Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BJH v NSW Office of the Children's Guardian [2014] NSWCATAD 178 Decision date: 22 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior Member Decision: 1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offences of "Commit Act of Indecency on Female Under the Age of 16 Years" found proved by the Supreme Court of NSW at Newcastle on 28 July 1988. 2. The Children's Guardian must grant BJH a Working with Children Check Clearance. Catchwords: Working with Children - disqualifying conviction - Enabling Order Legislation Cited: Child Protection (Working with Children) Act, 2012 Adoption Act, 2000 Child Protection (Prohibited Employment) Act 1998 NSW Crimes Act, 1900 Cases Cited: Commission for Children and Young People -v- V, [2002] NSWSC 949 Category: Principal judgment Parties: BJH (Applicant) The Children's Guardian (Respondent) Representation: Counsel: P F Lowson (Respondent) BJH (Applicant in person) Crown Solicitors Office (Respondent) File Number(s): 1410299 Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). reasons for decision INTRODUCTION 1On 28 July 1988 the Supreme Court of NSW found proved against the Applicant 3 counts of committing an act of indecency on a female under the age of 16. The Applicant had pleaded guilty to the 3 offences (s.61N of the Crimes Act 1900 Act) and sentence was deferred on the condition that he enter into a recognizance in the sum of $500 to be of good behaviour for a period of 5 years and to appear and receive sentence if called upon to do so at any time in respect of any breach within that period. 2It was a condition of the recognizance that he refrain from attempting to make any contact with the victim of the 3 offences or any member of her family and that he submit to supervision and guidance of the Probation and Parole Service and the bail directions of representatives of that service, particularly so far as psychological counselling was concerned. 3The Applicant until recently had been playing soccer in a team from the Thornton Church of Christ in the Christian Churches Soccer Association competition. Some of the players in teams they play against are under the age of 18 years. Recently he was required by his team to obtain a Working with Children Check Clearance. 4He made application to the Children's Guardian, but under the Child Protection (Working with Children) Act, 2012 ("the Act"), because of the findings of guilt in 1988, he is a disqualified person to whom the Children's Guardian is prohibited from providing a Working with Children Check Clearance. The Children's Guardian therefore refused to issue the Clearance and the Applicant has applied to the Tribunal under ss.28(1) of the Act for an enabling order declaring that he is not to be treated as a disqualified person in respect of those offences and is to be granted a Check Clearance. THE EVIDENCE 5The evidence before the Tribunal comprised: (1)The Application with the letter from the Children's Guardian refusing to issue the clearance certificate; (2)statement by Rev N C Checkley, Senior Minister, Merewether Baptist Church; (3)Letter of Rev Checkley to the Crown Solicitor of 25 September 2014; (4)statement by the Applicant; (5)character reference by Mr R J C Williams, JP; (6)character reference by Mr Stan Wright, Secretary of the Thornton Church of Christ Soccer Club Ltd; (7)letter to Crown Solicitor from the Applicant of 31 July 2014; (8)tabulated bundle of documents filed on 10 September 2014 by the Respondent; (9)three tabulated documents lodged by the Respondent with the Tribunal on 1 October 2014; (10) Police response to enquiry by Children's Guardian filed by the Respondent on 3 October 2014; (11) oral evidence of Rev Checkley including cross-examination; (12) oral evidence of Mr Wright including cross-examination; (13) oral evidence of the Applicant including cross-examination. 6Although the Applicant had no legal representation at the hearing, Rev Checkley sat with him and assisted him in presentation of his case. Rev Checkley also made some submissions on his behalf. RELEVANT LEGISLATIVE PROVISIONS 7Section 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 this Act." 8Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 9Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 10Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 11Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 12Section 12 provides that there are two classes of Working with Children Check Clearances which are: (a)Volunteer - authorising workers to engage in unpaid child-related work; and (b)Non-volunteer - authorising workers to engage in paid and unpaid child-related work. 13Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 14Subsection 18(1) of the Act prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "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". The Applicant was born on 7 October 1967 and was an adult at the time of each of the offences. Section 4, the definition section of the Act, provides that "conviction" includes a finding that the charge is proved although the court does not enter a conviction. 15In para (1)(e) of Schedule 2 to the Act, offences under s.61N of the Crimes Act, 1900, are included in the specified offences that are disqualifying offences. 16Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to BJH because of the offences in 1988. APPLICATIONS FOR AN ENABLING ORDER 17Section 28 of the Act provides: (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 Commission 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 Commission 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) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 18Section 30 of the Act provides as follows: (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 Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part. SERIOUSNESS OF THE OFFENCES WITH RESPECT TO WHICH THE APPLICANT IS A DISQUALIFIED PERSON 19The conduct comprised on each occasion inserting his finger in the vagina of the child. His evidence was that the child had repeatedly asked him to do so. Her willing participation was consistent with her own statement to the Police and accepted by the Supreme Court. 20The Applicant was born with moderate intellectual disability. He is at the level of the bottom 1% in terms of his intellectual capacity. The Supreme Court accepted that at the time of the offence the victim was suffering developmental disability and although the Applicant was 19 or 20 years of age, he had a developmental age of 9-12. The Supreme Court held that his disability "places you quite apart from the normal 20 year old who sexually assaults a 9 year old." 21The offences were serious from the perspective of any child of 9. But were less serious because of her consent and the fact that she apparently did not suffer any discomfort. In terms of the culpability of the Applicant the offences were less serious because of his intellectual disability. THE PERIOD OF TIME SINCE THE OFFENCES AND THE CONDUCT OF THE APPLICANT SINCE THE OFFENCES OCCURRED 22It is 27 years since the offences. The Applicant has not been charged or found by a court to have committed any offence since the three subject offences. The Applicant has been employed by Access Industries at Broadmeadow as a labourer for the last 20 years. 23At page 22 of the first bundle of documents relied upon by the Children's Guardian, there is a business record of the Probation and Parole Service recording a telephone call from the Applicant's step-father advising that the Applicant had been dismissed from his workshop employment for touching a girl on the thigh. It records on 13 August 1990: "He had been warned earlier in this regard". This was clearly within the period of the recognizance, but no action was taken by the Police or the Probation and Parole Service in respect of the alleged touching and it appears that it was not regarded as criminal conduct such as an indecent assault. It was some 24 years ago. When asked about the incident the Applicant said that he knows that he got into trouble, but he cannot remember why he had to stop working there. He said that he did not remember having touched anyone inappropriately. 24At the time of the Supreme Court decision and the Applicant entering the recognizance, he was living at home with his mother and step-father and his natural father was living next door. It appears later in 1990 the Applicant, his mother and his step-father, moved to Queensland. There was some liaison between the NSW Probation and Parole Service and the Queensland Corrective Services Department. The relevant records of the Queensland Department have since been destroyed. When he was asked why he and his family moved to Queensland he said: "For a fresh start". He said he had no recollection of any other trouble that he had had because of any way he had treated women. He worked in Queensland in a sheltered workshop. During the stay in Queensland his step-father died. He and his mother returned to the Newcastle area and resided in their previous home from 1994. His mother died 10 years ago. He has been residing in his present home for more than 10 years. 25Evidence as to good character is provided by the Reverend Checkley, Mr Williams and Mr Wright. It is not contradicted by any evidence of events or behaviour in the last 24 years. Each of those persons was aware of the nature of the offences. There was no evidence of conduct of the Applicant inconsistent with good character in the last 27 years other than of him touching a female on the thigh 24 years ago. THE AGE OF THE APPLICANT AT THE TIME OF THE OFFENCES 26The Applicant was 19 or 20 years of age at the time of each of the offences. THE AGE OF THE VICTIM OF THE OFFENCES AT THE TIME OF THE OFFENCES AND ANY MATTERS RELATING TO THE VULNERABILITY OF THE VICTIM 27The victim was 9 years of age. She was vulnerable not just because of her age but because she suffered a developmental disability and her developmental age would have been much less than 9. THE DIFFERENCE IN AGE BETWEEN THE VICTIM AND THE APPLICANT AND THEIR RELATIONSHIP (IF ANY) 28The difference in age was in respect of each offence 10 or 11 years, but both the victim and the Applicant suffered intellectual disability. Justice Matthews said in her finding about the Applicant, "It is abundantly clear that you yourself are subject to disabilities which put you right outside the normal range of criminal responsibility in relation to these offences." 29Justice Matthews also found that the Applicant and the victim had "a fairly close relationship" and the Applicant had been a visitor to the victim's home from time to time. Her parents informed the Court that they were opposed to the Applicant being given any jail sentence in respect of the offences. WHETHER THE APPLICANT KNEW OR COULD REASONABLY HAVE KNOWN THAT THE VICTIM WAS A CHILD 30The Applicant knew the victim was a child. THE APPLICANT'S PRESENT AGE 31The Applicant is 47 years of age. THE SERIOUSNESS OF THE APPLICANT'S TOTAL CRIMINAL RECORD AND HIS CONDUCT SINCE THE OFFENCES OCCURRED 32The findings of the Supreme Court were that the 3 offences were not as serious as they might have been if the perpetrator had not been suffering from an intellectual disability. They were held to be offences that did not require a gaol sentence, but a deferred sentence with a recognizance to be of good behaviour for 5 years with supervision by the Probation and Parole Service. 33The Applicant's criminal record includes no other charges or findings of guilt in his 47 years. THE LIKELIHOOD OF ANY REPETITION BY THE APPLICANT OF THE OFFENCE OR CONDUCT AND THE IMPACT ON CHILDREN OF ANY SUCH REPETITION 34Regardless of his own personal problems, the impact on a child of a repetition of such conduct as the 3 subject offences would be serious. 35Dr Lenard Lambeth prepared a psychiatric report regarding the Applicant for the Supreme Court proceedings. He found that the Applicant had no past history of psychiatric illness and attributed his intellectual disability to his umbilical cord being caught around his throat at birth. Dr Lambeth said that the Applicant behaved "quite well during the interview", but was "clearly developmentally disabled" and he "displayed a moderately depressed mood, and a rather blunted effect during the interview". He said that there was no formal thought disorder, no evidence of any psychosis, and no evidence of an organic psycho-syndrome. During the interview the Applicant expressed remorse for the offence saying that he knows it was wrong and stated: "There's no way I would do it again, I wouldn't want to hurt anyone." 36Dr Lambeth concluded that the Applicant was not suffering from any psychiatric disorder and his state of depression was as a direct consequence of being charged with the offences, which was also evidenced by his degree of remorse. Although Dr Lambeth was not able to assess the precise degree of developmental disability, he recognised it and said that it would think the Applicant fell "close to the range of those considered to be mildly intellectually retarded." 37He said in his report: "Offences of a sexual nature are known to be quite frequent among the developmentally disabled, and among patients with low intelligence. These offences, of course, are not limited to patients of low intelligence but are characteristic of general inadequacy. Although [BJH] is not suffering from a diagnosable psychiatric illness, although his degree of developmental disability is not severe, he nevertheless presents with many of the problems of those with low intelligence. He is a person who is quite open to suggestion and is unable to reason about his acts in the same way that the average person might reason. The type of thinking displayed by persons such as [BJH] is usually extremely concrete, and cause and effect are considered only when they are in close proximity to each other. Thus the type of thinking that may have been present in [BJH] at the time of commission of the offences would have been of the order of - 'she is nagging me to do this - if I do it she will stop nagging me'. A person with low intelligence would be unable to appreciate all the ramifications of such an act, and would be unable to make what may be considered the normal judgements about the outcomes. It is my opinion that [BJH] fits into this picture. I am of the opinion that [BJH] is unlikely to re-offend in the above manner. He has, so to say, learnt his lesson. [BJH] has a considerable degree of support from his family and has experienced feelings of remorse of committing an offence. By being arrested, and brought to trial, [BJH] has indeed learned the consequences of actions such as those with constitute the offence. It is my opinion that [BJH] will learn sufficiently from this, and will utilise the support given him by his family and by the people available in the sheltered workshop, to establish more healthy forms of behaviour. I am therefore of the opinion that he is extremely unlikely to offend again. It may be, of course, that [BJH] would be helped further in this matter by further sexual education, with particular emphasis on those parts of sexual activity which are prohibited by law. In addition to this, however, studies have shown that developmentally disabled people who offend in a sexual manner have a lower rate of recidivism than is found amongst the general community of criminals. This is pointed out in a paper entitled, 'Delinquent and Disturbed Behaviour within the Field of Mental Deficiency' by Alexander Shapiro, and found in a volume entitled 'Then Mentally Abnormal Offender' published by Churchill, in 1968. To summarise, I am of the opinion that [BJH] does not suffer from psychiatric disability. I am of the opinion that he is fit to stand trial, and that his state of mind at the time of commission of the offence was such as to negate a McNaughton defence. He is, however, a person who is developmentally disabled and would be extremely unlikely to re-offend, particularly if he were to be supervised by responsible authorities, and his family." 38The Supreme Court also had the benefit of a psychologist's report by Mr John Taylor, prepared on 24 June 1988. He assessed the intellectual capacity of the Applicant and found that his: "assessed current level of intellectual functioning is within the mildly retarded range. His overall level of ability places him in the bottom 1% of the population". He described the Applicant's personality as "immature and inadequate", which was consistent with his being mentally retarded. He had elevated scores for immaturity, social maladjustment, value orientation, repression, social anxiety, manifesting aggression and cultural conformity. He found on test results that there was no significant "thought process or thought content disturbance". 39Mr Taylor's findings about the Applicant in interview of inadequate insight into consequences of his behaviour accorded with those of Dr Lambeth. 40Mr Taylor said: "He states that the alleged offences were essentially unplanned and occurred spontaneously. After questioning him on this aspect it did appear that he was quite impulsive and was unable to consider the various alternatives or consequences of his behaviour. Following the events, he then did have some awareness of the wrongfulness of what he had done, and was also aware of the possible penalty." 41Mr Taylor reported: "He is both socially and both emotionally immature. That is he tends to share attitudes which are more commonly found in people of a younger age than himself and he would also tend to identify and be able to relate better with children rather than adults." 42Mr Taylor said: "If one considers the circumstances in which the sexual assaults occurred, he was most naïve and not fully appreciating the degree of risk involved" And: "In other words, I feel that his behaviour with regard to these assaults was a reflection of his mental retardation and his inability to perceive situations very accurately. He would have been aware of what he was doing at the time, and it cannot be said that he was suffering from impairment over his self-control. However, there certainly was impairment in his judgment due to his retardation and his action would have been carried out rather impulsively, without being able to consider the consequences of what he was doing. Such appreciation of consequences would have occurred sometime after the event." 43The prediction of Dr Lambeth in 1988 that the Applicant "would be extremely unlikely to re-offend, particularly if he were to be supervised by responsible authorities, and by his family", is clearly reinforced by the absence of any evidence of any sexual or physical offence against a child in the 27 years since the subject offences occurred. ANY INFORMATION GIVEN BY THE APPLICANT IN OR IN RELATION TO THE APPLICATION WHICH HAS BEEN SET OUT ABOVE EARLIER 44The Applicant is active in his Church and provides frequent voluntary service to the Church in relation to maintenance of the Church property and also in the social activities of the adult Church members. Apart from the Church activities and his employment, the only other social activity appears to be his soccer. It appears that in all these areas there has not been behaviour that is cause for any concern that the Applicant might commit some further abuse of a child. 45In his oral evidence the Applicant said that he has a girlfriend aged 32 who lives in Stockton with her mother and step-father. She also works at the Sheltered Workshop where he works. He said that he had previously had relationships with other women and in one case had been engaged, but the relationships did not endure. He said that he was not in any relationship with a woman at the time of the offences in 1987. ANY OTHER MATTERS THE CHILDREN'S GUARDIAN CONSIDERS NECESSARY 46The Children's Guardian informed the Tribunal that it opposed the Application. No other matter was submitted by the guardian to be necessary. CONCLUSIONS 47A literal interpretation of ss.28(7), requiring the Applicant to prove that he does not pose a risk to the safety of children, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children. 48In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "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". He held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'. 49The Applicant's conduct over the last 27 years is devoid of any further offence against a child or any abuse of a child. That is in accord with the opinion of Dr Lambeth. The risk of any such further conduct was "extremely unlikely". On all the evidence the Applicant has established that he does not pose any real and appreciable risk to the safety of children. The Applicant therefore should have enabling orders. ORDERS 50The Orders of the Tribunal were: (1)The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the offences of "Commit Act of Indecency on Female under the age of 16 years" found proved by the Supreme Court of NSW at Newcastle on 28 July 1988. (2)The Children's Guardian must grant BJH a Working with Children Check 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 Amendments 02 March 2015 - typographical error in paragraph 46 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: 02 March 2015