Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BGR v Children's Guardian [2014] NSWCATAD 150 Hearing dates: 12 August 2014 Decision date: 23 September 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: R Booby, Senior Member Decision: 1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 NSW in respect of the offence of assault and commit an act of indecency of which he was convicted on 29 January 1997. 2. Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012 NSW the Children's Guardian is to grant the applicant a Working with Children Clearance. Catchwords: Working with Children Clearance, Enabling order application by a disqualified person, presumption the applicant poses a risk to safety to children, offence under s61L Crimes Act 1900, occurred 18 years ago, whether the applicant has proved he is not a risk to children. Legislation Cited: Child Protection (Working with Children) Act 2012 Child Protection (Working with Children) Regulation 2013 Children and Young Persons (Care and Protection) Act 1998 NSW Crimes Act 1900 NSW Civil and Administrative Tribunal Act 2013 Cases Cited: ADV v Commission for Children and Young People [2012] NSWADT 8 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949 IH v Commission for Children and Young People [2009] NSWADT 202 L v Commission for Children and Young People & anor [2008] NSWIR Comm 195 R v Commission for Children and Young People [2002] NSWIR Comm 101 RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 RV v Commission for Children and Young People [2007] NSWADT 299 Category: Principal judgment Parties: BGR (Applicant) Representation: Legal Aid NSW (Applicant) Crown Solicitors Office (Respondent) File Number(s): 1410196 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 - restriction against publication of information regarding the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons reasons for decision Introduction 1In these reasons for decision, the applicant is referred to by the pseudonym BGR. 2BGR has made an application to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal seeking an order section 28(1) of the Child Protection (Working with Children) Act 2012 NSW declaring that he not be treated as a disqualified person under that Act. 3BGR is the subject of a disqualifying offence, namely that he did assault, and at the time of that assault, did commit an act of indecency. The offence occurred on 29 September 1996 and he was convicted and sentenced in relation to the offence on 29 January 1997. 4The offence comes under section 61(L) of the Crimes Act 1900 (NSW). Offences under this subsection come within Clause 1(e) of Schedule 2 of the Child Protection (Working with Children) Act, 2012 (NSW). As a consequence the offence is a disqualifying offence and the Children's Guardian is prohibited from issuing a Working with Children Check Clearance to the applicant. 5On 18 November 2014 BGR's application to the Children's Guardian for a Working with Children Check Clearance was refused by the Children's Guardian, as it was required to do by the legislation, on the basis of the offence of which BGR was convicted on 29 January 1997. relevant provisions of the Act 6The Child Protection (Working with Children) Act 2012 NSW provides a legislative scheme regulating those who can engage in, or continue to engage in child-related work. 7The objects of the Act are set out in s 3 as follows: 3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. 8S 4 of the Act provides that the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration" in the operation of the Act. 9The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. The Tribunal is satisfied that in the singular version the word child therefore means a person under the age of 18 years. 10Part 2 of the Act deals with restrictions on child-related work. The relevant restrictions are those contained in ss 6, 8 and 9 within this Part. 11Subs 6(1) of the Act provides that a person is engaged in 'child-related work' for the purpose of the Act if: (a) the person is engaged in work referred to in subs 6(2) that involves direct contact by the person with children, or (b) the person is engaged in a child-related role referred to in subs 6(3). 12The term 'direct contact' with children is defined in subs 6(4) to mean (a) physical contact, or (b) face to face contact. 13Subs 6(2) provides that the work referred to for the purpose of subs 6(1)(a), is work for, or in connection with any of the activities, as listed in para 6(2)(a) to (m), and which are declared, by the regulations, to be child-related work. Included in the activities in subs 6(2), is transport services especially for children, including school bus services and taxi services for children with a disability. 14Part 2 of the Child Protection (Working with Children) Regulations 2013 declares those aspects of the activities, listed in para 6(2)(a) to (m) of the Act which are child-related work. Cl 15 of the Child Protection (Working with Children) Regulations 2013 states that providing transport especially for children on a government funded or commercial basis, including school bus services and taxi services for children with a disability, is child related work. 15Subs 8(1) of the Act prohibits a person from engaging in child-related work, unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the Children's Guardian for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 16Subs 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 17Part 3 of the Act deals with working with children clearances. That Part is divided into 6 Divisions as follows: (1)Division 1, sets out the classes of clearance. There are essentially two classes of clearance, a volunteer clearance authorising a person to engage in unpaid child-related work and a non-volunteer clearance authorising a person to engage in paid and unpaid child-related work: see s 12 of the Act; (2)Division 2, deals with applications for clearances: see s 13 of the Act. Such applications are made to the Children's Guardian; (3)Division 3 deals with risk assessment of persons who have made an application for a clearance or who are holders of a clearance. (4)Division 4 deals with determinations, by the Children's Guardian, of applications for clearance. (5)Division 5, deals with the duration of a clearance (5 years) and the circumstances in which a clearance can be cancelled: see ss 22 to 24; (6)Division 6 - establishes the working with children register. 18Subs 18(1), in Division 4 of Part 3, provides that the Children's Guardian must not grant a working with children check clearance to a 'disqualified person'. That subsection is in the following terms: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. 19The word 'conviction' is defined in subs 5(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to conviction.' 20S 28 deals with 'disqualified persons'. That section is in the following terms: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) (Repealed) 21S 30 Child Protection (Working with Children) Act sets out how an application under s 28 is to be determined by the Tribunal. It is in the following terms: "30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Evidence 22In support of his application the applicant tendered into evidence an affidavit sworn by him 21 July 2014. The applicant also gave sworn oral evidence and was cross-examined by counsel for the respondent during the course of the hearing. 23In addition to his own evidence, the applicant tendered into evidence an affidavit sworn by Shabib Dannoun, an interpreter who assisted in the compilation of BGR's affidavit. The respondent had no objection to the contents of the affidavit of Mr Dannoun and did not require that Mr Dannoun undergo cross- examination during the course of the hearing. During the hearing from time to time Mr Dannoun assisted as interpreter for BGR. 24The applicant also tendered into evidence a report dated 17 July 2014 by Caroline Hare, a forensic psychologist, regarding the applicant. Ms Hare also gave sworn oral evidence and was cross-examined during the course of the hearing. 25The applicant also tendered into evidence, without objection: (1)A letter in the form of a character reference dated 22 July 2014 from Hassan Nassir. (2)A copy of BGF's criminal record attached to a letter dated 12 August 2014 from the Manager, Criminal Records Section, NSW Police Force. (3)A bundle of documents comprising the Application dated 2 April 2014, the Notice of Disqualification dated 18 November 2011 and three references in support of BGR, being a letter dated 1 April 2014 from Reverent Ashoor Lazar, an undated letter from AFAQ Culture, Arts and Sports and an undated and unsigned letter from Zainab Al anzi; and (4)A letter dated 11 August 2014 from Paul Lynch, MP State Member for Liverpool. 26The respondent tendered into evidence without objection: (1)A bundle of documents tabulated with 8 tabs comprising: (a)Application for enabling order and Notice of Disqualification dated 18/11/13; (a)Letter from the Crown Solicitor's Office to the Applicant dated 28 April 2014; (b)Letters in response by the Applicant's solicitor to the Crown Solicitor's Office dated 30 May 2014 and 16 June 2014; (c)Letter dated 1 May 2014 from NSW Police Sex Crimes Squad enclosing documents; (d)CrimTrac record dated 28 July 2014; (e)Documents provided by Burwood Local Court dated 17 October 1996; (f)Letter from Corrective Services, NSW dated 26 May 2014; and (g)Correspondence between the Office of the Children's Guardian and Family and Community Services dated 17 June 2014. 27In the following paragraphs I deal with the evidence relevant to the factors set out in subs 30(1) of the Act. Consideration 28As indicated in the objects of the Act and s 4, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature (Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children. 29In this application, the issue for determination is whether, having regard to the relevant facts in respect of the matters in subs 30(1) of the Act, the applicant has established (i.e. proven on the balance of probabilities) that he does not pose a risk to children. 30Subsection 28(7) of the Act presumes that the applicant does pose a risk to children. 31The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of subs 9(4) of the former Child Protection (Prohibited Employment) Act 1998 NSW. At [42], His Honour said: "[what] one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". ..." 32This passage has continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in subs 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998 NSW: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60]. 33The remarks appear equally relevant to the meaning of 'risk' as it appears in s 28 of the Act. However, in light of subsection 28(8) of the Act, which provides that an enabling order cannot be made subject to conditions, the qualifying remarks of His Honour, in V, at [43] and [44] are no longer applicable. 34In his affidavit BGR indicates that he seeks a working with children check clearance because he wants to establish a child care centre with his wife and has begun making arrangements to purchase a vehicle to transport children with disabilities to the care facility. 35My consideration of the evidence and my findings in regard to the factors set out in subsection 30(1) are set out in the following paragraphs. Seriousness of the Offence 36The offence, of which the applicant was convicted, was in the following terms: "on 29th day of September 1996 at Bexley in the state of New South Wales [he] did assault [the victim] and that he at time of such assault did commit an act of indecency upon the said [victim]". 37On 29 January 1997 the applicant was convicted in the Local Court at Burwood, and sentenced to a community service order of 150 hours. 38The Police Facts in relation to the offence provide details to the following effect: (1)the offence occurred at approximately 7:35 pm on a Sunday. (2)The victim entered the service station where BGR was working and asked if she could use the customer toilet. (3)BGR showed the victim the employee's toilet and whilst leading her to the toilet he placed his hands on her waist and kissed her on the cheek. (4)The victim then asked where the telephone was and BGR placed one hand on her breast and the other on her hand. (5)As the victim went to leave the premises, BGR grabbed her by the waist and asked her to go with him to his office. (6)The victim left the store in a distressed state and waited for a taxi which she had called using the pubic telephone in the service station. 39BGR provided his version of the circumstances of the offence in his affidavit dated 21 July 2014 in which he describes the incident to the following effect: (1)the victim had asked to use the bathroom, but as the public toilet was dirty he said she could use the staff toilet and he guided her to that room. (2)When the victim came out of the toilet she seemed worried and he tried to comfort her. He touched her 'around the chest up towards her shoulder and on the waist to comfort her" (at paragraph 41). He states that he did not mean to touch her breast. (3)The victim was not comforted and appeared to be in hurry to leave the service station. BGR was worried that he might have made her more worried and tried to take her arm to explain. (4)BGR considered the victim attractive and he thinks this affected his decision to help her, but he did not approach her with the view to it leading to anything more and he was not intending to attempt to have any kind of sexual contact with her . 40In his oraI evidence BGR said that he had allowed other customers to use the staff toilet at the service station. 41He said that he directed the victim to that toilet by placing his hand on her back, and he demonstrated this action indicating the small of his back. He said that when she asked to use the telephone he touched her on the stomach and on the breast. 42BGR said that after the offence he continued to work in the service station despite the manager of the establishment being aware of the offence. 43In his affidavit BGR states that he was advised by his legal representative at the time to plead guilty to the offence. 44In her report Ms Hare notes that the account of the offence provided by BGR to her was inconsistent with the facts with which she was provided and that initially he denied touching the victim although with probing he said he might have touched her on the shoulder. He denied asking the victim to go into the office with him. She states that he also opined that the video footage taken at the time would have shown that he did not touch the victim. 45It is clear from the above that the account of the offence provided by BGR during the affidavit and in his oral evidence is different from his account reported by Ms Hare and from that provided in the Police facts. 46I am not able to accept BGR's account of the offence as provided during the hearing or as reported by Ms Hare. He pleaded guilty to the offence as charged and appears not to have sought to defend himself by reference to any video surveillance which he apparently suggested to Ms Hare would have shown him not to have committed the offence. 47The offence is a serious one to the extent that it occurred at night and in the workplace of BGR thus rendering the victim relatively vulnerable. The offence is said to have caused the victim distress. However the offence appears to have been opportunistic and BGR did not press the matter or try to prevent the victim from leaving the premises. Further, the sentence imposed on BGR by the Court indicates that the offence was not considered to be at the upper level of seriousness of offences of this nature. Period of Time since the offence was committed and the conduct of BGR since they occurred 48It is now more than eighteen years since the offence occurred. According to BGR's affidavit he married in 1997 and has three children. The respondent provided a letter dated 17 June 2014 from the Department of Family and Community Services indicating that no records have been identified in respect of the children of BGR. 49In his affidavit BGR states that he has been involved with his children's school and sport activities including the Afaq club where he has set up food and drinks for the children's sport. BGF also states that he has been involved in adult theatre productions. 50The respondent provided a CRIMTRAC report regarding BGR which indicates that the applicant has not come under adverse police notice since the time of the offence. The age of the applicant at the time of the offence 51BGR was 31 years old at the time of the offence The age and vulnerability of the victim 52The victim was 18 years old at the time of the offence. Whilst no specific evidence was led regarding the vulnerability of the victim, the police facts indicate that the offence took place at night in the workplace of the applicant. In my view these facts place the victim in a position of some vulnerability. However the level of vulnerability is not as great as would be the case if the victim were a child. Difference in age between the applicant and the victim 53The difference in age is approximately 13 years. Whether the applicant knew that the victim was a child 54The victim was aged 18 years and therefore was not a child. However in her report Ms Hare states that BGR told her he thought the victim was 15 years old. The applicants present age 55The applicant is now 49 years old. The seriousness of the applicant's overall criminal history 56The CRIMTRAC record indicates that there is no police record of any other offence proved against BGR. The likelihood of any repetition by the applicant of the offences or conduct and the impact of children of any such repetition 57In her report Ms Caroline Hare states that she conducted a semi-structured interview of approximately one hour and forty-five minutes with BGR. She states that she was unable to conduct a psychometric assessment of BGR because of his limited understanding of English as used in those tests. Under cross-examination she said that had she been able to conduct psychometric assessment she would have conducted a personality inventory. She agreed that a purpose of such an inventory is to assess the level of defensiveness of the subject. However she said that this is not the most important reason for using such an assessment. She said that the personality inventory is also used to assess whether there are any personality factors that could affect the risk of recidivism. However she expressed the view that she was able to make some deductions about those matters despite the inability to use a personality inventory. 58In her report Ms Hare states that in making her assessment, in addition to the interview with BGR she accessed: (1)The charge sheet for the hearing involving BGR conducted at Burwood Local Court on 17 October 1996. (2)The Community Service Order in respect of BGR dated 29 January 1997. (3)The fact sheet compiled in respect of the offence of BGR. (4)A report of the Probation and Parole Court Duty Officer (5)NSW Police Force Event Reference dated 29 January 9197 (6)Notice of Disqualification for a working with Children Check Clearance in respect of BGR dated 18 November 2013. 59Ms Hare notes that BGR spoke fluent English but that he had limited vocabulary and she needed to simplify her language to ensure his comprehension. However she formed the view that his comprehension and expressive language skills were sufficient for the assessment. She states that BGR was cooperative and alert throughout the interview though he appeared uncomfortable discussing sexual matters, which, she said, is not uncommon in assessments of this kind, especially where cultural issues may be relevant. 60Ms Hare notes that there was no evidence of psychopathology that might have affected BGR's capacity to participate in the assessment. 61In respect of BGR's family and developmental history, Ms Hare said that he gave the following information: (1)He was the seventh of ten children born and raised in Basra, Iraq. He has six brothers and three sisters. His eldest brother was killed in the Gulf War in 1990. (2)His family was a middle-income family in Iraq, his needs were met and he had a positive relationship with his parents when he was growing up. His parents used physical discipline with the children but this was not excessive and he considers it in keeping with his culture. (3)He denied experiencing any childhood physical or sexual abuse or neglect and no substance abuse. (4)He was conscripted in the army when he was 18 years old and served until 1991 at which time he and his family sought to leave Iraq as refugees. He was separated from his family and he moved to a refugee camp in Saudi Arabia whilst his family moved to Iran before returning to Iraq. (5)BGR stayed in the refugee camp for some four years before relocating to Australia in 1995. 62Ms Hare describes BGR's employment history as "reasonably unsettled". When he arrived in Australia from the refugee camp he obtained work in a number of service stations until 2004 and since then has undertaken a range of unskilled position including installing Optus Vision into homes and working as a delivery driver including his most recent employment as a delivery driver for a fiberglass company. He left that position to travel to Iraq to visit his family from October 2013 until February 2014 and has since been unemployed. He is in receipt of Centrelink benefits. He denies ever being terminated from employment or being the subject of any complaints of inappropriate behaviour to colleagues or customers. 63In relation to the Psychosexual history of BGR, Ms Hare reports that he told her that: (1)He married his wife, who is his first cousin, in 1997 in an arranged marriage, but began to fall in love with her immediately upon reconnecting with her. She was stricter in her religious observance than he, but they share a satisfying relationship in terms of both physical and emotional intimacy. The couple have three sons aged 14, 9 and 2 and all three were planned. (2)BGR reported using masturbation to achieve sexual gratification when he was younger because physical intimacy with women out of wedlock is not acceptable within his culture. He said he utilised prostitutes on approximately three occasions when he first arrived in Australia, and had one girlfriend before marrying his wife. He denies any non-mainstream sexual interest and whilst in the past he viewed mainstream pornography he said he has not done so since being married. 64BGR was able to explain the concept of sexual consent though was of the view that the age of sexual consent was 18 years. He said that it is never acceptable for adults to engage in sexual activity with children. He said that whilst he understands that friends might hug each other, he applies a rule of never touching women, not even to shake hands, unless the woman initiates the contact. He also said that under no circumstances is it acceptable to touch the "private parts" of a child and indicated that he was referring to the groin and buttocks and breasts of females. 65In relation to the account of the offence provided by BGR, in her report Ms Hare makes statements to the following effect: (1)BGR's account of the offence was inconsistent with the facts as stated in the documents. He initially denied touching the victim but with probing said he might have touched her on the shoulder. He specifically denied that he asked her to go into the office with him. He expressed the view that video footage would have identified that he did not touch the victim, or if so, he only touched her on the shoulder. He said that he might have touched the victim because she seemed scared and he wanted to reassure her that he would not harm her. He said that he was advised by his lawyer to plead guilty and denied sexual motivation for the offence. He said that he believes he was placed at risk of committing the offence because of his desire to help the victim because he did not want her to use the unsatisfactory customer bathroom, his lack of understanding of the law, in terms of acceptable touch, and the fact that he was not married, because had he been married he would not have put himself in a position of being alone with a woman. 66Ms Hare describes BGR's account of the offence as minimizing his offending behaviour. Ms Hare was questioned by the applicant as to whether offence minimisation affects risk of reoffending. She said that it is unclear whether there is relationship between denial of aspects of sexual offending and risk of recidivism and that at times denial might be protective against reoffending because it represents an attempt by the person to distance himself from his past. 67In her report Ms Hare states that on the STATIC 99 assessment, BGR scores him as a "moderate low" risk of reoffending. She states in her report that his risk category indicates that BGR has few of the characteristics identified in the STATIC 99 as being associated with an increased risk of reoffending. The items which contribute to BGR's score relate to the fact that the victim was an unrelated stranger to BGR. 68Ms Hare also states that the overall risk of sexual recidivism for offenders with BGR's score on the static 99 is dependent on whether the individual falls into the 'routine' or 'high risk' sample which depends on recent levels of anti sociality, self reported sexual deviancy, elevated unmet intimacy needs and the presence of other salient dynamic risk factors. She states that given BGR's low dynamic risk as assessed in the Risk of Sexual Violence Protocol (RSVP) she is of the view that BGR has more in common with the 'routine" sample and as such falls into the category in which for every 100 offenders, approximately 4 will reoffend within the next five to ten years. 69In her report Ms Hare notes that BGR has spent 18 years in the community since the offence and has not reoffended and she states that in general the expected sexual offence recidivism rate should be reduced by about one half if the offender has five to ten years of offence-free behaviour, and the longer that period, the lower the expected recidivism rate. In her oral evidence Ms Hare said that the STATIC 99 actuarial assessment, assessing as it does, static factors, would have scored BGR at the same score when he was younger as it scores him today and in her view the assessment of BGR as having a moderately low risk of reoffending was likely to be an over representation of his risk. 70Ms Hare cautions that reconviction rates underestimate the true rate of reoffending and an actuarial assessment such as the Static-99 cannot say whether a given individual will fall into the group of offenders who sexually recidivist. 71Ms Hare states in her report that in contrast to the actuarial risk assessments, dynamic risk assessments, such as the RSVP, are centred in individuals, not groups. The RSVP she says, is a structured professional judgement approach to risk assessment with assists to identify the individual's risk and dynamic risk factors and to develop appropriate treatment and supervision plans. 72Having applied the considerations outlined in the RSVP, Ms Hare states that in her opinion, the factors that were relevant at the time BGR offended were: Failure to establish a stable romantic relationship. Minimisation of sexual offending. Poor boundaries in relation to the appropriateness of touch regarding women. Lack of awareness of factors and processes that placed him at risk of sexual offending. Unstable employment. 73Ms Hare states that in her opinion the risk factors that possibly or partially apply at the current time, or may be relevant in the future, are: Some ongoing minimisation of sexual offending; Limited awareness of the factors and processes that placed him at risk of sexual offending; Unstable employment. 74BGR's minimising of his offence constitutes one risk factor in the Risk of Sexual Violence Protocol (RSVP) and Ms Hare said in her oral testimony that she had taken this into account in completing that assessment. The other risk factor according to the RSVP is BGR's employment history and current unemployment, but allowing for those factors Ms Hare assesses him as a low risk of reoffending. 75In her report Ms Hare comments to the effect that BGR continues to lack some awareness of the chain of events that resulted in him committing the offence. In her oral testimony she said that she believes BGR has a greater understating of those matters now than at the time of the offence and has now instituted protective strategies such as avoiding contact with women. She said that an awareness of the chain of events is no longer a goal of therapy in relation to sexual offending and that the focus is now on the perpetrator understanding how to avoid the risk of reoffending. 76Under cross examination Ms Hare expressed the opinion that BGR's belief that the victim was 15 years old at the time of the offence does not increase the likelihood that he would now constitute a risk to young people. In that context she noted that at the time of the offence BGR was younger than he is now and was new to Australia and to a culture of socialising with females. She said that at the time he was likely be exploring boundaries in a few areas of his life. 77Ms Hare opines that BGR has a number of strengths, or protective factors that have been found to be associated with desistance from sexual offending which include: Absence of a history of antisociality; Resilient coping skills; Absence of childhood instability or abuse; Healthy sexuality; Absence of psychopathic personality traits; Absence of substance abuse; Capacity for positive relationship bonds with prosocial others, including intimate partner stability; Preference for constructive occupation; Openness to change, including learning from past mistakes. 78In formulating her opinion Ms Hare expresses a view that BGR appears to have exhibited psychological resilience in respect of both being in the Iraqi army during a period of active contact and again when separated from his family and living in a refugee camp for some four years. During the latter period she states that whist BGR was able to form supportive relationships with men in the camp he was not provided with opportunities to socialise with women which was likely to have impacted on his attitudes and social skills, including his development of appropriate boundaries. She also expresses the view that when he arrived in Australia BGR was required to orientate himself to the culture and laws of a new country. During this period she opines, he took advantage of the new culture and utilised sex workers. She states however that his social circle primarily comprised other Iraqi refugees that his social integration was limited. These views were not challenged in cross-examination. 79Ms Hare notes that BGR's offence was committed within approximately 12 months of his arrival in Australia, and she hypothesises that it was triggered by a combination of the following factors: * Lack of true integration into Australian society and a resultant unstable lifestyle; * Reduced accountability; * Accessing sex workers * Poor boundaries regarding females. 80Based on her assessment, Ms Hare states that in her opinion the Static 99 rating of BGR as a moderate risk of sexual reoffending is moderated by a consideration of his dynamic risk factors and protective factors, so that he constitutes a low risk of sexual recidivism. 81Ms Hare opines that if BGR were to reoffend it would be likely to be in respect of a woman younger than him whom he thought to be attractive and that it is unlikely that any victim would be a child due to his current age, his role as a parent and his lack of sexually deviant attitudes. She states that the motivation for any such offence would be lack of sexual gratification in his marriage, but notes that this would be inconsistent with his values and morals. She also opines that BGR would be unlikely to use physical coercion in any such event and the selection of any victim would be likely to be opportunistic and impulsive. Ms Hare states that any such risk is not chronic and would be related to changed circumstances such as a marriage breakdown. Ms Hare concludes that in her opinion the risk of BGR preying on a child is low. Any information given by the applicant in, or in relation to, the offence. 82In his oral evidence, BGR said that at that time he did not understand the Australian "ethics" he said that he now understands that type of touching is wrong and he has never done it again and has never felt that he might do it. 83Under cross-examination BGR said that he did not remember kissing the victim. He was not able to state clearly whether he touched the victim because she appeared worried or upset. He said that he asked the victim to go into the office with him because he wanted to tell her to relax. 84Under re-examination the applicant was asked to use the interpreter present in the court to explain what he meant by "upset" when saying that the victim was "upset". The respondent objected to the use of the interpreter but the Tribunal permitted the question since the services of the interpreter had been used from time to time without objection during the course of the hearing. BGR said through the interpreter that "upset" means "not happy". He said that the reaction of the victim to him at the time was "not violent" and was "not upset". He said that she did not react to his actions. When asked during re-examination what prompted him to touch the victim he said that he did not know. 85As noted previously, the applicant's oral and affidavit evidence and his account of the offence as provided to Ms Hare appear to minimise the offence. It was submitted by counsel for the respondent that in failing to provide a full account of the offence, BGR had failed to comply with section 28(5) of the Child Protection (Working with Children) Act in that he failed to fully disclose matters relevant to the application. The Tribunal accepts that BGR has minimised the offence, however the Tribunal is of the view that this matter was dealt with in respect of its possible impact on reoffending and the Tribunal is guided by the opinion of Ms Hare in relation to this matter and by her view that this matter does not increase the risk posed by BGR. 86Counsel for the respondent also submitted that BGR had failed to adequately disclose details of his work history. In particular the respondent noted that BGR had not informed the Children's Guardian of employment installing Optus Vision into homes or of work as a delivery driver with a fiberglass company. These positions were referred to in the report of Ms Hare and the Optus Vision employment was also mentioned by BGR in his statement dated 21 July 2014. 87The respondent submits that the failure of BGR to fully disclose the work in accordance with the requirements of s. 28(5) ought adversely impact on his application. 88Mr Freer, solicitor for the applicant, conceded that BGR had not disclosed all his employment details in response to the request to do so in the letter from the Crown Solicitor's Office dated 30 May 2014. However he noted a letter to the Crown Solicitor dated 16 June 2014 provides details of work with a fibreglass company, and that in his affidavit dated 21 July 2014 BGR provides full details of his employment, including the Optus Vision work and the fiberglass delivery work. Mr Freer contended that there was sufficient time for the respondent to cause inquiries to be made regarding those employment activities had it thought it necessary to do so. 89The Tribunal notes that the applicant has a duty to disclose all details that are relevant to the application as well as a the burden of proof in relation to the application. However the Tribunal accepts that the applicant did provide relevant information prior to the hearing and the failure to provide the named details in response to the letter from the Crown Solicitor dated 30 May 2014 does not materially affect the decision required of the Tribunal. Any other matters that the Children's Guardian considers necessary 90The Children's Guardian opposed the application and specifically raised issues in respect of the applicant minimising the offence and failing to provide full details of his employment. These matters are dealt with above. 91 The Children's Guardian also submitted that whilst the victim of the offence was not said to have any particular vulnerabilities, the Tribunal should take into account that the applicant was seeking a working with children clearance to enable him to transport children with disabilities, who would have specific vulnerabilities. However an enabling order made by this Tribunal would enable BGR to work with any children. The Act does not provide that conditions should be applied regarding particular groups of children. Taking into account BGR's lack of criminal history and any adverse notice in relation to his interactions with children, and also taking into account the opinions of Ms Hare as discussed above in relation to BGR's low risk of reoffending and regarding the likely subject of any re-offence, the Tribunal is not convinced that this matter outweighs the evidence provided by BGR that he is not a risk to children. Conclusions and Orders 92The offence committed by BGR was not at the upper end of seriousness of offences of this nature and occurred eighteen years ago when BGR was a relatively new arrival to Australia from a culture that was very different from that in which he was then living. The evidence indicates that his circumstances have since changed in that he has become older, married and has children and is involved in community activities. He has instituted practices such that he does not initiate physical contact with women. He has not come under any adverse notice since the offence. The psychological assessment is to the effect that despite an actuarially assessed moderately low risk of reoffending, his actual risk of reoffending is low, and even if he were to reoffend any victim would be unlikely to be child. 93Taking into account the considerations listed under section 30(1) of the Act, the applicant has discharged the onus upon him to the requisite standard of proof that he does not pose a real and appreciable risk to the safety of children. 94The orders of the Tribunal therefore are: (1)The Tribunal declares that BGR is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence for which he was convicted on 29 January 1997 that he did assault, and at the time of that assault, did commit an act of indecency on 29 September 1996. (2)Pursuant to subsection 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the applicant a working with children clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 23 September 2014