Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CVZ v Children's Guardian [2017] NSWCATAD 284 Hearing dates: 24 July 2017 Date of orders: 20 September 2017 Decision date: 20 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Hitter, Senior Member B Field, General Member Decision: The decision of the Respondent to refuse a Working with Children Check Clearance is set aside. CVZ is granted a WWCC clearance. Catchwords: ADMINISTRATIVE LAW – child protection – Working with Children Check clearance - whether the Applicant poses a risk to the safety of children. Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Mental Health (Forensic Procedures) Act 1990 (NSW) Cases Cited: BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Category: Principal judgment Parties: CVZ (Applicant) Children's Guardian (Respondent) Representation: Counsel: Ms Stevens (Respondent) Solicitors: CVZ (Agent for Applicant) Crown Solicitor's Office (Respondent) File Number(s): 16/378502 Publication restriction: Disclosure of the name of the applicant and the name of any alleged victim or child referred to in the material before the Tribunal is prohibited. Note: the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1. The Applicant ("CVZ") applied for a Working with Children Check ("WWCC") clearance because he is studying to be an Occupational Therapist and this might require him to work with children. It was necessary for the Children's Guardian's ("the Respondent") to undertake a risk assessment pursuant to section 15(3) of the Child Protection (Working with Children) Act (2012) ("the Act") because in 2014, CVZ was charged with offences arising from entering the next door neighbour's property and masturbating on items of clothing, which were hanging on a clothes line in the back yard. CVZ was 17 years old at the time and the charges were dismissed pursuant to s 32 (3) (A) of the Mental Health (Forensic Procedures) Act 1990 (NSW). CVZ was ordered to undertake psychological treatment and he did so. 2. The risk assessment recommended a WWCC clearance be granted. It was internally reviewed and supported, but when considered by the Review Panel, it recommended on the basis of the seriousness and recent nature of the charges, that a WWCC clearance be refused. The Respondent refused to grant a WWCC clearance and CVZ seeks a review of that decision. 3. The Respondent is concerned that insufficient time has elapsed since the offending behaviour occurred and considers CVZ to pose a risk to the safety of children. The Respondent also considers CVZ to lack insight into his behaviour and that his dealings with the Respondent during the risk assessment process lacked candour. 4. There have been no other complaints or criminal charges against CVZ. No concerns were raised about CVZ's behaviour in the place he works as a casual employee or in the course of his studies, which has included student placements. 5. The offending behaviour was serious and sexual in nature. The psychological evidence presented to the Tribunal is that the offending behaviour does not amount to a pattern sexually deviant behaviour or is driven by a particular sexual fetish. The evidence received by the Tribunal is that the offending behaviour was an anti-social and immature response to social and psychological stressors experienced by CVZ at the time. The Tribunal has accepted this evidence. In addition to completing the psychological treatment ordered by the Court, CVZ has continued to voluntarily engage with the same psychologist, who told the Tribunal that CVZ has made good progress. 6. At the time he committed the offences CVZ did not appreciate the risk it posed to the children next door. The children were not home and did not see him. But he now accepts they could have come home and seen him and if they had, this would have put them at risk. CVZ did not appreciate at the time that his behaviour was anti-social and distressing to those involved. The evidence received by the Tribunal establishes that the Tribunal can be satisfied that CVZ now accepts responsibility for the offending behaviour, and now has insight into how it has distressed the family involved, for which he shows genuine remorse. 7. CVZ was not forthright in his dealings with the Respondent. He concedes that he sought to minimise the seriousness of his offending behaviour in the information he provided to them. His explanation was that he had little experience in such matters and he was ashamed and embarrassed about his offending behaviour. He said he had destroyed documents at the conclusion of the Court proceedings because he did not want to be reminded of what he had done. The Tribunal considered this explanation to be plausible in all the circumstances. The Tribunal is satisfied that CVZ was forthright and candid in these proceedings. 8. The evidence received from CVZ's treating psychologist and another psychologist engaged to write an expert report for these proceedings, together with CVS's own evidence, establishes that the Tribunal can be satisfied that CVZ does not pose a risk to the safety of children. The evidence establishes on the balance of probabilities that there is no real and appreciable risk to the safety of children posed by CVZ. 9. The correct decision is to set aside the Respondent's decision to refuse a WWCC clearance and to order that a WWCC clearance be granted to CVZ: Administrative Decisions Review Act 1997 (NSW), s 63. The material before the Tribunal 1. The Tribunal was provided with the following material to consider in determining this application: 1. Application received from CVZ on 16 November 2016. 2. Submissions received from CVZ on 11 May 2017. 3. Notice of representation for CVZ received 7 February 2017. 4. Psychological Report provided by MM, Clinical and Forensic Psychologist, received 7 February 2017. 5. Letter from LE, Forensic Psychologist, received 7 February 2017. 6. Reference provided by JC from the college attended by CVZ where he completed his Higher School Certificate received on 7 February 2017. 7. Copy of email from KW to CVZ expressing gratitude for voluntary work, received 7 February 2017; and (7a) written comments from CVZ about the Respondent's decision to refuse a WWCC clearance. 8. Student feedback from supervisor of placement at Bankstown Hospital received on 21 July 2017 9. Submissions made on behalf of the Respondent received on 13 April 2017. 10. Section 58 documents filed by the Respondent received on 13 April 2017. 11. Section 58 documents filed by the Respondent received 14 December 2016. 1. A hearing was held in Sydney. CVZ and his father were present. Leave was granted for CVZ's father to represent him as his agent. CVZ, his father and the psychologists, LE and MM (by phone), gave oral evidence at the hearing. The criminal charges 1. CVZ's only contact with the criminal justice system is the offending behaviour. CVZ accepted the facts set out in the Police fact sheet when the charges were being dealt with in Court, but told the Tribunal that he did dispute some details, such as the allegation he stole an item of underwear clothing from his neighbour's clothes line in 2013 (the year before). 2. On the day he was arrested, which was his 18th birthday, CVZ said he was "terrified". He had never been in trouble with the Police before that day and he told them that he was "pressured" into the offending behaviour, which he admits was not true and said to minimize his responsibility for it. He told the Tribunal that the lawyer representing him in Court said this would be "cleared up". 3. Respondent's counsel asked CVZ about the extent to which he disputes the facts he had admitted to in Court. Counsel also referred to CVZ's (June 2016) statutory declaration, which was provided to the Respondent, where he says had been charged for looking through the rear window of his neighbour's property. CVZ accepted this was not forthright and truthful and it weighs against CVZ. CVZ acknowledged this was a serious error in judgment and he took responsibility for it. The Tribunal considered CVZ to be genuinely contrite about his lack of candour in his dealings with the Respondent. 4. CVZ accepts essential facts of his offending behaviour. He accepts he entered the property next door and masturbated and ejaculated on items of clothing, including children's clothing. He said he did not deliberately target children's clothing. The Tribunal is satisfied that CVZ did not target children's clothing as part of the offending behaviour. CVZ conceded that the children would have been traumatized and frightened if they had seen him. CVZ said he checked to see whether the neighbour's car was in the driveway to make sure they were not home, but he accepts they could have come home, or might have been home, while he was in their backyard. The Tribunal is satisfied CVZ appreciates the seriousness of his behaviour and the potential it had to cause harm, including to the children who live next door. 5. The Police facts allege CVZ stole a set of keys from the neighbour's house and sometime later used them to try to open their back door. CVZ said he did not steal the keys but found them on the ground near the dividing fence between the two properties. He admits to using them to try to open the back door. CVZ said he did not know what he would have done if they opened the door (the neighbour changed the locks when the keys went missing) but told the Tribunal he did not intend to "hurt anyone or to steal anything". Whether or not CVZ stole the keys or found them, the Tribunal is satisfied that his attempt to enter the neighbour's house was part of his offending behaviour. The Tribunal cannot be satisfied of what CVZ would have done if he had gained access to the neighbour's house. Factors the Tribunal must take into account 1. Section 30 (1) of the Act provides the factors that the Tribunal must consider in determining an application under Part 4 of the Act: 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. The seriousness of the offences or any matters that caused a refusal of a clearance 1. The undisputed facts surrounding CVZ's offending behaviour are serious and cause for concern. The Tribunal is satisfied that the offending behaviour was not directed specifically towards children but CVZ was reckless as to whether it could cause harm to them. The offending behaviour had a serious and significant impact on the family involved. 2. The Respondent submits CVZ engaged in a pattern of sexually deviant or offensive behaviour with the first incident occurring in 2013, and then on two occasions in 2014. 3. The evidence given by both psychologists (LE and MM), which the Tribunal accepts, is that the offending behaviour was not driven by a sexual fetish or a pattern of sexually deviant behaviour, but rather it was risk taking behaviour in response to certain triggers. The Tribunal finds the offending behaviour was an anti-social and immature response to social and psychological stressors. The period of time since the offence occurred and the conduct of the person since they occurred 1. The offending behaviour occurred about two and a half years ago. Since that time there have been no other complaints or concerns raised about CVZ. He has been working on a casual basis and undertaking studies at university. The Tribunal was told he is in a steady relationship and continues to live in the family home. The age of the person at the time of the offence, the age of the victims and the difference in age 1. The Applicant was 17 years old at the time he was charged. 2. The offending behaviour did not involve direct contact with any victims but the family living next door comprised of two adults and two young children. Whether the person knew, or could reasonably have known, that the victim was a child 1. CVZ was aware children lived next door. He accepts they have been impacted, at least indirectly, by his offending behaviour. The person's present age 1. CVZ is now 20 years old. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred 1. The offending behaviour is CVZ's only contact with the criminal justice system. The likelihood of repetition of the offences or conduct and the impact on children of any such repetition 1. The Mental Health Report considered by the Court found CVZ was eligible for consideration under Section 32 of the Mental Health (Forensic Procedures) Act 1990. CVZ was "willing to engage in the assessment process and offered reasonable responses to questions". The Prosecution did not oppose matter being dealt with in this way and the Court agreed. The charges were dismissed on condition that CVZ comply with a treatment plan (as recommended by the psychologist LE). 2. After completion of the treatment plan, LE recommended further treatment in order for CVZ to develop more strategies to deal with anxiety and "consolidate the gains made to date" (letter from LE to CVZ's GP dated 1/12/14). CVZ accepted this recommendation and continues to remain engaged with LE. 3. LE provided a professional reference to the Respondent which confirms CVZ attended all scheduled appointments and utilises the strategies they have developed to counter those psychological issues. 4. LE said the triggers for CVZ's anxiety in the lead up to his offending behaviour were school and social pressures. She expressed confidence that CVZ is now better able to deal with such anxieties. LE said CVZ feels guilty about the impact of his behaviour on the family next door. She believes CVZ now appreciates the risk he placed the children in. 5. LE told the Tribunal she did not know CVZ's offending behaviour included incidents that occurred on more than one occasion, but when presented with this information said this did not change her overall assessment that CVZ does not pose a risk to the safety of children. LE said in her opinion the offending behaviour was not part of a sexual fetish but it was risk taking triggered by anxiety and social pressures. The Tribunal found LE's evidence to be persuasive and accepted it. 6. A clinical and forensic psychologist (MM) engaged to write a report for these proceedings provided evidence that was consistent with the evidence given by LE. He interviewed CVZ for over two hours and reviewed documents obtained by the Respondent. MM describes the pressures CVZ was under during the latter part of high school as including chronic acne, problems with his girlfriend and HSC study pressure. He notes the background to the offending behaviour as wanting to engage in risk taking behaviour without hurting anyone. CVZ told MM "I couldn't see the huge effect my actions would have" and "I just wanted to feel the rush of doing something not right…there was no malice or anything behind it. I never intended to hurt anybody or put the neighbours through anything". CVZ told MM "knowing I've hurt a family kills me inside". MM said he considered these sentiments were genuine. 7. MM applied the Static-200R, which is a statistical instrument designed to assist in the prediction of sexual and violent recidivism for sex offenders. CVZ scored 6, which places him within samples of offenders found to sexually re-offend at a rate of six percent in five years. MM scored CVZ on the basis of having a male victim and two or more victims under 12 years. MM said he scored CVZ in this way because the parents of the children were impacted, which would have had an indirect impact on the children. MM agreed that as there were no people and specifically children, who witnessed CVZ's offending behaviour, as they were not there at the time it occurred, this would have a bearing on the weight that can be attributed to the score of 6. 8. MM found CVZ's educational, work and social history indicates that he is not the kind of person that would harm others. His view is that the offending behaviour was probably "triggered by HSC academic stress, relationship stress, and immaturity. As a result of these factors, he acted on impulses he would otherwise be able to contain. [CVZ's] psychological treatment as well as success at university, work and social life means that he has most likely learned to manage stress factors and can thereby prevent a recurrence of actions which would pose a risk to others". 9. The evidence of LE and MM supports CVZ's own evidence of suffering from stress and anxiety arising from school and social pressures and in relation to the offending behaviour, he spoke of wanting an "adrenalin rush". The Tribunal accepts this evidence. 10. The Tribunal considered that the evidence did not address the question of why these pressures led to a particular response that was sexual in nature. But the evidence that is available does not satisfy the Tribunal that a pattern of sexually deviant behaviour or a sexual fetish can be established. The evidence given by both psychologists alongside of CVZ's evidence, establishes that the Tribunal can be satisfied on the balance of probabilities that the triggers that led to CVZ's offending behaviour were particular to that period of time in CVZ's life and were in the context of CVZ's inability to deal with those stressors in an appropriate way. The evidence establishes that CVZ is now better able to deal with such stressors and that the risk of him responding in the way he did at that time is minimal. 11. With regard to insight into the consequences of his offending behaviour the Tribunal accepts CVZ feels genuine remorse and appreciates the risks involved and the potential harm it could have caused. 12. The Tribunal can therefore be satisfied that the likelihood of repetition of the offending behaviour is minimal. Any information given in, or in relation to, the Application 1. CVZ continues to live with his mother, father and brother and is in his third year of studying to be an occupational therapist. He provided positive references from a club where he has played for the past two seasons, an employer where he has worked on a casual basis including serving customers, and the college where he completed high school. Information was also provided about his performance on clinical placements, which were positive and encouraging. This material is supportive of CVZ but the Tribunal had regard to there being no reference to the offending behaviour and so could only gave them limited weight. Conclusion and orders 1. The Tribunal must determine whether on the balance of probabilities CVZ poses a risk to the safety of children. The word "risk" is one that is "real and appreciable" and greater than the risk posed ordinarily by any adult (BKE v Office of Children's Guardian & Anor [2015] NSWSC 523). The paramount consideration is the safety, welfare and well-being of children and, in particular, protecting them from child abuse; the Act, s 4. 2. Both psychologists acknowledged that they were not aware of some of the details of CVZ's offending behaviour, but they both said that even if they had been aware of those details, it would not have changed their overall assessment and conclusion that CVZ does not pose a risk to the safety of children. They both said that CVZ accepts responsibility for his actions, including that his behaviour was of a sexual nature, and that he feels genuine remorse about the impact it has had on those who were involved. The Tribunal considered this to be consistent with CVZ's own evidence and is satisfied that CVZ has insight into his offending behaviour and accepts responsibility for it. 3. The Tribunal accepts the evidence of both psychologists that CVZ's offending behaviour was not driven by a sexual fetish or pattern of sexually deviant behaviour, but rather it was reckless and anti-social risk taking. Both psychologists support CVZ's contention that he has improved his capacity to deal with such triggers and that the risk of repetition of this kind of behaviour is minimal. 4. The Tribunal finds that CVZ does not pose a real and appreciable risk to the safety of children. 5. The Tribunal orders that: 1. The decision of the Respondent to refuse a Working with Children Check Clearance is set aside. 2. CVZ is granted a WWCC 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: 20 September 2017