Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DCN v Children's Guardian [2017] NSWCATAD 373 Hearing dates: 16 October 2017 Date of orders: 20 December 2017 Decision date: 20 December 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: C. Grant Senior Member Professor P. Foreman General Member Decision: The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed. Catchwords: ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – whether applicant has discharged the onus of proof - whether applicant is a risk to the safety of children Legislation Cited: Child Protection (Prohibited Employment) Act 1998 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Commission for Children and Young People Act 1998 Cases Cited: BHA v Children's Guardian [2014] NSWCATAD 161 BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 BJB v Children's Guardian (No.2) [2014] NSWCATAD 164 Commission for Children and Young People v V (2002) NSWSC 949 BHA v Children's Guardian [2014] NWCATAD 161 Commission for Children and Young People v FZ [2011] NSWCA 111 CHB v Children's Guardian (2016) NSWCATAD 214 CMA v Children's Guardian (2016) NSWCATAD 264 Category: Principal judgment Parties: DCN (Applicant) Children's Guardian (Respondent) Representation: Counsel: V. Hartstein (Respondent) DCN (Applicant) In Person Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2017/ 164688 Publication restriction: Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 that the name of the applicant and the name of any other person that would identify the name of the applicant or any other witnesses are not to be published or broadcasted without the leave of the tribunal. Reasons for decision 1. The Applicant, known in these proceedings as 'DCN' is a 46 year old man. He is married with two young children. He applied for a working with children clearance ('clearance') so that he could fully participate in a coaching role at his child's sporting club. The Children's Guardian refused him a clearance because in 1989 he was charged and pleaded guilty to two counts of indecent assault. The offence occurred when he was 18 years old and the victim was 16 years old. This is a disqualifying offence. DCN has applied for an enabling order to allow him to obtain a clearance. The Children's Guardian relies on the presumption under the Act that DCN poses a risk to the safety of children and opposes the application. 2. Apart from his application, DCN provided no evidence or other material to support his application. The Tribunal made orders at the hearing that DCN be given a further 14 days to file any further material such as reports, references or statements to support his application. No documents were filed. 3. The Tribunal has considered the matter and decided that DCN has not discharged the onus under the Act that he is presumed to pose a risk to the safety of children. The decision of the Children's Guardian is affirmed. The reasons are set out below. 4. Due to the sensitive nature of these proceedings the Tribunal has made the order under subsection 64(1) of the Civil and Administrative Tribunal Act (2013), that names of the applicant as well as the name of the victim of the 1989 offence are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym 'DCN' has been used for the applicant's name. The index offence Details of the offence and plea of guilty 1. The agreed Police facts allege that in the early morning of the 3 December 1989, [DCN] who was 18 years old, approached the victim, who was 16 years old. He followed her into a phone booth and despite her attempts to push [DCN] away, rubbed the victim's bottom, kissed her face and neck and rubbed his penis against the victim and then put his hand under the victim's dress and placed a finger into the victim's vagina. The victim then drew the attention of some men in a shop across the road and [DCN] walked away. 2. In DCN's record of interview with police he: 1. stated he had seen the victim previously as she was a sister of a schoolmate; 2. admitted to touching the victim on the bottom, rubbing his hands up and down her leg, kissing her face and neck area, and touching the clothing around her breast; 3. admitted to saying to the victim "you've got no underpants on" and putting his hand under the victim's skirt, moving her swimming costume away and placing his hand on the victim's vagina; 4. admitted putting his finger inside the victim's vagina but stated he did not do so "purposefully" but that "it just slipped in"; 5. asked what happened next, he stated "I think she pulled me hand away, but never at any stage did she say go away or anything"; 6. admitted to standing in the doorway of the phone booth but denied that the door was closed; 7. asked whether the victim was trying to push him away while in the telephone booth, DCN stated "she might of put her hand up to stop me but at no stage did she push me away or tell me to go away"; 8. asked whether the victim at any stage gave [DCN] permission to touch her, he said "No she didn't. But then again she didn't really say I couldn't" 1. DCN was originally charged with one charge of sexual intercourse without consent pursuant to s.61D of the Crimes Act. He pleaded not guilty and the matter proceeded to a committal hearing. His defence was that he believed the victim was consenting to his advances. The victim gave evidence at the committal hearing and was cross examined. On conclusion of the hearing, the examining Magistrate found there to be a sufficient case that DCN was aware the victim was not consenting and he was committed to trial. 2. A short time after the committal hearing, DCN pleaded guilty to two charges of indecent assault and the prosecution accepted the pleas in full discharge of the indictment. The prosecution did not proceed with the charge of sexual intercourse without consent. Sentencing of DCN 1. In the pre-sentence report dated 24 March 1993 the Probation Officer continued to assert that at the time of the offence he believed the victim was consenting to his advances. While the author of the report expressed that DCN had expressed shame and remorse for his behaviour, it was also noted that he had been unwilling to discuss the matter with his family and "he needs to be able to openly discuss his problems and accept guidance and counselling". At the sentencing hearing on the 26 March 1993 the Probation Officer gave oral evidence in elaboration of her report where she again expressed concern that he had not disclosed the full seriousness of the offence to his family and needed professional counselling or psychological assistance to come to terms with his offence. 2. On 1 June 1993 the Probation Officer provided a supplementary report and stated: Further to previous reports, this case is proving more problematic than anticipated. [DCN] appears to have considerable difficulties dealing with his responsibilities. Consequently, he has avoided complying with arrangements made in regard to reporting and subsequent psychiatric / psychological assessment. 1. DCN was convicted of the offences and sentenced to: 1. On first count a Community Service Order to complete 250 hours; and 2. On the second count a deferred sentence upon entering a section 558 recognisance to be of good behaviour for 3 years and comply with a number of conditions including psychological assessment as directed and to attend counselling in relation to alcohol as deemed appropriate. 1. The documentation filed by the respondent confirmed that DCN had breached the section 556 recognisance and the Community Service Order on numerous occasions. He failed to attend appointments with Probation and Parole, failed to contact or follow up with psychological/ psychiatric treatment and failed to complete the required number of community service hours. On 3 February 1995, he was convicted of breaching both the recognisance and the Community Service Order and sentenced to a minimum term of 12 months' imprisonment with an additional term of 4 months. On 11 December 1995, the Court of Criminal Appeal allowed an appeal, quashed the sentence and instead imposed a 12 month sentence of periodic detention. However, it appears DCN did not comply with the periodic detention requirements. He confirmed during the hearing that he served the full term of imprisonment. It is not clear from the documentation or DCN when he served this term of imprisonment and the length of time he served. However, documentation confirmed that a hearing date was listed on the 27 March 1997 to hear the application to cancel his periodic detention. The Hearing 1. DCN was unrepresented. He gave evidence that he wanted a clearance so that he could be fully involved with his children's sporting club. He stated that a coach had recently resigned and he was now the coach of his child's sporting club. He was also aware of the regulation that made him exempt. That is, a parent or close relative when volunteering with a children's team was exempt from the requirement to hold a clearance (Regulation 20(1)(f) of the Child Protection (Working with Children) Regulation 2013 (NSW). However, "he wanted to clear his name" and continue with his application. 2. He believed the matters raised by the Children's Guardian were not relevant to the question of whether he should have a clearance. The offence occurred nearly 28 years ago when he was 18 years old. He did not wish to detail or discuss the offence except to confirm his belief that the victim had consented and therefore, he should not have been convicted. Furthermore, if he had been properly represented by his lawyer at the time he would not have been convicted. 3. DCN gave evidence that he has lived a good and law abiding life since the offence. He has been happily married for ten years and has two young children. He believes he is a good parent. He also has older brothers who have children and he has positive and close relationships with his nieces and nephews. As a young man, he completed his apprenticeship as a spray painter and now works as an estimator. He has been in the same job for the last five years. He has committed no other criminal offences apart from some driving matters. 4. DCN filed no other documentation with his application. That is, he filed no statements, no references, no medical or other reports and no risk assessment. The Tribunal ordered that DCN be given a further 14 days to file any further documentation to support his application. DCN did not file any documentation. Applicable law 1. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act. 2. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; Section 4 of the Act. 3. As stated, DCN pleaded guilty to two counts of indecent assault. This offence is listed as a disqualifying offence under Schedule 2 of the Act. Subsection 18(1) of the Act states the Children's Guardian must not grant a clearance to a person convicted of a Schedule 2 offence. 4. Subsection 28 (1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order. 5. Subsection 28(7) of the Act places the onus on the Applicant to satisfy the Tribunal that he does not pose a risk to the safety of children. 6. The meaning of the word "risk" in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word meant; "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". 1. It is not appropriate for the Tribunal to make an order with conditions whether under section 27 or section 28 of the Act. 2. The issue for the Tribunal to decide is whether DCN has discharged the presumption under section 28(7) of the Act that he does not pose a risk to the safety of children. 3. In determining this issue, the Tribunal must first have regard to the factors set out in section 30(1) of the Act. If the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30 (1A) of the Act. Consideration of S.30 (1) factors and Findings a) Seriousness of any matters that caused the assessment in relation to the person 1. The offence of indecent assault is a serious matter. The victim was 16 years old and was on her own in the early morning hours at the time of the offence. The examining Magistrate found a case to answer that DCN knew the victim was not consenting. DCN ultimately served a term of imprisonment for at least 12 months. b) The period of time since those offences or matters occurred and the conduct of the person since they occurred 1. The offence occurred in 1989. There is evidence that DCN did not comply with the recognisance or the Community Services Order. He failed to attend appointments, failed to attend and follow up psychologist/ psychiatrist appointments and failed to complete his required community service hours of work. This led him to the cancellation of his community service order and periodic detention and serving a term of imprisonment. 2. He has committed no other criminal offences since the offence in 1989. He has been married for ten years and has two young children. He has been employed in the same position for the previous five years. c) The age of the person at the time of the offences or matters occurred 1. DCN was 18 years of age. d) The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim 1. The victim was 16 years of age at the time of the offence. She was also vulnerable, being on her own in the early morning hours when the offence occurred. e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. The difference in age between DCN and the victim is 2 years. DCN told police he had seen the victim as he went to school with her brother but did not know her. It is not clear if the victim knew DCN. f) Whether the person knew, or could reasonably have known, that the victim was a child 1. DCN pleaded guilty to an act of indecency but the fact the victim was a child was not part of the offence to which he pleaded guilty. He told police he had seen the victim as he went to school with her brother but he did not know her. There is no other available information regarding whether DCN knew or could reasonably have known that the victim was a child. g) The person's present age 1. The present age of DCN is 46 years of age. h) The seriousness of the person's total criminal record and the conduct of the person since the matters occurred 1. Apart the 1989 offence and some from driving matters, DCN has no other criminal history. i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition 1. In a record of interview shortly after the offence occurred, DCN told police, "I am very sorry for what I have done and I didn't wish any harm on her". In a pre-sentence report dated 26 March 1993 the author who was a Probation officer stated, "The remorse expressed by [DCN] appears genuine and it is considered unlikely that he would re-offend in such a manner again." However, DCN stated in his evidence before the Tribunal that he should not have been convicted of the offence. 2. It is difficult to answer this question without any statements, references, reports or a risk assessment. That is, the Tribunal has no updated information on his insights regarding the 1989 offence, and his remorse, if any. While the Tribunal has no reason to question DCN's evidence that he is a good father and uncle, he has not filed any evidence from any persons specifically addressing his conduct with children since his disqualifying offence. There is also no evidence of his understanding of the vulnerability of children and the protective role of adults when participating in activities involving children. 3. Any repetition of the offences of indecent assault has the potential to cause significant harm to children. There are numerous case studies that have documented the often devastating and lasting impacts of child sexual abuse on children and this continues as adults. j) Any information given in, or in relation to, the application 1. DCN filed no documentation in support of his application. j1) Any relevant information in relation to the person that was obtained under section 36A 1. There is no such information. k) Any other matters that the Children's Guardian considers necessary 1. The Children's Guardian opposed the application and submitted that DCN had failed to discharge his onus to prove he is not a risk to the safety of children. Consideration 1. The Tribunal observed DCN to have a genuine interest in being involved and participating in the life of his child through the sporting club. This was the motivation for him to obtain a clearance. However, in failing to file any material to support his application, DCN failed to understand the protective role of the Children's Guardian under the Act and that its paramount consideration is the safety, welfare and well-being of children. 2. The Tribunal must be satisfied, on the material before it, that DCN has discharged his onus to prove that he is not a risk to the safety of children. DCN states that he is not a risk to children on the basis that he has not committed any criminal offences or come to the attention of any authorities for any anti-social behaviour since his offending 27 years ago. The Tribunal acknowledges this fact to DCN's credit. However, the issue for the Tribunal is whether this fact alone is sufficient to discharge the statutory onus. It is not. The onus has not been met due to DCN's failure to file any supporting information or evidence as previously canvassed in these reasons. 3. As the Tribunal is not considering making an enabling order there is no need to address the requirements of section 30(1A) of the Act. ORDERS 1. The application for an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 December 2017