AE v Commission for Children and Young People [2007] NSWADT 260

CITATION: AE v Commission for Children and Young People [2007] NSWADT 260

DIVISION: Community Services Division

APPLICANT PARTIES: 'AE' RESPONDENT New South Wales Commission for Children and Young People

FILE NUMBER: 074013

HEARING DATES: 10 September 2007

SUBMISSIONS CLOSED: 10 September 2007

DATE OF DECISION: 6 November 2007

BEFORE: Britton A - Deputy President

CATCHWORDS: Declaration that applicant not a prohibited person

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Child Protection (Prohibited Employment) Act 1998

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

In Person REPRESENTATION: M Higgins, barrister

ORDERS: Application Dismissed

REASONS FOR DECISION 1 The applicant, who in these reasons will be referred to by the pseudonym, AE, has applied to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 (the Commission Act). AE is a 'prohibited person' having committed three 'serious sex offences', namely the offences of indecent assault female, rape and commit act of indecency. Unless the order he seeks is granted, it will be an offence for AE to apply for, undertake or remain in 'child-related employment' (s 33C of the Commission Act). 2 AE makes this application so he can apply to the Department of Community Services (DoCS) to become an 'authorised carer' aka 'foster parent' (s 137 of the Children and Young Persons (Care and Protection) Act 1998 (the Care and Protection Act)). He told the Tribunal that his sole interest in applying for a declaration under the Commission Act is so that he and his wife can apply to care for two grandchildren who have been removed from the care of their mother and for whom the Minister for Community Services has parental responsibility (s 79 of the Care and Protection Act). It is my understanding that the designated agency charged with overseeing the placement of AE's grandchildren is the Department of Community Services. 3 The respondent opposes AE's application. What AE must prove 4 Section 33I(1) of the Commission Act provides that the ADT may make an order declaring that this Division is not to apply to an applicant in respect of a specified offence. That order may be made subject to conditions (s 33I(6)). 5 Section 33J(1) provides that the Tribunal is not to make an order on a review application (an application made under s 33I) unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) provides that it is to be presumed that the applicant poses a risk to the safety of children, unless s/he proves the contrary. In deciding whether or not to make an order under s 33I the Tribunal must 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. 6 In determining a review application the paramount consideration is the safety and welfare of children and, in particular, protecting them from abuse (s 32). The test set out in s 33J(1) of the Commission Act is in similar, but not identical terms to the corresponding provision in the now repealed Child Protection (Prohibited Employment) Act 1998 (the CPPE Act) Act, i.e. s 9(4)). As far as I am aware, to date, s 33J of the Commission Act has not been considered by a superior court. The CPPE Act on the other hand was considered on a number of occasions by the Supreme Court (see for example Commission for Children and Young People v V [2002] NSWSC 949; The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136 ;Commission for Children & Young People v UR [2007] NSWSC 1099). While great care should be taken in applying principles developed to deal with different, albeit similar legislative provisions, those decisions where the operation of s 9(4) of the CPPE Act has been considered nonetheless provide useful assistance on the application of s 33J(1) of the Commission Act. 7 The meaning of the word 'risk', for the purpose of s 9(4) of the CPPE Act was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101. 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].) 8 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'. Risk Indicia – s 33I matters 9 AE is 63 years of age. 10 Index offences AE has been convicted of three offences which each constitute a 'serious sex offence' for the purpose of 33B(3) of the Commission Act. They are indecent assault female, rape and commit act of indecency. 11 (i) Assault female under age 16 with act of indecency In 1965 AE then aged 18, was charged with the offence of 'assault female under 16 years of age with act of indecency'. His victim was apparently aged 15 years of age. He was placed on a good behaviour bond on condition he accept the supervision and guidance of the Adult Probation Service. 12 The original court papers relating to this offence could not be located. AE told Dr Christopher Lennings in the course of a psychological assessment conducted at the request of the respondent, that he had no recollection of the incident. A pre-sentence report filed by the respondent, indicates that AE had been in a group situation and had attempted to have intercourse with the girl with her consent. 13 (ii) Rape In 1972 AE was convicted of the offence of rape and given a seven year custodial sentence with a three year non-parole period. His victim was 16 years of age; he was 25. He and two co-offenders had driven the victim to a secluded area without her consent. AE and one co-offender raped the girl. The other co-offender attempted to rape the girl. 14 (iii) Act of indecency In 1985 AE was convicted of the offence of 'commit act of indecency'. He was placed on recognisance to be of good behaviour for three years and fined $2000. AE's victim, his sister-in-law, in a statement given to police alleged that in the course of a social visit AE had followed her into her children's bedroom and masturbated in front of her. AE did not deny those facts in these proceedings however on his account his sister-in-law had at all times been a willing participant. 15 AE was then 39 years of age. The age of his sister-in-law is unknown however it seems clear that she was a mature adult woman. 16 Other convictions In addition to the index offences AE holds convictions for the offences of assault (1), stealing, offensive behaviour and attempt kidnap. No convictions have been entered since the 1985 conviction referred to in par [9] of these reasons. Before that the last conviction had been in 1979 for the offence of 'attempt kidnap'. 17 Attempt Kidnap In November 1978 AE was committed for trial for the offences of kidnapping, assault with attempt to rape and common assault. He was convicted of 'attempt kidnapping'. 18 The facts on which that conviction was based are as follows. The victim, an 18 year old woman was approached by AE while she walking on a public street, hit in the face and dragged towards her car. She admitted that no sexual advances were made towards her. AE was heavily intoxicated at the time..He was 32 years of age. 19 In the police record of interview AE is recorded to have said that it had been his intention to have sexual intercourse with the girl. 20 Use of alcohol AE admitted that alcohol had been a serious problem for him until about the early 80's but testified that over the past 20 years he has moderated his use of alcohol. He claims that over the past ten years he has had at most the occasional drink. 21 History AE is in his third marriage, which he reports to be happy and stable. He and his current wife have been married for 22 years. His wife accompanied AE to the assessment undertaken by Dr Lennings. She confirmed that AE's behaviour had 'changed fundamentally' since she met him over 25 years ago. At that time he was drinking heavily and could be verbally aggressive. She agreed with her husband's claim that he would never hurt anyone – sexually or physically. 22 AE's work history discloses limited contact with children. His employment primarily involved working with heavy machinery. For a short period he and other family members operated a business which involved supplying jumping castles to children's parties. More recently he has operated a small retail shop. His customers included children who visited the shop to purchase confectionary. 23 The respondent advises that with the exception of the material relating to AE's criminal history nothing adverse to him was contained in any of the documents produced under directions issued under s 14A of the Commission Act. It advised that section 14A notices were issued to, among others, the Department of Community Services and AE's former employers. 24 AE testified that to his knowledge no complaint has been made about his treatment of children other than the 1965 index offence. 25 Expert evidence As noted AE was assessed by psychologist, Dr Lennings. Dr Lennings was asked by the respondent to provide an opinion on whether AE posed a risk to the safety of children and young people in any context. A report prepared by Dr Lennings dated 20 July 2007 was tendered in these proceedings. He also gave oral evidence. 26 Dr Lennings employed a combination of actuarial and clinical assessment tools to assess AE. Employing STATIC-99 — an authoritative actuarial tool used to predict recidivism rates among known sex offenders by examining static risk variables (eg offender's age, offending history) — AE scored six placing him in a group of sex offenders, of whom it is expected that about one third will reoffend within a 15 year period. Dr Lennings pointed out that this does not establish that AE will or is likely to reoffend but rather that he falls within a group whose members are more likely than not to reoffend. He pointed out that the absence of any offending behaviour for over 20 years meant that AE's risk applying STATIC-99 was significantly reduced and was probably more correctly described as a medium risk. 27 Dr Lennings found that his findings on actuarial assessment were broadly consistent with those on structured clinical assessment; that is he was assessed as representing a moderate risk of reoffending. 28 In assessing AE's risk to children, Dr Lennings thought it relevant that with the exception of the 1965 offence, there was no information to indicate that AE had placed children at risk. [I understood Dr Lennings' evidence he was referring to persons under 16 years of age]. He thought that the 1965 offence should be seen in the context of young men or teenagers and consensual sexual behaviour. However Dr Lennings pointed out that the absence of child victims, of itself, does not establish that a person does not pose a risk to children. In his view while difficult to quantify, the risk of crossover offending (that is offending against children as well as adults) was real. He pointed out that the literature reveals that somewhere between three and 22 percent of sex offenders are likely to have both adult and child victims. 29 Dr Lennings concluded that AE presented as a man of higher than average risk, but that a number of powerful protective factors moderated that risk. He identified those to include AE's age; the stability of his current long-term marriage; the absence of any offending for over 20 years and the sustained period of alcohol reduction. Findings and conclusions 30 To grant the application AE seeks, I must be satisfied that he does not pose a risk to the safety of children. Section 33J (2) of the Commission Act creates a rebuttable presumption that AE poses a risk to the safety of children. In determining whether that presumption has been rebutted, I am required to have regard to the matters listed at s 33J(3) of the Commission Act. It falls to AE to prove that he does not pose a risk to the safety children. 31 There are a number of factors, which are supportive of AE's application. These include the passage of time since his last offence; the existence of a long-term stable and loving relationship; a long history of age appropriate sexual relationships; the marked and sustained reduction in alcohol use over the past decade; the absence of any evidence of offending against male children and female children under the age of 16, except the 1965 offence of assault female. While the victim of that offence appears to have been 15 years of age, AE was little more than a child himself at the time. Given his relative youth and the closeness in age to the girl, it does not, in my view, indicate that AE has a predilection to offend against children. Dr Lennings points out the absence of child victims (or more correctly children under the age of 16), does not guarantee that a sex offender whose victims to date have been exclusively adult, will not go on to offend against children. It is nonetheless supportive of AE's claim that he does not and never has had a prurient interest in children. 32 At the other side of the risk ledger there are a number of factors, which indicate that AE might pose a risk to children. 33 First, the conviction for rape can only be seen as a most serious offence. AE was nearly ten years older than his victim; it was a brutal act and no mitigating factors have been brought to my attention. While committed over thirty years ago, nonetheless it cannot be overlooked especially given the evidence of repeat offending of a sexual nature some 15 years later, albeit at the lower end of the scale. Given the seriousness of the offence it is troubling that AE has not received any counselling or any other treatment. 34 Second, there is no expert evidence to contradict Dr Lennings' opinion that AE is a man of higher than average risk, notwithstanding the strong protective factors that he believes operate to moderate that risk. Dr Lennings considers that a combination of age, maturity and a long term stable relationship mean that it is unlikely that AE will return to the type of anti-social behaviour that characterised his earlier years. However Dr Lennings felt constrained to go so far to opine that AE represented a low risk of recidivism given that on the application of two recognised assessment tools his risk was assessed to be at least moderate. 35 Third, there is scant evidence, to support AE's self report that he is a 'changed man'. The only corroborative evidence was that provided by Dr Lennings concerning his discussions with AE's wife and the absence of any information adverse to AE produced in answer to directions issued by the respondent. AE explained that he could have obtained character references and the like but chose not to do so because this would subject his family to embarrassment and shame. 36 While AE's desire to protect his family is understandable, especially given the small community in which he resides, the absence of corroborative evidence makes his task of discharging the evidentiary onus difficult especially given that the factors favourable to him are largely based on his self report. It seems to me that as a general rule, for an applicant to rebut the legal presumption that they pose a risk to the safety of children, it will be necessary to provide some cogent evidence in support of their claim that they do not pose such a risk. This is especially so where, as in this case, the index offence is serious in nature. While the evidence in this matter is finely balanced, with no reliable evidence to support AE's self report, I could not be satisfied to the requisite standard that he does not pose a risk to the safety of children. 37 Having reached that conclusion it is necessary to address whether the risk that AE poses would be reduced to one that is not real and material if conditions were imposed. Before doing so it is relevant to examine whether AE is in fact barred from working with his grandchildren. 38 The Commission Act defines 'child-related employment' to mean 'any employment…that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person and includes employment involving fostering or other child care (s 33(1)(xi)). 39 A 'prohibited person' is not prohibited from working in child-related employment where they are related to all of the children with whom they are required to have contact in that employment. 'Relative' is defined to include a grandparent (s 33A). 40 It follows that AE is not prohibited by the operation of the Commission Act from applying to become an 'authorised carer', or carrying out that role, on condition that he related to all children placed in his care. 41 AE has made clear from the outset that he has no interest in child-related employment at large but wishes only to be able to apply to DoCS to become an authorised carer so that he and his wife can jointly care for two grandchildren for whom the Minister for Community Services has parental responsibility. That role would be undertaken in partnership with his wife. 42 AE is in somewhat of a 'Catch 22' situation. As outlined above the Commission Act does not prohibit AE from caring for his grandchildren in the role of authorised carer. However if AE's understanding of the advice provided by DoCS is correct, his application to care for his grandchildren in the role of authorised carer will not be considered unless an order under s 33I of the Commission Act is granted. 43 In my view it is not open to me to make an order that AE is not a prohibited person on condition that he restrict the scope of his employment to caring for his grandchildren. Such order would be both otiose and beyond power. Read together, in my view, ss 33I(1) and 33(6) do not give the Tribunal power to make an order declaring that a person is not a prohibited person on condition they restrict their employment to employment not the subject of any prohibition under the Act, that is non child related employment. 44 It would be open to me to make an order that AE does not pose a risk to the safety of children 'at large' in the role of authorised carer. This would permit him to foster children of any age including the most vulnerable. This area of employment arguably presents the highest opportunity to offend given its unsupervised nature and the vulnerability of many of the children placed with authorised carers. While there is nothing before me to suggest that this might be an area where AE poses any particular risk, for the reason as given at par [31] I could not be comfortably satisfied on the material before me that he does not pose a relevant risk. 45 For these reasons I have decided to dismiss AE's application.