LA v Commissioner for Children and Young People [2012] NSWADT 13 (2 February 2012)

Last Updated: 6 February 2012

Administrative Decisions Tribunal New South Wales

Case Title:	LA v Commissioner for Children and Young People
Medium Neutral Citation:	[2012] NSWADT 13
Hearing Date(s):	2 May 2011
Decision Date:	02 February 2012
Jurisdiction:	Community Services Division
Before:	S Higgins, Deputy President
Decision:	Application Dismissed
Catchwords:	Declaration - prohibited person - whether applicant has discharged his onus that he poses no risk to the safety of children
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 (repealed) Commission for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	Commission for Children and Young People v FC [2011] NSWCA 111 Commission for Children and Young People v Y [2002] NSWSC 949 FW v Commissioner for Children and Young People NSWADT (unpublished written reasons of Judicial Member B Gelin, 6 May 2004)
Texts Cited:
Category:	Principal judgment
Parties:	LA (Applicant) Commission for Children and Young People (Respondent)
Representation
- Counsel:	Counsel M Higgins (Respondent)
- Solicitors:	LA (Applicant in person) Crown Solicitor's Office (Respondent)
File number(s):	084034
Publication Restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies

REASONS FOR DECISION

1. GENERAL DIVISION: S Higgins, Deputy President: The proceedings to which this decision relates are proceedings that fall within section 126 of the Administrative Decisions Tribunal Act 1997. That section relevantly provides as follows:

126 Publication of names or identification of persons involved in certain proceedings

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) ...

(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.

2. By reason of this section, the applicant's name in these proceedings has been given the letters LA. I have also used pseudonyms for the names of individuals, other than the expert witness.

Introduction

3. The applicant, LA, has made an application to the Tribunal seeking an order under section 33I of the Commission for Children and Young People Act 1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of an offence of which he was found guilty, but not convicted, in the Local Court of New South Wales, on 25 February 1985. The offence was an offence of 'committing an act of gross indecency with a male person under the age of 18 years'. For the purpose of this application this offence is referred to as the 'index offence' as it is the offence that brings LA within the terms of the Commission Act.

4. As a consequence of the index offence, LA is a 'prohibited person' and is prohibited from applying for or obtaining 'child-related employment' (see sections 33B and 33C of the Commission Act), unless he obtains an order under section 33H or 33I of the Commission Act.

5. The respondent, the Commissioner for Children and Young People (the Commissioner), opposes any order being made in favour of LA under the Commission Act.

6. The LA is an elderly man and does not wish to work in child-related employment. He previously made an application, in 2003, seeking a similar declaration under the then Child Protection (Prohibited Employment) Act 1998 (repealed) (the Repealed Act). On 26 November 2003, the Tribunal dismissed LA's application as the Tribunal was not able to find, on the evidence before it, that LA did not pose a risk to the safety of children: see FW v Commissioner for Children and Young People (unpublished written reasons of Judicial Member B Gelin, 6 May 2004, in file No 034019). At the time of that application, LA had sought a declaration under the Repealed Act as he wanted to continue being a sports coach of young people.

7. In making this application, LA said his purpose was to clear his name in regard to the many allegations that had been made against him in regard to his association with young male victims. It was his contention that he was subject to the actions of corrupt police and witnesses who conspired with police.

8. I explained to LA on a number of occasions during the proceedings, the role of the Tribunal in hearing and determining his application is limited to the powers and functions vested in the Tribunal under the Commission Act. That is, the jurisdiction of the Tribunal is a protective one (i.e. the protection of children) and it is not a criminal, criminal appeal or anti corruption jurisdiction. Despite these warnings LA pressed his application.

9. For the reasons set out below, having regard to the relevant provisions of the Commission Act and the material before the Tribunal, I find that the LA has failed to discharge the onus that is placed on him under the Commission Act and consequently his application should be dismissed.

Relevant Legislation

10. The legislative scheme relevant to LA's application is Part 7 of the Commission Act. That Part contains provisions in regard to 'child-related employment', which is broadly defined in section 33(1) of the Act. The word 'employment' is also broadly defined in subsection 33(1) to include self-employed persons. The word 'children' is defined in section 3 of the Commission Act to mean a person under the age of 18 years. Consequently, word 'child' in Part 7 has the same meaning.

11. Section 31 of the Commission Act sets out the objects of Part 7. That section provides:

31 Object of Part

The object of this Part is to protect children:

(a) by prohibiting certain persons from being involved in child related employment, and

(b) by means of background checking administered by the Commission and other agencies.

12. Section 32 of the Commission Act provides that 'the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of' Part 7.

13. As I have already mentioned, section 33C of the Commission Act prohibits a 'prohibited person' from applying for, undertaking or remaining in 'child-related employment'. Section 33E prohibits an employer from employing a 'prohibited person' in 'child-related employment'. Section 33D requires an employer to ascertain whether an employee is a 'prohibited person' if employing that person in a 'child-related employment'.

14. The term 'prohibited person' is defined in section 33B of the Commission Act. So far as it is relevant, subsection 33B(1)(a) provides that a 'prohibited person' means a person 'convicted of a serious sex offence' (i.e. an index offence). The word 'convicted' is defined in section 33(1) to include '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.'

15. The term 'serious sex offence' is defined in subsection 33B(3) of the Commission Act. It relevantly means 'an offence involving sexual activity or acts of indecency that were committed in New South Wales and that were punishable by penal servitude or imprisonment for twelve months or more.' In this application, there is no dispute that the index offence of which the LA was found guilty is an offence falling within this definition and therefore a 'serious sex offence'.

16. This prohibition on a 'prohibited person' in regard to 'child-related' employment' does not apply where the 'prohibited person' obtains an order under section 33H or 33I of the Commission Act declaring that Part 7 does not apply in regard to the index offence of which the person has been convicted (including a finding of guilt). Section 33H makes provision for such orders to be made by the Commissioner and section 33I makes provision for such orders to be made by the Tribunal or the Industrial Relations Commission. Subsection 33G prescribes a number of serious sex offences for which a 'prohibited person' is not entitled to make an application for an order under section 33H or 33I. The index offence of which LA was found guilty is not an offence of this kind.

17. Section 33I of the Commission Act relevantly provides as follows:

33I IRC and ADT may make declarations concerning prohibited persons

On the application of a prohibited person, a relevant Tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence.

A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

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

An applicant must fully disclose to the relevant tribunal any matters relevant to the application.

If the relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that until after the period of five years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of the refusal.

Orders under this section may be made subject to conditions.

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

(a) the Tribunal may not award costs, and

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

18. Section 33J of the Commission Act sets out the matters that are to be considered by the Tribunal in determining an application by a 'prohibited person' under section 33I. That section provides as follows:

33J Matters to be considered in determining review applications

(1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children.

(2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

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

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

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

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

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

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

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the prohibited person's present age,

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

(i) such other matters as the Commission or tribunal considers relevant.

19. The Court of Appeal has recently confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. That is, the purpose of this Act is not to impose additional punishment on a person, but to eliminate possible risks to children. The Repealed Act had a similar purpose: see R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

20. The word 'risk' in the context of prohibited persons working in child-related employment was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour said that in the context of subsection 9(4) of the Repealed Act, 'risk' did not mean 'minimal risk', 'fanciful, or theoretical risk' to children. His Honour went on to say:

'...[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 a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children ''.

21. In making these remarks His Honour adopted the analyses that had been given by Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101, at [104]. Some care must be taken in applying the entirety of this analysis, as the provisions of the Commission Act are not in exactly the same terms as the Repealed Act. However, the above remarks of Young CJ (Equity), have been followed by the Tribunal since the Commission Act has come into force.

22. Finally, as I have indicated above, in exercising its jurisdiction the Tribunal is to have regard to the requirements of section 32, which provides that the paramount consideration is the safety and welfare of children, in particular, protecting them from abuse.

Procedural history

23. LA lodged his application on 23 December 2008. In making his application LA contended that as he has at no time been 'convicted' of a 'serious sexual offence' and hence he was not a 'prohibited person' for the purpose of the Commission Act.

24. On 24 March 2009, the Tribunal (Deputy President Britton) heard and determined the preliminary issue as to whether the index offence of which LA was found guilty was an offence falling within the terms of the Commission Act. The Tribunal found that the index offence was a 'serious sex offence' and that a finding of guilt was a 'conviction' for the purpose of the Commission Act. Accordingly, the Tribunal found that LA was a prohibited person.

25. The LA's application has been protracted primarily due to his involvement in proceedings before another Court. At the conclusion of those proceedings, as agreed between the parties, LA's application before the Tribunal proceeded further to a hearing.

26. In preparation for the hearing, LA made a request for the issue of a number of summonses for witnesses to give evidence at the hearing. These included the victim of the index offence, police officers and others relating to offences for which LA was charged in 1996 and Professor David Greenberg, the psychiatrist who provided a report for the purposes of the LA's 2003 application to the Tribunal. With the exception of Professor Greenberg, the Commissioner objected to the issue of these summonses on the grounds of relevance. In regard to Professor Greenberg, the Commissioner agreed to make him available for cross-examination by LA. LA was directed to provide a written submission setting out the basis on which he contended that the evidence of the remaining witnesses were relevant to his application under the Commission Act. LA provided comprehensive written submissions in which he contended that the proposed witnesses were needed so that he could expose their involvement in corruption and a conspiracy to damage his character and reputation. The Commissioner also filed written submissions. After a short hearing on this issue I found, LA had failed to establish that the witnesses for which he sought summons be issued were able to give relevant evidence. His purpose for seeking the attendance of these witnesses, as I have already indicated, was so that he could attack what they had said in statements and evidence before another court. In my view to issue summonses in these proceedings for such a purpose was improper. Accordingly, LA's application for the issue of summonses was refused.

27. LA's application then proceeded to hearing, on 3 May 2011, with Professor Greenberg being called to give some additional oral evidence. He was also made available for cross-examination by LA.

Evidence

28. In support of his application LA relied on numerous documents that were contained in a large arch lever folder. Many of the documents concerned the LA's concerns and objections to the manner in which the other Court proceedings in which he had been involved were conducted. I note that LA made a number of complaints, to the appropriate authorities, throughout these proceedings.

29. The Commissioner tendered into evidence four volumes of documents which included the following:
    • LA's criminal history
    • the transcript of the hearing of LA's 2003 application to the Tribunal
    • the report of Professor Greenberg dated 13 November 2003 for the purpose of LA's 2003 application
    • copies of the court documents concerning LA's index offence
    • transcript of the committal hearing of the charges made against LA in October 1996 and
    • a number of documents that were produced pursuant to a summons issued in these proceedings and also in the earlier 2003 proceedings.
30. The Commissioner and LA both filed and served written submissions after the hearing.

31. I have considered all the material, other than the material prepared for the other Court proceedings referred to in paragraph 25 above. LA objected to this material on the grounds that his request for the issue of summonses was refused. The requested summonses were primarily in regard to persons who gave evidence in those proceedings. While I do not accept LA's grounds of objection, in my view, LA's application can be determined without regard to this material.

32. On the basis of the material I have considered, set out below are my findings in regard to the matters the Tribunal is to have regard under section 33J of the Commission Act.

Seriousness of the index offence

33. In regard to the index offence of which LA was found guilty, the Tribunal has been provided with a copy of the following documents:

(a) the charge sheet,

(b) the transcript of the record of the interview between police and LA on Friday 26 October 1984 in regard to the allegations that had been made by the young victim,

(c) the extract certificate of the birth registration of the young victim,

(d) the record of exhibits. There are 3 documents listed on this list. They are the above record of interview and the extract certificate and references tendered by LA.;

(e) an undated handwritten note allegedly written by the father of the young victim. I have given little, if any weight to the handwritten note, and

(d) the master tape history sheets (3) for the hearing of the charges. I note the sheets record that the young victim gave evidence at the hearing. There were 3 other witnesses who gave evidence on behalf of the police. One appears to be the mother of the young victim. LA is also recorded as having given oral evidence and being cross-examined. In this regard I note LA was legally represented at this hearing.

34. The Tribunal was informed that the tapes recording the proceedings were not produced as they were no longer available.

35. The offence of which LA was found guilty was in the following terms:

'That [LA] on the 17 day of October, 1984, at [town] in the State of New South Wales, being a male person did commit an act of gross indecency with [the young victim] a male person then under the age of 18 years to wit of the age of 16 years.'

36. The extract certificate of the birth registration of the young victim, A, supports his age as specified in the charge. The charge sheet also records that LA was found guilty of the charge, in the Local Court of New South Wales, on 25 February 1985. LA defended the charge and the charge sheet records that the magistrate, after making a finding of guilt, made an order under the then section 556A of the Crimes Act 1900 (no conviction recorded and charge dismissed) .

37. The offence of which LA was charged and found guilty was an offence under the then section 78Q of the Crimes Act 1900 . The offence carried a maximum penalty of 2 years imprisonment.

38. The essence of the conduct, as alleged and recorded in the transcript of LA's record of interview:

(a) some days prior to 17 October 1984, while LA was driving his newspaper delivery truck he had asked directions from A and his friend - LA acknowledged this to be so;

(b) LA acknowledged he had asked the A if he was looking for employment, to which A responded that he was. LA said he then offered A a job because he had a vacancy as the 'young chap' he had working for him was finishing up;

(c) when offering A a job, LA asked him if he could drive, to which A responded he could, but he did not have his licence. In the interview LA said that this was not a problem if A was 'keen'. LA told A that he would teach him and help him get his licence. LA also acknowledged that he went on to say to A whether he would like to see the type of work that he would be doing and A said he would be able to do so that afternoon. LA subsequently met up with A that afternoon and he showed him the type of work that he would be required to do as part of LA's newspaper delivery business. LA acknowledged that he met up with A on 2 occasions to show him what was required;

(d) as agreed the previous day, at 3.30am on 17 October 1984, LA met up with A outside his home. In his interview, LA said the purpose of the meeting was for A to learn the 'procedure' and to take over his morning newspaper deliveries as soon as he was able to help him get his licence. LA said that after he had picked up A they proceeded to pick up the newspapers for the early morning delivery run. LA said they completed this at about 4.15am. LA said that during this time A mainly spoke about his 'sex exploits'. LA went on to say that after the last delivery that morning, he asked the 'young chap' whether he could drive and when A responded that he hadn't driven for a while, LA said to him that the best thing was for him to do so and get used to the truck. LA said he told A that he would work the brake and the accelerator and A could do the driving and change the gears. LA said that for the next 10 minutes A drove 'at random' with LA occasionally giving directions when to turn left or right. LA said that the conversation during this time was mainly about sex. When A asked LA whether he remembered seeing him dressed as a girl and told him he liked dressing up as a girl he responded by saying words to the effect of 'what have you got a prick or a fanny?' LA is then recorded as having said what happened next was:

'... [with] me right hand I grabbed him by the prick, which he had an erection, and that was it I had no satisfaction I had no inclination I made some silly statement your built like a bull you'll pass and that was it. I thought it was more in fun than anything else, as I think that he let go of the wheel and the car veered to the left and I pulled up with the brake and that's when he cringed away. I thought oh my god. Well I thought, I don't now what I thought. I was shocked at his reaction.'

(e) A is recorded as having alleged that after he and LA had finished the delivery run that morning, LA directed him to turn into and stop along a road running towards a number of factories. After he had stopped the truck, A alleged LA placed his right hand up the front of his jumper against his skin. A alleged that LA then undid the cord holding the top of his pants, pulled down his pants and underpants and played with his penis and rubbed his balls. A alleged that after 3 to 4 minutes he ejaculated. LA is recorded as denying this is what had occurred and he also denied he had said to A words to the effect 'God its beautiful' and 'you are a fast blower'. LA acknowledged that after the incident, A said he had to go home and that he drove home with A continuing to steer the truck and LA sitting to his right. LA denied that when he dropped A at his home that he tried to kiss him as he was getting out of the truck and said to him words to the effect: 'we are welded together now and no one will ever separate;' and

(f) LA is recorded as acknowledging that despite his attempt on the following days to contact A at his home, A did not make any contact and through his father said he did not want to work for him.

39. Towards the end of the interview, LA is recorded as having said he was shocked at the charge and that his act of grabbing A was:

'not an act of perversion, which the incident didn't incite me in anyway what so ever. and the incident arose over the fact that the young chap remarked that he gets a kick out of wearing womens attire and more in jest. I grabbed hold of him to test his masculinity, and that's exactly what happened, admittedly the boy had an erection but it was his own fault on account of his conversation and frame of mind that he was sexually aroused.'

40. In his written submissions, LA asserted that his actions were an act of self-defence (i.e. 'LA ended the conflict by grabbing the attacker by the testicles to avoid further injury to his younger opponent') and not an act of 'self sexual gratification' as asserted by the Commissioner. In oral submissions, LA contended that he had been found guilty of a lesser offence, an offence of indecency and not gross indecency. However, this is not reflected in the charge sheet or LA's criminal record.

41. In my view, notwithstanding the finding of the magistrate to dismiss the charge against LA under section 556A of the Crimes Act 1900, the offence of which LA was found guilty was nevertheless serious. This is so even on the account given by LA during his interview with police. As I have indicated, LA acknowledged that he had in effect sought out A to see if he wanted to work for him. At the time LA was 55 years of age and A was 16 years of age. At all times LA knew the 'young chap' (as he called him) did not have a driver's licence, which was needed for any job he could give him. A licence is not obtained overnight, so I can only conclude that LA's actions in offering to teach A to drive and help him to obtain his licence was a deliberate act so as to entice A to immediately accept his offer of employment. Leaving aside the fact that LA allowed A to drive his truck, LA has at no time disputed that he grabbed A's penis while he was driving. However, I do not accept LA's explanation that he did not do this for his own sexual gratification. His own account of events, as recorded in his record of interview shortly after the incident, suggests the contrary. While LA said that it was A who had been speaking about his sexual exploits it is difficult to believe that this was a one sided conversation. Had it been so, it would have been short and not carried over to the next day. At all times, LA was in a position of trust and authority. Not only was LA an adult, considerably older than A, but also a prospective employer, who A had only met a day or so before. In my view, on the material as contained in the charge sheet and the transcript of the record of interview with LA, the most probable explanation of what occurred is that LA initiated and encouraged conversations with the young person about his sexual exploits and he did so for his own sexual gratification and his conduct of grabbing As penis was motivated for the same reason.

42. I accept that the Court may not have accepted each and every aspect of A's account as put to LA during his record of interview. At the same time, it is clear from the Court's finding of guilt of the offence of gross indecency, the Court did accept, to a large extent, the victim's account and rejected LA's explanation as contained in the record of interview.

43. Accordingly, I agree with the submissions of the Commissioner that the offence of which LA was found guilty is objectively serious.

The period of time since those offences were committed

44. It is now 37 years since the offending conduct was committed. However, as I have explained, LA continues to assert that he was found guilty of no charge, or a lesser charge. While I accept LA is not legally trained I do not accept that he has no understanding of the findings of the magistrate in regard to the index offence. At the same time, he continues to lack any insight into his own behaviour and unlawful conduct towards A.

The age of LA and A at the time the offence was committed

45. As I have indicated, at the time of the offence, LA was 55 years of age and A was just over 16 years of age. That is, the difference in age between LA and A was 43 years.

Whether LA knew, or could reasonably have known, that A was a child

46. As I have explained the Commission Act defines a child to be a person under the age of 18 years.

47. In his record of interview LA asserted that he thought A was 18 years of age. LA was also asked if he had ever asked A if he attended school, to which LA responded that he thought A had told him that he attended a local school, which he named.

48. While LA's response went on to mention jobs A had told him about, in my view this was merely a deliberate distraction from the question asked. While LA might not have known the exact age of A, given the circumstances in which he came to know A and LA's responses during his record of interview, I find that he could reasonably have known that A was under the age of 18. In regard to LA's responses, these included his continual reference to A as 'the young chap', his knowledge that A did not have a driver's licence and that he was still at school.

LA's present age

49. LA is currently 82 years of age.

LA's total criminal record

50. LA's criminal record includes the following:

1975	14/02/1975 -Local Court committed LA to stand trial on 4 counts of receiving. 19/08/1975 -District Court - at trial the jury could not reach a decision. The Attorney-General decided not to prosecute further.
1985	25/02/1985 -Local Court found LA guilty of committing an act of gross indecency (the index offence). Charge dismissed under section 556A of the Crimes Act 1900 .
1990	07/11/1990 - Local Court committed LA to stand trial on charges of defrauding and imposition on the Commonwealth. 18/03/1993 - District Court convicted LA of these charges. LA was sentenced to 12 months imprisonment on the imposition charge and 3 years and 3 months imprisonment on the defrauding charge. He was sentenced to serve a minimum term of 15 months imprisonment. 11/04/1997 - the Court of Criminal Appeal dismissed LA's appeal against conviction and sentence on each charge.
1992	14/01/1992 - Local Court convicted LA of stealing and fined him $1000. 24/06/1993 - District Court dismissed LA's appealed against conviction, but upheld appeal on sentence - sentence reduced to a fine of $250.
1992	27/02/1992 - Local Court convicted LA of an offence of supplying a restricted substance (Rohypnol) and fined him $100. 16/12/1992 - District Court dismissed LA's appeal against conviction.
1997	15/04/1997 - Local Court committed LA to stand trial on 18 counts of aggravated sex assaults, one count of supplying a prohibited drug, 23 counts of aggravated indecent assault, and 8 counts of aggravated acts of indecency. The offences related to charges laid on 17 October 1996 and related to a young victim, a man who was between the age of 10 to 18 years. 18/03/1998 - District Court - LA indicted on 4 offences of homosexual intercourse with a male between the ages of 10 and 18 years and an offence of supplying a prohibited drug. By direction, the District Court entered a finding of not guilty as a result of the non-appearance of the young victim the subject of the charges.
2003	17/09/2003 - Local Court - LA charged with three counts of making a false statement in regard to a disclosure as to whether he was a prohibited person. The charges were withdrawn and dismissed by the Local Court.
2007	17/05/2007 - Local Court convicted LA of driving offences and fined him $500.
2007	06/11/2007 - Local Court committed LA to stand trial on a charge of sexual assault and a charge of assault and committing an act of indecency. 03/11/2008 - District Court - DDP declined to proceed in regard to each charge.
2008	08/10/2008 Local Court convicted LA of a driving offence. He was placed under a bond to be of good behaviour for two years.

51. For the purposes of this application there are two matters which are of direct relevance to this application. The first matter is the offence of supplying a restricted substance of which LA was convicted and fined in 1992. The other offences are those of which LA was charged in 1996 and of which LA was subsequently found not guilty by direction of the District Court in 1998. LA's conviction and sentence to imprisonment in 1993, is also relevant to his overall criminal conduct.

1992 - Supplying a restricted substance offence

52. On Sunday, 15 September 1991, at about 12.05am, three police officers were conducting surveillance duties at the Albury Hotel, in Oxford Street, Paddington when they saw LA standing on the footpath speaking to 'two young boys'. The evidence of the police officers was that they saw LA reach into the pocket of his jacket and produce a silver coloured blister packet containing a number of tablets. They then saw LA hand something to each boy. On approaching LA and the 2 young boys, the police officers saw one boy appear to throw something into the gutter and the other appeared to swallow something. One of the police officers took LA down the footpath some 50 meters where LA handed him the tablets. LA explained what they were and said he had received them from his doctor. After issuing a warning, LA said he gave two tablets to each boy 'so that they would sleep.' He went on to say 'I am dead against drugs. The boys have to ride track work in the morning on Monday.' One of the boys to whom LA gave the tablets also gave evidence at LA's trial. His evidence was that on this day he had consumed a number of beers as well as smoking marijuana. He said he was drinking with LA in the hotel just before they were seen on the street. He said they were only on the street for a short period when LA produced a packet of tablets from his pocket. I note from the transcript of the proceedings before the Local Court, on 27 February 1992, the magistrate accepted the evidence of the police and the young boy and rejected LA's explanation of what had occurred. In this regard LA's evidence was that he had not given any tablets to the boys He also asserted at trial that he had attended the hotel as a trainee volunteer with the Salvation Army Oasis Program, Youth Support. I have been provided with material to indicate LA had no involvement with such a program until some years later.

53. In his oral evidence before the Tribunal, LA accepted that he had provided the boys with the rohypnol tablets, and again asserted that he had done so to help them. LA also said he was at the hotel that evening as a volunteer with a Salvation Army Program. However, he provided no material in support of this assertion.

54. In his written submissions LA contends that this conviction was obtained by corrupt police. He explained that his appeal, in the District Court, against his conviction was not pressed by him when the Judge informed him that he could be subject to a higher penalty. As I understand LA's contention, he provided the unopened packet of tablets to police when he was arrested and at the time there were only 2 tablets missing.

55. Without being provided with any new material that supports the assertions made by LA, I am left with no alternative but to accept the findings of the Court when convicting LA of the offence. These findings do not include an acceptance of LA's explanation as to why he was at the hotel that evening in any event.

1997 - Homosexual intercourse with male 10-18 years charges

56. LA was charged with 18 counts of sexual assault, 23 counts of aggravated indecent assault, and 1 count of supplying a prohibited drug on 17 October 1986. The offences were alleged to have occurred between late 1994 and early 1995. As I have indicated, the victim, the subject of each charge, was a young male, B, aged between 15 and 16 years.

57. In his written submissions, LA contended that these charges also arose from corrupt police and untruthful witnesses. He asserted that his association with B was a legitimate one connected to his long term sporting interest, boxing.

58. During the hearing of his 2003 application to the Tribunal, LA said he met B in 1994. In this regard I note LA was released on parole on 17 June 1994 as part of his sentence on the conviction of fraud charges (see below).

59. During the 2003 hearing of his application before the Tribunal, LA acknowledged that when he met B, B had told him that he was close to another male person who LA had sought to sign up for a boxing contract in 1991. LA said he pursued his acquaintance with B so that he could get close to this other person as he still wanted to sign him up for a boxing contract. At the same time LA acknowledged that he knew and had a relationship with other adult males in the boxing fraternity who could put him into contact with the other person and that he in fact made no further contact with this other person.

60. In regard to his association with B, LA also acknowledged that 'a couple of months' after he met him he became aware that he was a street kid and living in squats. He said, 12 months later he became aware that B was a prostitute. It is unnecessary to repeat at length the evidence given by LA in regard to his association with B other than to say he knew him for some considerable period of time. He met B at a newsagency, while police were interviewing B. LA took B to a cottage where he could live and offered to find him work. LA visited him at the cottage and helped him fill in a compensation claim for a prior injury B had sustained. LA also acknowledged that he massaged and manipulated B's injuries on a number of occasions and that he had met up with B outside his school. LA agreed he took B on his newspaper delivery run and that, during 1995, he allowed B and his brother to live in a caravan that he was looking after for a friend. The friend at the time was in goal serving a sentenced of imprisonment. LA acknowledged that he visited B and that he took him to the races.

61. LA asserted that he did not know that B was a drug addict until after the charges were laid against him, or that B had been dealing in drugs for his friend after he came out of prison. In these proceedings LA sought to distance himself from his friend. He even asserted that he did not know him. On the material provided on summons this was clearly incorrect. In August 1991, LA gave evidence before the District Court during the hearing on sentence of his friend following his friend's conviction of stealing and break and enter charges. LA's evidence was that he could give his friend a job and provide him with accommodation if her were to be released.

62. LA denied that his friendship with B was a pretext for developing a sexual friendship with him. He also denied that he had sexually, or indecently assaulted B as alleged in the charges. These allegations included alleged masturbation of B's genitalia by LA, fellatio on B by LA and penetration by LA of his penis in B's anus and they were primarily alleged to have occurred where LA's friend's caravan was located.

63. As I have indicated, LA has at no time been convicted of these charges. Instead, in March 1998, by direction, the District Court entered a finding of not guilty on the charges on which he was indicted, as B could not be found. B had appeared initially but could not be found subsequently when the matter was next before the Court.

1993 - Fraud conviction

64. LA does not appear to dispute his 1993 convictions of imposing on the Department of Social Security and defrauding the Commonwealth. He even attached a copy of the Judges remarks on sentence to his application lodged with the Tribunal. I note from these remarks that LA defended the charges and was found guilty by the jury. The imposition charge ranged from 14 February 1980 to 24 October 1984 and the defrauding charge ranged from 25 October 1994 to 18 June 1990. That is, the charges spanned a period of more than 10 years and involved an amount of $85,675.00. This amount, I note LA repaid to the Commonwealth, after he had been committed for trial and prior to his trial.

65. The essence of each charge was that LA received unemployment benefits at a time he was working and in receipt of an income. He received these benefits by 'assuming a false persona'. That is he used a false name, which included a bank account, post office box and a driver's licence in that false name. He also presented Housing Department and Income Tax Department documentation in that false name. In my view, LA's conduct in regard to this conviction shows a measure of sophistication in LA's ability to plan and organise his criminal endeavours.

Other matters

66. As I have mentioned, the Commission has also relied on the expert report of Professor Greenberg. That report, prepared for the 2003 application before the Tribunal, was based on material the Commission had provided to the Professor. It was not based on any assessment the Professor made of LA as LA refused to participate in such an assessment, which he was entitled to do.

67. The report of Professor Greenberg is otherwise comprehensive. It is unnecessary for me to deal with Professor Greenberg's report at any length, other than to repeat, in part, his conclusions as set out at pages 9 to 10 of his report:

'the writer is of the opinion that pursuant to Section 9.4 of the Child Protection (Prohibited Employment) Act 1998, it cannot be said that [LA] does not pose a risk to children.

Based on the official records, [LA's] reported behaviour is consistent with a Paraphillic (Sexually Deviant) Disorder. More specifically this behaviour would be consistent with a Paraphillic Disorder Not Otherwise Specified, namely a Hebophillic Disorder. Hebophiles are individuals who are sexually attracted to adolescents (pubertal) children, or children who have developing secondary sexual characteristics. Pubertal children are not fully physically, emotionally or sexually mature in the adult sense.

...

[LA's] risk to children under 'the Act' appears to be related to male teenage pubertal boys.

...

It is not known if [LA] does suffer from a mental illness or other mental disorder as I did not have the opportunity to undertake a clinical psychiatric assessment of him. He has apparently refused to participate in this process. I therefore cannot comment on the impact of treatment on his sexual offending behaviour. A person with Paraphillic Disorder who is placed in a situation of significant opportunity for reoffence, would in situations of high risk pose a significant sexual risk to the safety of children. ...'

68. Professor Greenberg also mentioned that in his opinion, the index offence and the alleged conduct in regard to the 1996 charges of aggravated indecent assault had all arisen out of 'opportunistic situations' created by LA. These included the offers of work, accommodation, gifts of food, physical massages, or manipulations. Professor Greenberg went on to say that LA's 'judgement with regard to putting himself in situations of potential recidivism ' was limited as 'his remorse and insight into the consequences of his past sexual acts with underage persons does have relevance with regard to his insight into taking risks and avoiding as far as possible opportunistic situations with pubertal children.'

69. In his oral evidence before the Tribunal, Professor Greenberg confirmed that which he had said in his report. In this regard he also said that the fraud offences were relevant to the issue of reoffending.

Conclusions and findings

70. Although it is more than 8 years since LA made his last application, LA has provided no new material that is relevant to the issues under the Commission Act. As I have said, by reason of him having been found guilty of the 1984 index offence, he falls within the terms of that Act. More importantly, he is presumed to be a risk to children by reason of this offence, unless he proves otherwise. This, in my view, LA has failed to do. Instead, as identified by Professor Greenberg in his 2003 report, LA's approach remains one of challenging the findings that have been made against him. This is not the forum for doing so. The question is what steps has he taken to address his 1984 offending conduct. He does not appear to have taken any. The evidence is that he continued to develop and maintain inappropriate relationships with young boys. His 1993 conviction for supplying a prohibited drug is an example of this. In my view so too is his relationship with B, which gave rise to the criminal charges laid against him. These were charges of a sexual nature and for which he was committed to stand trial. The fact that he was not found guilty on any of these charges, does not mean that he poses no risk to children. In my view on his own evidence as to the nature of his relationship with B, gives rise to ongoing concerns as to whether LA poses a risk to children for the purposes of the Commission Act.

71. Although Professor Greenberg's report was prepared at the time the Repealed Act was in force, in my view, his conclusions in regard to LA's conduct are equally applicable to this application under the Commission Act.

72. As I have noted, Parliament has provided that the safety and welfare of children (in particular, protecting them from child abuse), is the paramount consideration in these proceedings. Accordingly, in the absence of LA providing any evidence, other than pointing to the fact that no new allegations of offending conduct, similar to the 1984 incident and the 1996 charges, I am not satisfied that he has discharged his onus as required under the Commission Act.

73. The fact that the index offence occurred many years ago, LA is now an elderly man and that he has not been convicted of any further offences involving children, as I have explained is not a sufficient basis to make the orders sought.

74. Accordingly, on the basis of my findings the appropriate order is to dismiss LA's application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar