BHD v NSW Office of the Children's Guardian

RELEVANT PROVISIONS OF THE ACT 9The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearances. 10Section 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 the Act. 11For the purposes of this application, the relevant section is subsection 28 (1) of the Act, which makes provision for applications for an enabling order. Subsection 28(7) provides that where an application for an enabling order is made, "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of the children." That is, in this application, the onus is on the applicant to prove, on the balance of probabilities, that he does not pose a risk to children. 12The meaning of the word "risk" was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, 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." 13The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the (now repealed) Commission for Children and Young People Act 1998 to have the same meaning. The Tribunal is of the view that the same meaning applies to the word "risk", as it appears in the current Act. 14Subsection 30(1) of the Child Protection (Working with Children) Act, sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application: (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.

Evidence 15In support of his application, and in addition to an amended application dated 2 July 2014, the applicant tendered into evidence without objection an affidavit sworn by him on 2 July 2014, including attachments being a copy of a Degree of Bachelor of Teaching in Adult Education awarded to BHD on 5 May 1995 by the University of Technology, Sydney, a TAFE Certificate in Building Supervision completed in December 1992, a Statement of Service from TAFE, a Certificate in Mission and Ministry awarded to BHD on 6 December 1996 by the Tahlee Bible College, a Certificate of Achievement presented to BHD and a reference from Garry Trindall dated 10 June 2014. The applicant also gave sworn oral evidence by way of cross-examination by counsel for the respondent and re-examination during the course of the hearing. 16The applicant also tendered into evidence, without objection an affidavit sworn on 2 July 2014 by the wife of BHD with attachments being copies of school reports in respect of the five children of BHD and his wife. The wife of BHD was not required to give oral evidence during the hearing. 17The applicant also tendered, without objection, a copy of a report dated 6 June 2014 from Dr Christopher Lennings, OAM, a clinical psychologist. Dr Lennings gave sworn evidence by way of cross-examination and re-examination. 18The respondent tendered into evidence without objection a bundle of documents tabbed 1 through to 11 being:

• BHD's application for an enabling order dated 19//2/2014
• Letter from the respondent to BHD dated 12/5/2014
• Response from BHD dated 22/5/2014
• Letter from respondent to BHD dated 30/5/2014
• Response from BHD dated 11/6/2014
• Criminal History of BHD dated 7/5/2014
• Sex Crimes Squad letter dated 23/5/2014
• Corrective Services documents dated 12 /6/2014
• Court documents dated 15/6/92
• Family and Community Services documents dated 19/6/2014
• Letters from previous employers of BHD dated 17/6/2014 and 19/6/2014. 19By way of a letter dated 27 June 2014 the respondent sought the removal of documents included by mistake with the documents filed under the heading Family and Community Services dated 19/6/2014, and filed a replacement set of documents. 20In the following paragraphs I deal with the evidence relevant to the factors set out in subs 30(1) of the Act.

The seriousness of the offences with respect to which the person is a disqualified person. 21There are two offences that result in BHD being a disqualified person but they result from the one episode which involved BHD rubbing the breasts of the victim and then digitally penetrating her vagina. According to the accounts of the offences contained in the court documents and in the Police Record of Interview with BHD, the offences took place at the home of BHD's mother where BHD was staying. The victim of the offences was the niece of BHD and she was also staying at the home of BHD's mother, who was her grandmother. The victim of the offence was asleep on a mattress in the lounge room of the house beside her cousin. BHD lay beside the victim and put his hands on her breasts and rubbed her breasts. He then placed his hands inside her pants and then inserted his finger into her vagina and moved his finger in and out. Whilst committing these acts, BHD said to the victim that she should not tell anyone. The victim said that she was frightened by the incident and did not tell anyone about it until 1990. 22The respondent submitted that whilst not of the most serious category of offences listed in Schedule 2, the offences are tending towards those of a more serious nature involving as they did rubbing the breasts of the victim, digital penetration and exhorting the victim not to tell anyone about the incidents. The respondent also submitted that the seriousness of the offences was increased by their circumstances, including that they betrayed the trust of a child in a home situation where she had a right to believe she was safe, and the perpetrator is a family member from whom the victim might have expected protection. However the respondent noted that the offences appear to have been opportunistic and they involved no violence. 23The Tribunal accepts the submissions of the respondent regarding the subjective seriousness of the offences, but also notes that the penalties imposed by the sentencing court suggest that the Court did not consider the offences to be amongst the most serious examples of offences under the relevant sections of the Crimes Act 1900. The Tribunal is also of that opinion. 24The respondent submitted that it is proper for the Tribunal to take account of the objective and subjective seriousness of the offences.

The period of time since those offences occurred and the conduct of the person since they occurred. 25The offences occurred in 1989 being some 25 years ago. The record of interview between the police and BHD indicates that BHD admitted the offences. According to documents tendered by the respondent and obtained from Corrective Services, BHD did not deviate from that account when questioned by a Probation Officer for the preparation of a Pre-Sentence Report. 26Counsel for the respondent submitted that much of the conduct of BHD since the offence is to his credit including that he was compliant with the supervision of the Probation Service, has completed tertiary studies, married and had some periods of stability. 27Whilst a note made by his Probation Officer in March 1993 expresses concern that BHD had not expressed concerns about his niece, notes dated 25 November 1993 state that he expressed regret for his behaviour and had apologised to his niece. Notes made by his Probation Officer whilst he was under supervision also record that BHD was refraining from using alcohol which, he believed, had contributed to the offences. They also refer to him undertaking studies, and in a note dated 13 October 1993 his Probation Officer refers to him as a "real success story". The Corrective Services documents indicate that BHD was released from the requirement of supervision by the (then) NSW Probation Service, effective from 15 July 1994. 28In his affidavit BHD provided the following historical information which was unchallenged by the respondent: (1)He worked on a permanent part time basis as a Teacher of Carpentry and Joinery at TAFE from January 1993 until July 1998 when he resigned. (2)BHD married in January 1995 and he and his wife had five children between 1997 and 2007. He and his wife separated in 2008 and reconciled in 2012. (3)In 1995 BHD attended Tahlee Bible College and in 1996, having completed a year of study, he was awarded a Certificate in Mission and Ministry. (4)In 1995 he also graduated from the University of Technology with a degree of Bachelor of Teaching in Adult Vocational Education. (5)In 1996 BHD operated a construction business in north-western New South Wales and was awarded a Certificate of Achievement in respect of the completion of seven houses in a joint venture between North Star Construction Aboriginal Corporation and Masterton Homes. 29Under cross-examination BHD said that around the time of the offences he had been drinking alcohol excessively and was using cannabis, though he could not recall if he was intoxicated at the time of the offences. He said that he no longer uses cannabis and whilst he has alcohol occasionally he no longer uses it to excess. 30BHD said that in 2008 his business failed and that part of the reason was that he had developed a gambling habit. He said that his marriage broke down as a result of the gambling and because he was spending long periods of time away from his family. Under cross-examination he said that he was referred by a doctor to a psychologist and that as part of an indigenous program he was able to access 12 sessions with the psychologist. He said that those sessions have provided him with resources to deal with stress. 31Under cross-examination Dr Lennings said that in his opinion BHD's unresolved grief about his father's death is likely to have contributed to an unsettled period of his life, including anxiety, nihilism and depressed affect as well as some resentment and anger, and as result he may have "let go" of himself. However he said that in his opinion BHD has worked through those issues and has more control of his anxiety and has greater social supports than was the case at the time of the offences. He said that in his opinion, whilst BHD might still benefit from treatment in respect any continuing posttraumatic stress type symptoms, this was not likely to affect his risk of reoffending. He also noted that whilst BHD is currently experiencing stress as a result of unemployment, his behaviour has not deteriorated.

The age of the person and the age of the victim when the offence occurred and any matters related to the vulnerability of the victim. 32BHD was 27 at the time of the offence and the victim was 13 years old. 33The victim was at the home of her grandmother who was the mother of BHD. At the time of the offences all other adults had left the room and had gone to bed. Whilst the victim's cousin was asleep on the mattress the statement of the victim indicates that he did not wake. The victim was therefore in a vulnerable situation.

Whether the person knew, or could have known, that the victim was a child 34In the Police Record of Interview on 4 June 1992, more than two years after the offences, BHD states that the victim was then aged "16 or 17 or something". In cross-examination he said that at the time of the offence he knew her to be under 18 years of age.

The person's present age 35BHD is now 52 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred. 36The Criminal History of BHD tendered by the respondent indicates that there are no matters recorded in respect of BHD other than the matters that have resulted in his disqualification from holding a Working With Children Check Clearance. 37The applicant submitted that the lack of any further criminal offending is particularly significant taking into account the generally high rate of reoffending of Aboriginal males in western NSW. 38Included in the material tendered by the respondent is a report from Peter Briggs, a Clinical Psychologist, dated 25 November 1992 that was addressed to the Community Corrections Officer who prepared the Pre Sentence Report at the time of sentencing for the offences. The applicant noted that BHD admitted to the offence, and drew the attention of the Tribunal to the opinion of Mr Briggs, that had BHD not pleaded guilty to the offence, there was little likelihood of a conviction. 39In that report, Mr Briggs also assess BHD as having a low risk of reoffending and refers to three positive prognostic signs being the lack of other sexual offences, BHD's admission of the offences, and his acceptance of responsibility for the offences. He also expresses the opinion that BHD had been able to "lift himself out" of the circumstances that had resulted in him relying on alcohol and his deterioration in his functioning. 40During the hearing the respondent questioned Dr Lennings about a statement in his report that BHD confessed to the offences at the first opportunity and noted that in fact the police record of interview post-dated the offence by more than two years. Dr Lennings was not able to discuss the significance of this fact as he said that he had not realised that the time had elapsed as described. 41As noted at paragraph 28, above, since the offences BHD has undertaken tertiary studies, established a business, married and had children. His business and marriage failed and he took steps to deal with the issues around those matters and has since re-established his marriage. The applicant also drew attention to the comment by Mr Briggs 42In her affidavit BHD's wife states that since their reconciliation BHD is more involved with the family and household activities than he was previously. 43BHD states that he has apologised to the victim of the offence and her mother. The respondent did not challenge this statement.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. 44In his report dated 25 November 1992, Mr Briggs describes BHD as a "situational offender" being one where the offence was situation or person-specific rather than representing a generalised sexual interest in children. He states further that such offenders often have interpersonal inadequacies and have a better prognosis than offenders who are paedophiles. The applicant drew the attention of the Tribunal to Mr Briggs' opinion and the respondent did not challenge the opinion. 45In his report dated 6 June 2014 Dr Lennings states that he assessed BHD using the Static 99 assessment which he describes as the "gold standard" instrument for assessing risk. On that assessment BHD's score is 1, which places him in the low risk category in which of every 100 people with that risk rating, three might be expected to reoffend. Dr Lennings also states that risk tends to reduce with age and that BHD is unlikely to re-offend especially given the long opportunity for him to do so since the offences. 46The score obtained on the Static 99 was further explored in cross-examination and in re-examination. Dr Lennings' evidence was to the effect that BHD's score of 1 was a result of scoring the victim as a "non family" member. Had he scored the victim as a family member because she was the niece of BHD, then BHD would have would have scored 0 on the Static 99. 47Dr Lennings also conducted a dynamic risk assessment using the Risk of Sexual Violence Protocol (RSVP). He states that using that assessment there are few risk factors for BHD. The primary risk factor is unemployment which is likely to be ameliorated if he is permitted to work with children. 48In his report Dr Lennings refers to two traumatic episodes in the life of BHD being that he was sexually assaulted at the age of five and that when he was eleven years age he witnessed the shooting of his father who, as a result became paraplegic, and who died some three and a half years before the offences. Under cross examination Dr Lennings said that he believes that the death of BHD's father might have resulted in BHD having post traumatic stress-like symptoms 49Dr Lennings states that BHD scores highly on a psychometric test scale measuring posttraumatic anxiety and that BHD's "episodic forays into alcohol abuse and then gambling probably reflect maladaptive approaches to managing this anxiety" (paragraph 21). 50In submissions the Children's Guardian noted that notwithstanding much that he has done to his credit since the time of the offences, BHD may not have dealt with some unresolved grief issues, and has had some periods of instability resulting from stressors including work and marital separation. However counsel for the respondent also noted that BHD took steps to address the matters that were causing him stress, including obtaining work in Western Australia, undergoing counselling and effecting a marital reconciliation with the result that he has now been back in a family relationship for some two years. Counsel also acknowledged the opinion of Dr Lennings in relation to these matters, as set out above at paragraph 31. 51The applicant submitted that whilst BHD had resorted to gambling during a period of stress he sought counselling to deal with the issues and Dr Lennings is of the opinion that those matters do not increase BHD's risk of reoffending. 52The respondent questioned Dr Lennings about the significance of BHD's shame about the offences including his decision to not tell others about the offence and seeking to prevent others from discovering the offences. Dr Lennings expressed the opinion that shame can be a motivating factor if it arises from a desire of the perpetrator to be readmitted into a social circle. However he said that if it results in the perpetrator developing depression it can be a negative factor. He said that in his opinion, the shame experienced by BHD is of the former type, that is, he is truly remorseful and is seeking to reintegrate into the community and therefore his shame provides a powerful disincentive against further offences. 53The respondent also questioned Mr Lennings about the significance of the possible role of alcohol in the offences, though BHD had been unable to say with any certainty whether he was intoxicated at the time of the offences. Dr Lennings said that the possible role of alcohol was problematic in that if BHD had been intoxicated at the time the alcohol might have had a disinhibiting effect, and if he was not intoxicated the offences might be seen as more "bloody minded" and would be more difficult to explain. 54The respondent questioned Dr Lennings about the possible effects of BHD's current level of alcohol consumption and he expressed the opinion that this was not likely to have a disinhibiting effect in respect of future possible offending. 55 In his report, in answer to specific questions raised, Dr Lennings states that he has not identified any specific risk to children posed by BHD. Dr Lennings states that whilst the original offence involved a young person he understands that she was post pubescent and states for that reason if BHD were a risk to any class of children it would be for post pubescent young people. He states that in his opinion there is no need for any additional treatment for BHD. 56In her final submissions, counsel for the respondent submitted that the breach of trust that was part of the original offences was likely to increase the trauma experienced by any victim. The Tribunal accepts this submission and is also of the view that the family context of offences of this nature creates added difficulties for a victim seeking to disclose the offences and seek appropriate counselling. However the Tribunal notes that as explained by Dr Lennings and outlined above, where a victim is classified as a family member, the risk level is less than where the victim is a stranger.

Any information given by the applicant in, or in relation to, the application 57According to his affidavit, BHD is one of 17 children who grew up on a rural property in north-western New South Wales. He is of Aboriginal heritage . At the age of thirteen he became a Christian and met his wife through the church. They continue to be involved in the church. 58BHD said that he and his family now live in a very small village and that if townspeople were aware of the previous offences he might need to leave town. He said that his children are not aware of the offences and that as far as he is concerned the "buck stops" with him in relation to the offences. The Tribunal accepts that BHD has made a decision to not inform his children about the offences and, taking into account the views of Dr Lennings as outlined above in paragraph 52, the Tribunal is of the view that his failure to disclose details of the offences to his children does not reflect on the likelihood of further transgressions, and is likely to protect against such an outcome. 59In his affidavit BHD states that he stopped working at TAFE in 1994 because he was concerned that his offences would be discovered. He conducted his own building business until the business failed and from 2008 to 2012 he had irregular work and was unemployed for significant periods. In 2012 he relocated when he reunited with his wife and since then he has found it difficult to obtain work. He states that in 2012 he gained employment with a training organisation but was sacked when he was not cleared for working with children. He has been reluctant to apply for jobs because he is concerned that a criminal records check will reveal his past offences. The Tribunal accepts BHD's reasoning in this matter and taking into account his family and community circumstances as set out in the preceding paragraph, and the view of Dr Lennings as cited in paragraph 52, above, the Tribunal is not of the view that BHD's unwillingness to have his past offences revealed is indicative of any increased risk of further offending of this nature, and could be protective in that respect. 60BHD states that he enjoys teaching and wants to return to that role, and that his current unemployment results in a financial struggle whilst his inability to provide for his family gets him down. 61The applicant submitted that the achievements outlined in his submission are highly significant, particularly given his background as an Aboriginal man from a family of 17 children whose childhood was spent in a rural environment in country NSW. 62Whilst the respondent opposed the application, counsel for the respondent submitted that BHD was a co-operative witness who answered questions openly and was candid about his involvement in the offences. Counsel observed that BHD had some difficulties recalling specific details of the offences but acknowledged that they were a long time ago.

Any other matters that the Children's Guardian considers necessary 63The respondent noted that whilst BHD's wish to return to teaching represents a cogent reason for his application, an enabling order would provide a general clearance for working with children. However the respondent did not raise any particular concerns regarding that matter. 64The Children's Guardian opposed the application and cited s. 28(7) of the Act to the effect that the applicant is required to overcome the burden by which is it presumed that the applicant poses a risk to the safety of children unless the applicant proves to the contrary. However the respondent did not raise any matters additional to those raised in respect of the matters set out above in relation the factors to be considered under s.30(1) of the Child Protection (Working with Children) Act 2013. 65Whilst opposing the application, the respondent specifically acknowledged that: (1)Much of BHD's conduct since the offence has been to his credit. (2)BHD has been assessed as representing a low risk of reoffending. (3)BHD gave candid evidence about the offences and as a witness, answered questions openly. (4)The circumstances in which BHD is now living are very different from those that applied at the time of the offences. 66 In respect of the issue of possible repetition of the offences or behaviours, the respondent noted that in the opinion of Dr Lennings, BHD represents a low risk and added that the applicant now lives a pro-social lifestyle, with a stable home life and, according to his wife, is more involved than ever in family life.

Conclusions 67The index offences involved a thirteen year old child. However they appear to have been opportunistic and did not involve force. 68The offences occurred some 25 years ago and in the intervening years the applicant has not been convicted of any further offences. 69The applicant's circumstances and lifestyle at the time of the offences were very different from his current circumstances and lifestyle. He has overcome a number of adversities and has developed coping mechanisms that he seems not to have had at the time of the offences. 70The applicant has qualifications for teaching but is not able to obtain that work because he is disqualified from working with children. His unemployment adversely affects him and his family and is the primary factor that was identified in the RSVP as contributing to any risk of reoffending. 71An assessment conducted at the time of sentence assessed BHD to be a low risk of reoffending and he has not since reoffended in any way. 72Dr Lennings assesses the applicant's risk of reoffending to be low and because of his age, to be even less than others in the same risk category. He also states that his assessment identifies no specific risk to children posed by BHD. 73In addition to the low risk of reoffending as predicted using the Static 99 and RSVP instruments, BHD Is motivated to obtain and retain employment and to meet his family responsibilities and to be accepted into his social circle. Dr Lennings states that the desire to be accepted into the social circle is protective against further offending. 74Having regard to all the matters set out in section 30(1) of the Child Protection (Working with Children) Act 2012, the Tribunal is satisfied that the applicant has discharged his onus, as required under subsection 28(7) of the Act, and has displaced the presumption that he poses a risk to the safety of children.

ORDERS 75The orders of the Tribunal are: (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 assault and commit an act of indecency upon a person under the age of 16 years and sexual intercourse without consent with a person under the age of 16 years of which he was convicted at Moree District Court on 14 December 1992 (2)Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the Applicant 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 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: 07 October 2014