BLM v NSW Office of the Children's Guardian

NCAT Administrative and Equal Opportunity|2014-10-30

Introduction

The applicant, known by the initials 'BLM' for the purposes of these proceedings, filed his application for an enabling order in the Tribunal on 21 August 2014.
The application for an enabling order was heard on 30 October 2014.
An order was made at the commencement of the hearing under section 64 of the Civil and Administrative Tribunal Act 2013 restricting the publication of information that will identify the applicant, any victims, witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
The applicant seeks an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 ("the Act") which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work.
The respondent opposes the enabling order sought by the applicant BLM.
For the reasons set out below, I am satisfied the applicant has discharged the onus placed upon him, under subsection 28 (7) of the Act, in order for the Tribunal to make the order sought.

Relevant Legislative Provisions

The Act came into force on 15 June 2013. The object of the Act is to protect children by requiring those persons engaged in child-related work to obtain a working with children check clearance or an enabling order declaring that the person is not to be treated as a disqualified person for the purposes of granting such a clearance: see section 3, 28 (1) (a) of the Act.
The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making any decisions under the Act: see section 4 of the Act. Although the Act refers to "protecting children from child abuse", there is no definition of "child abuse" contained in the Act.
However, in BFX v Children's Guardian [2014] NSWCATAD 115 at [29], the Tribunal stated as follows: "The ordinary meaning of "child abuse" in section 4 of the Act taking into account its context in the Act is therefore considered to be aptly described as maltreatment of a child consisting of physical, emotional or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence: section 34, Interpretation Act 1987."
The applicant was charged with an offence pursuant to section 61L of the Crimes Act 1900, to which he pleaded guilty and on 15 August 2012 he was convicted for indecent assault and placed on an 18 month good behaviour bond.
The offence with which the applicant was charged and to which he pleaded guilty is an offence referred to in clause l (i) (n) of schedule 2, which is identified as a disqualifying offence. By reason of section 18 (1) (a) of the Act the Children's Guardian must not grant a working with children clearance to a person convicted as an adult of such an offence, and such a person belongs to a group of people referred to as "disqualified persons", in the same section of the Act.

Onus of proof

Under section 28 (7) of the Act "it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children." The standard of proof applied is the civil standard, that is, on the balance of probabilities: see section 140 Evidence Act 1995.
In order to determine whether the presumption has been rebutted the Tribunal will consider the totality of evidence before it.
The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] at [30], BYR v Children's Guardian [2013] NSWADT 310, at [38], Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
Under section 28 (5) of the Act "An applicant must fully disclose to the Tribunal any matters relevant to the application."

Consideration of the Evidence

The evidence received by the Tribunal is required to be considered under each of the subheadings of section 30 (1) of the Act. That evidence is now set out under each of the subheadings.

The seriousness of the offences with respect to which the person is a disqualified person

The applicant was charged on one count of assault with act of indecency - T2 to which he pleaded guilty and was convicted on 15 August 2012. (Exhibit R6).
As a result of that conviction he was placed on a good behaviour bond for a period of 18 months. That bond was properly complied with and has since expired.
As pointed out by the respondent, the offence of indecent assault is a serious one as evidenced by the punishment meted out by the courts. However, as the applicant's solicitor submitted, a plea of guilty was entered into at the earliest opportunity, the applicant was candid with the police, he acknowledges the offence occurred and is remorseful, and there has been no reoffending since then.
The NSW Police Facts Sheet (Exhibit R7) provides a full description of the applicant's offence to which he pleaded guilty in court and received a good behaviour bond. The indecent assault occurred in June 2012 during a medical procedure involving an electro-cardiograph (ECG) test which required the young male victim to take off his shirt to allow a number of adhesive stickers to be placed on his chest and ankles by the applicant who worked as a medical technician at a pathology centre. The applicant then connected a number of leads to these stickers to administer the ECG test. The indecent assault occurred immediately after the test while the victim was still partially naked lying on the bed. According to the Police Facts Sheet the applicant moved one of the adhesive stickers to the victim's lower ribcage area stating he had put it in the 'wrong' place. He then removed two further adhesive stickers from a packet and placed one on either side of the victim's pubic bone. The applicant then unclipped the victim's pants and unzipped his fly before pulling the victim's pants down exposing his penis. His explanation to the victim was that it would make it 'easier' to put the adhesive stickers further down. He then placed a further two adhesive stickers approximately two inches below the victim's pubic bone but did not connect any leads to the stickers he had placed on the victim's pubic area. The applicant then removed the leads connected to the victim's chest before removing the adhesive stickers. When the applicant removed the adhesive stickers from the victim's groin area, he said "I'll give you a free waxing" before placing them into the bin. He then approached the victim still lying on the bed, grabbed the young man's penis and "shook it twice before placing the victim's penis back into his underwear. He then zipped the victim's pants up. The applicant then placed his hand on the outside of the victim's groin with an open palm for about two seconds and said "this is very nice". The victim got up quickly, grabbed his belongings and left the room.
In his closing submissions Counsel for the Children's Guardian argued this was "an extraordinary breach of trust" that someone goes in to have a medical procedure "and have an act of indecency committed against you."
In his evidence to the Tribunal the applicant acknowledged it was wrong to touch the victim's penis even if it was to put it back inside his underwear after it had slipped out and that he made a mistake. His solicitor submitted that if the applicant had sinister or inappropriate intentions that he would not have done what he did in an area that was in full view of and easily accessed by other medical staff.
In the Tribunal's view clearly there was a breach of trust but it accepts the psychologist's view that this was "a one-time mistake", that the applicant was experiencing work pressures that "had reduced his concentration and affected his judgement". In this regard the Tribunal is guided by the principle that the Tribunal's jurisdiction under s.28 remains protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children.
In considering the totality of evidence before it the Tribunal therefore accepts the applicant's evidence that he made a gross error in judgement, that it was inappropriate and unacceptable touching albeit not intentional, that he accepts he did the wrong thing for which he was duly punished and that he is remorseful.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

The offence occurred on the 21st June 2012. The applicant pleaded guilty and was convicted on 15 August 2012 and received an 18 month good behaviour bond.
Although only two years have passed since the offence it is important to note that until this offence the applicant had no prior criminal history and there has been no reoffending. Nor is there any evidence of the applicant having been the subject of a complaint or allegations of inappropriate behaviour since.

The age of the person at the time the offences or matters occurred

The applicant was born on 16 April 1982. At the time of the offence on 21 June 2012, the applicant was 32 years old.

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

The victim's date of birth is 16 June 1994. At the time of the offence he had just turned 18 years of age.
Counsel for the respondent argued that although the victim had legally reached the age of an adult that nonetheless he was just as vulnerable as any other young person given the offence occurred just five days after the victim had turned 18.
The law in relation to the vulnerability of child victims is abundantly clear in legislation and in case law. By virtue of their age, children and young people under 18 are automatically considered vulnerable and in need of protection.
The safety, welfare and well-being of children and, in particular, protecting children from child abuse, is the paramount consideration when making decisions under the Act: see section 4 of the Act.
The circumstances when a young person over the age of eighteen may be considered vulnerable was recently considered by the Tribunal in BGR v Children's Guardian [2014] NSWCATAD 150 and in BKY v Children's Guardian [2014] NSWCATAD 201.
In both cases the disqualified person sought an enabling order in similar circumstances. The offence, of which the applicant was convicted was of similar nature, namely commit an act of indecency albeit one that involved touching the victim's breast and not the penis as in this instance. In both cases the victim over 18 was deemed vulnerable in circumstances where there was a significant age difference between the applicant and victim but for different reasons that resulted in different outcomes. Thus in in BGR v Children's Guardian [2014] NSWCATAD 150, the applicant was granted an enabling order whereas in BKY v Children's Guardian [2014] NSWCATAD 201the applicant was refused because the Tribunal was not satisfied the applicant did not pose a risk to children.
Although the age difference between applicant and victim was not as great in the first case (there being only a ten year age difference), and even though he was granted an enabling order by the Tribunal, nonetheless the Tribunal found that the facts of the case, namely that the offence took place at night and in the applicants workplace effectively rendered the victim "in a position of some vulnerability."
The Tribunal did acknowledge however that the level of vulnerability was by no means as great as it would be "if the victim were a child."
In BKY the victim was deemed vulnerable not just because of the significant 37 year age difference between applicant and victim but because the applicant had known the victim since she was a young child and that there was a fiduciary relationship that was breached because of the offence.
Given the facts of this case and taking into account the Act's objectives of protecting children, and in particular protecting children from child abuse, I agree with Counsel's argument that the victim is similarly vulnerable or as being in a position of relative vulnerability.
However that may be, nonetheless the question of a victim's vulnerability is only one of a number of considerations the Tribunal has to take into account. In considering the totality of circumstances as outlined in section 30 of the Act the Tribunal is guided by the paramount principle of ensuring the safety, welfare and well-being of children as outlined in section 4 of the Act.
While I agree the victim in this instance was vulnerable the more important question is whether or not the applicant is likely to reoffend and whether or not there is "a real and appreciable risk" of harm to the safety of children or young people as referred to in paragraph 36. For reasons outlined in paragraphs 65-67, I am satisfied that the applicant does not pose a risk as such.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person

The victim was approximately fourteen years younger than the applicant at the time of the offence.
There was no intimate or personal relationship between the victim and the applicant.
Other than the victim's age there was no argument put to the Tribunal about any special vulnerability of the victim. In the Tribunal's view there was however a professional relationship between the applicant and the victim that could be characterised as fiduciary in nature given the victim was seeking medical treatment of a kind. Although the fiduciary nature is not as strong perhaps as a doctor/patient relationship nonetheless similar issues of care and diligence may apply. In any event, as already stated in the paragraph above, the decision to not grant an enabling order merely because of the victim's vulnerability is outweighed by considerations as to whether or not the applicant poses a risk to the safety of children and young people.

Whether the person knew, or could reasonably have known, that the victim was a child

As we have already seen, the victim in this case had just turned eighteen five days before the offence and was therefore legally an adult.
Counsel for the Children's Guardian put to the applicant that he should have been aware that the young victim had just turned eighteen but this consideration merely goes to matters relating to the victim's impugned vulnerability rather than a misdemeanour or failing on his part.

The person's present age

The applicant is now 34 years of age.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

On evidence presented to the Tribunal, other than this conviction there is no prior criminal record. The applicant complied with the conditions of his good behaviour bond with no need to return to the courts. Moreover, there has been no further offending nor complaints or allegations of inappropriate behaviour toward children or young people.
The matter of the applicant's conduct and behaviour since the offence was not called into question by Counsel for the respondent.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

The question of whether or not the applicant is likely to reoffend or not is dealt with in the Psychological Assessment Report of forensic psychologist Chris Probets dated 30 September 2014 (Exhibit A2 & R4). In his report and in his evidence to the Tribunal, Mr Probets concluded that the applicant does not pose a risk to children or young people nor is he likely to reoffend.
Under cross-examination the psychologist did concede that he would have conducted his assessment on a different basis had he known the victim was just days past his eighteenth birthday and had he been privy to the police version of events detailing the offence. In this regard he would have done a static 99 test. However that may be, in re-examination, Mr Probets did say that while he may have gone about his assessment in another way nonetheless he would not have changed the overall nature of his report and findings, essentially that he does not consider the applicant poses a risk to children.
The Tribunal also accepts the applicant's solicitor's submissions that the act was impulsive and not pre-planned, that he has learnt his lesson and that there has been no offending prior to and after this one and only offence.

Any information given by the applicant in, or in relation to, the application

The information provided by the applicant is that he migrated to Australia from Sri Lanka in 2007 at the age of 25 that he is in a stable relationship of 8 years, and is married with one child. He has been suitably employed in trusted positions and but for this one offence when he was dismissed there have been no complaints at his work.

Any other matters that the Children's Guardian considers necessary

In his closing submissions, Counsel for the Children's Guardian submitted that the applicant's guilty plea "might be recognition of the inevitable" rather than anything else. This assertion raises the issue of the applicant's overall candour and whether or not he has been fully frank to the Tribunal as required to do so under section 28. In this regard the Tribunal considers that the applicant has been honest and fully frank to the best of his ability. While English is his second language, the applicant did not request a Sri Lankan interpreter. However that may be, it is apparent to the Tribunal from the evidentiary material before it and from the applicant's appearance that there are obvious cultural and language factors which may have contributed to perceptions that the applicant was not frank.
The Tribunal also accepts the psychologist's assessment that the applicant is not deceptive but that he had "some difficulty with understanding and completing the (psychological) assessment which is not unusual or surprising sitting (sic) that English is not his first language." (Exhibit A2 & R4 at p. 8). Furthermore, the psychologist acknowledges the applicant has a tendency of "being somewhat defensive about revealing information about himself", which did not make his assessment invalid but that they "should be interpreted with some caution". (Exhibit A2 & R4 at p. 8)

Conclusions and orders

Accordingly, having regard to all the material before the tribunal I am satisfied that the applicant has discharged his onus that he does not pose a risk to the safety of children and it is appropriate to make the orders sought. The Tribunal orders: 1. Declare that the applicant not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of assault with act of indecency - T2 for which he was convicted on 15 August 2012. 2. Pursuant to sub 28 (6) of the Child Protection (Working with Children) Act 2012 the Children's Guardian is to grant the applicant with a Working with Children clearance. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 14 January 2015

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (6)