OX v Commission for Childen and Young People [2006] NSWADT 69 (8 March 2006)

Last Updated: 8 March 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL COMMUNITY SERVICES DIVISION

CITATION: OX v Commission for Childen and Young People [2006] NSWADT 69


PARTIES: APPLICANT
OX
RESPONDENT
Commission for Children and Young People



FILE NUMBERS: 054010

HEARING DATES: 13/09/2005 & 15/11/2005

SUBMISSIONS CLOSED: 15/11/2005



DECISION DATE: 08/03/2006

BEFORE: Smyth M - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Child Protection (Prohibited Employment) Act 1998
Child Welfare Act 1939
Crimes Act 1900
Public Instruction (Amendment) Act 1916

CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949
R v Commission for Children and Young People [2002] NSWIR Comm 101
A v Commissioner NSW Commission for Children and Young People [2000] NSW ADT 151
Rodway v R [1990] HCA 19; (1990) 92 ALR 385
Maxwell v Murphy [1957] HCA 7

APPLICATION: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
T McKenzie, Barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
M Higgins, Barrister

ORDERS: The Child Protection (Prohibited Employment) Act 1998 is not to apply to OX in respect of the offence of carnal knowledge for which he was convicted on 20 February 1973


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 Although an order would apply to all work with those under 18 years that is not directly supervised, the application is made as the applicant wishes to do youth work with young people at risk of criminal behaviour.

3 The Respondent did not support the application. The Respondent stated that ultimately if the Tribunal found that the Applicant was a risk then it would be appropriate to consider conditions under s 9(9) of the Child Protection Act and it would be relevant to consider the prospects of the Applicant complying with conditions imposed. The Respondent made more detailed submissions regarding conditions and these are dealt with later in this decision.

4 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, we have decided not to publish any details that could identify the Applicant. The Applicant is referred to in these reasons by the pseudonym, "OX". Those who provided references for the Applicant are identified by their occupation rather than their name.

5 On 20 February 1973 the Applicant appeared before the Children’s Court charged with carnal knowledge. He was released on probation for a period of 12 months.

Is the Applicant a prohibited person?

6 The Applicant submitted that he was not a person convicted of a serious sex offence and consequently he was not a prohibited person. The Applicant and the Respondent provided helpful written submissions on this question.

7 Section 5(1) of the Child Protection Act states that

(1) For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.

8 The definition of serious sex offence is set out in section 5(3) of the Child Protection Act and includes:

(a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or...

9 The word conviction is defined in s 3 of the Child Protection Act as

includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

10 Section 5(6) of the Child Protection Act makes it clear that section 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence. That section deals with evidence of proceedings dealt with by way of recognizance after fifteen years.

11 A document entitled Court, Charge Case no 0756 Metropolitan Children’s Court of Petty Sessions dated 20 February 1973 was tendered by the Respondent in these proceedings. The offence was described as unlawfully and carnally knowing ... a girl of 14 years ... on or about 28 July 1972. The charge was laid under the then section 71 of the Crimes Act 1900. At the time of the offence the Applicant was aged 15 years.

12 That document stated that the allegation was admitted. The Magistrate asked the Applicant if there was anything he wished to say. The Applicant stated "Nothing, except that I know that it is wrong and I have to be punished."

13 The record indicates that the Magistrate stated

I am going to give you a chance on this occasion, (OX), you will have to bear in mind that you will have to conform and behave yourself and keep away from undesirable companions.

14 A Mandate for a Young Person under the Child Welfare Act 1939 and the Public Instruction (Amendment) Act 1916 was signed by the Magistrate on 20 February 1973. The Applicant was released on probation for a period of twelve months subject to terms and conditions.

Applicant’s submissions

15 The Applicant submitted that no conviction was recorded on the official record and that the document stated that the Applicant was released on probation for twelve months subject to conditions. The Applicant submitted that a plea of guilty cannot be construed as a finding that a charge for an offence is proven or that a person is guilty of an offence.

Respondent’s submissions

16 The Respondent submitted that by operation of s 5 of the Child Protection Act, the Applicant is a "prohibited person" and as such, it is an offence for him to apply for, undertake or remain in child-related employment. The Respondent submitted that as at 1972 section 71 of the Crimes Act 1900 (NSW) prescribed a maximum penalty for the offence of unlawful carnal knowledge of penal servitude for 10 years. The Respondent submitted that the phrase in s 5(3) of the Child Protection Act "punishable by" should be given its natural meaning of able to be punished by or capable of being punished by. The definition refers to the maximum penalty in an objective sense, ie the penalty specified in the section creating the offence, rather than the penalty received by an individual offender. Accordingly the Respondent submitted that the penalty for an offence contrary to section 71 of the Crimes Act 1900 was 10 years and that the offence for which the Applicant was sentenced constitutes a serious sex offence.

17 The Respondent further submitted that the Applicant admitted the index offence on 20 February 1973. The Applicant was dealt with pursuant to section 83(2)(a) of the Child Welfare Act 1939 and, without proceeding to a finding of guilt, he was released on probation with conditions.

18 The Respondent submitted that the legislative intent of the Child Protection Act is to operate against not only persons who received a formal conviction, but also persons in respect of whom the court was satisfied that the offence was proved or admitted but who were dealt with more leniently. The Respondent submitted that the word "convicted" includes persons dealt with other than by conviction pursuant to the repealed Act and that such an approach promotes the protective object of the Act. The Respondent submitted that in this case the Applicant’s admissions are sufficient to regard him as having been convicted for the purposes of the Child Protection Act.

Finding

19 In A v Commissioner, NSW Commission for Children and Young People [2000] NSW ADT 151 a similar issue arose. The Tribunal stated at [18]

While Mr A was not found guilty of the offence, he admitted the offence and a penalty was imposed. There is no difference in substance between finding that a charge is proven and a defendant admitting the offence. Under s 83(3) of the Child Welfare Act 1939 a court does not have to make a formal finding of guilt before proceeding to sentence the person for the offence. Consequently the ordinary meaning of "a finding that the charge for an offence is proven" includes the situation where an offence is admitted and the defendant is sentenced. (See also Pavlovic -v- Commissioner of Police [1999] NSWADT 117).

20 I adopt that reasoning here. OX admitted the offence of carnal knowledge and was placed on probation for 12 months with conditions by the Children’s Court. The definition of conviction in s 3 of the Child Protection Act does not require a court to proceed to a conviction. Given that the offence was admitted and a penalty was imposed that amounts to "a finding that the charge was proven" and satisfies the requirements of the definition of a conviction in s 3 of the Child Protection Act.

21 I accept the Respondent’s submission that the phrase in s 5(3) of the Child Protection Act "punishable by" should be given its natural meaning of able to be punished by or capable of being punished by. The offence of carnal knowledge was punishable by penal servitude or imprisonment for 12 months or more and in my view constitutes a serious sex offence.

22 Accordingly I find that the Applicant is a prohibited person.

Retrospective application of the Child Protection Act to employment rights

23 The Applicant submitted that there is a presumption against retrospectivity where a reading of legislation impinges on a person’s fundamental rights or duties.

24 The Applicant relied on the following passages in Rodway v R [1990] HCA 19; (1990) 92 ALR 385. That was a criminal law matter and dealt with a change in law regarding the requirement for evidence of corroboration between the date that a person was charged with an offence and trial. The matter went on appeal before the High Court. The Court cited at [388] the following passage from Dixon CJ in Maxwell v Murphy [1957] HCA 7

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to past facts, matters or events, the law (regulating) the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities.

25 Further at [390]

Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms.

26 The Applicant submitted that the legislation in this case (the Child Protection Act) does not, in the clearest of terms, express an intention to take away a citizen’s right to work. The Applicant submitted that s 5 of the legislation sets out a definition of a prohibited person but does not go on to say that it was the intention of the legislation that the prohibited person be stripped of his or her right to work. The Applicant submits that all the statute says in s 5(1) is that for the purposes of the Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of the section. The Applicant submitted that that language is not clear in terms of an intention to visit consequences of such a magnitude on an Applicant for an act committed some thirty years ago when the Applicant was a minor.

27 The Respondent submitted that the Child Protection Act is clear in its intention to place an evidential onus upon the Applicant to satisfy a court that the right to work should not be placed second to the risk of safety to children.

28 The Respondent referred to s 12 of the Child Protection Act and submitted that the Act is clear in its intention and words that it operates irrespective of any inconsistency with common law. That sections states that

(1) This Act prevails to the extent of any inconsistency between it and any other Act or law.

(2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or employee contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment in accordance with this Act.

29 The Respondent further submitted that the Child Protection Act is clear in its intention and words that it operates irrespective of any inconsistency with the common law. The second reading for the Bill revealed that the clear intention of the legislature was to give greater importance to the protection and welfare of children in implementing the recommendations of the Wood Royal Commission over that of the right to employment of the individual.

30 The Respondent also referred to Young J’s consideration of the right to work in Commission for Children and Young People v V [2002] NSWSC 949 and submitted that His Honour acknowledged that the right to work is not extinguished by the Act, but remains a factor for consideration as part of the balancing process to be carried out in the assessment of risk.

Discussion and finding

31 Section 6(1) of the Child Protection Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment. Child related employment is defined in s 3.

32 Section 5 (1) of the Child Protection Act clearly defines a prohibited person as a person convicted of a serious sex offence, whether before or after the commencement of this subsection... (emphasis added).

33 The Child Protection Act includes transitional provisions in s 6(3) relating to persons other than the self employed and states (emphasis added)

A person who is in child-related employment at the commencement of this section (other than a self-employed person) and who is a prohibited person at that commencement does not commit an offence under this section by remaining in that employment during the period of 3 months after that commencement if:

(a) the person discloses to his or her employer, within 1 month of that commencement, that he or she is a prohibited person, and

(b) the person complies with any requirement of his or her employer concerning unsupervised contact with children during that 3-month period.

34 In my view those transitional provisions contemplate that there could be "prohibited persons", ie those convicted of a serious sex offence, at the commencement of the Child Protection Act. That section, along with the inclusion of the word "before" in the phrase "before or after the commencement of this subsection" in s 5(1), provide clear evidence of Parliament’s intention that the Child Protection Act applies to those convicted of serious sex offences before the legislation commenced.

35 In addition the Act makes provision in s 9(1) for this Tribunal and the Industrial Relations Commission to make an order declaring that this Act is not to apply to a person in respect of a specified offence.

36 Consequently the Act does not completely extinguish a person’s right to work and provides a mechanism for a balancing exercise on the application of a prohibited person. In Commission for Children and Young People v V Young J stated [38-40]

38 As I have already noted, Haylen J in R, placed considerable emphasis on the right to work. In addition to his reference to the fundamental nature of the right and its protection by United Nations protocols, his Honour also drew attention to the fact that there is a dichotomy between situations where the prohibited person may lose his or her job because of the statute and other situations. His Honour says that this can only be because there is a balancing exercise to be carried out an assessment of risk to children on the one hand and the right to work on the other.

39 The present case does not deal with a person in paid employment so that the direct consideration of the right to work does not enter into the case. However, his Honour's point still remains, why would the Industrial Commission be given jurisdiction to deal with an application under s 9 of the Act unless it involved some assessment of the right to work over the risk to children?

40 I cannot see any reason to gainsay his Honour's thought processes. Moreover, what his Honour says is reinforced by reference to the Minister's Second Reading Speeches about acceptable risks and that there must be a balancing of protecting employees, protecting children from abuse, and protecting reasonable civil liberties.

37 Section 5(6) states that for the purposes of the Child Protection Act s 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence. Section 579 of the Crimes Act 1900 deals with evidence of proceedings that were dealt with by way of recognizance. Under that section, subject to certain conditions, a conviction or a finding that a charge of an offence has been proven is to be disregarded for all purposes and is not admissible in any criminal, civil or other legal proceedings after 15 years.

38 The insertion of s 5(6) adds further weight to conclusion that it was Parliament’s intention that the Child Protection Act should apply retrospectively to serious sex offences committed before that Act took effect. Section 5(6) is only relevant to convictions or findings that offences are proven after 15 years and at this point in time those offences must have occurred well before the Act commenced.

39 Section 12 states that the Child Protection Act prevails to the extent of any inconsistency between that Act and any other law.

40 In my view the Child Protection Act does evince a clear intention that Parliament intended it to have retrospective effect.

41 As Mr OX is a prohibited person the Tribunal must now determine whether Mr OX is a likely to be a risk to the safety of children and young persons if he engages in child related employment.

Relevant legislation

42 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).

43 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.

44 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 in support of, the making of the order.

Standard of proof and meaning of "risk"

45 The Applicant carries the onus of proof on the Briginshaw standard, 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. 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.

46 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.

47 His Honour continued

A balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed.

48 His Honour further said:

There is a two-tier decision-making process in the sense that the Tribunal making the decision must have two foci. Dealing with these foci in no particular order, one focus is the serious sexual offence and its circumstances. The second is the current danger, if any, posed by the applicant to children. Subsection 5 deals mainly with the first focus. That is, the Tribunal must evaluate the seriousness of the offences taking into account the age of the applicant when the offences were committed, the age of the victim at the time and the difference in the ages. The second involves the assessment of the applicant's character now, which includes the seriousness of the prohibited person's total criminal record, a matter mentioned by 5(e), and any other matter which the Tribunal considers relevant. Subsection 5 then deals partly with one focus and partly with the other. Although the Tribunal has to focus its attention on (a) the original crime and (b) the applicant's current character, all these matters must come together when the Tribunal is making a decision as to whether to exempt a person from the effect of the Act. A decision is then made in the light of all these matters as to whether the person does or does not pose a risk to the safety of children. If the person establishes that he or she does not pose a risk to the safety of children, then the Tribunal has discretion as to whether or not it will make an order. In view of the right to work, however, that discretion would ordinarily be exercised in favour of the applicant unless there is good reason not to exercise it.

49 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission for Children and Young People that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children: par [46]. By implication it would be wrong to impose a condition on an applicant who, without such condition, does not pose a real or appreciable risk

Index Offence

50 The Applicant was charged with unlawfully and carnally knowing a girl of 14 years. He was aged 15 years at the time and the offence occurred in 1972, over thirty three years ago. As stated previously, the Applicant was released on probation for twelve months subject to conditions.

51 In a record of interview dated 10 February 1973, the young woman involved alleged that the Applicant had intercourse with her in July 1972. She alleged that the Applicant had tried to persuade her to have sex and she had refused. The Applicant had then said "If you don’t let me, all the others will get you" referring to other young men present in another room. She also alleged that the Applicant had hit her across the head before intercourse occurred.

52 In a police record of interview dated 19 February 1973 the Applicant agreed that he had told a police officer that he had sexual intercourse with the young woman. He stated that he had a fair bit to drink and all he could remember was talking with her and going into the bedroom. He then described how intercourse occurred.

53 The allegations that he had threatened and hit the girl were not put to the Applicant in that record of interview. The Applicant came before the Children’s Court on a charge of carnal knowledge and no charges were laid regarding the use of threats or violence.

54 In response to the Children’s Court Magistrate’s statement "What concerns me most is that you offered some violence to this girl", the Applicant denied any violence on his behalf that made the girl co-operate and adhered to his police statement of 19 February 1973. The Magistrate made no further comment regarding violence.

55 The Applicant gave evidence before this Tribunal and was cross examined about the index offence. He agreed that he had been 15 years old at the time and stated that the girl was 14 or 15. When asked questions regarding the contents of his statement to Police at the time he stated that if that was what the statement said, then yes he had said those things. He stated that he had no recollection of making his statement to police. When asked whether he was drunk on the day of the index offence he replied "in all probability". When asked whether he had been aggressive with the girl involved in the index offence he replied "I am not sure, I can’t be certain".

56 He had no recollection of telling her that if she did not agree (to have sex with him) that the others would get her. When asked in cross examination whether it was the case that he had drunk so much he really did not remember much of what happened on that night he stated " I haven’t got a clue what happened on that night".

57 The girl’s allegations regarding his use of a threat and hitting her were not put to him by the police in his record of interview at the time. He denied any violence before the Magistrate. He now states that he does not have a clue what happened on the night and that he was not sure whether he was aggressive. That is not surprising given that it is now over thirty three years since the offence occurred and, it appears on his evidence, that in all probability he had been drinking at the time. He was not charged with any offence involving violence or threats and the only charge he came before the Court on was carnal knowledge. On the basis of the evidence before me, over thirty years later, I am not satisfied that he did make a threat or hit the girl involved.

58 The index offence does not fall at the serious end of the spectrum for sexual offences.

Ages of the Applicant and Victim of the offence

59 At the time of the index offence the Applicant was 15 years old and the girl was 14, an age difference of one year. The Applicant is now aged 49 years.

Seriousness of the Applicant’s total criminal record

60 The Applicant has convictions for a number of offences. In 1973 he was convicted of begging and preventing the free passage of a person in a public street. At the age of 16 he had stopped a 16 year old girl at a railway station and demanded 20 cents from her. In 1974 he was convicted of malicious injury and throw missile. In that instance he threw a soft drink can at a window and broke it. He was fined for these offences.

61 In 1977 he was convicted of assault occasioning actual bodily harm. That offence occurred as the result of a fight in licensed premises. He was placed on a recognizance of $500 to be of good behaviour and under supervision for four years.

62 In 1982 he was convicted of one count of malicious wounding with intent to do grievous bodily harm and two counts of assault occasioning actual bodily harm. He was given a custodial sentence of six years on the first conviction, two years on the second conviction and 12 months on the third conviction. These were cumulative and a non parole period of 4 years was imposed.

63 He was cross examined before this Tribunal regarding this offence. He gave evidence that his girlfriend had been in a prior relationship with a man who was a drug user. His evidence was that his girlfriend had kept away from that man and got off drugs. One day the Applicant came home and discovered them in bed together.

64 Some days after discovering them in bed together he had gone to confront the man. He agreed under cross examination that his intention was probably to give the man a "swift belt under the jaw." When the Applicant arrived at the premises his ex-girlfriend and the man were not there. Another man was present. The Applicant hit him with a bottle and tied him up. He then waited for the other man and his ex–girlfriend to return. The Applicant recalled that he was very angry and drunk at the time. When they returned the Applicant assaulted the man and then stabbed his ex girlfriend a number of times. Under cross examination he was asked "You went into a blind rage?" and answered "That is what it appears". He later stated in evidence that he had sat in the car, had a lot to drink, went to confront the man involved, things blew up and that when he confronted the man his ex girlfriend had intervened.

65 After serving his custodial sentence the Applicant completed his parole period without incident. The Applicant had no further convictions until 1992 when he was convicted of assault and assault occasioning actual bodily harm.

66 These assaults concerned an incident with his wife following their separation. Six days before he assaulted his wife in 1992 after they had separated he had picked his wife up from her workplace. He agreed in cross examination that he had been drinking, had alcohol in the car and had indicated that he intended to commit suicide on that day. He agreed that at the time that was because of feelings of jealously, anger and rejection because of his perception that his wife was having an affair with her boss.

67 On the day of the assault the Applicant had arranged to meet his wife and mother-in-law in the car park of a large store. The plan was for his wife to return some household items and for him to drive his mother-in-law to a country town.

68 His wife and mother-in-law parked next to the Applicant’s car. He walked towards the car and asked his wife if she had five minutes to talk. His mother-in-law waited in his car while he told his wife of his feelings for her.

69 His wife told him that being around him was draining for her; he grabbed her and led her round the corner. In her statement to Police his wife stated that she told him she did not want to go any further, then he asked "Do you think we have a chance?", she said "I don’t think so" and he then grabbed her around the throat and pushed her into a garden. He started strangling her, she struggled and mouthed the words "I love you" to get him to stop. He let her go and ran off, she got up and started screaming for the Police and ran up to the store as she remembered her mother was sitting in his car. She saw his car coming down the car park and screamed to her mother to get out. The Applicant then swerved the car towards her and accelerated. His wife ran toward the doors of the store, jumped to avoid the car but was hit by the car. The car crashed into a wall and the Applicant got out and ran around the corner.

70 His wife was treated as an outpatient for shock and abrasions and her mother was treated for shock and bruising to her chest.

71 The Applicant was given a custodial sentence of six months and appealed against the severity of the penalty. On appeal his convictions were confirmed however the Magistrate’s orders were set aside.

72 Before imposing a sentence the District Court judge stood the matter over in December 1992. Bail was continued subject to conditions including that the Applicant continue with counselling he had been attending. At that time the Applicant and his wife were both attending counselling and had reconciled although they did not live together. In June 1993 sentence was deferred and the Applicant was placed on a recognizance of $1000 to be of good behaviour and under supervision for three years and fined a total of $800.

73 He served out his recognizance without incident and has had no convictions since 1992.

Other relevant matters

Applicant’s Evidence

74 The Applicant’s written statement of 13 September 2005 and his affidavit of 14 November 2005 were in evidence. In addition he gave oral evidence at the hearing on 13 September 2005.

75 He agreed that he had made a number of mistakes, had a number of prior convictions and was aware of the seriousness of the offences on his record. He stated that he had not made a secret of his past. He has spent his life trying to move on from it and wished to undertake youth work to assist "troubled youth". His evidence was that he had been actively involved in programs trying to get troubled young people some focus, training and skills. He had an interest in establishing court support programs for juveniles and working to stop young people making mistakes that would impact on their future.

76 He was awarded a Bachelor of Social Science from the University of New England in 1998 and commenced a Masters Degree in Peace Studies. He plans to resume that Masters program if an exemption is granted. His written statement and oral evidence referred to a number of positions he had held, both paid and voluntary, that involved youth work. These organisations included Rotary International in addition to church based and community organisations.

77 He stated that he worked with Rotary International as the Co-ordinator, Club and District, for Australia, the South Pacific and the Phillipines for two years. He left as his criminal history prevented him obtaining a visa to the United States.

78 He also worked for TAFE outreach on a casual basis developing a program for young truants and young people who had been expelled from high school. He gave evidence about the work he did for TAFE on developing a pilot kayaking program for "wayward youth" and subsequent work with the local Police Citizens Youth Club in vacation care. He referred to a particular project in which he worked with young offenders to build 6 kayaks and train them to paddle in a kayaking marathon.

79 He stated that following the success of his kayaking project he was approached by a number of organisations to co-ordinate and implement programs. At that time he was also working on the set up of a Rotary program to work with "troubled youth" and underwent a working with children check in 2003. As a result of that check he was informed that he could not work with children and stopped any employment with them. At present he cares for his three children aged 12 and under at home on a full-time basis while his wife works full-time.

80 In his statement he listed a number of approaches from community and other organisations to apply for positions. He stated that he has been unable to apply for these positions due to his prohibited status. He referred to a number of organisations that are awaiting the outcome of this matter before determining whether he is able to undertake positions.

81 During cross examination he agreed that his father was a heavy drinker and violent. He stated that his early years were a blur and that from the ages of 14 to 21 he was a "drunken mess".

82 He agreed that when he assaulted his wife is 1992 he had felt anger and rejection and probably a fear of abandonment. His evidence was that just before he assaulted his wife in 1992 they were talking and she had said "I don’t need you any more". It was at that point the Applicant told the Tribunal that he "went into a blind rage".

83 The Applicant gave evidence that during his period in custody from the 1982 offences he had some counselling and thought that he had addressed the issues that caused him problems from his childhood. In cross examination he agreed that by 1992 he had not dealt with all of his childhood issues.

84 Following the 1992 offences he was treated by a psychologist, Mr Richter, who provided a report to the District Court in his appeal proceedings. That report was also in evidence before this Tribunal. The Applicant agreed in cross examination that as at 1992 he had issues regarding low self esteem, fear of abandonment and rejection, a fear of commitment and lack of trust. He stated that lots of issues he thought had been addressed he "had locked inside".

85 The Applicant described his relationship with Mr Richter as very therapeutic. When asked by the Respondent if he considered he had an insight into any problems arising from his childhood the Applicant answered that "Yes" and stated that "Paul Richter extracted from me things I had forgotten existed". He stated that he saw Mr Richter for a number of months and then continued to have contact for a number of years when he was able to call him if he had problems. The Applicant did not recall when he last saw Mr Richter for therapy but stated that it was not in the last five years.

86 When asked if he had any other therapy he stated he had not, that he has a lot of friends he talks to now and that he discussed things with other people. The Applicant agreed during cross examination that, apart from his relationship with Mr Richter, the balance of his therapy had been self help.

87 During cross examination the Applicant was asked about obtaining an exemption on condition that he attended counselling. He replied that he did not consider himself as someone who needed counselling. He stated that he had not touched alcohol for years, was in touch with his community and had a fantastic relationship with his wife.

The Applicant’s wife’s evidence

88 The Applicant’s wife wrote a letter to the Tribunal dated 8 June 2005 and asked the Tribunal to strongly consider giving her husband an exemption. The Respondent did not require her for cross examination.

89 In her letter she stated

I have known [OX] for almost 20 years and can attest to [OX’s] determination and strength in overcoming the difficulties which he experienced in his childhood.

I have seen [OX] work through the most difficult of situations with regard to his late father and his troubled upbringing, and have seen him develop into the most loving and devoted family man.

90 She described their three children’s achievements and described them as normal and very healthy kids. She stated that her husband had not been able to pursue work in his chosen field since receiving notice of his prohibited status and had to turn down jobs. She stated that he had not hidden from his past. She described how she had to take on full time work.

91 She referred to her husband’s ability to work with young people and his capacity to "turn around the most wayward of teenagers, youth that have been almost completely lost in the system" and stated that she had seen "those same young people find a meaningful role in society." She gave the example of the kayaking program her husband had developed to "get kids who had been expelled from school and who were heading no where fast off the street and motivated", his persistence in developing this program and described instances of young people’s gains from the program.

References

92 The rector of the Applicant’s church parish provided a written statement dated 9 June 2005 in support of Mr OX’s application and gave oral evidence before the Tribunal. He has known the Applicant for four years as the Applicant and his family are members of his congregation. He has frequent contact with the Applicant and they have also done some bible study together. He described the Applicant as a supportive and caring husband and a caring father.

93 He was aware of the work that the Applicant wished to do with young people in general terms mainly through what the Applicant had told him, although he had seen him at the gym with young people.

94 In his oral evidence he stated that, having heard the evidence of the Applicant in the Tribunal, there were some details about him that he had not been aware of. Generally he was very much aware of the Applicant’s life as a young person and that the Applicant had not hidden the seriousness of his background from him.

95 He was cross examined about the statement in his written reference that

...In my judgment (sic) the charge of "Carnal Knowledge" against [Mr OX] when he was 15 years old misrepresents the situation in that I believe it to have been a sexual encounter between two consenting young people. In today’s society such an encounter wouldn’t raise an eyebrow...

96 The Respondent put to him that the girl’s statement (regarding the index offence) to the police had indicated no consent and he was asked whether that caused him to change his view. He responded that it was still not clear what the context really was and, referring to Mr OX’s evidence before the Tribunal, he stated that Mr OX clearly did not remember it.

97 He was unable to recall what Mr OX had told him about the index offence but said that his general recollection is what he conveyed in the letter dated 9 June 2005 and that he had believed it was a consensual sexual act. When asked whether he had moved away from the opinion that it was a consenting encounter after hearing the Applicant’s evidence and cross examination he stated that it caused him to put a question over that opinion. He stated that while Mr OX had never disclosed all the details of his past he had never made light of anything. He also stated that he had seen Mr OX’s criminal record and that he had discussed the 1992 incident with the Applicant and his wife.

98 In addition the following written references were before the Tribunal and none of the following were required for cross examination.

99 The manager of an employment agency stated in a reference dated 1 February 2005 that he had known Mr OX for nine years. He stated that during that time Mr OX had completed a university degree, been a member of the Board of a local skills training organisation, been involved in many community initiatives involving youth at risk and served with Rotary International. He had also been a driving force in "introducing young people to the challenges of esteem building processes" such as competing in the gruelling kayaking race. In a further document dated 9 June 2005 the manager stated that he was fully aware of the Applicant’s criminal record and attached a copy of that record. He stated that he strongly supported his application for an exemption from his prohibited status.

100 In a reference dated 27 January 2005 a minister of religion stated that he had known Mr OX for nearly thirty years and referred to the work that Mr OX and his wife had done as volunteer houseparents at a youth home some years ago. He referred to Mr OX’s role as his "right hand man developing programmes to assist young people who find themselves in troublesome situations". He stated that Mr OX related well with the young people he assisted and that he was a fine example of a person who has overcome the great adversity of his troubled childhood and early adult years to become the competent and caring man he is today. In a further document dated 8 June 2005 the minister stated that he was fully aware of the Applicant’s criminal record and attached a copy of that record. He stated that he strongly supported Mr OX’s application for an exemption from his prohibited status.

101 A letter to the Applicant dated 13 January 1999 from the branch administrator of a local Police and Citizen’s Youth Club thanked the Applicant for taking part in a holiday program. The administrator referred to a canoeing excursion and stated that it was popular, all reports from children and supervisors "indicate that a great time was had by all" and that the children were especially looking forward to the next outing. The letter stated that the Applicant’s time and effort were appreciated.

102 The president of a local community projects organisation that runs a number of social welfare projects, who is also a child and family psychologist, provided a reference dated 20 January 2005. He stated that he had known OX for 7 years and referred to OX’s establishment of a kayaking program for local young adults. He stated that "As a child and family psychologist and as chair of this organisation, which runs several local social welfare programmes, I am very conscious that our staff need to understand the causes of social alienation and loss of motivation. It is also essential that our youth workers have an approach which is realistic and credible to the client group. I was therefore pleased when [OX] forwarded his CV to us for casual work. I saw his combination of life experience, theoretical understanding and personal style as one that could really add to the skills base of our organisation and I requested a Working with Children check without delay".

103 He referred to the decision regarding the Working with Children check being deferred due to Mr OX’s criminal record and that Mr OX had not "made a secret of his criminal activity as a young man". He stated that some of Mr OX’s "best insights into welfare work seem to come from his life experience of leaving that behind him and establishing a lawful lifestyle, and I would expect this would add to his effectiveness as a youth worker".

104 A reference dated 19 November 2002 from a Manager of Rotary International, stated that Mr OX had been employed by that organisation from August 2000 until November 2002 as a coordinator in their Club and District Administration section. Mr Tarrant described him as an enthusiastic and friendly employee and a valuable staff member. He stated that outside the office Mr OX was "active in programs to help young people who have gone astray".

105 A reference dated January 17, 1992 from an administrator at Sydney City Mission, stated that Mr OX had worked for the Sydney City Mission as a welfare officer for a year, resigning for personal reasons. He described him as a most energetic person, with an innovative approach who worked well in motivating his staff and referred to his interest and concern for youth problems. He commended him as a good youth worker.

106 A reference from local club operator dated 26 March 2004 stated that he had known the Applicant for two years and met him when Mr OX requested his assistance with his kayaking program for young people. The club operator allowed youths to train in his facility and stated that Mr OX dedicated a lot of time to these youths, that some did compete in a marathon and that Mr OX did the same thing again a second year with a similar outcome. He also stated that Mr OX began to train at his club regularly and also helped a blind man three days a week with his training. He stated that "This man could make a difference to the youth he comes in touch with. To put something in the way of that is insanity." He did not make any reference to Mr OX’s criminal record.

Expert Evidence

107 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 20 May 2005, and a supplementary report, dated 23 May 2005, were tendered in these proceedings by the Applicant. Neither the Applicant nor the Respondent required Dr Lennings for cross examination.

108 In his written report of 23 May 2005 Dr Lennings stated that he used the STATIC 99, an actuarial tool, to gauge risk. This method uses 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 OX’s score on the STATIC 99 indicated a medium high risk rating. Dr Lennings stated that, given Mr OX’s history, the Static 99 also provided the risk for violent offences and Mr OX fell into the high risk category for these offences.

109 Dr Lennings stated that the STATIC 99 provided for a discount on the risk rates on the basis of time free of an offence. As Mr OX had not offended since 1992 he would receive a maximum discount and his risk ranking would fall to medium low. Although the discount did not appear to have been calculated for violent offences Dr Lennings stated that, no doubt the same logic would apply, and some kind of discount could be anticipated for violent offences although he did not specify the basis for this.

110 He then used a structured clinical assessment, sampling variables from both static and dynamic risk factors. Dynamic factors are variables that may be able to 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.

111 Dr Lennings concluded that Mr OX did not have a mental illness and did not present as psychopathic. In Dr Lennings’ view he appeared to have frankly acknowledged his anti-social behaviour in the past and to have experienced a turn around in his behaviour. He stated nonetheless that some loading on that measure must be contemplated, but it must be acknowledged that he had remained out of trouble for a long time.

112 He concluded that his risk ranking is relatively low despite his history of substance abuse noting that he had reported no substance abuse for the last 12 years and none then for 10 years prior to that. He referred to a probation report from 1981 indicating a remarkable over-coming of his former alcoholism. He also concluded that he has a low risk rating on items associated with suicide and homicide despite his history. He stated that in both episodes in which he was charged with attempted murder a certain set of factors occurred. These were significant inebriation at the time leading to disinhibition, having a poor memory for what he did and having had very little control over his behaviour. He stated that Mr OX did have a significant loss of control in those particular incidences and it was perhaps a matter of luck that nothing more drastic occurred.

113 He concluded that he has a mild risk rating in relation to this lack of impulse control and that, while likely that such a lack of impulse control would only be triggered by alcohol, some importance should be attributed to this.

114 He stated that there was no escalation in sexual offending, the carnal knowledge charge occurred when he was 16, there had been no further charges and that at interview he did not appear to possess attitudes that condoned sexual or violent offending. He stated that historical factors have only limited applicability given the length of time since the sexual offence. He also stated that the age disparity between Mr OX and the victim of the crime meant it was more appropriately viewed as a rape rather than an incidence of child molestation.

115 He concluded that the assessment of dynamic risk factors suggested that as a consequence of the passage of time the risk now of a sexual offence was low.

116 The final risk assessment measure Dr Lennings considered was personality. He stated

Personality factors that are most implicated in the risk of offending are those associated with anti-social behaviours and peers, a sense of narcissism or entitlement which makes a person impervious to the suffering of others, substance abuse that acts as a strong disinhibition factor, and also high impulsivity.

117 Dr Lennings concluded that his history of antisocial behaviour and substance abuse appeared to be well and truly behind the Applicant with no significant emergence of these factors for more than a decade. Although he appeared to have high levels of self confidence he did not appear to be narcissistic. In Dr Lennings’ view some self confidence was probably deserved given the background of abuse that Mr OX emerged from and the fact he had been able to turn his life around.

118 Dr Lennings concluded that Mr OX appeared to be reasonably well adjusted despite some instability in his character. He stated that prison gave him an opportunity to reflect on his life and that he made significant changes. He described the relapse in 1992 as an isolated event. He stated that Mr OX appeared to have managed reasonably prosocial behaviour since his release from gaol in 1985 and had approximately 20 years of relatively good functioning other than the period in 1992. He concluded that

On the basis of that self report Mr OX’s risk for both sexual and violent offending appears in my view to be quite low.

119 While he did not believe that Mr OX could "cure" the dysfunction that his history has produced in his personality, Dr Lennings stated that he has marshalled his resources and that he [OX] managed his impulsivity and anger well. He stated that on the basis of his behaviour over the last decade and more he seems to have developed sound self management skills. The only risk factor Dr Lennings referred to was alcohol, stating that this could weaken his resolve to manage his underlying problems. Given his apparent abstinence from alcohol for 12 years Dr Lennings concluded that there seemed no reason for him to have counselling for substance abuse.

120 Dr Lennings stated

However, it seems a remorse (sic) possibility that he will resume substance abuse and whilst it remains an uncertainty in the assessment my recommendation is that an exemption would be appropriate in this case.

121 In his supplementary report of 23 May 2005 Dr Lennings referred to the Personality Assessment Inventory he had asked the Applicant to complete. That test is a self administered objective inventory of adult personality and Dr Lennings stated that it is regarded as a powerful test of adult personality.

122 Dr Lennings concluded that the Applicant’s response to the test was open and frank. The Applicant presented as friendly, extroverted and someone with good temper control. He concluded that he did not seem to have problems with the management of impulsivity. Although the Applicant endorsed items that revealed his history of anti-social behaviours that was consistent with his self report. His view was that the self report Personality Assessment Inventory supported the Applicant’s presentation on interview, did not change anything in his report of 20 May 2005 and that his conclusions remained unaffected.

Report of Mr Richter

123 The transcript of the District Court’s December 1992 hearing of the Applicant’s appeal against the severity of his sentence for the 1992 offences was tendered by the Respondent in these proceedings. Mr Richter, a consulting psychologist, gave evidence before Gallen J and told the Court that he had seen the Applicant every 2-3 weeks since March 1992 for counselling. He also provided counselling for the Applicant’s wife. His Honour stood the matter over before imposing sentence on a number of conditions, including that the Applicant continue to seek and accept counselling from Mr Richter or another registered psychologist.

124 When the Applicant came back before the District Court for sentence in June 1993 Mr Richter provided a report dated 9 June 1993. That report was tendered as part of the Respondent’s evidence in these proceedings. As stated above that appeal was determined on 15 June 1993.

125 In his report Mr Richter referred to the opportunity given to Mr OX by the District Court over six months to receive intensive psychological counselling. The report referred to Mr OX’s fear of abandonment, his dysfunctional family and stated that "because of the violent nature of dad and the many physical beatings by dad and his older brother, [OX] had learned to disassociate himself from the real world". Mr Richter referred to Mr OX’s learned helplessness, lack of trust and need to appear tough.

126 Mr Richter stated that "Today you see before you a man who has dealt with some deep issues of his past..." He stated that

Many hours have been spent by Mr OX in examination of his life, his past and his possible future. [OX] is now in touch with himself and I do not believe he is now a danger to anyone."

Reports from Community Corrections Service and Probation and Parole

127 A pre-sentence report prepared for the Local Court on 26 October 1992 by Ms Mitchell and a supplementary report, updating that report for the District Court prepared by Ms Durham and dated 10 June 1993 were tendered by the Respondent. Ms Mitchell’s report stated that the Applicant impressed as having a "veneer of personable and pleasant disposition". That report referred to his attempts to overcome his background but stated that when faced with highly charged situations he tended to regress. Ms Mitchell concluded that it was a matter of conjecture as to whether he could bring about lasting change in his gut reactions to stressful situations and that he would not be suitable for community service.

128 The later report from Ms Durham stated that he had attended regularly for psychological counselling. At that time Mr Richter (the psychologist) advised that he was making good progress but that there were still issues to be addressed. Ms Durham assessed the Applicant as suitable for community service among other sentencing options.

Applicant’s submissions

129 The Applicant submitted that the relevant test was set out by Young J in Commission for Children and Young People v V (2002) NSWSC 949. He cited Young J’s reference to Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101 set out earlier in this decision under the heading "Standard of proof and meaning of "risk". The Applicant relied on Young J’s statement that the purpose of the act was not to impose additional punishment on a person but to eliminate possible risks. [6]

130 The Applicant submitted that:

there was no evidence that he posed a relevant risk and that none of the first six factors in s 9(5) of the Child Protection Act should weigh against him;

there was no evidence that he posed any sort of risk for re-offending in terms of a sexual offence involving minors;

in regard to the last two factors in s 9(5) of the Child Protection Act he rejected the proposition that his offences showed a problem with anger management and there is no medical or expert evidence which supported that proposition;

any suggestion that his criminal history and problems with anger management in the past meant that he might present some sort of risk when working with children should be rejected;

he relied on Dr Lennings’ statement in his second report that the Applicant presented as well adjusted and optimistic and a person with good temper control who did not seem to have problems with the management of impulsivity;

Dr Lennings’ expert evidence was that there is no risk posed by the applicant and an exemption should be granted;

Dr Lennings did not suggest any conditions and none are warranted;

he has not offended for thirteen years, has had a stable marriage for that period and his wife regarded him as being a good father and husband;

his history of work and achievements showed he had reformed and used his experience to benefit young members of society "who appear to be going off the rails";

he had discharged the onus to establish on balance that he was not a risk. The evidence cannot establish in terms of the decision in Commission for Children and Young People v V that there is "an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm".

Respondent’s submissions

131 The Respondent also referred to Haylen J’s analysis of the meaning of risk cited above and submitted that Young J had held that meaning of risk for the purposes of s 9(4) was that

In 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 a child.

132 The Respondent submitted that an assessment of risk is not confined to sexual risk and includes a risk of violence, mental, emotional and physical abuse in addition to sexual abuse.

133 The Respondent further submitted that:

the Applicant’s criminal antecedents provide a longitudinal history of violence, primarily within the context of relationships. There is a pattern including the role of alcohol, unresolved issues from the Applicant’s childhood which resurfaced at the time of the offences and the violent or intimidatory response from the Applicant;

the Applicant was affected by alcohol at the time of the index offence and, although he denied any violence before the Children’s Court Magistrate, in cross examination he conceded that when he did so he had no memory of the offence and was not able to deny aggressive activity to his victim;

the Applicant’s 1976 offence of violence against a patron within licensed premises occurred while he was affected by alcohol;

the offence of malicious wound with intent to cause grievous bodily harm arose out of the breakdown of the Applicant’s relationship with his defacto. The Respondent submitted that the offences were motivated by jealousy, anger, rejection within a relationship and blind range. During his custodial sentence the Applicant engaged in therapeutic intervention and at the end of his sentence he believed he had resolved his childhood issues;

the offences in 1992 arose out of a relationship breakdown when he and his wife were experiencing marital problems and the Applicant suspected infidelity. The Applicant’s suspicion gave rise to feelings of anger, rejection, jealously and fear of abandonment and that these feelings resulted in violence;

the Applicant demonstrated little or no insight into his offending behaviour and has developed few strategies to cope with a relapse other than avoidance and renaissance;

the Applicant’s need to take an early lunch during cross-examination to gather himself, having become clearly distressed during a recanvassing of the offences, was evidence of that;

the 1992 offences provided evidence that the Applicant’s belief as at 1992 that he had resolved his childhood issues was not well founded. The Applicant acknowledged that low self esteem and rejection within relationships had contributed to his offences;

since 1992 the Applicant’s therapy has been primarily self-help and he has attempted to forget all the incidents that gave rise to his convictions as he believed he has resolved them. He claimed to have developed his own strategy of forgetting his past and reinventing himself. Consequently he is unwilling to accept further therapeutic intervention and that is relevant to the considerations in s 9(9) of the Child Protection Act;

the Applicant can only point to the passage of time as evidence of the effectiveness of his strategy and its effectiveness is yet to be tested;

the Applicant’s and the rector’s evidence (the rector who gave oral evidence at the hearing) make it clear that he did not disclose to his referees the true facts of the index offence. Any opinion expressed by a referee as to remorse or insight by the Applicant into the index and subsequent offences is unreliable;

in regard to the rector the Applicant never admitted to him that the index offence was anything other than consensual. Any misinterpretation by the rector is unable to be tested as he is unable to remember what was said by the Applicant to convey this impression. The rector has a doubt about the reliability of the opinion he expressed given the difference between what he believed when he wrote it and what he heard in court;

in the event that the Tribunal considers the Applicant to present some risk to children an order under s 9 may still be appropriate but subject to conditions. The evidence 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 workplace;

there is sufficient evidence to allow the Tribunal to be satisfied that the Applicant is capable of and committed to complying with these conditions;

the utility of conditions is hampered by the Applicant’s unwillingness to engage in any condition for further and ongoing therapeutic intervention or to have a conditional order from the Tribunal;

the later appears to be based more on ignorance on the part of the Applicant as to the effect of the order than any genuine unwillingness to be placed beyond risk by such an order;

the amateur and ad hoc manner in which the Applicant has approached his therapy given the recurring and entrenched childhood issues that contribute to his assessment of risk, obliges a serious consideration of the need for professional therapy.

Application for an adjournment by the Respondent

134 After submissions had been received the Respondent made an application for an adjournment of the matter for 12 months to allow the Applicant to obtain counselling. The Applicant opposed that application and submitted that he did not require further counselling. In addition he provided evidence of his financial situation and the impact that a further delay would have on his family’s financial security.

135 On the basis that the Applicant did not agree that he required further counselling the Respondent did not press their application. The Tribunal dismissed the application for an adjournment on 15 November 2005. At that hearing the Respondent opposed Mr OX’s application for an order under s 9 of the Child Protection Act.

136 At the same time the Tribunal raised the possibility of obtaining verbal evidence from Dr Lennings to provide further clarification of his report. Both the Applicant and the Respondent opposed this course of action. Given that final submissions had already been taken and both parties objected to this course of action the Tribunal did not require Dr Lennings to provide oral evidence.

Findings and conclusions

137 For the reasons outlined earlier in this decision the Applicant was convicted of a serious sex offence, carnal knowledge, in 1973. That conviction makes him a prohibited person.

138 The Tribunal cannot refuse an exemption if the risk to children is a mere theoretical or possible risk. It must be a real and appreciable risk or an unacceptable risk or a likelihood of harm.

139 The index offence occurred more than thirty years ago and the age difference between the Applicant and the girl was minimal; he was fifteen and the girl was fourteen. Although the young woman made some allegations of a threat and being hit the Applicant was not charged or convicted of any offence of violence. The allegations of violence were not put to him by the police in his record of interview at the time. He admitted to carnal knowledge, denied any violence before the Children’s Court Magistrate and was placed on a recognizance by the Children’s Court. For the reasons outlined earlier I am not able to make a positive finding that he did threaten or hit the girl.

140 He is now 49 years old. Aside from the index offence there is nothing on his record or in the evidence to indicate that he has committed any other sexual offence. Other than the carnal knowledge and the begging offences committed well over thirty years ago he has never committed an offence against a child or young person under 18 years. Both those offences involved someone close to his own age. His last conviction for any offence was in 1992.

141 The Applicant presented as candid and open. He was aware of the seriousness of his criminal record and recognised the serious mistakes he had made. His case was primarily that he has now dealt with the factors from his past that led to his previous criminal behaviour and is a reformed person. He has spent his life trying to move on from his past and wishes to undertake youth work to assist troubled youth and prevent them from making mistakes.

142 The Tribunal has had the benefit of the report of Dr Lennings, an experienced clinical psychologist. His report is summarised above and he concluded that the Applicant’s risk for both sexual and violent offending appeared quite low. In Dr Lennings’ opinion the relapse in 1992 was an isolated event and the Applicant has an approximate period of 20 years of relatively good functioning other than that period in 1992.

143 Dr Lennings concluded that Mr OX had developed sound self management skills. In his view it seemed a remorse (sic) possibility that the Applicant would resume substance abuse. Presumably he meant a remote possibility. He concluded that there seemed no reason for him to have counselling for substance abuse given his apparent abstinence from alcohol for 12 years. He recommended that an exemption be granted.

144 The Respondent contended that the Applicant demonstrated little or no insight into his offending behaviour and had developed few strategies to cope with a relapse other than avoidance and renaissance. The Respondent submitted that the Applicant’s need to take an early lunch during cross-examination to gather himself, having become clearly distressed during a recanvassing of the offences, was evidence of this.

145 While the Applicant did become distressed in the course of giving evidence about his assault of his wife he did not request a break in giving evidence. He was offered one and accepted indicating ten minutes would be sufficient. An early lunch was at the suggestion of the Tribunal and the suggestion to take a slightly longer lunch was at the suggestion of the Respondent.

146 The Applicant was candid in giving his evidence and did not shy away from acknowledging what he had done. The fact that he became distressed is not necessarily an indication that he had not resolved the issues arising from that assault. There may be several explanations for his distress, for example it may be an indicator of remorse at hurting his wife. In the absence of expert evidence I do not accept the Respondent’s submission that the Applicant’s distress provides evidence of a lack of insight into his offending or that he has few strategies to cope with a relapse other than avoidance and renaissance.

147 Further I do not accept the Respondent’s contention that the Applicant’s therapy has been primarily self help. That contention is not borne out by Mr Richter’s evidence to the District Court or the supplementary report prepared by Ms Durham for the District Court in June 1993, both placed before this Tribunal by the Respondent, or the evidence of the Applicant.

148 The evidence of Mr Richter, a psychologist, before the District Count on two occasions was to the effect that he had treated the Applicant from March 1992 until June 1993, a substantial period of time. I also accept the Applicant’s evidence that he continued to contact Mr Richter for years afterwards if he had problems. The reports of Dr Lennings and Mr Richter both attest to the Applicants efforts to deal with the difficulties of his childhood. Mr Richter’s 1993 report prepared for sentencing proceedings in the District Court concluded that as at June 1993 he did not pose a danger to anyone. Since that date there is no evidence that he has harmed anyone.

149 There is nothing in Dr Lennings' report to indicate that further counselling is required.

150 As a consequence of dealing with the issues from his childhood, including those relating to his alcoholic and violent father, the Applicant submitted that he does not pose "an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm". On the evidence before me I am satisfied that the Applicant has remorse for the offences that he committed, has obtained psychological treatment and has worked hard to overcome the factors that contributed to his offending behaviour.

151 The Applicant’s wife, the victim of the 1992 assault supports her husband’s application and states that she has seen him work through " the most difficult of situations with regard to his late father and his troubled upbringing, and have seen him develop into the most loving and devoted family man". She was not required for cross examination. I accept her evidence.

152 The Applicant has provided a number of references that attest to his work with young people and indicate the high regard that those in the community have for him. Some of these are from people who are aware of his criminal record. Indeed the evidence before me is that he has undertaken a considerable amount of voluntary and paid work for community and welfare organisations that has assisted children and young people. There is no evidence of any complaint about him regarding his conduct with children or young people.

153 The Respondent contends that the Applicant did not disclose to his referees the true facts of the index offence. As stated previously, on the evidence before me, I am unable to make a finding that the Applicant was violent towards the young woman concerned. That the Applicant did not tell his referee, his local rector, that there was an allegation of violence made by the woman regarding an incident from over thirty years ago is not surprising. That is particularly so when the Applicant had admitted the offence of carnal knowledge and a finding that the charge was proven had been made. I place little weight on that issue.

154 I accept the Rector’s statement that, while Mr OX had not disclosed all the details of his past, Mr OX had never made light of anything and that he (the Rector) had discussed the 1992 incident with the Applicant and his wife.

155 The evidence before me is that the Applicant has addressed his offending behaviour and achieved a remarkable turn around in his life. He was able to take up the chance given to him by the District Court in December 1992 and has had counselling. He has not offended for thirteen years. In that time the evidence before me is that he has worked on his relationship with his wife and that they now have good relationship. He has worked with young people who are experiencing difficulties and there is no evidence of any complaints regarding his behaviour or conduct with them. He has many referees who attest to the contribution he has made. The expert he was referred to by the Respondent, Dr Lennings, has assessed him and recommended that an exemption be granted. In my view, on the evidence before me, he has satisfied the onus on him to prove that he does not pose a real and appreciable risk to children and young people.

Order

The Child Protection (Prohibited Employment) Act 1998 is not to apply to OX in respect of the offence of carnal knowledge for which he was convicted on 20 February 1973.