CITATION: BU v Commission for Children and Young People [2008] NSWADT 232 DIVISION: Community Services Division APPLICANT BU PARTIES: RESPONDENT Commission for Children and Young People FILE NUMBER: 074026 HEARING DATES: 10 and 11 March 2008 SUBMISSIONS CLOSED: 11 March 2008 DATE OF DECISION: 20 August 2008 BEFORE: Smyth M - Judicial Member Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998 RV v Commission for Children and Young People [2007] NSWADT 299 CASES CITED: Commission for Children and Young People v V (2003) 56 NSWLR 476 Commission for Children & Young People v UR [2007] NSWSC 1099) APPLICANT Ms A, agent REPRESENTATION: RESPONDENT M Crompton, barrister ORDERS: The application is dismissed. REASONS FOR DECISION 1 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 1987or 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. 2 The Applicant applies for a declaration under s 33I of the Commission for Children and Young People Act 1998 (the Commission Act). 3 Section 126(1) of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act") makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the Applicant or anyone else referred to in the proceedings other than experts. The Applicant is referred to in these reasons by the pseudonym BU. His fiancée is referred to as Ms A. 4 The Applicant was not legally represented in these proceedings and was represented by his fiancée, Ms A. 5 BU is a prohibited person as he was convicted of sexual intercourse without consent in 1999. The respondent opposed his application. 6 The Applicant works full time. His employment does not involve contact with children. BU made the application because his fiancée, Ms A, had applied to become a family day carer. Ms A was told that she could not work as a family day carer if a prohibited person resided in the premises. 7 In the course of the hearing the Applicant advised the Tribunal that Ms A was no longer pursuing her application to become a family day carer. He wanted to proceed with his application in order to do voluntary work with young people aged approximately 14-19 years at his church. He told the Tribunal that a youth group leader would be by his side to help and guide him and that the work would involve a lot of reading and probably spiritual guidance. Relevant statutory provisions 8 Section 33J(1) of the Commission Act provides that the Tribunal is not to make an order on a review application unless satisfied that the person the subject of the application does not pose a risk to the safety of children. 9 Section 33J(2) requires the Tribunal to presume that the Applicant poses a risk to the safety of children, unless he or she proves the contrary. The Applicant carries the onus, on the Briginshaw standard, to rebut that presumption. 10 The factors that the Tribunal must take into account in deciding whether or not to make an order are set out in s. 33 J(3) as follows. (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. 11 The paramount consideration is the safety and welfare of children and, in particular, protecting them from child abuse. [Section 32]. 12 The test set out in s. 33J(1) of the Commission Act is similar, but not identical, to the corresponding test in the now repealed Child Protection (Prohibited Employment) Act 1998. 13 In RV v Commission for Children and Young People [2007] NSWADT 299 this Tribunal, differently constituted, considered the application of legal principles developed regarding s. 9(4) of that 1998 Act to applications made under s. 33. The Tribunal referred to the consideration of the meaning of risk used in that section in the cases of Commission for Children and Young People v V (2003) 56 NSWLR 476 and Commission for Children & Young People v UR [2007] NSWSC 1099). 14 In RV v Commission for Children and Young People the Tribunal said that great care had to be taken in applying principles that had been developed in relation to different, although similar, legislation. That Tribunal concluded that previous authorities that had considered s. 9(4) of the now repealed Act provide useful assistance to interpreting corresponding provisions in the Commission Act. I agree with that approach. 15 In RV v Commission for Children and Young People the Tribunal referred to Young CJ (in Equity) in Commission for Children and Young People v V. In that case Young CJ agreed with Haylen J's analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. 16 Haylen J said that s 9(4) was focussed on: '[N]ot 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.' ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].) 17 Young CJ held [at 27] that 'risk' in the context of s 9(4) meant 'a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child'. 18 The previous Act included the power to make conditions [s. 9(9)]. Young CJ made it clear that the power to impose conditions was relevant to the question of risk. The imposition of relevant conditions could mean that an Applicant may not pose a real unacceptable risk to children. 19 I now turn to the factors that the Tribunal is required by s. 33 J(3) to take into account. Seriousness of offence with respect to which the Applicant is a prohibited person and the period of time since that offence was committed. [Section 33J(3)(a) and (b)] 20 On 6 October 1999 the Applicant was convicted of assault occasioning actual bodily harm and sexual intercourse without consent. He was sentenced to 24 months imprisonment for the assault occasioning bodily harm. He was sentenced to a minimum term of 3 years imprisonment, with an additional term of two years, concluding on 5 October 2004, for the sexual assault. The Court of Criminal Appeal dismissed his appeal regarding his sentence in July 2001. 21 The offences occurred in January 1999. The victim met the Applicant through an old acquaintance and the three of them arranged to meet at a nightclub that evening. In the course of the evening the Applicant and the victim had danced, kissed and cuddled. At the end of the evening the victim invited the Applicant in for a cup of coffee. The Applicant kissed the victim and she kissed him back. The Applicant then began touching her body and she asked him to stop. The Applicant began removing her clothes, overpowered her and penetrated her vagina digitally against her wishes. He then put his penis in her mouth and then had vaginal intercourse with her. The Applicant had continued to ask him to stop and managed to call 000. The victim's call to 000 was recorded including her screams and moans. The Applicant struck the victim on the head with the telephone and hit her. The Police arrived in response to the 000 call and arrested the Applicant. 22 The offence was serious and, in addition to the sexual assault without consent, involved a physical assault. It is now a little over 9 years since the Applicant committed that offence. Seriousness of his total criminal record 23 The Applicant's criminal record includes some minor drug and driving matters. He has a conviction for obscene exposure. That offence occurred when he was 19 years old and he exposed himself to a female stranger in her thirties. On the same date he was convicted of carrying a cutting weapon. He has a conviction for offensive language, assault police and resist arrest. He has a conviction for 'maliciously set fire' which appears to be a minor matter. 24 In 1995 he was convicted of assault occasioning bodily harm whilst armed with an offensive weapon and deprivation of liberty. The offence occurred in September 1994.At approximately three in the morning he saw a woman in a car park at the local police station, he threatened her with a knife and when she struggled he punched her several times. The motive for the attack was sexual assault. He ran away when a police car arrived. He was sentenced to imprisonment for four years with a recommendation that he be considered for parole after 18 months. He served the full four years. 25 The Applicant was released from prison in October 2004 and there are no offences on his criminal record following the 1999 offence. Factors relating to age - s. 33J(3)(c) to (g) 26 The Applicant is now 36 years old. At the time of the 1999 offence the Applicant was 27 years old. His victim was 29 years old and two years older than him. Other relevant matters Expert Evidence Dr Allnutt 27 The Applicant was assessed by forensic psychiatrist, Dr Allnutt, at the request of the Respondent. His report of 29 January 2008 was in evidence in these proceedings and he gave oral evidence. 28 In the course of undertaking his assessment the Respondent provided Dr Allnutt with some documents. The Applicant pointed out that some of these documents were irrelevant to the Applicant. The Respondent had sent Dr Allnutt two documents dated in 1989 relating to a sexual assault that had nothing to do with the Applicant and some documents dated in January 1990, April 1991 and August 1991 relating to the victim of that assault. In addition, there was a judgement regarding an offence dated 29 April 1992. The references to these documents in Dr Allnutt's report setting out those documents were not admitted into evidence as they were not relevant to the Applicant. 29 Dr Allnutt was asked about the impact of these documents on his assessment. He said he had wondered why they were there and that they made no difference to the conclusions he had reached. 30 In undertaking his risk assessment Dr Allnutt adopted a clinical and actuarial approach. On clinical assessment Dr Allnutt concluded that the Applicant suffered from a "paraphiliac disorder, namely, exhibitionism. In his report he stated He describes from a young age experiencing recurrent intense sexual arousing fantasies, urges and engaging in behaviours in which he exposes himself to women and masturbates publicly. This behaviour is entrenched from a young age and has occurred both within and external to the familial environment and within a correctional environment. His drive to exhibit has been of a severity that he has continued to expose himself to female officers throughout the term of imprisonment. He has reportedly engaged in stalking behaviour and was convicted on at least one occasion for a violent offence, which was conducted with the intent to rape utilizing a weapon; but failed. He has a paraphilia that involves non-contact sexual offending. Non-contact sexual offences have a higher recidivism rate than contact sexual offences. [at p 15] 31 Dr Allnutt did not make a diagnosis of paedophilia or hebophilia on the basis that none of the Applicant's victims had been under the age of 16 and there was no self-reporting of fantasies or urges involving children under the age of 16. Dr Allnutt noted that there did not appear to be any preoccupation or evidence for recurrent, intense sexual arousing fantasies, urges or behaviour involving sexual activity with children under the age of 13. 32 He noted that the Applicant had a history of alcohol abuse and that intoxication had been a significant factor in his prior offending behaviour. He described the Applicant's self report of limiting his alcohol intake as promising but said it was still a cause for concern. The Applicant took issue with Dr Allnutt's concern about his alcohol consumption and the following sentence in his report. "He continues to abuse substances, however, the frequency described by him at this stage would be inconsistent with substance abuse although in his case any use of substances would be a cause for concern." [at p 14] 33 When questioned by the Applicant Dr Allnutt agreed that the word "abuse" in the first line should read "use" and that the reference should be to a substance, rather than substances. The Applicant's evidence was that he was drinking three or four glasses of wine a week towards the end of last year and that he had abstained from alcohol for the past three months. He denied taking any drugs. He considered that he had dealt with "the alcohol side of things" and said that he had been getting support from his church to abstain. 34 Dr Allnutt considered that the Applicant's fantasy and justification for his offending that victims might gain pleasure from his behaviour persisted. He said that the Applicant "has engaged in significant minimalisation and denial of his offending behaviour and has had a tendency to externalize responsibility for his offending" [at p 16]. For example, Dr Allnutt referred to the Applicant "stating that his solution for his exposure behaviour in the prison was that they should not have female officers working then he would not expose." [at p 16] 35 Dr Allnutt concluded that the Applicant's offending while incarcerated raised significant concerns about his capacity to conform where there was opportunity and a "relatively strong underlying drive contributing to rule violation". 36 Dr Allnutt used the Static 99, an instrument designed for predicting sexual recidivism in sex offenders. He noted that the Static 99 estimates future risk based on a number of risk factors. He said that any estimates were reconviction rates. Estimates were group estimates and could not be applied to the individual. They only acted as a guide. For the purposes of the Static 99 Dr Allnutt did not include any offending in prison as he was unclear as to whether the Applicant was charged in regard to those allegations. 37 The Applicant fell into the high risk category on the Static 99 at his time of release from prison in 2004. On the basis that he had not offended since then Dr Allnutt assessed his current Static 99 risk profile as moderate. 38 On the basis of his actuarial and clinical assessment Dr Allnutt concluded that the Applicant fell into a moderate risk group for sexual offending and that his risk related predominately to adult females. He stated that "the most likely scenario of offending would be in the context of intoxication, and reduction in a sexual outlet in the form of a break-up of an interpersonal relationship". 39 He concluded that whether or not the Applicant posed a risk to children was less clear. Dr Allnutt placed individuals aged 16-18 years with secondary sexual characteristics consistent with those over 18 years in the same risk group as a young person over 18 years. He was unable to rule out risk to adolescents with secondary sexual characteristics and saw potential for offending against more mature adolescents under the age of 16 years. 40 He considered that his risk to pre-pubescent children was lower as there was no evidence that children had been the targets of his offences. In addition, he considered that his risk was relatively higher for females than males in all age groups. 41 In Dr Allnutt's oral evidence he provided more detail regarding the risk that the Applicant posed to young people of different age groups. In summary his evidence was that the Applicant posed a moderate risk to more mature adolescents and those with secondary sexual characteristics. For those over 16 in his opinion the risk was moderate, for those under 16 the risk was moderate low. For those under 13 years he considered that he was a low risk. 42 The Applicant disagreed with Dr Allnutt's conclusions regarding risk and maintained that he did not pose a risk. He pointed to some factual errors in Dr Allnutt's report, for example that the age of the person the Applicant's first sexual experience was with and the Applicant's age when his parents first divorced. He also pointed to the limitations of expert evidence particularly Dr Allnutt's statement in his report that: In approaching this risk assessment I have chosen to adopt both a clinical and actuarial approach. In providing an opinion on risk of recidivism it is important for the Court to be aware that the quality of expert opinion in this regard is limited as the scientific foundation has limitations. Any opinion on risk of recidivism is more professional than scientific. [at p 15] Exhibitionism 43 The Applicant has one conviction for obscene exposure to an adult woman. 44 The Respondent tendered correctional services records from the NSW Department of Corrective Services relating to the Applicant. These included allegations that the Applicant had exposed him self to female correctional staff while serving his custodial sentence for the 1999 sexual assault. The Applicant had the opportunity to examine the Corrective Services records before the hearing and to object to their tender. In the course of the hearing the Applicant was again asked by the Tribunal to check the material prior to the admission of the material being determined. The Applicant did not object to the tender of this material other than some records that related to another person and those records were not admitted. 45 In the course of the Applicant's evidence before the Tribunal the Applicant commenced to answer questions that may have led to self incrimination. The principle regarding self incrimination was explained to him. The Applicant was granted a certificate under s 128 of the Evidence Act 1995 (NSW) for the evidence he gave relating to exhibitionism. 46 The Applicant conceded that he had exposed himself to correctional officers and was charged with a number of instances as breaches of discipline by correctional services authorities while in prison. For example, according to material from Corrective Services the Applicant was warned on 5/8/2000 regarding exhibitionism, on 16/8/2000 he was charged with willful exposure by officers of Correctional Services and on 22 January 2001 he was charged and segregated for similar conduct. There was also a report on 8 August 2002 that he had exposed himself to a teacher, a report that on 28 October 2002 during "let go and lock in times he was naked" and that on 4 December 2002 he was given 3 days cellular confinement for exposing himself to a female officer. There was another report by a female officer that on 5 August 2003 that Applicant had exposed himself to her on numerous occasions. A directive was made that female prison staff should not be rostered on to work in his area without a male staff member present. Treatment for sexual offending 47 The Applicant said that he had completed a Sexual Offenders Treatment Program known as SOTAP in 1997 while in prison in another state for his 1993 offence. Shortly after his release from prison he committed the 1999 sexual assault. Consequently whatever treatment he had, it did not prevent him committing the 1999 sexual offence. 48 While in prison in NSW during early 2000 the Applicant was assessed as suitable for a treatment program designed for sexual offenders in prison (CUBIT) due to commence in October of that year. In September that year he was advised that he was unsuitable to take part in the program due to his sexually offensive behaviour to female staff. 49 The Applicant required a six-month period free of misconduct to be eligible for the program, in addition to a change in his security classification. When he applied again for the program during 2001 he was not accepted due to instances of exposing himself to female staff, among other reasons. Subsequently, due to a variety of reasons he did not gain entry to the program before finishing his prison sentence. 50 The Applicant's evidence was that he had had some counselling from a Ms Gibbons last year. He said that counselling had addressed his sexual offending issues. As a result he was able to put into practice new thought patterns so that if negative thoughts arose he could substitute more appropriate thoughts. He also indicated that his urge to expose himself was very low as he was in a relationship. He said he was unable to substitute negative thoughts with more appropriate ones while incarcerated as he did not have anything appropriate to substitute them with. 51 In a one page document dated 19 July 2007 addressed "To Whom it May Concern" in evidence before the Tribunal, Ms Gibbons said that she was a professional counsellor registered with the Australian Counselling Association. She had fourteen years experience working extensively with abused and dysfunctional families, including victims of domestic and sexual abuse. 52 Ms Gibbons stated that she had seen the Applicant and his fiancée over the past 6 months individually and jointly on a regular basis. Ms Gibbons stated that the Applicant had "one conviction only in the past of a sexual offence, and that this offence was of a non-violent nature involving an adult woman, namely non consensual sex". In her view the Applicant had taken full responsibility for his actions and exhibited appropriate remorse. She stated that he had been open and co-operative in his disclosures around his offence. In her opinion the Applicant did not pose a risk as a child sex offender. References 53 In support of his application, the Applicant provided a number of personal references, all of which were positive about him. His parents considered him a changed man and said they had no concerns about his behaviour around children. 54 His fiancée had been in a relationship with him for approximately 18 months at the time of hearing. She described how he treated her children with love and respect and said that she trusted him with her children. 55 He also had a number of positive references from some community groups he was involved in and his employer. The Applicant's evidence and submissions 56 The Applicant told the Tribunal that he had never been a threat to children and that none of his crimes had been against children. He told the Tribunal that he was not a risk and pointed out that he himself had been a victim of a child sex crime. 57 The Applicant also contended that Dr Allnutt's report had been filed one day late on 31 January 2008 and was not received by him in time for him to seek another expert opinion. The respondent's evidence was that the report had been sent to him on 1 February 2008. 58 He acknowledged his history and that he had made huge mistakes and bad decisions in the past. He pointed to the many courses he had done, the certificates he had been awarded and his participation in counselling and treatment. 59 He pointed to his progress since leaving prison. For example, he had worked full time for nearly three years, had made new friends and become involved in activities. He was now engaged to a woman with two young children and described how he loved and cared for them as his own. The Applicant made it clear he was willing to do whatever was required by the Tribunal and was amendable to conditions. Findings and Conclusion 60 The Applicant was convicted of sexual intercourse without consent on 6 October 1999. That conviction makes him a prohibited person. 61 This Tribunal must presume he poses a risk to the safety of children unless he proves to the contrary. The Applicant carries the onus, on the Briginshaw standard, to rebut that presumption. 62 None of the Applicant's convictions have involved harm to a child and his victims have been adults. The progress he has made since his release from prison in October 2004 is in his favour. He has no further offences on his criminal record since the index offence. He has managed to work full time for three years, been in a stable relationship with his fiancée for 18 months, has been involved in community activities and was able to produce a number of positive references. I accept his evidence that he has reduced the amount of alcohol he is having and that he is getting assistance from his church with that. 63 However his index offence was serious and involved violence. His prior criminal offence that resulted in a custodial sentence in a different state had a sexual motivation. The Applicant acknowledges that he exposed himself to female correctional officers while serving his prison sentence and the correctional service records indicate that he was charged by them on a number of occasions for having done so. 64 While the Applicant points to treatment he had while serving a custodial sentence prior to his index offence, it is clear that he then went on to commit an offence of sexual intercourse without consent in 1999 and to expose himself to female correctional staff while incarcerated. Although he completed many courses in prison from 1999 to 2004 he did not have treatment for his sexual offending behaviour. 65 I accept the Applicant's evidence that he and his fiancé have had counselling recently. While his counsellor stated she had experience in working with victims of sexual abuse there is nothing to suggest that she has any specific expertise in counselling sexual offenders or assessing their risk to children. The counsellor's statement referred to knowledge, gained from working with the Applicant and his fiancé, that the Applicant "has had one conviction only in the past of a sexual offence, and that this offence was of a non-violent nature involving an adult woman, namely non consensual sex". While the Applicant maintained that he told her about his offending there is nothing in her statement to suggest she knew that the Applicant's index offence also involved a physical assault or that he had a prior conviction for obscene exposure. In those circumstances I do not consider that her opinion regarding the risk he poses to children should be given any weight. 66 The Tribunal had the benefit of evidence from Dr Allnutt an experienced forensic psychiatrist. He conducted a thorough assessment adopting a clinical and actuarial approach. While there may have been some inaccuracies in his report none of those identified by the Applicant appear to have been significant in forming the basis for his conclusions regarding the risk the Applicant posed. 67 I accept Dr Allnutt's opinion that the Applicant suffered from a "paraphiliac disorder, namely, exhibitionism" and his opinion regarding the risk posed by the Applicant towards those under 18 years. In his view the Applicant fell into a moderate risk group for sexual offending. While his risk was predominantly to adult females, in his opinion the Applicant posed a risk to more mature adolescents and those with secondary sexual characteristics. For those over 16 in his opinion the risk was moderate, for those under 16 the risk was moderate low. For those under 13 years he considered that he was a low risk. In all age groups the Applicant's risk was relatively higher for females than males. 68 In regard to the Applicant' submission that Dr Allnutt's report was received late and did not allow him sufficient time to obtain another expert opinion, the report was sent to him within a day of the time set down in the Tribunal's directions. The Applicant was sent Dr Allnutt's report on the 1st of February and he made no application for an adjournment of the hearing to provide time to obtain another opinion prior to the hearing. The issue was raised by the Applicant towards the end of the hearing. 69 Although I accept that the Applicant has made much progress since his release from prison in October 2004, having regard to the evidence before me I cannot be satisfied that the Applicant has met the onus of establishing that he does not pose a risk to the safety of children. 70 Having come to that conclusion it is necessary to give some consideration as to whether conditions could be imposed under s. 33I(6) to reduce any risk BU might pose to that below a real and appreciable risk to the safety of children. 71 The Applicant has indicated that he is willing to do whatever the Tribunal required and was amendable to conditions. 72 At present the Applicant seeks an exemption so that he can undertake voluntary work with young people aged 14-19 years for his church. In regard to this work in my view he should not be able to undertake such work unless he is directly supervised at all times by someone who has the capacity to direct him in the course of that work. If that is the case then he would not be engaging in "child related employment" as that term is defined under s.33(1) of the Commission Act. 73 The Applicant's current employment does not involve working with children and other than his proposed church work he has not indicated any other specific child related employment he proposes to engage in. Any conditions imposed need to be certain and without specific evidence about any other proposed employment I am not satisfied that conditions can be formulated that would reduce the risk to one below a real and appreciable risk to the safety of children. 74 Dr Allnutt recommended that BU pursue sex offender counselling and rehabilitation. It may assist the Applicant to obtain treatment from experts in the treatment of sex offenders. That may lead to a future reduction in his risk to the safety of children. However that is for the future and any change in the risk posed would need to be assessed after such treatment. 75 The Application is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.