BLP v Children's Guardian

NCAT Administrative and Equal Opportunity|2015-03-26

Judgment

The applicant, known as BLP in this decision, is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 and he has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s 6 of the Act.
Section 18(1)(a) of the Act establishes that where a person is convicted of an offence specified in Schedule 2 of the Act, that person is a disqualified person, to whom the Children's Guardian must not grant a working with children clearance.
The offence which brings the applicant within subsection 18(1) of the Act (the index offence) is a conviction on 17 November 1989 on three counts of "committing an act of indecency on a person under the age of 16 by a person in authority" in contravention of section 61E of the Crimes Act 1900 NSW. The notice by the Office of the Children's Guardian advising the applicant of his disqualification for a working with children check clearance is dated 17 July 2014.
The application seeking an enabling order is dated 30 July 2014 and was filed on 27 August 2014.
In his application seeking an enabling order, BLP states that he is seeking an enabling order so that he can work or volunteer with older people and to attend the Men's Shed.
There is no dispute that the Tribunal has jurisdiction to hear and determine the applicant's application.
The hearing was conducted in person at Taree on 26 March 2015.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication of information about the applicant, any victims, witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Relevant Provisions of the Act

The Child Protection (Working with Children) Act 2012, NSW 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 clearance.
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.
For 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.
The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His honour states that the sole criterion should not be to protect children from "any possibility of abuse". 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.
The 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 (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).
It is my view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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.
Subsection 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: 1. 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, 2. the period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the offences or matters occurred, 4. 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, 5. the difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. whether the person knew, or could reasonably have known, that the victim was a child, 7. the person's present age, 8. the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. any information given by the applicant in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary.
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] so that its purpose is not to punish BLP but to protect children against the risk of harm of the nature as set out by Young CJ in Commissioner for Children and Young People v V (supra) (see BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at para 103-105).

The Evidence

The applicant tendered into evidence the following documents: 1. Exhibit A1 comprising the application for an enabling order and notice of Disqualification for a working with children check clearance. 2. Exhibit A2 being a letter dated 22 September 2014 from BLP to the Tribunal. 3. Exhibit A3 being a letter dated 12 December 2014 from BLP to the Tribunal Registry attaching a letter dated 8 December 2014 from psychologist Mr John Sjostedt. 4. Exhibit A4 being a character reference for BLP dated 5 March 2015. 5. Exhibit A5 being a letter from BLP to the Tribunal dated (apparently in error) 16 March 2013 6. Exhibit A6 being an unsigned and undated character reference for BLP. 7. Exhibit A7 being a letter from BLP to the Tribunal dated 23 February 2015. 8. Exhibit A8 being an undated and unsigned document apparently written by BLP and headed "Reasons to support (BLP's) Appeal. 9. Exhibit A9 being an undated and unsigned document headed "(BLP's) Statement to NCAT.
BLP also gave sworn evidence during the hearing.
BLP also called as witnesses his wife, known in this decision as Mrs BLP and Mr Stuart Barlo, and they gave sworn evidence during the hearing.
The respondent tendered into evidence without objection the following: 1. Exhibit R1 being a bundle of documents labelled "Volume 1" numbered page 1 through to page 851 and tabulated as follows: 1. Tab 1: Notice of Disqualification 2. Tab 2: Letter from the Crown Solicitors Office (CSO) to the applicant requesting further information. 3. Tab 3: Applicant's response to CSO letter requesting further information. 4. Tab 4: Letter from CSO to applicant requesting further contact details of previous employers. 5. Tab 5: Applicants response to letter requesting further contact details of previous employers. 6. Tab 6: Crimtrac record of BLP 7. Tab 7: Court records 8. Tab 8: Section 31 response from Sex Crimes Squad 9. Tab 9: Section 31 response from Family and Community Services 10. Tab 10: Section 31 response from Department of Education and Communities. 11. Tab 11: Section 31 response from Dr Sjostedt, a psychologist 12. Tab 12: Section 31 response from Director of Public Prosecutions 13. Tab 13: Section 31 response from Sarah Redfern High School 14. Tab 14: Section 31 response from Chifley College, Shalvey 15. Tab 15: Section 31 response from Macquarie Fields High School 16. Tab 16: Section 31 response from The Men's Shed 17. Tab 17: Section 31 response from North Coast Diagnostic Imaging 1. Exhibit R2 being a bundle of documents labelled "Volume Two" and number page 309 through to page 851 being the Section 31 response from Corrective Services NSW.

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

BLP was convicted on 17 November 1989 of three counts of committing an act of indecency on a person under the age of 16 years by a person in authority. The victim of the offence was the stepdaughter of BLP. In respect of those offences at Penrith District Court on 17 November 1989 BLP entered a recognizance to be of good behaviour for the period of three years and to accept the supervision of the NSW Probation and Parole Service.
I am of the view that whilst the matters are serious in that the victim was the stepdaughter of BLP and he was in a position of authority, they are not of the most serious nature and this is reflected in the sentence imposed by the court.

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

The offences occurred in 1987 and 1988.

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

BLP was born on 29 June 1956 and so was 31 to 32 at the time of the offences. At the time of the offences the victim was 8 to 9 years old.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person, whether the person knew, or could reasonably have known, that the victim was a child

The difference in age of BLP and the victim is approximately 23 years. The victim was the stepdaughter of BLP and he knew that she was a child.

The person's present age

BLP is now 58 years old.

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

On 16 March 1995 BLP was found not guilty of three counts of sexual intercourse without consent. The alleged victim in these matters was his daughter.
On 13 September 1996 BLP was convicted and sentenced at the Sydney District Court of two counts of sexual intercourse with a child under the age of 12 and one count of sexual intercourse with a childe under the age of 16. The victim of these offences was BLP's stepdaughter. He was sentenced to four years imprisonment concluding on 31 July 2000 and an additional term of 3 years concluding on 30 July 2003.
BLP appealed against these convictions and his appeal was upheld by the Court of Criminal Appeal on 3 September 1997 in a majority decision that the conviction was unsafe. In upholding the appeal the majority concluded that whilst the memories of the victim/witness could possibly be true, recovered memories it is also possible that they could be honestly experienced, false memories. That being the case there was a reasonable doubt regarding BLP's guilt.
During the hearing BLP admitted to the index offence and continued to deny the offences of which he was found not guilty.
In my consideration of BLP's application for an enabling order I have not given any weight to the matters of which he was found not guilty.
In a report dated 6 November 2008 addressed to Dr Retnaraja of the Manning River Clinic, Dr Esther Jesudason, a Specialist Psychiatrist at the Mayo Specialist Centre in Taree states that BLP has a "history of inappropriately directed sexual drive" and had "touched his sister, some female students in his early 20s as a Primary School Teacher and his step-daughter".
In his undated submission entitled "Reasons to Support (BLP's) Appeal, BLP states that when he was imprisoned prior to the convictions of 13 September 1996 being overturned, he completed a custodial based Sex Offender Rehabilitation program (SORT).
In the document headed "Reasons to Support (BLP's) Appeal" BLP submits that he was compliant with requirements of him when under the recognisance and when incarcerated and that since the recognisance expired he has continued to observe the condition of the recognisance requiring that he not be or remain in the company of any female under the age of 16 years unless in the presence of that child's parents or another responsible adult.
BLP also stressed in documentation to the Tribunal and in his oral evidence and submissions that he has put in place restrictions that prevent him being alone with young girls.

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

In his statement dated 23 February 2015 BLP poses the question of whether, he would have stopped himself had he known an understood the consequences of his actions that comprised the index offence. He states that he does not know the answer to that question. During cross-examination he was asked to explain his response. He said that he is unable today to say what he might have done in 1988 and that currently he takes steps to ensure that he is not in the company of young females.
Under cross examination it was put to BLP that he had made similar attempts to prevent him being in proximity to young females prior to the index offence and had told his then wife not to leave him with her daughters. However the strategies failed to prevent the index offences. In response BLP agreed that despite those strategies he committed the index offence.
In his statement dated 23 February 2015 BLP states: "I truly don't understand the darkness I see in my own heart - why do I have sinful desires that are there …? "Why is there a sexual appetite that is so inconsiderate of another human being? Why do I hurt other human beings … Although I have little confidence In myself that there is good within me, I continue to ask God to change me and give me little opportunities …to do good"
Under cross-examination BLP was asked if these comments indicate that he continues to be attracted to underage girls and he replied in the affirmative.
In her letter dated 6 November 2008 addressed to Dr Retnaraja of the Manning River Clinic, Dr Esther Jesudason, states that BLP said that he is unable to desire his wife sexually and indulges in "excessive masturbation. He feels drawn to petite females, visits teenage porn sites …" . Under cross-examination he agreed that this continues to describe his circumstances. He gave further evidence that when accessing pornography he tries to find sites with older girls but that girls of "questionable age" sometimes appear.
In her report Dr Jesudason states that from the history of BLP: it is apparent that his melancholic symptoms are intricately linked to his past, his sexual drive, his sexual dissatisfaction and intense guilt about all of these. At interview he oscillated between self-pity and self-contempt. He categorically refused to consider antidepressants and antipsychotic agents … There are no easy solutions for his problems particularly when he is unwilling to consider pharmacotherapy … Risperidone for his inappropriate sexual drive could be tried as a future option".
BLP provided a letter dated 8 December 2014 from psychologist Dr John Sjostedt who states that he first saw BLP on 9 September 2008 and that BKP was recently re-referred to him by his General Practitioner. He states that BLP has " always been honest and upfront with me with respect to the sexual issues. He works very hard to stay away from children and has no contact with them, wherever possible". He states that he does not consider that BLP is a danger to children "after over twenty-six years of non-offending". However in his letter he does not refer to BLP's ongoing use of pornography, including seeking sites involving teenage girls. Whilst he states that BLP has taken steps to stay away from children he does not analyse whether his admitted ongoing attraction to young girls amounts to a real risk in the event of the failure of the strategies designed to keep him away from children.
BLP called his wife, Mrs BLP as a witness and she gave sworn evidence including words to the effect that that "BLP still has a problem but he has put things in place to protect him as much as anyone else". She also stated that the couple have six grandchildren including a 12 years granddaughter and that BLP does not allow the granddaughter to be alone with him.
During his summing up BLP said words to the effect that he is a "realist" and cannot guarantee that he that he does not pose a risk to children, though he would do everything he can to ensure that he does not hurt another child the way he hurt his step-daughter.

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

In his application and during the hearing BLP stressed that he is not seeking the enabling order so that he can work with children, but that a number of organisations with whom he wishes to do voluntary work, as well as the Men's Shed, in whose activities he wishes to participate, require a working with children check clearance.
BLP tendered into evidence a character reference dated 17 March 2015 from Mr Stuart Barlo, in which he states that he is a social worker and pastor and lecturer and PhD student at the Southern Cross University. In that documents Mr Barlo speaks of BLP's imprisonment for the offences of which he was subsequently found not guilty and of the effects of that conviction and imprisonment on BLP's life. He states that he has known BLP for approximately 40 years and has found him to be "honest and a man of integrity" who has "admitted his mistake and accepted the responsibilities associated with his mistake" that he made "approximately 30 years ago". Mr Barlo states that BLP has "found a place" in the Men's Shed organisation that "enables him to function as member of society and of his community" and that in recent times that organisation has required that members hold a working with children check clearance and as result of being disqualified from having such a clearance BLP is excluded from his "social and community outlet".
In his oral evidence Mr Barlo said that the Men's Shed has recently commenced a program of mentoring under age males and this has prompted the need for the working with children check clearance, at lest for those volunteers who work with the young people.
Under cross-examination Mr Barlo was questioned about a letter tendered by the Respondent in the bundle of documents marked R1. The letter is dated 31 October 2015 and is unsigned but purports to be written by Jim Willis, President/Coordinator, Taree River Men's Shed Inc. He states that in 2008 and 2009 BLP visited the Men's Shed and was assisted to do some work on a truck. He states that BLP told the organisation about his prison sentence for "child abuse" which did not present a problem because the centre was attended only by elderly men. However in 2013 and 2014 it was thought that BLP was visiting the organisation asking for "small bike parts and silly things" and the organisation was concerned that he might be visiting the organisation because of a program that had commenced for young and older people with intellectual disabilities and their carers. He states that for this reason it was decided to require all those attending the centre to have a police check as to their suitability for working with children. Mr Willis states that whilst he was at the Men's Shed BLP had no contact with children and there were no complaints about his conduct.
Under cross examination Mr Barlo said that he was unaware of the concerns expressed in Mr Willis' letter or that they were the catalyst for the requirement that those attending the Men's Shed obtain the working with children check clearance.
BLP also submitted the following documents in support of his application which are in addition to those reviewed in preceding sections of this decision: 1. A letter dated 22 September 2014 from BLP to the Tribunal in which he stresses that he has no desire to work or play with children and seeks the enabling order to allow him to go the Men's Shed and to volunteer with organisations. 2. A character reference dated 5 March 2015 from Ian McLeod in which he states that BLP has told him of the "shame that racks him about the inexcusable crime he committed" and that BLP has said that he "avoids and will continue to avoid contact with young girls" and is "highly motivated not to cause himself and others more humiliation". 3. An unsigned and undated letter from Ian Jacobs in the form of a character reference in which he speaks of BLP's "character and his honesty" and of him as a "community-driven, law abiding person" 4. An unsigned document apparently written by BLP and headed "Reasons to support (BLP's) Appeal in which he makes statements to the following effect in addition his statements reviewed in the foregoing sections of this decision: 1. Whilst in prison prior to his acquittal in respect of the 1997 conviction he undertook a sex offenders program in which volunteering was proposed a means of obtaining self-esteem and making recompense for crimes. 2. The requirement of a number of organisations that volunteers and members obtain a Working with Children Check Clearance causes problems for volunteering and for people attempting to re-establish themselves in the community. 3. He has endured punishments both as a result of supervision required under his three-year recognisance and his imprisonment prior to his acquittal as well as the effects of these matters on his self-esteem and lifestyle. 1. An undated and unsigned document headed "(BLP's) Statement to NCAT in which he makes statements to the following effect in addition his statements reviewed in the foregoing sections of this decision: 1. He did not commit the offences of which he was charged in 1995/1996 relating to his daughter. 2. He has witnessed the effects of sexual assault on his sister and as a consequence, his mother, and it is "difficult to come to grips with the fact that, despite the hurt I saw them going through, I could then go on and cause similar pain in the lives of my own dear Step Daughter (sic), and then her Mum (sic) and her Sister (sic) as a direct consequence". 3. He is aware of a number of difficulties and personality characteristics which he lists as resulting from the experience of sexual assault. 4. He is aware of a number of losses which he lists, experienced by his daughter and stepdaughter as a result of his actions in respect of the index offence. 5. He has a number of concerns regarding why his daughter and stepdaughter would have made the allegations that resulted in him being charged with offences against them and being initially convicted of offences against his stepdaughter in 1997. 6. He recognises that the "buck starts with me- the buck stops with me".
In his final oral submissions BLP: 1. Acknowledged that the Tribunal has no jurisdiction in respect of the organisations requiring that participants obtain a working with children check clearance. He said words to the effect that in continuing with his application he was seeking a place to raise his concerns about the issue but acknowledged that the Tribunal's jurisdiction does not extend to such matters. 2. Said that he will do whatever he can to ensure that he does to hurt another child.

Any other matters that the Children's Guardian considers necessary

In her oral and written submissions counsel for the respondent submitted: 1. The Tribunal is not able to make an order subject to conditions. 2. The jurisdiction of the Tribunal is to consider whether or not BLP should be granted an enabling order to work with children and it is irrelevant that BLP wishes to be involved with other organisations which require a working with children check clearance. 3. BLP is not able to show that he is not a risk to children: 1. He has said that he continues to have sexual fantasies about under aged girls and visits teenage pornography sites. 2. He admits he is a risk to children and has put in place safeguards designed to protect them from that risk.

Conclusions in respect of the matters set out in s.30(1) of the Child Protection (Working with Children) Act.

Seriousness of the index offence and the time since the offence

The index offence comprises three counts of committing an act of indecency on a person under the age of 16 by a person in authority. These are serious offences but are not at the most serious end of the spectrum.

Conduct of BLP since the index offence

The time since the index offence and the lack of any repeated convictions for similar offences might moderate the risk to children posed by a disqualified person. However, BLP has admitted that he continues to be sexually attracted to underage females and has put in place restrictions on his access to potential victims. An enabling order would allow BLP unrestricted access to underage girls and taking this into account I am not satisfied that BLP's conduct since the offences, even including his self-imposed restrictions, is such that the risk to children is sufficiently mitigated so that he does not pose a risk to children that is greater than that any adult preying on a child.

The age of BLP and the victim at the time of the index offence and the current age of BLP and any matters relating to the vulnerability of the victim, whether BLP knew, or could have known, that the victim was a child

BLP was an adult at the time of the index offence and was a person in authority over the victim whom he knew to be a child. He continues to express a sexual interest in young females and I am satisfied that the passage of time and BLP's current age are not factors that mitigate the extent to which BLP presents a risk to children.

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

BLP has no other convictions and since the index offences he has attended a custodial program for sexual offenders. Character references speak of his honesty and he responded with honesty to matters raised during the hearing. He has advised friends and relatives of his past offending and with the assistance of others has introduced restrictions aimed at preventing opportunities for repeat offending. These matters are all to the credit of BLP. However despite these matters, BLP admits to an ongoing sexual attraction to young females and in his written and oral evidence was not able to state that he would not reoffend.
Whilst I accept that BLP has put into place protective strategies with respect to further offending, I am of the view that his ongoing attraction to young females, his continued access to teenage pornography sites and his inability to state with confidence that he would not reoffend are such that I am not satisfied that his conduct since the index offence, or the lack of further criminal convictions are factors that outweigh the risk he would pose to children if granted an enabling order.

The likelihood of a repetition of the index offence and the impact on a child of a reoffence

In his written and oral evidence BLP has said that he continued to be attracted to young females and that he has put in place practices that restrict his access to young females. He has advised family and friends of his previous offences and they assist him to enforce the restrictions to protect potential victims and also to protect him from unwarranted accusations. I accept that to date these restrictions appear to have been effective because BLP has not been convicted of any additional offences.
In her report dated 6 November 2008 Dr Esther Jesudason, a psychiatrist, suggested that BLP use medication to assist him to deal with his inappropriate sexual drive. However he did not provide any evidence that he has followed up that suggestion.
BLP did provide evidence that he attended the custodial based sex offender program but has stated that he continues to access pornography sites involving teenage females and continues to have inappropriate sexual drives.
Whilst BLP tendered a letter from psychologist Dr Sjodesdt the Tribunal has not been provided with evidence of counselling or psychotherapy to reduce the risk posed by BLP to children.
Taking these matters into consideration, I am satisfied that should BLP has not undertaken therapy or programs that have resulted in a reduced risk of offending. Whilst he has introduced restrictions on his access to young females I am of the view that should he have access to young persons he would pose a risk to them that is greater that that of any person preying on a child.

Any information given by BLP in, or in relation to, the application and any other matters that the Children's Guardian considers necessary

The evidence in chief of BFL is discussed throughout this judgement. I have given it due consideration. In particular I note that BLP has supplied a number of references regarding his character and his efforts to avoid repeated offending.
I have considered the material submitted by BLP and am satisfied that whilst it attests to his honesty and integrity in a general sense, it is does not go to establishing that despite the index offence and his admitted ongoing sexual interests in young females, he is not a risk to children that is greater than that posed by any adult.
BLP has stressed that he does not want to work with children and seeks the application only to be able to join organisations that, despite not working with children, require the working with children check clearance.
In respect of this matter I accept the submission of counsel for the Respondent that it is irrelevant for this Tribunal that such organisations require a working with children check clearance.
As submitted by counsel for the Respondent, the Tribunal is unable to place conditions on an enabling order. An enabling order granted by the Tribunal would therefore enable BLP to work with, or otherwise be involved with, children without restriction.

Conclusion and orders

Taking into account all of the evidence and considering the factors and requirements set out in the Child Protection (Working with Children Act) 2013 it is my view that BLP has not discharged his onus of rebutting the presumption in subsection 28(7). I am not satisfied on the balance of probabilities that he does not pose a real risk to children that is greater than that of any person preying on a child
I order that the application by BLP 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: 25 May 2015

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Judgment (20 paragraphs)

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Cases Cited (4)