Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DMD v Children's Guardian [2019] NSWCATAD 87 Hearing dates: 26 October 2018 Date of orders: 17 May 2019 Decision date: 17 May 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Senior Member Prof P Foreman, General Member Decision: Application dismissed. Catchwords: CHILD PROTECTION – working with children check clearance – applicant found guilty of a disqualifying offence – whether applicant discharged his onus to rebut the presumption that he poses a risk to the safety of children – onus not discharged Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 CTM v Children's Guardian [2016] NSWCATAD 280, ZZ v Secretary, Department of Justice [2013] VSC 267 Category: Principal judgment Parties: DMD (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein for the respondent Solicitors: Applicant in person NSW Crown Solicitor File Number(s): 2018/177970 Publication restriction: Pursuant to subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child is not to be published or broadcasted without the leave of the Tribunal.Note: A reference to the name of a person includes a reference to any information, picture or other material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 Introduction 1. The applicant, DMD, seeks an enabling order, pursuant to s 28(1) of the Child Protection (Working with Children) Act 2012 (WWC Act), so that he can obtain a working with children check clearance (a clearance). The applicant is 24 years of age and wishes to work as a volunteer in child-related work. In order to undertake such work, the applicant must have a clearance: WWC Act, s 8 and 9. 2. In these proceedings, the paramount consideration is the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse': see WWC Act, s 4. 3. On 4 May 2018, the respondent, the Children's Guardian, refused the applicant's application for a clearance because he is a 'disqualified person' and is presumed to pose a risk to the safety of children, unless he proves the contrary: see WWC Act, ss 18(1) and 28(7). 4. The applicant is a 'disqualified person' because, in July 2017, he was found guilty of having indecently assaulted a person under the age of 16 years contrary to s 61M(2) of the Crimes Act 1900 (NSW). Section 61M is a disqualifying offence listed in Sch 2 of the WWC Act. The Court did not convict the applicant, but made an order discharging the applicant on the condition he entered into an agreement to be of good behaviour for 2 years: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 10. 5. Hence, the main issue for determination in these proceedings is whether the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children. 6. For the reasons that follow, we are not satisfied that the applicant has discharged his onus and on this basis we have dismissed his application. The WWC Act 1. As we have noted above, the applicant's application has been made under s 28 of the WWC Act. That section relevantly provides as follows: 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) … (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 under section 23, 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 grant the person a clearance. (6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children's Guardian in accordance with the Tribunal's order. (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) 1. In determining an application made under s 28, the Tribunal must consider the matters set out in s 30 of the WWC Act. That section relevantly provides: 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 criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) … (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. 1. It is accepted that the approach to be taken by the Tribunal in regard to the abovementioned matters, is to first consider the evidence in the context of the matters in s 30(1) of the WWC Act and determine the issue of 'risk' (i.e. whether the applicant has discharged his onus to rebut the presumption that he/she poses a 'risk' to children): see CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. If satisfied as to the issue of 'risk', the Tribunal must then go on to consider the matters prescribed in s 30(1A) of the WWC Act. 2. It is accepted that the word 'risk' in the context of the WWC Act means: 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." Honour Young CJ in Eq, in in Commission for Children and Young People v V [2002] NSWSC 949, at [42] 1. Finally, the word 'children' is defined in s 5(1) of the WWC Act to mean persons under the age of 18 years. Material before the Tribunal 1. In these proceedings the applicant has been unrepresented. In support of his application, the applicant relied on two short email responses he sent to the respondent in regard to questions asked of him and a one page hand written letter. The applicant also gave evidence at the hearing and was cross-examined by counsel for the respondent. 2. The respondent filed and served six bundles of documents that contained copies of documents relating to the applicant and received from other government agencies under s 31 of the WWC Act, the Local Court of New South Wales and the District Court of New South Wales. Included in these bundles of documents were copies of: 1. the applicant's criminal record; 2. the police brief in regard to the applicant's 2017 offending, which included a copy of the transcript of the complainant's interview with police and the applicant's record of interview with police; 3. the transcript of the hearing before the Local Court in regard to his 2017 offending; 4. the decision of the District Court in regard to the applicant's appeal from the decision of the Local Court in regard to his 2017 offending; and 5. records held in regard to the applicant by NSW Police and the Department of Family and Community Services. 1. The respondent also filed and served detailed written submissions. The disqualifying offence 1. In early 2017, the applicant was charged with 3 offences, each of which is listed as a disqualifying offence under Sch 2 of the WWC Act. The offences were as follows: 1. indecent assault of a person under the age of 16 years (in this case 13 years of age) contrary to s 61M(2) of the Crimes Act 1900 (NSW) (Crimes Act); 2. intentionally procuring a child under the age of 14 years for unlawful sexual activity with that child, contrary to s 66EB(2) of the Crimes Act; and 3. intentionally meet a child by exposing her to indecent material with the intention of procuring the child for unlawful sexual activity with himself, contrary to s 66EB(2A) of the Crimes Act. 1. The above mentioned s 66EB(2A) charge was withdrawn by police prior to his trial before the Local Court. 2. On 20 July 2017, the applicant was convicted of the other two charges in the Local Court. Instead of imposing a sentence of imprisonment or a fine, the Court made a conditional release order that the applicant be of good behaviour for two years: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 9. 3. The applicant appealed his conviction and sentence to the District Court. On 3 and 9 November 2017, the District Court quashed the s 66EB(2) conviction and varied the s 61M(2) conviction to a conditional release order under s 10 of the Crimes (Sentencing Procedure) Act. This meant that no conviction was recorded against the applicant in regard to this offence. However, he was found guilty of the offence and the two year good behaviour bond remained in force until 26 November 2020. 4. The Police Fact Sheet describes the circumstances giving rise to the charges as follows: 1. sometime in 2016, the applicant and the complainant began chatting on 'Facebook' and through 'Snapchat'; 2. on the day in question, in January 2017, the applicant messaged the complainant a number of times, through 'Snapchat' asking her to hang out with him that day. We note that the complainant lived in a different town to that of the applicant. The complainant finally agreed to meet the applicant at the shops a short distance away from the complainant's home; 3. at about 7pm that evening the complainant left her home and walked to the shops where she bumped into a friend outside the takeaway store. They talked for about thirty minutes while the applicant was waiting in his ute in a nearby parking area; 4. the complainant then walked over to where the applicant was parked and got into the front seat of the ute. The applicant then drove down to the river and parked in an area off the street where cars usually parked. At around this time, the complainant's friend contacted her grandmother and told her what was happening; 5. while they were parked by the river the applicant said: 'So you're confident with your body?' and he started talking about the selfies the complainant had posted of herself. The applicant said: 'you have a good arse' and 'you've got pretty nice boobs too'. The applicant then asked the complainant for a cuddle and she said 'No'. The applicant said: 'What if I touch your boob' and the complainant said ''No'. The applicant proceeded to touch the complainant on her right breast and started squeezing it. The complainant grabbed the hand of the applicant and pushed it away; 6. the applicant then noticed a car pulling up behind him. It was the car of the complainant's grandmother, who got out of the car and confronted the applicant saying: 'Who the hell are you?' The applicant responded by saying he was a friend to which the complainant's grandmother said: 'I hope you know she's only 13'. The applicant replied: 'I am only 17'. During this interchange, the complainant got into her grandmother's car. After the interchange, the applicant then drove off. 1. Police interviewed the complainant about one week later. Detectives from the Child Abuse Squad had spoken to her and her family on the day after the incident. During her interview with police, the complainant said they had gone to the river. She said the applicant had also sent her nudes via 'Snapchat'. When asked what the nudes were, the complainant responded: 'A dick'. She also said that she had told the applicant that she was 13 years of age and that he had originally told her he was 17 years of age. When she questioned him, he said he was 20. 2. About a week after Police interviewed the complainant, the applicant was arrested and agreed to take part in an electronically recorded interview. During the interview, the applicant acknowledged that he had been chatting with the complainant that he met with her on the day in question and that they drove to the river in his car. However, he denied indecently assaulting her or sending her nude pictures. He said it was 'disrespectful' to grab somebody's breast and that he did not know why she would say this. He denied making any comment about the complainant's body. 3. When asked how old he thought the complainant was, the applicant said she had told him through 'Snapchat' that she was 17 years of age. He said 'if she was 13 I would've been … out of there'. The applicant also denied that he had ever sent naked photos of himself to the complainant. 4. At his trial, the appellant gave evidence and was cross-examined. As we have noted above, the Magistrate in the Local Court found the applicant guilty of the indecent assault charge and the intentionally procuring a child under the age of 14 years for unlawful sexual activity charge. 5. In her evidence before the Local Court, the complainant acknowledged that on her 'Facebook' page she had given the correct day and month of her birth date. However, the year of her birth (i.e. 1999) was incorrect (T 01/06/17, p 19, 21 and 22). She agreed that this made her 17 years of age, but she was not 17 years of age – she was 13. The complainant otherwise confirmed what she had said during her interview, including that she had told the applicant that she was only 13 years of age. 6. In his evidence before the Local Court, the applicant denied he had touched the complainant's breasts or that he had sent nude photos to her. He also said he had never seen the complainant in person prior to the incident (T 01/06/17, p 51). He said that from her 'Facebook' he concluded the following in regard to her age: A. Well, at the time, it had that 1999 as her date of birth, sort of thing, so I seen that and the photos and there she looks about the same age as my sister that's 17 years old so as far as I thought. 1. On appeal to the District Court, the presiding Judge's findings on the evidence was as follows: 1. the applicant agreed to meet with the complainant 'because he had some romantic or sexual interest in her' and that he had touched her breast 'for one to two seconds before she pushed him away': (T 3/11/17, p12); 2. the complainant's evidence that she told the applicant that she was 13 years of age was not accepted. However, it was accepted that at all relevant times the applicant believed that the complainant was 17 years of age: (T 3/11/17, p 13 and 14); and 3. there was some doubt about whether the applicant had sent the nude photo and hence the element of grooming in s 66EB(3) had been established and even if this was incorrect, the applicant had established the defence in s 66EM(7) that he reasonably believed the complainant was not a child: (T 3/11/17, p 14). 1. On the basis of the above findings, the District Court upheld the applicant's appeal in regard to his conviction of the s 66EB(2) offence (i.e. the conviction of this offence was quashed). However, the District Court dismissed the applicant's appeal in regard to his conviction of the aggravated indecent assault charge. In dismissing this aspect of his appeal against conviction, the District Court noted that the defence of honest and reasonable mistake of fact (i.e. the age of the complainant) was not available with respect to an offence of aggravated indecent assault under s 61M(2). 2. In regard to his appeal against sentence, the applicant did not challenge the good behaviour bond of two years. What he sought was that the matter (i.e. the sentence for the aggravated indecent assault offence) be dealt with under s 10(1)(b) of the Crimes (Sentencing Procedure) Act. In making the order sought, The District Court said (T 09/11/17, p 2 and 3): 1. 'the objective seriousness of the offence falls well below the middle range', because: 1. it involved the applicant touching the complainant on the outside of her clothes for a matter of seconds, he did not attempt to touch her again, on the evidence the act did not cause the complainant psychological harm and the applicant believed that the complainant was 17 years of age; 2. at the time of the commission of the offence, the applicant was a person of prior good character; and 3. the fact that the applicant, who at the age of 22 years had a 'cognitive functioning of a person at about the age of 15 to 16 years.' Consideration 1. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a disqualified person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work. Consideration of the s 30(1) factors (a) Seriousness of the offences that caused a refusal of the applicant's application for a clearance 1. At the hearing of this application, the applicant reiterated his denial of having touched the complainant on her breast. 2. In our view, the applicant's denial is insufficient to go behind the well reasoned decision of the District Court, who dismissed his appeal against the conviction of the offence of aggravated indecent assault. 3. We also accept the findings of the District Court in regard to the seriousness of the applicant's offending (i.e. well below the middle range of seriousness for such offences). In this regard we note the findings of the District Court that the applicant had at all times believed the complainant was 17 years of age. Under the WWC Act, the complainant would still have been a child. 4. We also note that the applicant remains subject to a good behaviour bond and a Personal Apprehended Violence Order until the end of May 2020 in regard to this offence. (b) The period of time since those offences or matters occurred and the conduct of the person since that time 1. It is two years since the January 2017 incident. 2. In June 2018, the applicant was charged with two offences under the Drug Misuse and Trafficking Act 1985 (NSW) and an offence under the Weapons Prohibition Act 1998 (NSW). As a result of a lawful intercept of the applicant's mobile phone, police overheard a number of conversations between the applicant and his brother. During the intercepted calls and text messages, the applicant and his brother were discussing the cost of 'hay bales' (i.e. code for cannabis), the applicant agreed to supply four and to meet his brother and the prospective buyer at the front of the applicant's home. 3. About a week later, police executed a search warrant on the applicant's home where he lives with his mother and two siblings. During the search of the applicant's bedroom, police found two taser devices (electronic stun devices), 164 grams of cannabis and five cannabis seeds. The applicant agreed to be interviewed by police. He said that the cannabis did not belong to him, or that he had supplied cannabis to his brother and the buyer. He said he did not use cannabis, but conceded that it had been found in his bedroom. 4. In September 2018, the applicant was charged with a further drug offence. 5. We understand the applicant pleaded guilty to these offences and was convicted, in the Local Court, of each offence on 25 October 2018. The applicant was sentenced to two community correction orders and two conditional release orders under s 8 and 9 of the Crimes (Sentencing Procedure) Act. Each order was subject to the supervision of Community Corrections Service. The community correction order was for a period of 2 years commencing on 25 October 2018 and ending 24 October 2010. The conditional release orders were for a period of 12 months, commencing on 25 October 2018. 6. At the hearing of this application, the applicant said he had appealed his sentence. He also said he had pleaded guilty on the advice of his legal representative and because they were in his room, but insisted that the drugs and the tasers were not his. 7. We note that on 27 November 2018, the District Court dismissed the applicant's appeal against sentence and that the conditional release order imposed on the applicant in regard to the aggravated indecent assault offence was varied to commence on 27 November 2018 as a result of his subsequent offending. Hence his good behaviour bond does not end until 26 November 2020. (c) The age of the applicant at the time the offences or matters occurred 1. The applicant was 22 years of age at the time of the 2017 incident. (d) The age of the victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim 1. The complainant was 13 years of age at the time of the incident and as we have noted above, other than her age, the District Court found that she had not suffered any psychological harm as a result of the applicant's conduct. (e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person 1. There was a nine-year difference in the age of the applicant and the complainant. The applicant had been in contact with the complainant through social media, but had not met her face to face prior to the day in question. (f) Whether the person knew, or could reasonably have known, that the victim was a child 1. As we have noted above, the District Court found that the applicant reasonably believed that the complainant was 17 years of age. On this basis, she was not a child for the purpose of s 66EB(2) of the Crimes Act. However, she was a child for the purpose of the WWC Act. (g) The person's present age 1. The applicant is now 24 years of age. (h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred 1. In our view, while the applicant has offended a number of times in recent years, his overall criminal record is not very serious. 2. In December 2016, prior to the January 2017 incident, the applicant was charged with an offence of having goods (i.e. a generator) in his custody that were suspected of having been stolen contrary to s 527 of the Crimes Act. The applicant was convicted of this offence in July 2017 and the Local Court disposed of the proceedings without imposing and a penalty under s 10A of the Crimes (Sentencing Procedure) Act. In his evidence before the Tribunal, the applicant said the generators were in the house when he moved in. 3. As we have noted, the applicant has been convicted of a number of offences since then. 4. In his evidence before the Tribunal, the applicant said he has tried very hard to keep out of trouble. He said he feels he is being picked on because of his brother's offending. (i) The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition 1. We accept the findings of the District Court that the applicant's conduct in January 2017 did not amount to 'grooming'. In our view, his offending appears to have been opportunistic based on his belief the complainant was 17 years of age. That is, there is no evidence that the applicant has any interest in children under this age group, or children generally. 2. Accordingly, on the material before us, the likelihood of the applicant reoffending in a similar way is low to moderate. We make this finding as the aggravated indecent offence occurred only two years ago, the applicant's recent reoffending and the fact that he remains subject to a good behaviour bond. However, in the event there is no further offending in the future, the likelihood of him reoffending, as he did in January 2017, would be very low. 3. In this regard we accept that the applicant tries hard to stay out of trouble. However, to do so he must also stay away from trouble. (j) Any information given by the applicant in, or in relation to, the application 1. In his responses to questions asked of him by the respondent, the applicant said: 1. his current and previous jobs do not involve children and he has never had any complaints made against him – he always does as he is told; 2. he is a boxer and as he has fitness induced asthma it makes it hard for him to fight so he wants to be a trainer. He said lots of kids look up to him and he wants to help out; 3. he was a volunteer worker with the local SES and he has played sport his whole life and he helps his sister with her gymnastics and he wants to help kids get off the streets and accomplish their goals; and 4. he has learning difficulties and a tough upbringing. His dream is to help kids and become a boxing trainer. (k) any other matters that the Children's Guardian considers necessary 1. The respondent noted that the applicant's half sisters had told Family and Community Services that they find the applicant to be a support in their chaotic home life. It was also noted that the Local Court Magistrate who presided over the applicant's trial on the aggravated indecent assault charge had acknowledged the significant disadvantage the applicant had experienced in his upbringing which could have impacted on his approach to making decisions in the normal way. 2. However, the respondent submitted that in the absence of the applicant having provided any mitigating evidence in regard to his offending the applicant had failed to discharge his onus that he is presumed to pose a risk to children. Has the applicant discharged his onus by rebutting the presumption that he poses a risk to the safety of children? 1. In our view, for the reasons set out above, the applicant has failed to discharge his onus. We accept the applicant's evidence was given candidly and that he has a genuine interest in helping children from similar backgrounds to what he has experienced. However, his evidence must be weighed against the circumstances surrounding his disqualifying offence that involved a girl who was 13 years of age. We accept the applicant had at all times believed the complainant was 17 years of age, but he seems to have little understanding that she would nevertheless have been a child under the WWC Act. 2. Although the applicant's disqualifying offence is well below the middle range of seriousness for such offences, it occurred only two years ago and he re-offended shortly thereafter while subject to a good behaviour bond. Although the re-offending was not child related, the fact that he did commit these offences so soon after the disqualifying offence makes it difficult to express a view as to whether he is unlikely to re-offend again, especially as he remains subject to a supervised good behaviour bond. The applicant has also provided no evidence of his support networks. Each of these factors, is of concern and on this basis we cannot be satisfied that he has discharged his onus in rebutting the presumption that he poses a risk to the safety of children. 3. At the same time, we note the applicant is still young. If he remains diligent in his endeavours to keep out of trouble while subject to his good behaviour bond, remains employed and develops his networks of support, in future, he will be in a much better position to rebut the presumption that he poses a risk to the safety of children. Are we satisfied a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the affected person is engaged in any child - related work? 1. On the basis of our findings above, it is unnecessary for us to consider this ground. However, in the event we are wrong in our finding that the applicant has failed to discharge his onus to rebut the presumption that he poses a risk to children, we would find that by reason of the applicant being subject to a supervised good behaviour bond in regard to the disqualifying offence, a reasonable person would not allow his or her child have direct contact with the applicant that was not supervised by another person. Is it in the public interest to make an order? 1. On the basis of our findings above, it is unnecessary for us to consider this ground. Conclusions 1. For the reasons set out above, we are not satisfied that the applicant has discharged his onus to rebut the presumption that he poses a risk to the safety of children. Hence the appropriate order is to dismiss his application. 2. Hence, we order: 1. Application dismissed. ********** 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: 17 May 2019