was to ensure that the environment contained constraints.

35 He gave an example of requiring that the Applicant not be alone with young people and that a responsible person was aware of the need for the supervision of that requirement.

Applicant’s previous work with those under 18 years

36 The Applicant gave evidence about the work he had undertaken with children and young people and was granted a certificate under s 128 of the Evidence Act 1995 in regard to that evidence. The Applicant told the Tribunal that he had run multiple youth events for local councils and voluntary associations. That work was music based working on youth concerts and helping youth bands to further their careers. He had been placed at a neighbourhood centre in 2003/2004 by the Probation and Parole Service to do 500 hours community service following his conviction for obtaining money by deception. He worked on the organisation of a family music festival. In 2005 he continued to work for that Centre on a voluntary basis and was then offered some paid work by them. It was then that a prohibited employment check was done. The Applicant stated that up until that point " he was not aware that he was on this list".

Applicant’s attitude to the index and the assault offences

37 The Applicant gave oral evidence and was cross examined. The Applicant submitted that when he had done something wrong he had admitted it. He had pleaded guilty to the index offence.

38 While he conceded that the index offence was serious he submitted that he had received a relatively light sentence of two years periodic detention due to mitigating factors as the maximum sentence for the offence was fourteen years imprisonment.

39 He believed that the victim was homosexual and that a relationship was developing between them. He stated that the victim had hugged him before the offence occurred, had kissed him on the lips and had invited him to masturbate him. In cross examination the Applicant agreed that he had taken a large number of photographs of the victim. The Applicant agreed that the victim was blacked out and unconscious at the time of the offence and him taking photographs. When asked whether the photographs were taken with the Applicant’s consent he said "It was something that happened in the moment, so I would have to say yes." He says that everything that happened on the night was consensual. He says that the victim consented before falling unconscious.

40 He did not show the photographs to the victim after the event. In cross examination he agreed that he had not told the victim what he did because he had done it without him knowing, against his will and that he did not want the victim to find the photographs. He then went on to state his belief that it was a consensual situation.

41 Although he told this Tribunal that it appeared he had misunderstood and misread everything that happened and that he was ashamed of it, he agreed that he had told Dr Lennings in April this year words to the effect that the index offence was an experimental act on the part of the victim.

42 The Applicant maintained that the assault against the child committed while he was teaching a class was not intentional. He claims that the flute flew out of his hand and hit the child. He had voluntarily stopped teaching after the offence.

Character Evidence

43 The Applicant tendered a number of references.

44 A friend who had known the Applicant for twenty years and was aware of his conviction for the index offence stated that she had three children aged 6, 3 and 1. She stated that she "never had, nor will ever have any hesitation in allowing (the Applicant) access to my children either alone or within a family gathering". She described him as a remarkable man with an extraordinary gift of being able to help others.

45 A friend who had known the Applicant for sixteen years described him as a close friend who had "boarded under his roof" for several months. He stated that the Applicant had never shown any inappropriate interest in anyone under 18 years and that there was no suggestion that he had ever been guilty of inappropriate behaviour in his work with people of 15 to 30 years in the music industry. He was aware of the index offence.

46 Another close friend of 16 years was aware of the Applicant’s conviction and stated that he had never shown any interest in people under the age of 18.

47 The Manager of a neighbourhood centre that the Applicant had worked with on youth projects stated that the Applicant had been instrumental in the organisation and coordination of a large family festival. She had worked with him for five years and was aware of his application for an exemption. She stated that he has always shown professionalism and that she had not witnessed any improper sexual contact or innuendo and that he had direct contact with people of all ages.

48 A financial counsellor who had worked with the Applicant for three years stated that he had shown nothing but the upmost professionalism, intelligence, efficiency and effectiveness when working in a close team environment. She described his as having an honest, caring and compassionate nature and being of excellent character.

49 His brother and sister in law were aware of the index offence. They described him as a loving uncle to their children aged 5, 2 and 3 months and stated they had no hesitation in allowing him access to their children alone or within a family gathering. They noted that he had worked with children most of his adult life and had never once had a sexual allegation or charge laid.

50 There were a number of references regarding his teaching experience written in the period 1985 to 1990. These predate his offence of assault occasioning actual bodily harm while teaching students and the index offence.

Discussion and findings

51 In 1998 the Applicant was convicted of sexual intercourse without consent. That conviction makes him a prohibited person.

52 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.

53 It is now eight years since the index offence. His victim was an adult and the age difference was somewhere between 9 and 12 years. That is not a significant age difference. The Applicant is now 45 years old.

54 The Applicant’s total criminal record does not fall at the serious end of the spectrum. However it is a matter of concern that a number of his offences have involved serious breaches of trust.

55 The index offence involved a serious breach of trust of a friendship between the Applicant and the victim. His conviction for the assault of a school pupil involved the breach of a position of trust as he was teaching at the time. It is also clear that when faced with financial pressure from debts he took money from a musical society while in a position of trust as the treasurer, resulting in his conviction on 26 counts of obtain money by deception.

56 The Applicant’s view of the index offence is confused. On the one hand he acknowledged that it was a serious offence, that the victim was unconscious at the time and that he misread the situation. On the other, eight years after the offence, he tells this Tribunal and the expert Dr Lennings that it was an experimental act on the part of the victim and that it was consensual.

57 The Applicant acknowledged that he had done some stupid and bad things but pointed out that they did not involve children or things of a sexual nature in relation to children. The Applicant submitted that the only offence against a child, the assault when he was a teacher, was not sexual and not intentional. He submitted that the Respondent’s enquiries about him had not revealed any concerns about him and children. In addition he relied on the fact that he is not registered under the Child Protection (Offenders Registration) Act 2000 as further evidence that he is not a danger to children.

58 I accept that the Applicant has never been charged with, or convicted of, a sexual offence against children, that he is not registered under the Child Protection (Offenders Registration) Act 2000 and that he has worked with children in one format or another for twenty five years.

59 He relies on Dr Lennings’ conclusion that he poses a low risk. He referred to Dr Lennings’ statements about his position of trust within the music industry and the Respondent’s submission that the evidence pointed to him having an impulsive nature. He said that he had been in the music industry for twenty years. He said

"If I was going to abuse that with somebody underneath the age of 18 surely it would have already happened".

60 He submitted that if he was such a danger to children then he would not have been placed at a neighbourhood centre to do the community service component of his sentence for the offence of obtaining money by deception. At that neighbourhood centre he had contact with young people in bands and nothing had occurred during a two and a half year period.

61 The Tribunal had the benefit of Dr Lennings’ expert opinion. He conducted a thorough and careful assessment and concluded that the Applicant posed a low risk. Dr Lennings referred to the nature of the music industry that the Applicant has worked in and the vulnerability of young people in that industry. I accept Dr Lennings opinion that risk is not just a function of internal predisposition but also a function of opportunity and the constraints in the environment. I also accept his view that

even though the risk of an offence against a young person is low, and lower than the risk that may occur for an adult, the fact of the vulnerability of the population he is likely to work with, means that even a low risk rating may have to be viewed quite cautiously. I believe that the relationship volatility and his (the Applicant’s) history of loss of judgement around his behaviour at such times may represent a risk that has to be considered.

62 Dr Lennings considered that the Applicant’s capacity to be clear about boundaries may differ markedly when he is under pressure and he remained concerned about the Applicant’s denial of his obsessional interest in the victim of the index offence and that such an obsession could arise in other contexts. I accept that evidence.

63 On the Applicant’s own evidence and submissions there is little to suggest that he takes responsibility for his offending. In his view the assault on his pupil while in a position of trust as a teacher was "unintentional". While he readily admitted that the victim of his sexual offence was unconscious at the time he considered that he had consented to sexual intercourse and being photographed and he was engaged in an experimental act.

64 It is only eight years since the index offence and in that time he has been convicted of another offence that involved a lack of judgement when under pressure because of debts and a breach of trust given that he was the treasurer of the musical society at that time.

65 On the evidence before me I cannot be reasonably satisfied that the Applicant does not pose a real and appreciable risk to the safety of children in any circumstances. I decline to grant an unconditional declaration under s 9(1). Having made that finding, I must now consider whether it is possible to impose conditions in order to lift the Applicant over the risk threshold.

66 Dr Lennings considered that the risk posed by the Applicant could be modified somewhat if the environment the Applicant worked in contained constraints. He gave an example of requiring that the Applicant not be alone with young people and that a responsible person was aware of the need for the supervision of that requirement.

67 The Applicant has moved interstate and does not have an employer at present. He is caring for a relative and has no immediate plans to work with children and young people. He has indicated he may at some time in the future wish to work with children and young people. That is most likely to be in the music industry. At this point it is not clear that any potential future employment would be in NSW and there is no evidence about any specific employment that he proposes to engage in. In these circumstances it is not feasible to set conditions that would lift the Applicant over the risk threshold.

Order

The application is dismissed.