BHK v NSW Children's Guardian

The evidence

1. The applicant tendered into evidence an index to which he attached a number of documents, including a copy of the decision of the Queensland Court of Criminal Appeal in regard to his appeal against the conviction of his disqualifying offence. The applicant also tendered into evidence four references he obtained in support of this application; three of these were references from his employers. The remaining reference was from a work colleague with whom the applicant had worked at the State Transit Authority. The applicant also tendered into evidence a number of references, commendations and letters of thanks he had received in the years he has worked as a bus driver and also in his capacity as providing voluntary assistance.
2. The respondent tendered into evidence a large bundle of documents and three small bundles of documents. The large bundle of documents and two of the smaller bundles of documents contained copies of documents the respondent received in the course of enquiries that were made by her office. This included the applicant's criminal record. The larger of the small bundles of documents contained a psychological risk assessment report of Dr Emma Collins, dated 3 November 2014. This bundle of documents also contained a copy of the transcript of the hearing of the applicant's stay application, on 29 May 2014, and some email correspondence from the applicant to the respondent, the Tribunal and various other recipients.
3. At the hearing the applicant gave oral evidence and was cross-examined by the respondent.
4. Dr Collins also gave oral evidence and was cross-examined by the applicant. Dr Collins had assessed the applicant on 24 October 2014. Dr Collins conducted the assessment on the instructions of the respondent and with the consent and co-operation of the applicant.
5. Both parties provided written submissions. As I have already noted, the applicant filed and served his written submissions on 19 December 2014.

The Act

1. The objects of the Act are to (a) not permit certain persons to engage in child-related work and (b) to require persons engaged in child related work to have a working with children check clearance: see section 3 of the Act.
2. Section 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.
3. The word 'children' is defined in subs 5(1) to mean persons under the age of 18 years. Consequently, the word 'child' has the same meaning.
4. Child-related work is defined in section 6 of the Act. As I have noted, it includes work as a bus driver.
5. Section 13 of the Act makes provision for making applications for a working with children check clearance and section 18 sets out how an application is to be determined by the respondent. As I have noted, where the applicant for a clearance has been convicted of an offence listed in Schedule 2 of the Act (a disqualified person), the respondent must refuse that application.
6. In addition to providing a disqualified person a right to seek an enabling order, section 28 also relevantly provides: 28 Orders relating to disqualified and ineligible persons (1) … … (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. (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) …
7. Section 30 of the Act sets out how an application under section 28 is to be determined by the Tribunal. It is in the following terms: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (2) …

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 additional punishment on a disqualified person but to eliminate possible risks to the safety of children by persons working in child-related work.
2. The 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 [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: "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.""
3. These remarks have been accepted to equally apply to the word risk in the Act.
4. As I have noted, the main issue is whether the applicant has discharged his onus to rebut the presumption that he poses a risk to the safety of children. Set out below is the evidence and my findings in regard to the factors set out in subsection 30(1) of the Act.

Seriousness of the disqualifying offence

1. The applicant was charged with the disqualifying offence in December 1989. He was charged following a complaint made by an 8 year old girl who was living with her mother in the home of the applicant and his then wife.
2. The incident occurred one evening when the complainant and a young girl were at the applicant's home while the mother of the complainant and the applicant's wife had gone out for the evening. The applicant was babysitting the girls.
3. The police fact sheet states that the complainant had alleged that during this evening, the applicant entered the bedroom where the complainant and the young girl were and touched the complainant in the area of her 'private parts', she being in night attire. It was also alleged that the applicant told the complainant to touch him on the 'groin' and that he later touched the complainant on the vagina. It was alleged that the young girl witnessed what had occurred. The police fact sheet states the applicant refused to be interviewed by police in regard to the allegation and told police not to return to his home without a warrant. It was alleged that the applicant made threats against the complainant and her mother.
4. The applicant was charged with two offences. One charge related to the allegation that the applicant had entered the bedroom where the complainant and the young girl were and touched the complainant in the area of her private parts, she being in night attire. The other offence of which the applicant was charged allege that he induced the complainant to touch his penis. The applicant defended both charges and the jury found him not guilty of the latter charge ,but found him guilty of the former charge.
5. The applicant appealed his conviction of the former charge primarily on the basis of inconsistencies in the evidence of the complainant and the young girl.
6. On 18 October 1990, the Queensland Court of Appeal dismissed the applicant's appeal and his conviction was confirmed.
7. The applicant has at all times maintained his innocence in relation to the offence of which he was convicted and the other allegation. In his written submissions he said he considered any charge of indecent dealing with a person to be serious. However, as he did not receive a custodial sentence, he contended that the seriousness of the offence he was convicted was at the lower end of seriousness. He reiterated his denials of the allegations and that he stood by his belief and knowledge that he did not commit the offence, but was convicted on allegations without proof (i.e. 'Hear Say').
8. In his written submissions the applicant gave an account of what occurred that evening. If this is what did in fact happened, it is difficult to understand why a complaint was made and why the applicant did not give such an account when the police came to speak to him 25 years ago.
9. The respondent accepted that the offence of which the applicant was convicted fell at the less serious end of the spectrum of offences listed in Schedule 2.
10. The difficulty for the applicant is his ongoing denial of the offence, notwithstanding a finding of guilt by the jury at a defended hearing. That conviction was confirmed by the Queensland Court of Criminal Appeal, and in confirming the conviction the Court accepted there were some inconsistencies in the girls' account of events. However, the Court went on to find that having regard to all the evidence that was before the jury and the directions of the trial Judge to the jury, it was open to the jury to make the finding they made.
11. The jury clearly found the offence proven, to the requisite standard, on the basis of the evidence of the complainant and the young girl and in doing so rejected any defence the applicant may have raised. On this basis I am unable to accept the account given by the applicant as to what happened that evening.
12. Accordingly, I am satisfied that the applicant has been convicted of a disqualifying offence. While the applicant did not receive a custodial sentence, in my view his sentence was nevertheless significant. A 3 year good behaviour bond and an order that he was never to contact the complainant is not, in my view, reflective of a light sentence. The Court clearly considered otherwise. This does not mean that I find that the applicant's disqualifying offence was at the higher end of the spectrum of seriousness for offences of this kind.
13. In light of the applicant's ongoing denial, in my view, it cannot be said that he has sought or obtained insight into his offending conduct.

Period of time since the offence occurred and the applicant's conduct since that time

1. The applicant's disqualifying offence occurred about 25 years ago. Since that time the applicant has committed other offences, although there is no record of any violent or sexual offences having occurred. I have dealt with the applicant's overall criminal record in more detail below.
2. It is the applicant's evidence that following this incident his marriage broke up and he moved to Sydney some-time thereafter. He was employed as a bus driver at the time of the disqualifying offence and has remained so. The enquires of the respondent have not disclosed any record of the applicant having been the subject of a complaint or disciplined during his employment as a bus driver. His referees speak highly of him. They say he is a great employee and works very well around children. Those who have children say the applicant has regular contact with their children and they are happy for him to do so. What is not apparent from the referee reports is whether they were made aware of the applicant's 1990 conviction.
3. In his evidence the applicant also explained that he lives with his partner, whom he supports her. His inability to work as a bus driver causes him considerable grief and hardship. In his submissions he pointed out that he has been driving buses for 24 years and during this time he has had ongoing unsupervised direct contact with children.
4. In his written submissions the applicant said that he and his partner have been together for 20 years and that she is fully aware of these proceedings and his disqualifying conviction.

Age of the applicant at the time of the offence

1. The applicant was about 31 years of age when the disqualifying offence was committed. As I have noted, the offence occurred at the home of the applicant and his then wife.

Age of the victim at the time of the offence and any matters relative to the vulnerability of the victim

1. As I have noted the victim was an 8 year old girl. The victim was vulnerable by reason of her age and also by reason of having been placed in the care of the applicant while her mother was out for the evening. That is, the complainant was entrusted into the care of the applicant.
2. In his written submissions the applicant contended that the complainant 'was totally vulnerable to an unstable family/home life.' He went on to explain the many places the mother had taken the child, the inference being that it was the mother who neglected the child's interest and it was on this basis that the child was vulnerable.
3. While the applicant might be correct in his assumptions about the mother, he has again failed to recognise the vulnerability of the child when she was in his care at his home. It is the latter and not the former that is relevant to this application. Again, this is an issue going to the applicant's insight into his offending conduct.

Difference in age between the applicant and the victim

1. There was approximately 22 years difference in the age between the applicant and the victim.

Whether the applicant knew or could reasonably have known the victim was a child

1. The evidence is that the applicant knew the victim was a child.

Applicant's present age

1. The applicant is currently 56 years of age.

Seriousness of the applicant's total criminal record and conduct since the offences occurred

1. In addition to his disqualifying offence the applicant has been convicted of the following matters: 1. 25/11/1982 - Wilful exposure - fined $100.00. 2. 12/04/1985 - Stealing - to be of good behaviour for 12 months. 3. 24/04/1991 - Unlawful assault - fined $200.00. 4. 24/05/1991 - Breach probation order in regard to the disqualifying offence conviction - good behaviour bond for two years. 5. 24/12/1991 - Dangerous driving - fined $2,000.00.
2. While the applicant does not have a substantial criminal record and he has not been convicted of any further offences since 1991, of concern is his 1982 conviction for wilful exposure and his 1991 conviction of unlawful assault.
3. In regard to the 1982 offence, the police fact sheet states that the complaint, a female, alleged that while she was in the female section of the dressing shed at the public baths she heard what appeared to be very heavy footsteps walking into the shed. She became worried and quickly placed a towel around herself, dressed and then left the dressing shed. She alleged that as she ran from the dressing shed past the entrance to the male section of the dressing shed she saw the applicant standing with his fly on his trousers down and his penis in his hand moving in a circular motion. Police were called and the applicant was spoken to. He admitted he was near the dressing shed and was the person the complainant and her husband saw running down the hill, but he could not give any explanation as to why he was running down the hill. Again it was noted that the applicant refused to answer questions about the incident.
4. In his evidence the applicant said he no longer recollected what had occurred that day. He said he may have been in the male dressing room in the shed. He also said he had no reason to expose himself at that time nor does he currently have any desire to do so unless required for a medical examination.
5. The applicant's 1991 conviction for assault, related to events that occurred on 14 November 1990 when the applicant attended the Queensland Probation Service in regard to his disqualifying offence. The victim of the assault was a psychiatric assessor. The police fact sheet describes the events as follows: 'The complainant in this instance is a Psychiatric Assessor for the … . Part of his duties are to attend consultations with person's placed on probation orders. On 14 November 1990 this complainant saw the Defendant at his office to carry out a psychiatric evaluation. The Defendant who is on probation, attended with …. . Part of the probation order is that the Defendant is to attend this evaluation by himself. On this note the Defendant demanded that … be present during the evaluation. The Defendant was advised that this was impossible and the Defendant then became abusive and aggressive towards the complainant and subsequently lunged at the complainant, throwing a punch. The complainant evaded this punch and the Defendant was then restrained by …. and shortly after they left the clinic.'
6. The applicant has not disputed these events.

Likelihood of repetition of the offence and the impact on children of any such repetition

1. As I have noted the applicant's disqualifying offence occurred 25 years ago and there is no evidence of behaviour of this nature having been repeated since that time.
2. However, as pointed out by the respondent, there are other factors that need to be taken into account. These include the applicant's earlier offence of indecent exposure and his subsequent offence of assault.
3. The respondent also submits that an earlier complaint, made to police in May 1985, were also relevant to the issue of recidivism. As a result of the complaint the applicant was interviewed by police and five charges of aggravated assault on a female child under the age of 17 years and five charges of abduction of an unmarried girl under the age of 17 years were laid against the applicant. These charges were all dismissed in the Queensland Magistrate's Court on 9 September 1985. The police interviewed the applicant in regard to a number of complaints that he had kissed at least two girls (aged 10 and 11) whom he met in his employment as a bus driver. It was also alleged that the applicant had arranged to meet the girls and that he did in fact meet the girls in bushland near the school the subject of the abduction charges. The applicant admitted he had kissed the young girls on the hand and cheek and that he arranged to meet them in bushland or near a scout den close to their school. It was the applicant's contention that he kissed the girls as a gesture to show that he cared for them. He was also recorded as saying that he did not think that the children's parents would approve of his conduct.
4. In late December 1990, or early January 1991 the applicant was interviewed by a consultant psychiatrist, Mr William J Walsh. It would appear Mr Walsh had been asked to assess the applicant following his assault on the psychologist at the city clinic. In his report, dated 8 January 1991, Dr Walsh said the following: 'OPINION [BHK] is adamant that he has not indecently dealt with this young girl. He was equally adamant that he had not been involved in indecent exposure (claiming that the facts presented to the Court by the police were wrong on that occasion also). He cannot accept that he does have a disability. It is my opinion however that he does have an underlying sexual dysfunction but is unable to acknowledge this for whatever reason. It is possible that it may tie in with the relationship with his wife but I have no clear evidence of this matter. In relation to your specific questions: 1 [BHK] in theory is suitable for probation and attendance at a psychology clinic. I have no indication that he is unable to control his sexual urges and therefore section 18 of the Criminal Law Amendment Act would not apply. He would be suitable for non-custodial treatment. 2 If he is sentenced to a period of imprisonment this will represent a major punishment for this man …. 3. As [BHK] denies that he has any significant underlying sexual dysfunction (and I have no clear evidence that there is) then no treatment can be offered. It is possible (on the evidence of overseas studies) that [BHK] may become more able to acknowledge his disabilities over a further three or four counselling sessions. It is also possible however that [BHK] may remain adamant that he is innocent and further sessions of counselling may prove fruitless. It seems reasonable therefore that if he is to remain in a non-custodial situation that he be asked to attend for at least three to four sessions in the hope that the apparent sexual dysfunction may become more evident. 4. [BHK] would seem to have finally understood the seriousness of his current situation. I would respectably suggest that the Probation Service be asked to give him a further period of assessment as should the City Psychiatric Clinic but on the clear understanding that he may well have a prison sentence imposed should he again become violent. It may be appropriate that a suspended prison sentence be put in place for this man. …'
5. In her report, Dr Collins noted the applicant had denied any concerns for his mental health, historically or currently. She said that the applicant told her he had undertaken two assessments to explore his emotional functioning; the first related to his entrance into high school and the other was the 1990 assessment of Dr Walsh. In regard to the latter assessment, the applicant told Dr Collins that he never received any such treatment and that he was also unaware of the recommendation that had been made by Dr Walsh. In assessing the applicant, Dr Collins asked the applicant to complete a Personality Assessment Inventory (PAI) and she also undertook an actuarial and dynamic risk assessment. In regard to the PAI, Dr Collins said: '[His] approach to the questionnaire indicates that he attempted to present himself favourably, not endorsing many of the common shortcomings that most individuals would acknowledge. As a result, the profile should be reviewed with caution. The PAI scores suggest that [BHK] is experiencing mild stresses at present, which appears to under represent his account of heightened distress secondary to the NCAT proceedings. He described tendencies to articulate himself clearly to others and he believes himself to be confident and a reasonable level of self satisfaction was endorsed. [BHK] reported feeling that he can sufficiently control his temper and his experience of anger is normative.'
6. In regard to her risk assessment, Dr Collins explained that actuarial assessments are based on static risk variables which are unlikely to change in response to treatment or supervision. She said they included factors such as age, past offending history and factors surrounding prior offences. Dynamic risk factors she explained referred to those variables that can be monitored by treatment or supervision such as employment status, suicide or homicidal behaviour and ideation, remorse and denial. She went on to say that the dynamic risk assessment is an estimate of current live risks.
7. In regard to the static risk variables, Dr Collins applied the STATIC-99 measure to assess the applicant. She said that the applicant received a score of 5 which placed him in the moderate-high risk category. However, Dr Collins went on to say the following: '… [The applicant] has been compared to the lower risk group because, despite these high risk bandings, it has to be noted that he has not been convicted of a further sexual offence since 1990. Also, it is acknowledged that sexual recidivism can decline with age (between the age of 40 and 60). Lastly, it should be noted that the abovementioned STATICs serve only as a guide, in that the STATIC-99 has not been specifically validated with Australian samples. Nonetheless, some reliability of the STATIC-99 with an Australian population has been previously indicated.'
8. Dr Collins also used the Risk for Sexual Violence Protocol (RSVP) to assess the applicant. Dr Collins explained that the RSVP is a clinical judgment tool that assesses both static and dynamic factors.
9. Dr Collins identified the following factors as being protective with regards to the applicant's likelihood of recidivism. 'There is no evidence of substance abuse. He denies any mental health problems. Nil evidence of psychopathy. No violent or suicidal ideation. Relatively consistent employment history. The applicant has been involved in two long term intimate relationships that have apparently been stable, although one partner was reportedly unfaithful and the other had an intellectual disability. He denies any anti-social peer influences. No criminal conviction since 1991. No reported history of child abuse. Whilst it is acknowledged that the applicant reports an interest in nudism, he otherwise denies any pro offence attitudes and none were overtly evident at assessment.'
10. Dr Collins also identified some factors which could be seen to increase the applicant's risk of re-offence. These were: He has multiple sexual charges against him, representing indecent assault and exposure. If it can be assumed he was guilty (based on his convictions), the applicant shows some diversity in his earlier sexual offending. His denial of all sexual charges made against him and in fact he externalises blame onto others. The applicant did not satisfactorily complete prior probationary supervision, due to a further charge of allegedly assaulting an assessing psychiatrist. Potential problems with anger, although this is denied by the applicant. He reports using abusive letter writing as a means of managing stress, representing maladaptive coping. Potential relationship between his interest in nudism and prior exposure charge, although this is denied by the applicant.'
11. Dr Collins concluded by saying the following: 'It is understandable from speaking with [the applicant] that he is aggrieved by the loss of income and restrictions placed on him as a result of his disqualifying status. He has used accusatory letter writing as a means of articulating his point, which he believes has been profitable to him. He also lacks insight into the impact his convictions and charges have upon risk management. For these reasons, and his moderate overall risk rating, it is my opinion that he may pose some risk towards children. Nonetheless, as mentioned earlier, likely risk scenarios in this case do not necessarily translate into sexual misconduct, but possible disrespectful or aggressive behaviour. Factors that could further reduce [the applicant's] risk overtime involve a potential for increased responsibility taking and an improvement in self regulatory behaviour with regard to managing an anger and feelings of injustice.'

Any information given by the applicant

1. In his written submissions the applicant said that Dr Collins had only met him for 90 minutes on 24 October 2014. This he said was not enough to get to know any human being in comparison to those who had known him for a long time and who had provided 'excellent Personal Character and Working Character references.' In regard to the 'anger and abuse' contained in his correspondence with the respondent, the tribunal and others, the applicant again pointed to the considerable hardship he and his partner have been enduring since he was refused a working with children check clearance.
2. The applicant also contends that he has discharged his onus in that he has been working as a bus driver for 24 years. His work has been child-related. The only matters of concern is his 1990 conviction, which he reiterates is based on 'unfounded allegations.'

Any other matters the Children's Guardian considers necessary

1. I have dealt with the matters raised by the respondent above.
2. The respondent opposes the order sought and argued that the applicant had failed to discharge his onus.

Conclusions and orders

1. I accept that the decision of the respondent to refuse the applicant a working with children check clearance has caused the applicant considerable financial hardship. However, this is not a matter relevant to the tribunal's determination of his application for an enabling order. What is relevant are the subsection 30(1) factors and whether having regard to these the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children.
2. As pointed out by Dr Collins there are many factors in favour of the applicant. He is in a long-term relationship, he has been consistently employed and there are no reports of relevant misconduct in the course of his employment in many years, his employment has been child-related and he has not had any convictions since 1991. I also accept that he is highly regarded by his fellow workers and employers for the work he does.
3. In regard to the risk factors these arise from the applicant's disqualifying offence. This is an offence that involved a child he was babysitting at his home. It is not an offence at the serious end of the scale for such offences and it occurred 25 years ago. There is no record of the applicant having committed an offence of a similar nature since that time. However, there is an earlier conviction of exposure and charges of assault and abduction involving young girls and a latter conviction of assault. Again, these occurred many years ago. The applicant has at all times denied committing the disqualifying offence, yet there is no evidence to indicate he was wrongly convicted. As a consequence of his denials, the applicant has not sought or received any offence specific counselling. This has led to him having little, if any insight into his conduct the subject of this offence, his earlier exposure, assault and kidnap offences and his subsequent assault offence.
4. In my view, it is through this lack of insight where the applicant has failed to establish that he does not pose a real and appreciable risk of harm to the safety of children, notwithstanding the many factors in his favour. In this regard I agree with the conclusions of Dr Collins that the likely risk scenarios do not necessarily translate to sexual misconduct given the length of time since the offences or alleged offences occurred. However, without some evidence of insight into the impact his offending and alleged offending has upon his own risk management, a real and appreciable risk of possible disrespectful or aggressive behaviour towards children remains. That risk, I accept is moderately low, but as it remains a risk I am not satisfied that the applicant has discharged his onus.
5. At the same time, I believe the applicant, if willing, could address this issue through appropriate counselling by a suitably qualified professional. It is regrettable he had not taken such steps after his application for a working with children check clearance was refused. This does not prevent him from doing so now and obtaining a report from the counsellor about the counselling and the outcome. In this regard I note paragraph 21(1)(a) of the Act prevents the applicant from applying for another working with children check clearance for 5 years after he was refused the application that is the subject of these proceedings. However, paragraph 21(1)(a) permits an earlier application where there has been a change of circumstances.
6. In conclusion, for the reasons set out in these reasons for decision, I am not satisfied that the applicant has discharged his onus in rebutting the presumption in subsection 28(7) of the Act and I order that his application is refused and 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: 03 March 2015