(i) the likelihood of any repetition by the applicant of the disqualifying offence and the impact on children of any such repetition
61In his assessment of the applicant Mr Tyrer stated that the applicant scored a 5 on the STATIC-99 Risk Assessment Instrument. In this regard he said:
'Based upon the STATIC-99 score, this places [the applicant] in the Moderate-High risk category relative to other adult male sex offenders. Based on a review of other risk factors in this case I believe that this STATIC-99 score over represents [the applicant's] risk at this time. The other risk factors considered that support this conclusion are his age in general, chronic poor health, with a deteriorating prognosis, and the duration and positive influence of a cessation of alcohol use. There are no convictions recorded of any type since 1993. These factors might point towards a lower risk assessment.'
62Mr Tyrer went on to identify the following protective factors relevant to the applicant re-offending:
(a)No alcohol consumption in the last 14 years,
(b)No convictions of any type recorded in the period that his grandsons have been in his care,
(c)The applicant appears to have been co-operative in every instance of police investigation and no other sexual offences have been identified, and
(d)The applicant appears to have the respect and love of his grandsons, which was directly observed by him (Mr Tyrer) during his work with the family between 2000 and 2002.
63Mr Tyrer then identified the following, which in his opinion, were risk factors relevant to the applicant's reoffending:
'The most serious factor, in my view is the historical abuse against a 5 year old member of the extended family who raised [the applicant]. The other two incidents also raise varying degrees of concern, although the first appears to have been non-exploitive between two parties of relatively similar age. The second incident culminated in a Court finding not guilty.
There is a substantial period (1982-1983) in which a number of convictions, including non-sexual violence occurred. [The applicant] acknowledges that this was a period of heavy alcohol abuse and generally poor functioning. He attributes most of the legal trouble that he had during that period to the influence of alcohol.'
64 In his conclusions and recommendations Mr Tyrer said:
'....[psychometric] assessment places [the applicant] in the Moderate-High risk category for reoffending. The dilemma in making this assessment is that the facts and clinical judgment would suggest there are two distinctly different periods that must be examined in order to draw any useful conclusions. The period following the early convictions includes all of the factors that have contributed to the Moderate-High risk category. The last 14 years involved none of those factors. So are we to judge [the applicant's] risk based on his earlier history or the evidence of the last 14 years? It would be my contention that 14 years represents a period of sufficient length to make confident conclusions about future behaviour, and that the likelihood of risk of harm is relatively low, and further reduced by additional factors such as increasing age, declining health, reported minimal contact with any other children.'
65Mr Tyrer also argued that consideration should also be given to the specific risks to the applicant's youngest grandson should the applicant be refused a working with children check clearance. In my view this is not a factor relevant to this application. However, to the extent that there are no adverse reports or findings against the applicant in regard to his care for the youngest grandson, this is a factor to be taken into account when determining risk to the safety of children.
66Ms Lowson, counsel for the respondent submitted that the tribunal could not be satisfied that the applicant would not reoffend. She submitted that the opinions of Mr Tyrer should be rejected because of his prior involvement with the applicant and his family. That is, having been their treating psychologist in 2001 and 2002, he could not be seen to have brought an altogether objective mind to the matter. She also submitted that the applicant's failure to explain what occurred on 1 January 2000 and why the charge was subsequently dismissed gave rise to an ongoing concern about a risk of the applicant reoffending.
67During cross-examination, the applicant asserted a number of times that he had no recollection of events, including those that occurred in 2000. Ms Lowson submitted the applicant's asserted memory loss was disingenuous. She also submitted that the applicant's failure to explain how he in fact manages his abstinence from alcohol was of concern.
68I accept that the applicant suffers from a heart condition as this is referred to in the papers. I also accept the applicant may not fully recollect what happened many years ago, but it is difficult to accept, in the absence of any medical evidence about memory loss, that he did not recollect the events of 2000. Hence, I was left with the impression that there was some reluctance by the applicant to be fully frank. Whether this was due to a misunderstanding about the protective nature of these proceedings is not clear. At the same time he has been legally represented throughout the proceedings where I have made it clear that they were protective and not punitive.
69While Mr Tyrer had been appointed by the Department of Family and Community Services to work with the family after the January 200 incident, I do not believe this is a basis to reject his evidence. However, it is a factor to be considered when deciding what weight to be placed on the opinions he has expressed in his report about risk of harm. These opinions are in any event not conclusive.
70On the material before the tribunal, I share the concerns of the respondent in regard to the January 2000 incident. In the absence of any explanation from the applicant or his wife, who was present throughout the hearing, the material before the tribunal supports a finding that the event did in fact occur. As noted above, the contemporaneous records indicate the applicant's wife immediately presumed that the applicant had engaged in some form of sexual conduct. Its occurrence was also regarded sufficiently serious for the applicant to have been required to not reside at the home for two years and the applicant's contact with the grandchildren was restricted for some time. While the evidence of the applicant's grandson is that he now believes what happened was a mistake, this is not how it was regarded at the time.
71In a report dated 15 December 2001, Mr Tyrer recommended that the boys' best interests was for the applicant's access to be expanded from four afternoons per week to five and for weekend contact to commence to allow the applicant to be part of the boys' weekend activities. Mr Tyrer noted that the applicant's wife supported this plan and that she had reiterated her undertaking not to leave the boys unsupervised with the applicant. This recommendation was made almost 2 years after the January 2000 incident.
72As I have noted, the applicant's offending conduct in the 80s and early 90's appear to have been committed while he was intoxicated. In a pre-sentence report, prepared by the Probation and Parole Service, in regard to the applicant's 1988 PCA offence, it was noted that the applicant admitted to heavy alcohol use which had led to domestic and legal problems. The report goes on to say that the applicant said he was now satisfied that he could control his alcohol use to moderate levels without outside counselling intervention. The applicant was assessed as having presented as a good natured, compliant and quietly determined person who was trying to come to terms with his longstanding marital problems and his current medical condition. It was noted the applicant had a reasonable level of insight into his behaviour and a desire to be self-reliant in dealing with his personal problems. Regrettably, the applicant's convictions in 1989, 1990, 1992 and 1993 do not reflect this. And the inference is that the applicant continued to drink heavily thereafter. The applicant asserts he has not drunk since 1 January 2000. Other than this own assertion, the applicant has given no evidence explaining how he reduced his alcohol intake. The applicant's grandson said that to the best of his knowledge the applicant had not drunk since the January 2000 incident. This evidence was not challenged, but the basis of his knowledge is not explained. In any event, I accept that the applicant does not consume alcohol to the extent he did previously. However, as pointed out by Mr Tyrer, this remains a risk factor for the applicant - what is not known is the level of that risk.
73In the absence any further offending of the kind that occurred more than 44 years ago, in 1968 and 1970, I find that the likelihood of the applicant committing offences of this kind in the future are low. However, I am not satisfied that the applicant demonstrated any insight into his offending conduct. I am also not satisfied that the applicant has established that the likelihood of committing an act similar to that which occurred in 2000 is low. I make this finding primarily on the basis of the onus being on the applicant and his failure to provide an explanation of his insight into earlier offences and what occurred in 2000.