CITATION: MQ v Commission for Children and Young People [2004] NSWADT 279 DIVISION: Community Services Division APPLICANT PARTIES: MQ RESPONDENT Commission for Children and Young People FILE NUMBER: 044015 HEARING DATES: 14/10/2004 SUBMISSIONS CLOSED: 10/14/2004 DATE OF DECISION: 12/02/2004 BEFORE: Smyth M - Judicial Member APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 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 APPLICANT REPRESENTATION: In person RESPONDENT P Singleton, barrister ORDERS: 1. The matter to be set down for a further short hearing at a date to be fixed by the Registrar to hear submissions from the parties on the issue of conditions and the granting of leave to make a new application ; 2. The parties may also put on written submissions on the issue of conditions and the granting of leave to make a new application. Such submissions are to be filed and exchanged no later than 7 days before that hearing. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1 The Applicant seeks an order under s 9(1) of the Child Protection (Prohibited Employment) Act 1998 so that he can work unsupervised with persons under the age of 18 years. 2 Although an order would apply to all work with those under 18 years that is not directly supervised, the application is made in order to work with young people as a volunteer in a number of activities. These include working as a parent volunteer at his children's school, for example assisting the school's Community Liaison Officer or in the school canteen. He is also interested in coaching children's sport, for example as a rugby league coach and in working as a volunteer at a youth program attended by his children. The kind of work involved at the youth program would be taking children on excursions and possibly driving a bus for these excursions. The respondent opposes this application. Index offence 3 On 17 July 1978 the Applicant was convicted of carnal knowledge at the Campsie Court of Petty Sessions and entered into a recognizance under s 558 of the Crimes Act to be of good behaviour for 12 months. On 27 May 1980 the Applicant was convicted of a further two counts of carnal knowledge at the Sydney District Court and sentence was deferred on entering a recognizance under s 558 of the Crimes Act to be of good behaviour for 3 years under the supervision of the Probation and Parole Service. 4 Each of these offences constitutes a "serious sex offence" as defined by the Child Protection (Prohibited Employment) Act 1998. By operation of s 5 of that Act, the Applicant is a "prohibited person" and therefore it is an offence for him to apply for, undertake or remain in child-related employment. 5 Section 126(1) of the Administrative Decisions Tribunal Act 1997 ("Tribunal Act") makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the Applicant or anyone else referred to in the proceedings other than the expert. The Applicant is referred to in these reasons by the pseudonym MQ. Relevant legislation 6 Section 5(2) of the Child Protection (Prohibited Employment) Act 1998 provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection (Prohibited Employment) Act 1998 is not to apply to him or her. Section 9(1) provides that on application of a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection (Prohibited Employment) Act 1998 is not to apply to him or to her in respect of a specified offence. Orders made under s 9 may be made subject to conditions:s 9(9). 7 Section 9(4) of the Child Protection (Prohibited Employment) Act 1998 provides that the Tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account: Section 9(5) provides that In deciding whether or not to make an order under this section in relation to a person, 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, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. 8 Section 9(7) requires the Respondent to be a party to any proceedings for an order under s 9 and they may make submissions opposing or supporting the making of the order. Onus of proof 9 The applicant carries the onus, on the Briginshaw standard, that he is not a risk to children. The meaning of the word "risk" for the purposes of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of risk in R v Commission of Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on: not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights. (Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].) 10 Young J held at [42] 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". That test is now binding on the Tribunal. 11 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. He held at [46] that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant "who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children". Index offence 12 On 17 July 1978 the Applicant was convicted of carnal knowledge at the Campsie Court of Petty Sessions and entered into a recognizance under s 558 of the Crimes Act to be of good behaviour for 12 months. He was 21 years at the time and had sexual intercourse with a girl aged 15 years. They had known each other for some months. The girl went to visit him and in her statement to police states that he told her that he loved her and she had told him that was how she felt about him. They then had intercourse. 13 On 27 May 1980 the Applicant was convicted at the Sydney District Court of a further two counts of carnal knowledge and sentence was deferred on entering a recognizance under s 558 of the Crimes Act to be of good behaviour for 3 years under the supervision of the Probation and Parole Service. The Applicant, then aged 23 years, had intercourse with a girl of 13 years on two occasions. The Facts Sheet prepared for hearing on 5 May 1980 indicates that the Applicant and the thirteen year old girl had known each other for approximately thirteen months. In his signed record of interview dated 10 January 1980 the Applicant stated that he knew she was 13 years at the time he had intercourse with her. He stated that he loved her and wanted to marry her. He also stated that he did not think he could have children at the time. The girl was pregnant at the time of the hearing on 5 May 1980 and he stated he was prepared to pay any expenses she had with the child. Applicant's and victim's age and the time since these offences. 14 At the time of the first offence the applicant was 21 and his victim was 15. At the time of the second offences the Applicant was 23 and his victim was 13 and the offences occurred 24 years ago. The Applicant is now 48 years and the first offence occurred 26 years ago. Seriousness of the Applicant's total criminal record 15 On 19 March 1980 the Applicant was convicted of false pretences. Sentence was deferred on entering a recognizance to be of good behaviour for 2 years under s 558 of the Crimes Act. The Police statement of facts indicates that the Applicant had been employed by a car parking firm. After leaving employment with the firm he had worn a company uniform, gone to the car park and told the attendant he was there to collect the days takings. He took a bag of money containing $160.20. 16 On 19 August 1982 the Applicant was convicted of illegally using a motor vehicle and fined $50. 17 On 7 December 1994 the Applicant was convicted of larceny at the Campbelltown Local Court. Sentence was deferred and he was released on a recognizance under s 558 of the Crimes Act to be of good behaviour for 12 months and required to pay $1000. The offence concerned stealing a gas barbecue, trolley, gas bottle and gas heater from his employer and selling these to a friend. Other relevant matters: expert report 18 The respondent caused the Applicant to be interviewed and assessed by Dr Stephen Allnutt, a Forensic Psychiatrist, who provided a detailed report. He applied the Static 99 actuarial test, a recognised test that assesses the possibility of a sex offender reoffending in relation to the possible reoffending of sex offenders generally. Using the Static 99 regarding the Applicant's most recent sexual offence, Dr Allnutt stated that the Applicant manifests the following risk factors: unrelated victim and a prior sexual offence. He assessed the Applicant as falling into a medium-low risk group of known sexual offenders for future sexual offending. 19 In his clinical evaluation Dr Allnutt analysed the factors present in the Applicant that may be associated with the risk of sexual recidivism. In his report he states that these include "a history of hebephilic behaviour; prior history of sexual offending; extra-familial sexual offending; prior history of nonsexual offending; multiple types of offences, anti-social personality; an abusive background; a tendency to attribute at least partial responsibility for his offending to others; limited appreciation for the impact of offending on the child victims; inconsistency in his account". 20 He notes that factors associated with future recidivism that are absent in the Applicant include: no early onset of sexual offending; his age; having no male child as victim; no offending in 10 years; no evidence of nonsexual violent offending; having no evidence of antisocial/paedophilic associates; having a long term relationship with a mature women and currently being married; no significant anger problems and no significant substance abuse. 21 Another clinical factor that he states should be considered is that "his offending suggests a romantic/erotic attraction to pubescent girls. Although the Applicant has since married and has an age appropriate sexual relationship with his wife, Dr Allnutt states that his offending for a second time suggests more than poor judgement due to immaturity and raises the likelihood that he is vulnerable to a hebephilic drive. The absence of complaints in the past 24 years suggests that this has been adequately controlled. 22 Dr Allnutt raises concern about his "limited insight into the impact of offending on immature victims". He states that this needs to be considered in the context of access to adolescents when in a position of responsibility and authority. He states "Taking all factors into account, in an unsupervised situation, where (he) perceives an adolescent female to show him interest, his risk of inappropriate sexual behaviour increases. Other circumstances may include in times of psychosocial stress such as loneliness, depression and loss of relationship." 23 In conclusion Dr Allnutt states that he falls into a group whose risk is elevated above that of the general population but is low in comparison with other sex offenders. The risk is highest for pubescent girls (13 years and over). The risk to males is likely to be equivalent to the general population and would involve predominantly sexual and physical risk. Dr Allnutt recommends that adult supervision should be available when the Applicant is working with persons under the age of 18 years. 24 Dr Allnutt made a number of recommendations in his report. He stated that the applicant may benefit from psychological counselling to address antisocial attitudes and his prior sexual offending. He stated that the applicant needs assistance to accept responsibility for his past offending and to address justifications. Such counselling could be provided by a psychologist with experience in treating general and sexual offenders. 25 He also stated that the Applicant would benefit from learning relapse prevention strategies in relation to both sexual offending and general offending. 26 Dr Allnutt's oral evidence 27 Dr Allnutt gave oral evidence and was questioned about the factual basis of his conclusions. He reiterated that on his actuarial assessment the Applicant's risk of offending was low and that the probability of risk is even lower given that there have been 24 years without complaints about him sexually offending. He explained that this meant his risk was greater than the normal population but low in comparison to others who have a history of offending. 28 He stated that there were two factors that caused him concern. One was the Applicant's offending history of dishonesty. The other was the attitude of the Applicant expressed to him that it was not damaging to a child if you touched them voluntarily. 29 When Dr Allnutt was asked what kind of touching he was referring to he stated that the Applicant had made this comment in response to a question about sexual touching. Dr Allnutt referred to a discussion he had with the Applicant about whether touching children was right or wrong and cited the Applicant's response that if kids want sex with an older person he (the Applicant) did not think this would scar them. 30 Dr Allnutt reiterated his view that the Applicant would benefit from counselling by a psychologist. He described the kind of counselling that would assist as educational by a psychologist experienced in sexual offenders. Such counselling could help the Applicant by helping him identify cognitive distortions, the kinds of justifications that would come into his mind. 31 Submissions of the Applicant 32 The Applicant apologised for what he had done and stated that he was very sorry about that. He referred to his background as a "welfare boy" and the impact of this on him at the time he committed the index offences. He noted that he had looked after the girl who became pregnant to him and the child for a five year period. He stated that he wanted another chance. He referred to the index offences indicating that that both parties had decided they wanted intercourse and that there was no force. 33 He submitted that he had too much to lose, in particular his wife and child, if he were to offend again. It was now 24 years since his last sexual offence and he did not think that he posed a risk to children. He had references from a number of sources before the Tribunal that attested to his good character and there had been no complaints about him. 34 He had previously acted as a volunteer at his children's school and coached a children's rugby league team with no complaints against him. In the course of the hearing the applicant also stated that there are people who can supervise his work with children. Given the definition of child-related employment in Section 3 of the Child Protection Act as (a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised: the Act only prohibits the applicant from undertaking work that primarily involves contact with children where that work is not directly supervised. Accordingly if the Applicant's work with children is directly supervised then he does not require a declaration under the Child Protection (Prohibited Employment) Act 1998 to undertake that work. Submissions of the Respondent 35 The respondent opposed the application and submitted that the Applicant had not discharged the onus of proving that he did not pose a real or appreciable risk to children. The respondent argued that the Applicant was not predatory but relied on Dr Allnutt's evidence that he did pose a low risk. The respondent argued that the Applicant may get into situations leading to improper contact with teenage girls. If a situation developed where there was some attraction and, if he remained of the view that some consensual touching may not be scaring, then a risk of harm to children existed. The respondent also relied on evidence that the Applicant was not a trustworthy person citing his prior convictions for offences involving stealing from his employers. 36 The respondent argued that if the Tribunal were minded to make an order with conditions then the approach of the judicial member Britton A in GY v Commission for Children and Young People [2004] NSWADT 123 could be followed by indicating possible conditions and allowing the parties to make submission on them before making a final decision. 37 The respondent outlined some conditions that could be considered including not to be involved in child related employment with girls under 18, providing a copy of an order to any employer, providing a copy of Dr Allnutt's report to any employer, an order for counselling and not to associate with any children he encounters in the course of employment outside employment. Findings and conclusions 38 The Applicant was convicted of carnal knowledge in 1978 and two counts of carnal knowledge in 1980. These offences make him a prohibited person under the Child Protection Act. 39 In the Applicant's favour is the long period of time since the offences, the absence of any complaints about him for a long period and his stable family life. In considering the index offences, the subsequent history of offences of dishonesty and his character I am comfortably satisfied that the applicant does not pose a real and appreciable risk to male children under the age of 18 years. In coming to this view I have accepted Dr Allnutt's conclusion that the risk posed by the Applicant to males is likely to be equivalent to the general population. Accordingly I am satisfied that he would not pose a real and appreciable risk to male children if he were to work in an unsupervised position such as a voluntary coach of an all male rugby league team. 40 I am not satisfied that he does not pose a real and material risk to female children, particularly adolescents. Despite the long period since his last sexual offence the evidence of Dr Allnutt indicates that he still poses a real and appreciable risk, particularly to pubescent girls aged from 13 up. That evidence indicates that the risk can be diminished by the Applicant obtaining treatment in the form of psychological counselling. 41 The Tribunal does not have the power to order an Applicant to attend counselling and it is a matter for the Applicant as to whether he thinks that counselling would be of benefit to him. It may be that if the Applicant were to undergo counselling as suggested by Dr Allnutt, and was able to provide a future Tribunal with evidence regarding the outcome of such counselling, that a future Tribunal could come to a view that he no longer posed a real and material risk to girls under 18 years. A future Tribunal would need to assess all of the evidence before making any decision. 42 I note that some of the work described by the Applicant in the course of the hearing was not work that in my view would be caught by the legislation as it was directly supervised by another person. The Applicant is of course able to undertake any of the work described in s 3 of the Child Protection (Prohibited Employment) Act 1998 that primarily involves contact with children where that work is directly supervised. The Child Protection (Prohibited Employment) Act 1998 is only concerned with work primarily involving children where that work is not directly supervised. 43 As on the material before me, I cannot be reasonably satisfied that the Applicant would not present a risk to children in any circumstances I decline to grant an unconditional declaration under s 9(1). Having made that finding, I must now consider whether it is possible to impose conditions in order to lift the Applicant over the risk threshold. Although the respondent put forward some examples of possible conditions in fairness both parties should have the opportunity to put forward submissions regarding the most appropriate conditions. My preliminary view is that the following orders may be appropriate. Possible Orders 1. The Tribunal declares that the Child Protection (Prohibited Employment) Act 1998 is not to apply to the Applicant in respect of the offences of carnal knowledge for which he was convicted on 17 July 1978 at the Campsie Court of Petty Sessions and on 27 May 1980 at the Sydney District Court subject to the conditions in Order 2. 2. Pursuant to s 9(9) of the Child Protection (Prohibited Employment) Act 1988 the declaration is subject to the following conditions: The applicant is restricted to work in child related employment with males under the age of 18 years The applicant is not to engage in any child-related employment that is not directly supervised with any females under the age of 18 years. An alternative to making the above orders is to grant the Applicant leave to make a further application to the Tribunal under s 9(8) of the Child Protection (Prohibited Employment) Act 1998 at any time from 1 July 2005. Such an order would allow the Applicant time to obtain counselling of the kind recommended by Dr Allnutt and obtain a report. Depending on the outcome of that counselling the Applicant may then be able to provide a future Tribunal with evidence that he no longer posed a real and appreciable risk to children. 44 Section 9(8) of the Child Protection (Prohibited Employment) Act 1998 states that (8) If a 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 8A in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. My initial view is that s 9(8) does not allow the Tribunal to make a conditional order as drafted above and also grant the Applicant leave to make a further application to the Tribunal under s 9(8) of the Child Protection (Prohibited Employment) Act 1998 for a period of less than five years. 45 I would like the parties to have the opportunity to make submissions to the Tribunal about the proposed orders or the alternative of refusing to make such orders at this stage but making an order under s 9(8) granting the Applicant leave to make a further application in approximately six months time. 46 Further the parties could also provide the Tribunal with their view on the ambit of s 9(8) and address whether the Tribunal is able to do both, that is grant a conditional order as set out in the possible orders above and also grant the Applicant leave to make a further application in approximately six months time. 47 Accordingly, the matter will be set down for a further hearing to hear submissions on the appropriateness of the possible orders outlined above or any other conditions that the parties might propose. If the parties wish they may also make written submissions. In addition the parties may wish to make submissions regarding the power of the Tribunal to make a conditional order and in addition, grant the applicant leave to make another application for an unconditional order in approximately six months time. Directions 1. The matter to be set down for a further short hearing at a date to be fixed by the Registrar to hear submissions from the parties on the issue of conditions and the granting of leave to make a new application. 2. The parties may also put on written submissions on the issue of conditions and the granting of leave to make a new application. Such submissions are to be filed and exchanged no later than 7 days before that hearing. 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.