IH v Commission for Children and Young People [2009] NSWADT 202

CITATION: IH v Commission for Children and Young People [2009] NSWADT 202

DIVISION: Community Services Division

APPLICANT IH PARTIES: REPSONDENT Commission for Children and Young People

FILE NUMBER: 084022

HEARING DATES: 2 February 2009

DATE OF DECISION: 31 July 2009

BEFORE: Britton A - Deputy President

CATCHWORDS: Declaration that applicant not a prohibited person

LEGISLATION CITED : Commission for Children and Young People Act 1998

Commission for Children and Young People v V [2002] NSWSC 949 CASES CITED: The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136 Commission for Children & Young People v UR [2007] NSWSC 1099 R v Commission for Children and Young People [2002] NSWIRComm 101

APPLICANT In person REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: 1.The parties are to file and serve within 28 days of the date of these Reasons any additional evidence on which they seek to rely in relation to the issue of conditions 2. Matter is set down for short hearing on 8 September 2009 at 10am to determine the issue of conditions.

REASONS FOR DECISION 1 The applicant, who in these reasons will be referred to by the pseudonym, IH, has applied to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 ('the Commission Act'). IH is a 'prohibited person' having committed a 'serious sex offence', namely the offence of 'Commit Act of Indecency on child under 16 years' for which he was convicted in 1996. Unless the order IH seeks is granted, it will be an offence for him to apply for, undertake or remain in 'child-related employment' (s 33C of the Commission Act). 2 IH makes this application so he can return to the Rural Fire Service in which he had worked in a voluntary capacity for over a decade. 3 The respondent Commission opposes IH's application. History to application 4 IH made an application to the Commission for Children and Young People for an order under s 33H of the Commission Act. By letter dated 30 June 2008 the Commissioner of the Commission for Children and Young People decided not to make the order sought, on the grounds that on the information available, she had been unable to determine that he does not pose a risk to the safety of children. 5 IH subsequently made an application to the Tribunal for an order under s 33I of the Commission Act. That application is the subject of these Reasons. What IH must prove 6 Section 33I(1) of the Commission Act provides that the Administrative Decisions Tribunal may make an order declaring that the Act is not to apply to an applicant in respect of a specified offence. That order may be made subject to conditions (s 33I(6)). 7 Section 33J(1) provides that the Tribunal is not to make an order on a review application (an application made under s 33I(1)) unless it is satisfied that the person who is 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 they prove the contrary. In deciding whether or not to make an order the Tribunal must take into account the following (s 33J(3)): (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. 8 In determining IH's application, the Tribunal must give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from child abuse (s 32 of the Commission Act). 9 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). The relevant provisions of the Commission Act came into effect on 2 January 2007 (Commission for Children and Young People Amendment Act 2005). The test under the CPPE Act has been considered 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). 10 While great care should be taken in applying principles developed to deal with different, albeit similar, legislative provisions, those decisions provide useful assistance on the application of s 33J(1) of the Commission Act. Young CJ (in Equity) in Commission for Children and Young People v V considered the meaning of the word 'risk' in 9(4) of the CPPE Act. His Honour adopted Haylen J's analysis in R v Commission for Children and Young People [2002] NSWIRComm 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].) 11 Young CJ held [at 27] that 'risk' in the context of section 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 – section 33J(3) factors 12 IH is 42 years of age. 13 Index offence In 1996, IH was convicted of the offence of 'Commit Act of Indecency on child under 16 years' (the index offence). He was 29 years of age at the time of the offence. The victim, IH's stepdaughter, was 15 years of age. 14 At the time of the offence IH had been living with the victim's mother, his second wife and her four children, for about three and a half years. The children ranged in ages from six to 15 years. 15 The conduct for which IH was convicted was taking photos of his stepdaughter while topless. The conduct occurred one morning when IH was home alone with his stepdaughter. 16 IH has consistently denied these allegations. He entered a plea of not guilty. On his account he and his wife had taken erotic photos of each other but he had never taken such photos of his stepdaughter. 17 IH was fined $500 and placed on recognisance to be of good behaviour for two years or forfeiture of $1000. 18 IH was also charged with the offence of 'Aggravated Indecent Assault'. It was alleged that he had fondled his stepdaughter's breast and vagina when putting her to bed while she was intoxicated. That incident was alleged to have occurred about 10 months before the photo incident for which IH was convicted. That charge was not found proven and dismissed. 19 Total criminal record The index offence is the sole offence for which IH has been convicted. 20 Employment history IH commenced employment with the NSW Fire Brigade, in January 1989. He was suspended after the index offence charges were laid in December 1996. He resigned from the Service after his conviction was handed down. 21 Shortly after his resignation he joined the Rural Fire Service. He was elected captain of his local fire brigade in 2001. He resigned in 2008 apparently after the Service became aware of his prohibited person status. According to IH he was aware that new recruits were required to undergo a 'working with children check' but did not know that this applied to existing personnel. 22 His employment with the Service was on a voluntary basis. 23 According to IH his involvement with the Rural Fire Service was a 'way of life' and 'a passion' and continuing a long history of family involvement. 24 Personal history Over the last two decades IH has lived with four different women and their respective children who total nine in number. 25 Currently IH is in a de facto relationship with a woman who has two children from a previous relationship. He has been in that relationship since 2006. 26 Prior to that relationship he had been living with a woman and her two children. The children were in their early teens when the relationship commenced. A few years into that relationship he and his partner married. His current relationship commenced while that marriage was on foot. The relationships between IH, his current partner and former wife are acrimonious. 27 Before that he had been married to the victim's mother and lived with her four children. 28 He first married when aged 22. That marriage lasted for six years and produced a child, who is now aged 14 years. IH has no contact with his daughter. 29 IH claims that the relationship between his first and second wife was 'strained' — the later taking out an assault charge against the former. 30 Recent allegations In March 2008 the Department of Community Services received two reports about IH. It was reported that he had instructed the two children of his current partner and five unknown children not to use the spa unless they were naked. It was also alleged that IH was naked when he used the spa with the children. 31 No action has been taken in respect of these allegations. All are denied by IH. On his account the allegations were made by his third wife who had also contacted the police and the Rural Fire Service and accused him of being a paedophile and an arsonist. He claims that his home does not have a spa. 32 Apprehended Violence Order In November 1996 an apprehended violence order was taken out against IH. This occurred shortly after the allegations concerning the stepdaughter came to light. He claimed he returned home one evening to find the locks changed and his belongings dumped on the veranda. He tried to enter the house by climbing through a window. A heated altercation ensued with his brother-in-law during which IH said 'I ought to thump you one'. 33 Employment with Rural Fire Service The only evidence about the Rural Fire Service was that provided by IH. 34 On his account the Rural Fire Service is organised on the basis of local brigades made up of volunteer 'on call' fire fighters. Each brigade elects a captain who is charged with among other things organising training and supervising brigade members. 35 According to IH, for safety reasons, fire fighters never attend a fire unaccompanied. 36 He claims that apart from attending fires, members are required to attend monthly training meetings. He estimates that in his former brigade between four to ten people attended. 37 According to IH, a person can join the Service at 14 years of age and undertake training and attend meetings. Cadets cannot attend a fire until they are 17 years of age. 38 On IH's account there are very few cadets in country areas. 39 References IH tendered a character reference prepared by a former fire service colleague. The colleague stated that at all times IH acted in a professional manner around cadets and further that he would not hesitate to recommend him for employment. 40 Expert evidence A report prepared by psychologist, Dr Christopher Lennings, dated 29 October 2008, was tendered by the Commission. 41 In assessing the risk IH might pose to children Dr Lennings examined three types of data: static, dynamic factors and psychological (or psycho-social variables) factors. In examining these factors he employed a combination of actuarial and clinical assessment tools. 42 Static risk factors Employing STATIC-99, an actuarial tool which according to Dr Lennings has achieved almost 'gold standard' status in predicting sexual recidivism, IH scored zero or, if assumed that his stepdaughter was not classified as a direct family member, one. Either score placed him in STATIC-99's lowest risk group of sex offenders. According to Dr Lennings the recidivism rate among this group is between 7 to 12 per cent. 43 Dynamic risk factors Dr Lennings also applied the Sexual Violence Risk-20 (SVR-20) test to assess dynamic risk factors. These, he explained are factors that can change over time by treatment or supervision. Twenty one dynamic risk factors were examined. Dr Lennings identified some areas of possible elevated risk: alcohol abuse (IH told Dr Lennings that he drinks about four mid strength home brew stubbies a day and sometimes a glass of red wine); a history of difficult relationships; denial or minimalisation. In other areas there was no indication of elevated risk loading including — absence of any evidence of psychopathy, sexual deviation, multiple sex offending, attitudes condoning sexual offending, history of mental illness, sexual abuse or employment problems. Applying SVR-20, Dr Lennings assessed IH's risk to be low. 44 Personality assessment Dr Lennings asked IH to undertake a Personality Assessment Inventory, which he believed constituted a 'powerful test' of adult personality. Dr Lennings was sceptical about IH's response to the test and believed that he had approached it presenting a highly unrealistic and virtuous self-image. 45 Dr Lennings concluded that while objective factors indicated that IH posed a low risk, subjective features suggested a pattern of risk might remain. There is some concern that the high level of denial in his behaviour exposes him to situations which may end up in boundary violations, but the risk of sexual violence to young people seems remote. Nonetheless there are important caveats around this assessment and I am uneasy with the proposed risk assessment. [IH] seems to have problems in relationships and is possibly quite manipulative within them. I am surprised at the animosity that exists between he and former partners, and between partners and it seems he has chosen quite volatile women in the past. The outright denial of the offence sits at odds with the finding of guilt and for the purpose of this assessment the finding of guilt is accepted as representing the reality of the situation. Despite this, his risk is low, but the offence indicates that in the presence of a difficult relationships and alcohol his ability to enforce boundaries is weak. Combined with what seems to be an elevated sexual interest, the offence occurred and there is little in his account to me that indicates that anything much has changed for him. Other than having been caught, the possibility of a re offence remains if the conditions that gave rise to the first offence were to be repeated. The specific environment in which [IH] is seeking an exemption is important…. The environment [Rural Fire Service] places young people in a position of trust with [IH] and he has a position of authority over them. It seems that there is little protective in the environment other than the ability of the young people, because of their age and communication skills, to seek some kind of protective action should untoward behaviour unfold. I think what is critical in such a situation would be if alcohol had been consumed, weakening both [IH's] and the young person's inhibitions. To the extent that alcohol is not allowed in his work place, the risk of an active inappropriate act is lessened. As noted there are objective indicators of low risk in this situation, but subjective features that suggest a pattern of risk may remain in the circumstance where a special relationship is formed, where alcohol is introduced and where a need for emotional closeness or heightened sexual interest may be experienced by [IH] as a result of relationship failure. For the moment it is impossible to predict whether these subjective features will co-occur. 46 He recommended that if an exemption were to be granted strategies be developed to lessen future risk. 47 Dr Lennings thought IH's denial of the index offence relevant. He stated that while the weight of evidence indicates that denial is not predictive of recidivism, there is some evidence to suggest that it might be predictive in respect of low risk offenders. Findings and conclusions 48 It falls to IH to rebut the statutory presumption that he 'poses a risk to the safety of children': s 33J(2). 49 The Commission contends that there are a number of factors that indicate IH might pose a relevant risk. These include the serious nature of the index offence, IH's denial of any offending conduct and his failure to disclose the offence to the Rural Fire Service. The Commission points out that children as young as 14 years of age are involved in the Service and the evidence about their interaction with their adult colleagues is at best limited. 50 The Commission also argues that weight must be given to Dr Lennings' opinion that in certain circumstances, IH might pose a risk to children. 51 IH told the Tribunal that his sole interest in seeking the exemption was so he could resume employment with the Rural Fire Service. He argued that the evidence made clear that he did not pose a risk to the safety of children, pointing to the absence of any evidence to suggest that he has done anything untoward involving children other than the index offence, which he denies. He argued that it is telling that over the past two decades he has lived with nine children in relationships with four different women. He points out that notwithstanding his third wife's venomous attacks on his character to 'all and sundry', after he left her for his current partner — she has never alleged that he acted inappropriately with her own children, with whom he lived for about seven years. He argued that that while he was unable to give a guarantee, Dr Lennings found that tested against objective measures, he fell within the lowest possible risk group. 52 IH has expressed no interest in working in any area of child related employment other than the Rural Fire Service. However to be granted a declaration without conditions, he must rebut the statutory presumption that he does not pose a risk to the safety of children at large. This means he must establish that he would not pose a risk to children if he were to return to his former employment and any child related employment. In my view in circumstances where IH continues to deny the index offence, it is not possible to exclude the possibility that if he were to find himself in similar circumstances, the offending conduct might be repeated. Those circumstances might include for example if IH fostering children — an area of child related employment — especially if any child was in the same age group of the victim. 53 From first to last IH has vigorously denied the conduct that led to his conviction. It may be as claimed that there has been miscarriage of justice and he did not, as found by the sentencing court, photograph his stepdaughter. Nonetheless, absent any reliable fresh evidence I must proceed on the basis that he committed the offence for which he was convicted. 54 Having decided that IH might pose a relevant risk in some areas of employment it is necessary to consider whether conditions could be imposed under s 33I(6) to reduce any risk he might present to one that is 'not real and material' (see Commission for Children and Young People v V [at 46]. As IH's sole interest is to be permitted to work in the Rural Fire Service, there would be no utility in formulating conditions which permitted him to work in any other areas of child related employment. Accordingly the issue to be determined is would he pose a risk to the safety of children if his employment were restricted to the Rural Fire Service. 55 The Commission opposes a declaration being made even with such restrictions and seeks an opportunity to be heard if the Tribunal decides to consider whether appropriate conditions could be formulated. IH has indicated that while he does not see any need for conditions, nonetheless he would submit to any the Tribunal thought appropriate. 56 An assessment of whether IH might pose a relevant risk turns among other things on the nature of any involvement IH might have with children involved with the Rural Fire Service. The scant evidence before the Tribunal is the uncorroborated evidence given by IH set out at pars. [33] – [38] of these Reasons. 57 My preliminary view is that if IH's claims about the Rural Fire Service and the involvement of children can be verified, appropriate conditions might be able to be formulated to reduce his risk to one that is not real and material. These might include that he not be permitted to be alone with any child or undertake a supervisory role in the Rural Fire Service. In reaching that conclusion I note that are a number of factors which are favourable to IH. These include the absence of any complaints or allegations arising out of his long involvement with the Rural Fire Service; the absence of any credible child related allegations apart from the index offence; the fact that the index offence was a one off, occurred over a decade ago and in a family setting; the absence of any further convictions or evidence of non compliance with supervision orders; the expert evidence that indicates that objective measures reveal that IH poses a low risk. In reaching this view I have also had regard to Dr Lennings' opinion that a combination of subjective factors could operate to elevate IH's risk. 58 I have decided to provide the parties with an opportunity to provide evidence and make submissions about the formulation of appropriate conditions. Further evidence in my view is needed about the Service. I anticipate that IH might have difficulties in obtaining this evidence. Like many self represented parties, in these proceedings IH demonstrated that he was unable to, or did not fully appreciate the need to, particularise and obtain evidence to support his claims. I would be grateful if the Commission could assist in this exercise and take steps to obtain some evidence about the Rural Fire Service, in particular the role and level of involvement of children and the Service's organisational structure. ORDERS/DIRECTIONS 1. The parties are to file and serve any additional evidence on which they seek to rely in relation to the issue of conditions within 28 days of the date of these Reasons. 2. Matter is set down for short hearing on 8 September 2009 at 10am to determine the issue of conditions.