BGI v Office of Children's Guardian

Evidence 6The respondent and the applicant have both placed material before the Tribunal. 7Attached to his application for review, the applicant wrote a lengthy letter to the Tribunal to explain 'how I found myself in this situation.' He also attached a photo both of himself and of the victim around the time of the index offence. 8In his letter, the applicant wrote, in part: I was at a licence nite club..when my best mate turned up with his girlfriend and her sister BZD...She came onto me that nite. I had no idea how old she was and it was my first time and I found out later she had been active since the age of 12 years old which I was told some shocking situations she was involved in even when we were so called boyfriend, girlfriend, she was active behind my back. I like to point out that I did not know the law at this time and I wanted to go to England to play soccer ...but things changed after that night at Eastwood. The day we went to court I remember clearly the judge asking BZD if she had sex before, she reply 'yes' he then asked how many times, she reply 'I can't remember'. Her parents didn't want me charged, it was the system. I was charged in 1972. In 1975 I took up nursing...During that 4 years of nursing I was involved with looking after kids and adult wards and during my time in maternity I was involved with looking after our first lady having triplets for the hospital and having one of the triplets named after me...Since my nursing training I have held a security licence....Also held a taxi licence and for 10 years I had a pizza shop.. employing 15 young kids...Also I ran Little A's and coached a girls under 10 netball team. So for 38 years of working with children my record did not affect me. In fact I did not know it was still around and if I did back then I would have applied to clear my name then... And now some 42 years after the charge - I cannot get work...I have 2 daughters aged 16, 18 years. They know I am a mess but don't know why. 9Also attached to his application for review are the applicant's curriculum vitae and a series of work references attesting to his professionalism as a worker. Two personal referees declare their awareness of the applicant's conviction and note that, to their knowledge, the applicant has never had any problems with children. In her reference, the applicant's ex-wife writes that she 'couldn't have asked for a better father for my daughters; he compassionate, patient and a great role model. He has always been there for them and has always put them first in his life.' 10A psychiatric report for the applicant by Dr Stephen Allnutt dated 6 August 2014 was provided to the Tribunal in support of the application. In his report, Dr Allnutt provided the opinion that the applicant: does not manifest active symptoms of a mood, psychotic or anxiety disorder. There is no evidence of cognitive impairment or a substance abuse or dependence disorder. He does not suffer a personality disorder. On both clinical and actuarial assessment, [the applicant] presents as an individual who falls into a group of individuals at low risk of future sexual recidivism. Notable is the absence of evidence [of] sexual recidivism since the index incident despite opportunity. 11In an affidavit filed on 18 August 2014, the applicant provided further details in relation to the circumstances of the offence: I was 17 years of age when I first met BZD at a licensed club.. I was with my best mate and his girlfriend and her sister BZD also joined us. We did not meet at a 'church dance', which is what BZD told the Court in her evidence on 15 September 1972. BZD and I had sexual intercourse on that first day that we met. But she did not tell me beforehand that she was 14 years of age....I did not know how old BZD was when we first met. It was not until we had been seeing each other for a time and we became boyfriend and girlfriend that one day she told me that she was only about 14 years of age. I remember being surprised to hear that, because she looked very mature to me and we had met in a licensed club, which would normally indicate she should be over the age of 18. I honestly did not know at that time that having a sexual relationship with a girl aged 14 was a criminal offence. She was my girlfriend. We were in a relationship at the time. I honestly did not think we were doing something wrong at the time....I was young and naïve and really liked her..When I was interviewed by the police officers in August 1972, it was the first time I realised that my relationship with BZD was against the law. On the day in Court, I pleaded guilty straight away for the offence of carnal knowledge; and several months later I was given a Good Behaviour Bond for 12 months. Since that conviction, I have not committed any criminal offence against children; as a matter of fact I have no criminal conviction other than the one in 1972. As a grown man, and one who has children of my own, I obviously know what is wrong and what is right now and have done so since my experience with BZD, the police and the Court back in 1972. I am repulsed by people who commit any kind of offences against children of any age; whether a child or a teenager under 18 years of age. With regard to my criminal record, I have not committed any criminal offences at all since my offence involving BZD. I note that there was an incident [in] 1993 for which the NSW Police have stated that I was listed as a suspect for an assault at a hotel...What happened was an intoxicated patron wanted to force his way into a private function...Because of this patron's disruptive behaviour, I had to take action to prevent him from disrupting the private function. Once the police properly investigated and understood what had happened, they did not charge me with anything. Some time in 2011, I received a notice that I was prohibited to work with children due to my conviction recorded in 1972. I have never received anything like this since my offence in 1972... Before that time in 2011, I had not been prevented form working in jobs that involved working with or around children as a result of my conviction in 1972. I had been employed by various employers over the previous 38 years without any complaint or incident, including working as a trainee registered nurse, where I had worked with children under the age of 16 for many years without a single incident or problem. I have not been able to work since 2012. I have applied for several jobs but all unsuccessful due to my conviction record in 1972. For example, a school was willing to employ me as a cleaner, but working with children check precluded me from doing so. On another occasion, I was accepted to work as a Santa Claus at a shopping centre, and the employer even invited me to go overseas... to do the same, but again working with children check stopped me from doing this job. Further, as a very good bus driver, currently I cannot drive a bus to pick up children. If permitted to work again, I would like to work with children who have disabilities, using my previous various experiences including my nursing skills to help them. I can also be a school bus driver, or an assistant supporting the sports activities. But I really need to work. It has been financially difficult to survive since losing my ability to work. 12Included in the bundle of documents filed for the respondent in this matter are the results of a search made of records held by Family and Community Services in relation to the applicant's two children. No records were found for either child. 13A check for the applicant's criminal history made on 3 March 2014 discloses only his 1972 conviction for the carnal knowledge of a girl under the age of 16 years. NSW Police advise that as at 9 January 2012 there had been no Restraining Orders or Apprehended Violence Orders for the applicant. The only entry for the applicant in the COPS database lists him as a suspect for an assault of a fellow patron at a hotel in1993 but notes that no charges were laid in respect of the matter. 14Contained on file is a copy of the record of interview which took place on 11 August 1972 between the applicant and the investigating officer in relation to the 1972 offence. In this interview, the applicant admits to having sexual relations with BZD. In answer to the question, 'did you know she was only 14 years of age before you had relations with her, the applicant replied 'yes.' 15In her statement, BZD stated that she was born on 31 January 1958, that she had met the applicant at a church dance on 18 March 1972 and that they had sexual relations the following week. Her mother provided a statement declaring that BZD was her youngest child and that she had been born on 31 January 1958. 16On 3 November 1972, the applicant pleaded guilty to a charge of unlawfully and carnally know a girl under the age of 16 years and was bound over to be of good behaviour for a period of twelve months. 17On 12 December 2011, the applicant completed an application for a review of prohibited employment status under s33H of the Commission for Children and Young People Act 1998. Following the refusal of this application on the basis that he was precluded from making such an application under s33G of that Act, which is now repealed, the applicant wrote to the Commissioner for Children and Young People to explain his circumstances. In part he wrote: My best mate set me up with [ ] who he was going out with her sister. She was my first sexual experience and as we became girlfriend and boyfriend I found out a lot more and its because of [what] I was told is the main reason I feel hard done by... the stories go on and on and that's why I feel hard done by that after 37 years I cannot clear my name, therefore if there is anything or anyone I can see or do please let [me] know. 18In oral evidence before the Tribunal, the applicant spoke of the positions he had held requiring him to care for and supervise children. These included working as a general nurse on maternity and children's wards and as a psychiatric nurse with responsibilities for child and adolescent patients. As the owner of a pizza shop, he employed a number of staff members under the age of 16 years. He has also held voluntary positions as a girl's netball coach. 19As a disqualified person, he has been unable to take up a position as a bus driver. He had similarly been unable to accept a position as Santa Claus which would have involved work both in Australia and Saudi Arabia. 20The applicant described the victim as his first girlfriend and gave evidence that he had enjoyed a good relationship with her parents. At the time of his arrest, he had been planning to travel to the United Kingdom to play representative soccer. His conviction and a subsequent sporting injury prevented this from happening. In cross-examination, the applicant told the Tribunal that he hadn't been aware of the illegality of his conduct and that if he had been, he didn't think he would have embarked upon a sexual relationship with the victim. He tendered a photo of the victim of the time of the offence as evidence of her physical maturity. Contradicting what was said by the victim in evidence, the applicant told the Tribunal that he had met the victim at a nightclub and not at a church dance. Because they had met at a nightclub, he had assumed the victim to have been older than fourteen. In later evidence, he conceded that he had continued having a sexual relationship with her once he discovered that she was, in fact, only fourteen years old. 21He told the Tribunal that the victim was already sexually experienced when he met her. Upon the refusal of his application to review of prohibited employment status, he admitted writing a letter to the Commissioner for Children and Young Person in which he described the victim's sexual history. In cross-examination he explained that he had written the letter because he felt 'hard done by' in light of the fact that he was still being penalised for an offence that had occurred thirty-eight years earlier. 22The forensic psychiatrist, Dr Stephen Allnutt, prepared a report in relation to the applicant. In his report dated 6 August 2014, he gave the opinion that the applicant does not manifest active symptoms of a mood, psychotic or anxiety disorder. There is no evidence of cognitive impairment or a substance abuse or dependence disorder. He does not suffer a personality disorder. 23In relation to the applicant's risk of recidivism, Dr Allnutt provided the following opinion: Factors associated with increased risk of sexual recidivism that are currently present would include problems with self-awareness - he has not considered the original offending in great detail however this is understandable given the duration of time and his age at the time of the offending and does not cause me significant concern. Factors that are associated with increased risk of sexual recidivism that are absent would include: evidence of psychological coercion in regard to the original offending; other history of sexual offending; evidence of minimisation or denial of his offending, attitudes that support or condone sexual offending, significant difficulties in his capacity to cope with stress that would increase his risk of sexual offending, a history of being victim or child abuse, a diagnosis of sexual deviance or paraphilia, a diagnosis of an antisocial personality disorder, a diagnosis of a mental illness, any substance abuse problems, a history of violent or suicidal ideation, significant difficulties with capacity for intimate relationships, significant difficulties with capacity for non-intimate relationships, difficulties with capacity for treatment planning or supervision. According to the Static-99 [applicable to individuals who are convicted of child related sex offences] he scored 0 - had he been a subject on whom the Static-99 was based, he would fall into a group of individuals at low risk of future sexual recidivism. On both clinical and actuarial assessment, [the applicant] presents as an individual who falls into a group of individuals at low risk of future sexual recidivism. Notable is the absence of evidence [of] sexual recidivism since the index incident despite opportunity. Having regards to [the applicant's] age and his financial circumstances, not being able to be employed would in my view have a significant and negative impact on his mental state and his psychosocial circumstances. 24In oral evidence before the Tribunal, Dr Allnutt was asked to consider the applicant's affidavit which was affirmed on 14 August 2014. Having considered the affidavit, Dr Allnutt told the Tribunal that it did not change the opinions set out in his earlier report. When asked about the significance of the applicant's contradiction of part of the victim's statement, namely, that they had met at a nightclub rather than a church dance, Dr Allnutt stated that, given that the applicant still accepted that the offence had occurred, it was not relevant to the case and so would not alter his opinion in relation to the applicant's risk of recidivism. When asked about the significance of the applicant's statements about the victim's sexual history and her lack of supervision by her parents, Dr Allnutt stated that whilst this could be seen as the applicant blaming the victim for the offence and minimising his own offending behaviour, it could also be interpreted as simply contextualising the offence. On either view, it would not change either his opinion about the applicant's risk of recidivism or the applicant's Static-99 score. He also noted that the risk of recidivism declines over the age of 60, which is the current age of the applicant. 25In submissions to the Tribunal, Mr Lee advised that the respondent would be taking a neutral position in relation to the application's request for an enabling order.