CITATION: AU -v- Commission for Children & Young People [2002] NSWADT 78 DIVISION: Community Services Division APPLICANT PARTIES: AU RESPONDENT Commission for Children & Young People FILE NUMBER: 014068 HEARING DATES: 21/03/2002 SUBMISSIONS CLOSED: 03/21/2002 DATE OF DECISION: 05/14/2002 BEFORE: Gormly P - 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: APPLICANT REPRESENTATION: In person RESPONDENT M Adofaci, advocate ORDERS: 1. This application is refused. The Child Protection (Prohibited Employment) Act 1998 continues to apply to AU in respect of the offence of homosexual intercourse with male between the ages of 10-18 for which he was indicted on 9 April 1997; 2. In the Community Services Division of the Tribunal, it is an offence to publish or broadcast the name of any person who is mentioned or otherwise involved is any proceedings before the Tribunal, whether before or after the proceedings are disposed of (Administrative Decisions Tribunal Act 1997 s126(1)). Although s126(2) contains an exception in relation to the publication of an official report of the proceedings that includes the name of such a person, I have decided, because of the sensitivity of the information, not to publish any person's name who is mentioned or otherwise involved in any proceeding before the Tribunal. Introduction 1 This is an application for a declaration that the Child Protection (Prohibited Employment) Act 1998 (the Act ) not apply to Mr AU in respect of the offence homosexual intercourse with male between the ages of 10-18 for which he was indicted on 9 April 1997. Legislative provisions 2 Subject to certain defenses and transitional provisions S6(1) of the Act makes it an offence for a prohibited person to apply for, undertake or remain in child related employment. 3 The term "prohibited person" is defined in s5 of the Act as a person convicted of a serious sex offence. That section then goes on to define "serious sex offence". The term "conviction" is defined very broadly in s3 of the Act. 4 For the purposes of this Act, I find that AU has been "convicted" of a "serious sex offence" and is a "prohibited person" 5 The Administrative Decisions Tribunal has jurisdiction to make an order pursuant to s9 of the Act that a person is not a prohibited person with respect to an offence. 6 S9(4) of the Act says a relevant 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. 7 In determining whether the Applicant poses a threat to children the Tribunal relies on the report of Dr Lenning dated 2 March 2002. Dr Lenning's oral evidence and the evidence of the Applicant and each of the factors in s9(5) of the Act 8 S9(5) of the Act says 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 (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 (e) the seriousness of the prohibited person's total criminal record (f) such other matters as the tribunal considers relevant Evidence 9 The documentary evidence in this matter included: (1) Exhibit A - tendered by Mr AU, his application to the Tribunal and numerous testimonials. (2) Exhibit 1 - a bundle of documents tendered by the Commission (3) Exhibit 2 - a further bundle of documents tendered by the Commission with the top page named "Child Protection Cover Sheet" Facts 10 The Applicant was convicted of the relevant charge on 9 April 1997. The offence was homosexual intercourse with a male between the ages of 10 years and 18 years. The victim was 15 years and 9 months at the time of the offence. The Applicant was 47 years. 11 The evidence was that the Applicant picked the boy up at the wall in Darlinghurst, Sydney. He took the boy back to his house at Balmain with the expectation of sex. The boy stayed overnight. The applicant refused to pay him for the sex. The victim reported the incident to the Police. The three charges on the Applicant's criminal record each relate to the offence for which he was convicted. 12 The Applicant also had a complaint made against him of allegations of sexual misconduct against a young boy who the Applicant was originally wanting to foster. There appeared to be no further investigations of these allegations. The allegations made by this boy were not given weight by Dr Lennings when preparing his report for the purposes of this hearing. 13 Whilst the child was in the Applicants care he was provided with alcohol even though he was only 12 years old. With regard the provision of alcohol Dr Lennings said this is not socially acceptable behaviour. The Applicant appeared to have lost interest in the fostering of this child. 14 The Applicant failed to tell Dr Lennings about a separate incident where it would appear on the evidence that he was told to move on by Police when cruising the Wall. The Applicant gave evidence that he was not cruising the Wall. I find that the Applicant was cruising the Wall on that occasion. Reasons 15 The report of Dr Lennings dated 2 March 2002 was prepared with some incorrect history. This included that the Applicant admitted in evidence that he had attended the Wall half a dozen times for the purposes of picking a sexual partner, he had told Dr Lennings however that he did not attend the Wall for that purpose. 16 Even without less favourable evidence, Dr Lennings concluded that "the offense for which (the Applicant) was convicted is less than 10 years old, and actuarial studies suggest that the risk of re offence continues to climb, relatively sharply over the first ten year period. Structural clinical assessment assumes a considerably higher level of risk. My concerns are fuelled by a fear that the Applicant may lack appropriate judgement at critical times due to his inflated self esteem. In this case I believe a reasonable fear of recidivism remains". 17 The Applicant gave evidence to the Dr Lennings which conflicted with some of the evidence given at the Tribunal. As a result of his evidence and his demeanour while giving evidence I place little credibility on his evidence. Decision 18 Given Dr Lennings opinion and that I found the Applicant lacked credit I find the Applicant does pose a risk to children and this application is refused. 19 However I note that the Applicant has moved into the country and seems to be genuinely remorseful for this conviction. I hope that his new lifestyle will benefit both himself and society and act as a deterrent to any form of recidivism which may otherwise have occurred. 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.