BMG v Children's Guardian

NCAT Administrative and Equal Opportunity|2014-12-10|Before: Young JA

REASONS FOR decision

The applicant, BMG, is a "disqualified" person under subs 18(1) of the Child Protection (Working with Children) Act 2012 (the Act) and seeks an "enabling order" pursuant to s 28 of that Act, declaring that he not be treated as a "disqualified" person so that he can be granted a clearance to work with children.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1)(a) of the Civil and Administrative Tribunal Act 2013, prohibiting the publication and broadcasting of the name of the applicant, the name of any victim or child referred to in the material before the Tribunal and the name of any other person that might identify the name of the applicant or the name of a victim or child without the leave of the Tribunal. For this purpose the pseudonym BMG has been used for the applicant's name.
The applicant is a "disqualified person" by reason of his conviction, in December 1999, for the offence of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900. The offending conduct occurred in May 1998. The victim of the offending conduct was the applicant's girlfriend, who was 16 years of age at the time. The offence is an offence falling within cl 1(b) of schedule 2 of the Act.
The Court sentenced the applicant to imprisonment for seven and a half years, with a minimum term of four and a half years. His sentence commenced from the date of the offence and he was released on parole in November 2002. The applicant has not been convicted or charged with any other offence.
On 1 August 2014, the respondent refused the applicant's application for a clearance under the Act. As the offence of which the applicant was convicted was a disqualifying offence under cl 1 of schedule 2 of the Act, the respondent was required to refuse the application: the Act, subs 18(1).
Subsection 28(1) of the Act gave the applicant a right to seek an enabling order following the respondent's refusal. That application was made within the prescribed time and there is no dispute the Tribunal has jurisdiction to hear and determine this application. The applicant seeks an enabling order so that he can continue to coach BMX riders.

Proceedings before the Tribunal

The applicant's application for an enabling order and a stay came before me, on 30 September 2014. I refused the applicant's application for a stay and made directions for the filing and serving of material by the applicant and the respondent. By consent, I also set the matter down for hearing on 21 November 2014.
The applicant's application was heard before Senior Member Andrews on 21 November 2014. By consent, the hearing was adjourned for a further half day hearing, on 10 December 2014. Due to the unavailability of the Senior Member on this day, the hearing was further adjourned to 22 January 2015.
At the conclusion of the hearing on 22 January 2015, Senior Member Andrews reserved her decision.
Subsequently, and prior to a determination of the application, Senior Member Andrews became unavailable and not able to complete the decision. On 26 March 2015, the President wrote to the parties to inform them of Senior Member Andrew's unavailability and that he proposed that I be appointed to replace her, under s 52 of the Civil and Administrative Tribunal Act 2013. The parties were also invited to make any submissions on the proposed reconstitution. Section 52 of the Civil and Administrative Tribunal Act 2013 relevantly provides: 52 Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member: (a) becomes unavailable for any reason, or (b) … (2) The President may not replace a member unless the President has first: (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (3) The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
No submissions were received and on 13 April 2015, the Tribunal President replaced Senior Member Andrews as proposed.
In determining this application I have read and considered the material filed by the parties. I have also listened to the sound recordings of the hearing on 21 November 2014 and 22 January 2015.
The applicant, I note, has not been legally represented during the course of the hearing. The respondent, on the other hand has been represented by counsel.
For the reasons set out below, on balance, I am not satisfied the applicant has discharged his onus in rebutting the presumption that he poses a risk to the safety of children. It is now 17 years since the applicant was convicted of the disqualifying offence and there are many factors in his favour which are protective against the risk of any further offending. I have found that his likelihood of re-offending is low. However, I have some reservation about the applicant having a propensity to over-react towards those whom he does not trust, or is fearful of. That propensity, in my view, may have a bearing on the applicant's previously identified difficulties in emotional attachments and depressive mood. That propensity may not be substantial, but in the absence of an independent forensic psychological risk assessment (i.e. an assessment by a suitably qualified professional who has not treated the applicant and who has been provided all the material filed in this application) that addresses this question I am unable to find that the applicant has discharged his onus. It may of course be an assessment the applicant is able to obtain.

The evidence

In support of his application, the applicant relied on an affidavit he swore on 15 October 2014. Exhibited to that affidavit were a number of documents including:

the transcript of the Trial Judge's summing up to the jury in December 1999,
a copy of the applicant's marriage certificate (2007),
a copy of the applicant's University Bachelor degree, dated December 2005, together with his academic transcript for the years 2003 and 2004,
a copy of a reference from the National Coaching Director of BMX Australia, dated July 2014;
an affidavit of a friend and Director of BMX Australia sworn on 15 October 2014;
a copy of a reference from the Chief Executive Officer of the applicant's local Academy of Sport, dated June 2014,
copies of the applicant's certificates, in 2005 and 2006, as the BMX Coach of the Year;
a copy of a letter, dated June 2009, from NSW Sport and Recreation to the applicant in regard to his working with children check for the position of BMX coach with BMX NSW. The letter advised that it had been estimated there were significant risks relating to his personal history;
a copy of a letter, dated March 2010, from Cycling Australia to the applicant concerning his coach re-accreditation. The letter advised that due to his background check, and in accordance with the relevant accreditation scheme requirements the applicant was re-accredited as a BMX coach on the grounds that he only coach riders 18 years and over;
a report, dated 10 July 2014, from Dr Maryann Gauci, a clinical psychologist who assessed the applicant on 14 November 2013;

The applicant also gave oral evidence at the hearing and was cross-examined by counsel for the respondent. Dr Gauci gave oral evidence, by telephone, at the hearing on 22 January 2015.
The respondent placed before the Tribunal five bundles of documents obtained in the course of enquiries by the office of the respondent and in response to summonses, issued by the Tribunal, at the request of the respondent. These bundles were as follows:

Volume 1 - contains a copy of the applicant's CRIMTRAC record, the police fact sheet in regard to the applicant's disqualifying offence, the sentencing remarks of the trial Judge, AVO information from NSW Police, documents produced under summons from BMX Australia and other relevant BMX organisations and the s31 responses from the Department of Corrective Services;
Volume 2, 3 and 4 - contains further responses from the Department of Corrective Services;
Volume 5 - contains the s31 response from the Department of Sport & Recreation and further correspondence between the respondent and the applicant in November 2014, prior to the first day of hearing. The response from the Department of Sport & Recreation contains a further copy of the Police Fact sheet and the trial Judge's remarks on sentence in regard to the disqualifying offence;

To the extent relevant in this application, I have dealt with the information contained in the above documents in more detail below.

The relevant provisions of Child Protection (Working with Children) Act

The objects of the Act are: "3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
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. That is, when making decisions under the Act paramount consideration is to be given to the safety, welfare and well-being of children and, in particular, protecting them from child abuse.
The word "children" is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently, the word 'child' has the same meaning.
Subsection 8(1) of the Act prohibits a person from engaging in "child-related work", unless: (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both.
Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in "child related work" where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance.
The term "child-relate work" is defined in section 6 of the Act. The applicant states he is seeking a working with children check so that he can again be involved in part-time BMX sports coaching. There is no dispute that applicant requires a working with children check clearance to undertake this work, even on a voluntary basis. However, the Tribunal is required to consider his application in the context of the very broad characterisation of child-related work in s 6 of the Act: BKE v Children's Guardian [2015] NSWSC 523, at [27].
As noted above, subsection 18(1) of the Act provides that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been convicted of an offence falling within schedule 2 of the Act.
Section 22 of the Act provides that a working with children check clearance check ceases to have effect five years after it was granted, unless it is cancelled or suspended prior to that time: see the Act, ss 23 and 24.
Again, as noted above, subsection 28(1) of the Act makes provision for a "disqualified person" to make an application to the Tribunal for an enabling order.
Where an application is made under subsection 28(1), that section also provides as follows: "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) …"
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.""
These remarks have been accepted to equally apply to the word "risk" as it appears in the current Act: see AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE), at [26].
Section 30 sets out the matters the Tribunal is required to consider in determining an application for an enabling order. That section 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."

Consideration and findings in regard to the subs 30(1) factors

S 30(1)(a) the seriousness of the offence with respect to which the applicant is a disqualified person

The offence with respect to which the applicant is a disqualified person is clearly a very serious offence. The applicant does not contend otherwise.
The applicant had been indicted on the offence of murder before the Supreme Court. He pleaded not guilty and gave evidence in the course of his trial. Following a six day trial hearing the jury returned a verdict of not guilty of murder but guilty of manslaughter. The maximum penalty for an offence of manslaughter is 25 years imprisonment. The remarks of the Trial Judge in sentencing the applicant is a reflection of the seriousness of the applicant's conduct.
The victim was a child and the applicant's girlfriend. They had been in a relationship for about 11 months and shared an interest in BMX riding.
In his sentencing remarks, the Trial Judge dealt with the evidence that was before the Court and he made certain findings of fact from the evidence in light of the Jury's finding of guilt of manslaughter. His Honour explained that the relationship between the applicant and the victim as intimate, passionate and virtually exclusive, but some weeks before her death the victim had expressed to family and friends some reservations as to whether the relationship should continue on that basis. However, she had not expressed those reservations to the applicant until some four days prior to her death.
The victim was admitted into hospital three days before her death because of a recurrent back injury. The applicant visited her the next day, the following day and then again on the morning of her death. In the course of those visits the victim made known to him her intention to break off their relationship. The applicant became very distressed and others had seen him to be in tears. On the day before her death, the applicant had told the victim that if she persisted with her intention he would take his own life. He repeated that threat on the following morning. Early in the afternoon of the day of her death, the applicant returned to the hospital. He took with him a loaded .22 rifle concealed under a long top coat.
The Trial Judge set out in some detail the evidence that was before the Court, including the evidence of the applicant. At [59] of his sentencing remarks, the Trial Judge said that the only conclusion open, on the evidence before the Court, as to the applicant's guilt and on which he should be sentenced, were as follows: "I find that the prisoner entered the hospital ward with the loaded firearm, with no intention of killing or harming [the victim], indeed with no intention other than that of taking his own life and that the actual discharge of the weapon at the moment when it did discharge was not a voluntary action on his part. Nevertheless there can be no doubt that the whole of his obviously voluntary conduct in taking the weapon into the hospital, loaded and cocked, and manipulating the weapon in his attempts to cause it to discharge in pursuit of his intention to take his own life was unlawful and constituted a dangerous act in the sense that it exposed [the victim] to a significant risk of serious injury, of which risk a reasonable person in the position of the accused would have been well aware. His conduct in taking the loaded cocked weapon into the hospital ward with the intention of discharging it there for whatever reason, was clearly not only unlawful but dangerous in the sense in which the law defines that phrase; and directly resulted in her death."
At [67], the Trial Judge referred to the report of Dr John Ellard, described as one of the country's foremost psychiatrists, who had seen the applicant in prison after he was found guilty of manslaughter and prior to his sentence hearing. In his report Dr Ellard said that "for a normal and emotional development one needs secure attachments to the important figures in one's early life." He went on to say, that although the applicant sought them, the circumstances were such that there was little consistency in his early years - he was looked after but there were manifest difficulties. His Honour accepted the applicant's relationship with the victim was his first serious relationship. His Honour also accepted the following analysis of Dr Ellard: "I believe that he [the applicant] wanted a secure relationship very much and that this relationship with the deceased [the victim] was very important to him, satisfying a long-felt need. It may well be that he overvalued it - this is not uncommon. It lasted some 11 months and then she told him that it was ended. He became depressed and decided to end his life in a way which would bring home to her what he felt she had done to him."
At [69], His Honour, the Trial Judge said: "Clearly, this is not a case where one can postulate "the absence of facts mitigating the seriousness of the crime". Clearly it is not in the worst case category and the Crown Prosecutor did not seek to persuade me otherwise. On the contrary, although the physical acts of the prisoner amounted to unlawful and dangerous conduct of a very serious kind, the level of his criminality was obviously greatly diminished by his emotional state at the time. Evidence was adduced at the trial, which satisfies me that the accused is a young man of previous good character, indeed a young man who appeared prior to his commission of this offence to be a very worthwhile member of the community with the potential to make a very great contribution to the community as he developed. In particular, it is to be noted that he has no prior criminal convictions. I accept the whole of that evidence, for there is nothing in the circumstances of this tragic case to cast any doubt on the validity of the opinions expressed by those who have known him."
In his affidavit, filed in these proceedings, the applicant said he did not want to play down the enormity of what he had done. He acknowledged that he had taken someone else's life away from them. He said the charge of which he was convicted was involuntary manslaughter and that he had to live with the consequences of his dreadful actions of that day which led to the death of another human being - his ex-girlfriend and a person whom he loved very much. He said that while he deeply regretted what he did, he did not intentionally perpetrate an offence against a child. He reiterated he did not want to play down or shirk responsibility for what he had done, but the circumstances surrounding the case were a tragic accident, not a planned or pre-meditated action.
In cross-examination, the applicant readily acknowledged that he intentionally went into the hospital, with the firearm and with the intent to use it on himself, in front of the victim. He was asked why did he want to do this? The applicant responded that at the time he wanted to show the victim how much he loved her. He said he now recognises that this would be a dreadful thing to do as it would have left the victim severely traumatised. He said his only explanation for doing what he did was despair over the break-up and suicidal thoughts, which he had experienced previously. The applicant said he did not want to punish or harm the victim.
I accept the applicant is extremely remorseful for what he did. At no time did he intend to kill the victim, but understands that his conduct resulted in her death. That is, the applicant, in my view fully appreciates the seriousness of his offending conduct and will do so for the rest of his life.
It was put to the applicant that he had no empathy towards the victim's family in light of his challenge to the compensation awards that were made in their favour. In my view, the alleged challenge is not reflective of a lack of empathy. As the applicant explained, he supported the awards of compensation that were made to the family under the Victims Compensation Act. He challenged, on legal advice, the amount of restitution he was required to pay and it was not a challenge to the amounts that had been awarded to the family.
The respondent contends that the applicant has failed to appropriately, if at all, address his offending conduct as he refused to undergo any psychological therapy while in prison or thereafter. I have dealt with this issue in more detail under the heading "S30(1)(i) the likelihood of any repetition …"
In conclusion, I agree with the findings of the Trial Judge that while the applicant's offending was a "tragic case", it was nevertheless serious, but not in the "worst case category". The applicant does not argue otherwise and continues to express genuine remorse.

S 30(1)(b) the period of time since the disqualifying offences and the conduct of the applicant since they occurred

It is 17 years since the occurrence of the conduct the subject of the applicant's disqualifying offence. He was imprisoned until 2002 and then on parole from 2002 to 2005.
The applicant worked whenever he could during his time in prison and also while on parole. He retrained while in prison and while on parole. He commenced a University undergraduate degree in 2001. He completed this degree in 2005 and is continuing to do post graduate studies.
While at University, studying for his undergraduate degree he met his wife. They married in 2007 and travelled around Australia for two years. He worked while he was travelling and has continued to be employed since that time. In 2013, the applicant's wife gave birth to their son.
On his release from prison, the applicant re-commenced coaching BMX racing on a voluntary part time basis. He was named the Australian Coach of the Year, by BMX Australia, in 2006 and was also named the State Coach of the Year, by BMX NSW, in 2005, 2006 and 2008.
In 2010 the applicant was briefly banned from coaching children, by reason of his disqualifying offence. He was later approved to coach children under specific conditions which included a requirement that during his coaching sessions he would be accompanied by an accredited Level 7 official or Level 1 accredited coach. The applicant ceased all coaching of children after he was refused his working with children check clearance.

S30(1)(c) the age of the applicant at the time the disqualifying offences occurred

The applicant was 20 years and 7 months of age at the time of the disqualifying offences.

S30(1)(d) the age of the victim at the time of the disqualifying offence and any matters relating to the vulnerability of the victim

The victim was 16 years and 10 months of age. As noted in the Trial Judge's sentencing remarks, the applicant and the victim had been in an intimate relationship for some months prior to her death. Other than the victim's age there were no other matters relating to her vulnerability.

S30(1)(e) the difference in age between the victim and the applicant and the relationship (if any) between them

The age gap between the victim and the applicant was 3 years and 10 months. As noted above, the relationship between the applicant and the victim was girlfriend and boyfriend.

S30(1)(f) whether the person knew, or could reasonably have known that the victim was a child

In his affidavit the applicant said he did not consider the victim to be a child at the time of his offending - she was his girlfriend. However, he is now very well aware of her being a child.

S30(1)(g) the applicant's present age

The applicant is now 38 years of age.

S30(1)(h) the seriousness of the applicant's total criminal record and the conduct of the person since the offence occurred

The applicant has no record of any criminal convictions prior to 1999. He was charged, in 1997, with an offence of hindering police which was later dismissed. The applicant later explained that the charge arose as a result of failing to stop for police when directed. He said he had been asked to stop because he was not wearing a bicycle helmet while riding his bicycle.
Other than his manslaughter conviction the applicant has had no record of any further offending.

S30(1)(i) the likelihood of any repetition by the applicant of the offence or conduct and the impact on children of any such repetition

It is the applicant's contention that the likelihood of him reoffending is nil. He said that it is more than 16 years since he offended and he has not offended again during this time. He noted that the offence was not intentional and any repetition of the circumstances surrounding the offence of re-occurring or impacting on children was also nil. In this regard the applicant relied on the sentencing remarks of the Trial Judge and the report of Dr Gauci.
As I have noted, the respondent does not share this view. Of concern to the respondent is the applicant's failure to access and embrace therapeutic intervention while in prison and thereafter. That is, the respondent contends the applicant has failed to address his offending and therefore lacks insight and remains a risk to the safety of children.
The need for therapeutic intervention was dealt with by Dr Ellard, in his report, prepared prior to the applicant's sentencing hearing. In that report Dr Ellard concluded that there was "one area" in which the applicant required assistance. He described this area as follows: "As I have said, because of his background he has difficulties in his emotional attachments. This catastrophe has compounded that difficulty. I realise that there are many calls upon the resources on the Department of Corrective Services. If it is possible, it is desirable that he be provided with assistance for his current depression - which is still substantial - and for his emotional problems surrounding close relationships. This could be a complex and prolonged task. It is not a matter of treatment with medication or something of this sort but of working through current difficulties sufficiently for him to be able to lead a normal life in due course."
Dr Ellard went on to say: "I do not imply that if this is not done there will be a repetition of what has happened. He has learnt a lot and now feels more supported than he has ever felt before."
In the same report, Dr Ellard gave the following responses to the specific questions that had been asked of him in regard to the applicant: "1. [The applicant] does not have and has not had a formal psychiatric disorder. He was depressed and disturbed at the material time but his degree of depression can be understood in terms of his developmental history and what was happening then. 2. The episode has been extremely painful for him and will obviously continue to be very painful for a long time. However I do not think that he will develop a formal mental disorder as a consequence. 3. I see no reason to believe that he will commit further offences. 4. Maturity is not a simple concept. His academic record suggests that he is of above average intelligence and he told me that his school reports were neither critical nor praising but rather indicated a generally satisfactory level of behaviour and performance. Similarly he said that he related well with his peers; he did not think that they saw him as out of the ordinary in any respect. His need was to have someone to love and who would love him. He felt that at least he had found such a person and with threatened loss was unsupportable. He said that as a consequence of the episode he had realised that the important people in his life - his mother, father and others - care for him more than they (sic) thought that they did. …. I do not see him as immature in a general sense of the word. He has continued an educational process in prison with some success. His perception of the prison officers and other prisoners did not suggest immaturity and he has been able to assess how his family and acquaintances have responded to this episode with what seems a reasonable level of maturity. I noted that he did not indulge in self-justification or in the blaming of others."
Subsequently, and prior to the sentencing hearing, Dr Ellard was asked to amplify on the area in which he had suggested the applicant required assistance. In his response, Dr Ellard said the applicant's immediate need related to his depression and his involvement in the tragedy which had occurred. He said that he needed assistance from a person with experience in supportive therapy which could be a psychiatrist, a psychologist or a general practitioner with a special interest in problems of this kind. He went on to say that the second, but not immediate, need was to help him with developmental difficulties that were outlined in his report. He explained that this was a complicated matter and the applicant would need careful assessment to see just how he might cope with it and how motivated he would be to continue after a trial therapy. He also explained that there were not many therapists with the requisite skills to undertake such intensive therapy.
The applicant did not dispute that he did not seek the assistance of any psychologist whilst he was in prison or on parole. In his affidavit, the applicant explained he did not do so because he was 'fearful" and did not trust Corrective Service staff. He explained that the mother and stepfather of the victim were both high ranking prison officers within the Department of Corrective Services. He said was constantly harassed, victimised, discriminated against, verbally abused and regularly told that his life was in danger while he was in prison. He explained that he was held in maximum security for 99% of his time in prison and that the abuses led him to be extremely cautious and distrusting of employees of Corrective Services. He understood the counselling service by prison psychologists was also part of the Department. However, he did participate in the available group courses such as "Alternative to Violence" and anger management.
Instead of seeking psychological therapy while in prison, the applicant relied on the prison chaplaincy service for his individual counselling. He said that through this service he dealt with his past, the lead up to his offence, the reasons for his offending, the repercussions of his offence, how to deal with grief and loss and many other issues relating to his offence and his life and behaviour in general. He said this helped him greatly in coming to terms with what he had done, the people he had hurt and effected and also helped him to look to the future.
The applicant explained that since leaving prison he has primarily relied on family.
In November 2013, when he wanted to seek a working with children check clearance, the applicant consulted Dr Maryann Gauci. He saw her for a number of sessions and provided him with the risk assessment report for the purpose of his application. In her report, Dr Gauci said she was of the opinion, based on her clinical interviews with the applicant, that he was entirely suitable to work with children and that he held no risk to any children in his care as he was extremely unlikely to re-offend or cause any harm to a child.
In cross-examination, the applicant readily acknowledged what Dr Ellard had advised. Nevertheless, he re-iterated he was fearful of the Corrective Service staff, including the psychologists. Counsel for the respondent took the applicant to a number of documents, created by Corrective Service staff, where the applicant had been asked if he had been threatened by staff and his response was recorded as not having been threatened. The applicant explained that he responded in that way because he was fearful. In my view, the applicant's expressions of fear are and were genuinely held by him. As a consequence, the applicant had little, if any, confidence or trust in the psychological services provided within the prison. Whether his rejection of these service was an over-reaction is not clear.
That the applicant did not engage with the prison psychologists was clearly a matter of concern to the applicant's probation and parole officer. In particular his failure to address the issues of violence related to his offending (i.e. a violent reaction to rejection - suicide attempt). Notwithstanding these concerns, the applicant was granted parole.
In his response to questioning by counsel of the respondent, the applicant said he chose the chaplaincy because they were independent of Corrective Services. That is, he trusted that service and not that provided by Corrective Services.
In his written submissions, counsel for the respondent contended that the applicant's lack of willingness to access and embrace therapeutic treatment while in prison was of considerable concern. It was inferred the applicant had sought a shorter term of imprisonment (i.e. head sentence) on the basis of a demonstrated need for extensive long term therapy - when he had at no time intended to engage with such services. In my view, there is no evidence before the Tribunal to support such an inference. Nor, do the sentencing remarks of the Trial Judge suggest this to have been the case.
The applicant has at no time suggested that he did not need to address his difficulties in his emotional attachments and depressed mood. Nor do I think, as suggested by counsel for the respondent that the applicant, in choosing the prison chaplaincy to address these issues, set himself up as the expert on his own therapy. To his mind it was therapy of the kind suggested by Dr Ellard (i.e. assistance from a person with the requisite skills in supportive therapy). However, the question remains as to whether the applicant has addressed his difficulties in his emotional attachments and depressed mood. In many respects it appears he has done so as there is no further evidence of any further offending conduct.
Dr Gauci, said she believed the applicant had addressed these issues and that he did not need to undergo any further treatment.
Counsel for the respondent, questioned Dr Gauci's independence and put to her that she had become an advocate for the applicant. Dr Gauci accepted that her descriptions, in part, were her own personal descriptions. However, she denied she had become his advocate. I make no adverse findings against Dr Gauci. I accept she treated the applicant and she was of the opinion that he required no further treatment in regard to his depressed mood. There is also no evidence of the applicant having any further suicidal thoughts.
In response to a question from Senior Member Andrews, about the applicant having not sought psychological counselling, Dr Gauci said that, notwithstanding the applicant's 2011 angry and abusive email response to BMX Australia, in her opinion, the applicant was emotionally stable. She said she felt the chaplaincy had worked for him and that the applicant had worked through and discussed with his family all aspects of his life before the crime and the emotional issues within his family.
Although Dr Gauci did not undertake a forensic psychological risk assessment, I do not think her evidence should be given no weight.
The question remains whether the applicant is likely to repeat conduct of the kind that led to conviction and what impact that would have on children.
The respondent's concerns arise for Dr Ellard's diagnosis and suggested treatment to address the applicant's depressed mood and difficulties in emotional attachments. This diagnosis and suggested treatment was made some 15 years ago. The applicant, as I have noted, does not questioned the diagnosis, and believes he has been adequately treated through the chaplaincy. While he has provided some explanation of what was spoken about during his meetings with the chaplaincy, there is no evidence of the qualifications of the persons with whom the applicant consulted. Nevertheless, as I have already explained, I accept the applicant benefitted from his engagement with this service.
As I have noted, in 2000, Dr Ellard saw no reason why the applicant would "commit further offences" and he has not done so for 15 years. During that time, the applicant's life has changed and he has matured in many respects. Today there are many factors in his favour that are protective against his risk of re-offending. He is married with a small child, he has the support of his family, he is employed, he has no major mental illness and he has no re-occurrence of suicidal ideation.
Accordingly, I find that the likelihood of the applicant re-offending is low.
My only reservation is the applicant's reaction towards those whom he does not trust, or is fearful of. As I have noted, I accept the applicant's fear of Corrective Services staff was genuinely held. His response to his fear was to refuse to engage with any staff member wherever possible while he was in prison and on parole. As I have explained, whether this was an over-reaction by him is not altogether clear. If it was an over-reaction then his 2011 response to BMX Australia is another example of such behaviour. This aspect of the applicant's behaviour and whether it has any relevance to the applicant's previously identified difficulties in emotional attachments has not been examined or assessed - in particular in so far as it is relevant to the presumed risk to safety of children.
Nevertheless, having regard to all the information before the Tribunal, I am satisfied that the likelihood of the applicant re-offending, as he did in 1996, is low.

S 30(1)(j) any information given by the applicant in, or in relation to, the application

In his affidavit the applicant set out in considerable detail about his passion for BMX racing and the achievements that he has obtained in more recent years. In this regard the applicant relies on a reference from the National Coaching Director of BMX Australia, the affidavit of a director of the Board of BMX NSW and the Chief Executive of his local academy of sport.
Each referee makes reference to the applicant's offending conduct. Notwithstanding this conduct, each referee speaks highly of the applicant and the contribution he has made to the BMX racing sport. They say they have observed the applicant's interaction with both adults and children on many occasions and they have nothing but admiration for the way in which he conducts himself and speaks to groups generally and for his manner and interaction with the children in the squad when he is coaching.
That the applicant loves his sport is not doubted. He is obviously very good at it and has made a valuable contribution to it.
The applicant, as I have noted, explained that he has been in employment since the occurrence of the offending conduct. The respondent has expressed some concern in regard to his employment history as the applicant has refused to provide details of his employers. The only information provided by the applicant was that there have been no disciplinary issues in regard to his employment. The applicant was clearly nervous about his current and former employers being summonsed by the Tribunal, at the request of the respondent. While I can understand the applicant might have some concerns in this regard, the respondent has a right of appearance in these proceedings and has an obligation to make relevant enquiries. Again, the applicant's refusal to provide information about his employers is of some concern.

S30(1)(k) any other matters that the respondent considers necessary

The respondent contended that the applicant's failure to disclose a workplace complaint for an alleged breach of child employment conditions was of considerable concern.
As I have noted, the applicant is an accredited BMX coach with BMX NSW and Cycling Australia. In 2010, as a consequence of a working with children check clearance, the applicant was re-accredited as a BMX coach, with the limitation that he only coach riders 18 years and over. Following a process of appeal, BMX Australia determined to further re-accredit the applicant to coach under 18 year olds, subject to the following conditions:

the applicant was to be accompanied by an accredited State Level 7 official or Level 1 accredited coach at each of his coaching sessions;
any coaching sessions the applicant wished to conduct was to be put in writing with permission sought from BMX NSW, with a minimum of 7 days notice. Each request was to include the names of the official/coach who would be in attendance at the proposed coaching sessions; and
an authorisation sheet would be provided by BMX NSW for each coaching session, which had to be signed by all in attendance (including the gate starter and first aider) and a copy of the sheet was to be kept by the applicant, the club and BMX NSW.

The applicant was also advised that if any one of the conditions were not followed, BMX NSW would not allow the coaching session to proceed and the applicant's coaching accreditation would cease to be valid.
In March 2011, BMX NSW wrote to the applicant alleging that he had not been adhering to his coaching restrictions. It was alleged that on a particular day, in February 2011, the applicant did not have a Level 7 official or Level 1 accredited coach at hand, or that prior approval had been sought as required under the conditions of his accreditation.
The allegations were found to be unsubstantiated in that the applicant had not undertaken any coaching on the day in question. He had sought and obtained permission to undertake coaching on another day.
What is of concern to the respondent is the applicant's failure to disclose this particular complaint and also his very aggressive and inappropriate response to the allegation. As noted by the respondent there is an obligation under subs 28(5) of the Act for the applicant to disclose all relevant information. As I have noted, in response to a question the applicant had been asked in correspondence from the respondent's solicitor prior to hearing as to whether the applicant had been the subject of any complaints. The applicant had answered "no" to that question.
Details of the complaint came to light in the course of the respondent's enquiries about the applicant. That is, the information was produced by BMX Australia and BMX NSW under a summons issued by the Tribunal, at the request of the respondent.
When cross-examined by counsel for the respondent, the applicant explained that he did not understand this to have been a complaint. He said it was initiated by BMX NSW and was found to have been a mistake.
The applicant also acknowledged that his response to the complaint was inappropriate.
In my view nothing substantial turns on this failure. It was clearly an oversight and the allegation was at all times unfounded. That is, there is no evidence to indicate the applicant failed to adhere to the conditions of his accreditation.

Conclusions

The jurisdiction of the Tribunal is protective and not punitive in nature. However, I recognise that if a clearance is refused it will have an adverse effect on the applicant. But this is not the issue for determination. What is in issue for determination is whether, on the material before the Tribunal the applicant has discharged his onus to rebut the presumption that he poses a risk to the safety of children. That is, has the applicant rebutted the presumption that he poses a real and appreciable risk to the safety of children in the context of child related work.
An enabling order cannot be made subject to conditions and in determining this matter paramount consideration is to be given to the safety, welfare and well-being of children and, in particular, protecting them from child abuse.
There is no dispute the disqualifying offence of which the applicant was convicted was a serious offence - it involved a child. The Court found the applicant had at no time intended to kill or harm the child. It was his physical acts that the Court found to be "unlawful and constituted a dangerous act in the sense it exposed [the victim] to a significant risk of serious injury, of which risk a reasonable person in the position of the [applicant] would have been well aware." The applicant does not contend otherwise.
It is now 17 years since the offence was committed and the applicant has not re-offended again. Nor is there any evidence of any act of violence by the applicant prior to the disqualifying offence, or subsequent thereto. He has expressed genuine remorse. The likelihood of the applicant re-offending is low as there are many factors in favour of the applicant which are protective against his risk of re-offending.
As I have noted, my only reservation is whether the applicant has a propensity to over-react towards those whom he does not trust, or is fearful of. If he does have this propensity to over-react, in my view, it has a bearing on the applicant's previously identified difficulties in emotional attachments and depressive mood. That propensity, if correct, may not be substantial, but in the absence of an independent forensic psychological risk assessment (i.e. an assessment by a suitably qualified professional who has not treated the applicant and who has been provided all the material filed in this application) that addresses this question I am unable to find that the applicant has discharged his onus. It may of course be an assessment the applicant is able to obtain. This is a matter for him. If he does obtain an assessment of this kind and is willing to provide the details of his employers to the respondent, the applicant, who has been unrepresented, might seek permission from the respondent to make a further application for a clearance under s 21 of the Act (now s 13A of the Act as amended by cl 15 of schedule 2 of the Child Protection Legislation Amendment Act 2015). It will be a matter for the respondent to determine whether to permit the further application within the next 5 years. If permission is sought, the respondent should have regard to these reasons for decision, the additional information provided by the applicant and any other relevant material.
For the reasons set out above, I order that the applicant's application for an enabling order is refused. 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: 13 November 2015

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (4)