BQV v Children's Guardian

Child Protection (Working with Children Act) 2012

1. The Child Protection (Working with Children) Act 2012, 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.
2. Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.
3. The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children.
4. The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration.
5. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."
6. Section 4(1) of the Family Law Act 1975 defines "abuse" as including: "causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence"
7. These provisions support a view that the concept of 'child abuse' includes actions which are likely to cause psychological harm.
8. 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."
9. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the 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]).
10. Taking into account all of these matters, 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.
11. Part 3 of the Act provides for the determination of applications by the Children's Guardian.
12. Subsection 15(4) sets out the factors that the Children's Guardian may consider when making the assessment. These are: 1. the seriousness of any matters that caused the assessment in relation to the person, 2. the period of time since those matters occurred and the conduct of the person since they occurred, 3. the age of the person at the time the matters occurred, 4. the age of each victim of any relevant offence or conduct at the time it 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 matters occurred, 9. the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, 10. any information given in, or in relation to, the application, 11. any other matters that the Children's Guardian considers necessary.
13. The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are: 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.
14. Subsection 28(5) of the Child Protection (Working with Children Act) 2012 requires that an applicant must fully disclose to the Tribunal any matters relevant to the application.
15. 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].
16. In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person.
17. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 1. the nature of the cause of action or defence, and 2. the nature of the subject-matter of the proceeding, and 3. the gravity of the matters alleged.
18. Taking these matters into consideration I am satisfied that the Tribunal has to consider all of the evidence adduced by the parties in light of and under the mandated considerations contained in section 30 of the Act to decide whether in all the circumstances the applicant poses a real and appreciable risk to the safety of children.

The evidence

1. The applicant entered into evidence without objection: 1. A written statement dated 9 March 2015, including an attachment in the form of a report dated 19 July 2008 which was compiled by the Juvenile Justice Sex Offender Program for the advice of the court at the time of BQV's sentencing. 2. A statement dated 10 March 2015 from a person who will be referred to in these Reasons as DF. 3. A statement dated 24 February 2015 from the mother of JKB. 4. A report dated 27 March 2015, from Anna Robilliard, a Forensic Psychologist,
2. The applicant and Ms Robilliard also gave sworn evidence.
3. The respondent entered into evidence without objection two bundles of documents.

The date of birth of BQV and the victim

1. BQV was born on 30 October 1989.
2. JKB was born on 12 September 1992.

The Matters to be considered - the first matters - charges under s.66(3) of the Crimes Act 1900

1. BQV was charged with an offence under s.66C(1) of the Crimes Act 1900. The charge was withdrawn and did not proceed to a conviction. The Details of the offence as provided by the police are that between 11 September 2004 and 12 September 2006, BQV had sexual intercourse with JKB.
2. The police details about the incident are to the effect that it occurred before BQV and JKB were living in the same house. It is alleged that after a party he took JKB back to his house where sexual intercourse took place.
3. The record of a police interview conducted on 28 September 2007, indicates that BQV volunteered to the interviewing police the information that he and JKB had intercourse prior to the incident about which he was being questioned and was subsequently charged.
4. In the record of interview conducted on 28 September 2007, BQV makes statements to the effect that the first time he had sexual intercourse with JKB was just after Christmas 2006 but he also states that the it was around the time of New Year 2006. He states that at that time JKB was not living permanently in the same house as him, but stayed at that house from time to time.
5. Under cross examination it was suggested to BQV that the first occasion of sexual intercourse between him and JKB was in 2004 when JKB was about 11 or 12 years old. BQV denied these suggestions. He said that the period over which he and JKB had been having sexual intercourse was about 18 months and he believes that JKB would have been 14 to 15 years old the first time they had sexual intercourse.
6. In her report dated 27 March 2015 Ms Robilliard states that BQV reported that he and JKB had a close relationship and would sometimes confide in each other and 'whinge about our parents'. He said that he did not consider her as a sister and enjoyed their friendship. Referring to BQV and JKB living in the same house, Ms Robilliard states "they were living in circumstances that facilitated emotional closeness and (BQV) described how they confided in each other and ultimately had sexual contact".
7. I am satisfied that based on BQV's statements in the police record of interview conducted on 28 September 2007 and his evidence during the hearing, sexual intercourse had taken place between BQV and JKB before they were living in the same house and in circumstances which differed from those referred to by Ms Robilliard as cited in the preceding paragraph.

The offences with which BQV was charged

1. On 21 July 2008 at the Port Kembla Court House BQV was dealt with in respect of two counts of having sexual intercourse with a person aged more than 14 and less than 16 years. He was convicted and released on probation under s.33(1)(e) of the Children (Criminal Proceedings) Act 1987 with conditions requiring him to accept the supervision of the NSW Probation and Parole Service and any other intervention services on appropriate sexual behaviour and other directions as required.
2. The Agreed Facts on Sentence include the following details about these offences: 1. They occurred on 28 September 2007 at which time BQV was aged 17 and JKB was aged 15 years. 2. BQV and the JKB were de facto stepsiblings as BQV's mother and JKB's father were living in a de facto relationship. BQV and JKB had been living in the same house for approximately six months prior to these offences. 3. At about 9:30am BQV and JKB were in the home together. BQV entered the bedroom of JKB and asked her if she wanted to have sex. He then pulled the bedclothes off her, grabbed her pants and pulled them down to her thighs turned her onto her side, held onto her and spat into his hand and then rubbed his saliva over his penis. He then inserted his penis into her vagina and removed it after a few minutes. He then took JKB's head with one hand, his penis with the other and put his penis in JKB's mouth. He moved his penis backwards and forwards and ejaculated in her mouth. 4. The additional withdrawn matters
3. BQV was charged with an additional 4 counts of aggravated sexual assault of a victim under the age of 16 that were related to the matters for which he was convicted. Those charges were withdrawn.

The seriousness of the offences or any matters that caused a refusal of a clearance

1. The matters involved sexual penetration of a child and are serious. However as indicated by the sentence for the offences for which BQV was sentenced, they are not at the most serious end of the scale for offences such as these.
2. Whilst BQV was convicted of two offences, proceedings were commenced in respect of seven offences in all. The offences as charged include an offence between 2004 and 2006. BQV admitted in evidence that he had sexual intercourse with JKB over a period of 18 months leading up September 2007, the date of the offences for which he was convicted.

The issue of consent

1. The Police Record of Interview on 28 September 2007 records that police advised BQV that JKB asserted that he had been asking her to have sexual intercourse with him over the past six months and she had refused and that she also said that no other sexual intercourse had taken place before the events for which he was being questioned. In the interview BQV asserted that sexual intercourse was consensual and in support of this assertion he provided details of what he asserted were previous incidences of consensual sexual intercourse.
2. The record of the interview on 28 September 2007 records discussions between BQV and the interviewing police officers regarding the age of consent. BQV states that he is aware that the legal age of consent is 16 years, but suggests that this is not relevant if both people agree. He expresses the view that it is "OK that they've made the decision on, on their, by themselves, that they're going to, they know what they, they're there for"
3. The Family and Community Services Assessment Record compiled in respect of the offences for which BQV was convicted comments that it is unclear whether JKB had consented to an ongoing sexual relationship with BQV and it is possible that she had consented on previous occasions.
4. In his statement to the Tribunal BQV makes a statement to the effect that the intercourse of which he was convicted was with the consent of JKB but she was not of an age where she could legally give consent. At the time he was not aware of the fact that JKB could not give consent and once this was pointed out he pleaded guilty.
5. In her report dated 27 March 2015 Ms Robilliard reports that BQV said that from "his perspective their sexual interactions were consensual though he now understands clearly that it was illegal because of her age".
6. During the hearing under cross examination BQV said that he asked JKB if she wanted to have sex and JKB did not answer "yes" or "no". He agreed that he pulled down the pants of JKB but said that she shared in that activity. He said that he did not recall turning her over and holding onto her as was stated in the agreed facts. BQV said that he spat on his hand and rubbed saliva onto his penis because JKB said that otherwise there would be too much friction and intercourse would hurt her.
7. When asked under cross examination if the reason why intercourse would hurt JKB was that she was not ready and willing to have sex BQV replied "yes".
8. Under cross examination it was put to BQV that on the first and subsequent occasions of sexual intercourse he did not care whether or not JKB wanted to have sex. BQV answered "true".
9. Counsel for the respondent submitted that the offences are more serious because the applicant did not care whether or not JKB consented to the sexual intercourse and because he knew that JKB was not ready and willing to have sexual intercourse. She submitted that his statements supported the version of events provided in the police facts, but not in the agreed facts, that suggested, in effect, that BQV used some force in relation to the offences of which he was convicted. She submitted that these factors distinguish the offences from that of consensual sex between two teenagers
10. In my view, this submission requires some further analysis. 1. In my view, the offence is not one of consensual sex between two teenagers regardless of the state of mind of BQV because in all the circumstances, JKB was not able to give proper consent. 2. In my view BQV's offences and the matters charged and withdrawn were serious due to the age of JKB and the potential harm to her of BQV's actions because at her age. She was too young to properly consider the issue of consent and even had she consented, or had BQV thought she consented, BQV's actions were such that would have caused JKB harm, even if they both thought she was consenting. 3. In my view, whilst agreeing that he did not care whether or not JKB consented to sexual intercourse, BQV did not state that she did not consent and he did not care about that. 4. To the contrary, BQV has consistently asserted that she did consent. 5. BQV agreed to the proposal put to him that it was possible JKB was not "ready and willing" for intercourse. I am of the view that knowing that JKB was "not willing" to have sex equates with knowing that she was not consenting. However I am of the view that knowing she was "not ready" does not equate with knowing that she was not consenting and could suggest that whilst willing for sexual intercourse she was not, as yet, physiologically ready. 6. The question put to BQV was a compound question and its meaning was not further elucidated during the hearing. I am not satisfied that when he agreed to the compound proposal under cross examination BQV was able to properly analyse the proposal and compose a response.
11. Based on the above analysis, I am not satisfied that BQV's evidence under cross examination is the effect that he knew that JKB was not consenting to sexual intercourse, but did not care about that, or that it therefore supports a conclusion that he used some force when committing the offences.
12. I am of the view that not caring about JKB's state of mind reflects negatively on BQV's attitude to the offences and is a matter that is properly taken into account in assessing his likelihood of reoffending.

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

1. The first matters with which BQV was charged were alleged to have occurred sometime between 2004 and 2006, some 9 to 11 years ago, and the offences of which he was convicted occurred in 2007, almost 8 years ago.
2. BQV has not been charged with any offences since those for which he was placed on probation and there is not evidence that he has come under any adverse police notice since that time.

BQV's attitudes to the offences

1. As noted above in the section of these Reasons dealing with the seriousness of the matters, in the Police Record of Interview conducted on 28 September 2007 BQV expressed the view that JKB consented to sexual intercourse with him. Ms Robilliard also reports him as stating that he considered the sexual intercourse to be consensual.
2. BQV tendered into evidence a signed statement dated 10 March 2015 made by a person who in these Reasons will be referred to as DF. In his statement DF states that he is aware of BQV's offences involving sexual relationship with a girl who, because of her age, could not give consent.
3. BQV also tendered into evidence a statement dated 24 February 2015 from the mother of JKB in which she expresses the view that JKB's behaviour played a part in the events resulting in the arrest of BQV.
4. Counsel for the respondent submits that the statements of DF and the mother of JKB fail to acknowledge the seriousness of BQV's behaviour.
5. At the time of the offence and subsequently BQV has continued to assert that JKB consented to sexual intercourse. However, as detailed in the section of these Reasons dealing with the seriousness of the offences, under cross examination BQV agreed that he had not cared whether or not JKB consented to intercourse.
6. In her report dated 27 March 2015 Ms Robilliard makes a statement to the effect that during the assessment interview, BQV demonstrated a mature and insightful understanding of the possible negative impact of his offence behaviour on JKB and deeply regretted it.
7. Contrary to the view of Ms Robilliard, I am of the view that by continuing to assert that JKB consented to sexual intercourse, even though he did not care whether or not she consented, BQV has continued to engage in offence minimisation by which he attempts to reduce his culpability.
8. I am also of the view that BQV's continued assertions that JKB consented to sexual intercourse indicate that he has not properly understood that a child cannot consent to sexual intercourse.
9. I am also of the view that in continuing to assert that JKB did consent, even though she was too young to do so, BQV has demonstrated a lack of insight into the possible harm to JKB caused by his actions.
10. In her report Ms Robilliard states that BQV reported that he has had no subsequent contact with JKB. He said that he was angry about what was said about him at the time of his arrest and the lack of support that he received but he is no longer angry.
11. The Office of the Children's Guardian Risk Assessment Report states that in discussing his offence with the assessor, BQV minimised his culpability by saying he was "at the wrong place at the wrong time". When questioned about this by counsel for the respondent, BQV said that he was angry at the time because he was frustrated about his job and about the interim working with children bar.
12. Counsel for the respondent put to BQV that he told Ms Robilliard that he had overcome his anger about being involved in the criminal justice system because of the offences. BQV said that this was the case but that he had been angry at the time of the risk assessment because of additional work related matters such as spending 50 hour weeks at work with a one hour drive to and from work.
13. I accept that it is possible that BQV made the comment to the Office of the Children's Guardian Risk Assessor out of anger and frustration about the Working With Children Check Process. However I am also of the view that BQV's statement casts some doubt onto the assessment of Ms Robilliard that he has adopted a mature and insightful attitude regarding the offences.

BQV's lifestyle since the offences

1. In his statement dated 9 March 2015 BQV makes statements to the following effect: 1. At the time he was charged he was employed as a Telstra technical advisor and was employed there from 2007 to 2009. From 2009 to 2014 he was employed in various locations as a Telstra systems expert and sales representative and business manager. In January 2014 he took up employment as a trainee professional golfer. 2. At the time of the offences he was living in the home of his mother and her partner. Following his arrest he moved out of home and lived for a number of years with his maternal grandparents. He has since returned to live with his mother and her partner. 3. JKB now has three children who are in the care of her mother who is on good terms with BQV's mother and her partner and they have regular dinners together. Whilst BQV has no contact with JKB, her children visit the home of BQV and his mother regularly and they stay in his house once a month. He gets on well with the children who are sometimes left in his care.
2. In his statement dated 10 March 2015, DF states that he is a Golf Professional who has known BQV for 14 years through their involvement in golf and on a social basis. He states that he has been aware of the index offences since they were dealt with in the court. He states that BQV has admitted to what he has done despite the shame and embarrassment that it has caused and states that in his opinion BQV is "gentleman who is well respected by his peers'.
3. DF states that he is aware that BQV is pursuing a career as a golf professional and in that role he would meet and interact with children. He states that he "has no concerns or fears that (BQV) would represent a risk or danger to any other person, especially children".
4. According to his statement and that of DF, BQV has remained in employment since the offence and was working towards employment as a golf professional. The respondent tendered into evidence an email dated 21 April 2015 from BQV's employer at the time he wrote his statement. That email is to the effect that subsequent to the date of his statement, BQV had been "let go" by that employer because he was using social media at work and spoke of staff and the club and that behaviour was against the employer's policy. An email dated 22 April 2015 from the same manager confirms that the dismissal did not relate to any matter that would pose a risk to any children and was purely work related.
5. During the hearing BQV said that he has changed his employer but remains in employment and is continuing to pursue a career as a golf professional.
6. In her report dated 27 March 2015 Ms Robilliard states that it is in BQV's favour that he had never been fired from a job. The more recent evidence from his previous employer indicates that this is not the case.
7. The solicitor for the applicant submitted that BQV's conduct since the offences has been that of a productive and contributing member of society who has remained employed and is currently employed despite the matter referred to above. The statement of DF supports those submissions and speaks of BQV as a person who is open and honest in his dealings with others and is respected by his peers.
8. In her statement, JKB's mother expresses the view that BQV has done everything he can to put the matters behind him and has worked hard to make a future for himself.
9. I am of the view that it is in BQV's favour that since the offences he has not come to any adverse police notice, has continued in employment and maintains a good social relationship with members of JKB's family and with the mother of JKB who has seen fit to provide a statement of support to the Tribunal. Taking into account the limited available evidence regarding the circumstances of his dismissal from his previous employer, I draw no adverse conclusions regarding that matter.

Treatment or programs since the offences

1. In his statement dated 9 March 2015 BQV makes statements to the effect that when on probation he was subject to supervision and meetings with his supervising officer for a period of six months but after that the level of supervision was decreased. He was not required or requested to undertake any formal program or treatment.
2. A Risk Assessment Report conducted by the Office of the Children's Guardian records that BQV said that he had seen a psychiatrist in relation to the offences and would provide a report, which he did not do. When asked about this in cross examination he said words to the effect that on three occasions he saw a male who might have been psychologist or a psychiatrist. He said this was around the time of his court appearance. I accept that the consultations to which he refers could be the three occasions on which he was seen for the preparation of the Juvenile Justice Sex Offender Program assessment report. I do not draw any adverse conclusions from BQV's statement that he had seen a psychiatrist, as I am satisfied that a layperson might confuse the professions of a psychiatrist and a psychologist.
3. In cross examination counsel for the respondent noted that BQV had told Ms Robilliard that he had never required attention for mental health issues and asked him why he had not told her he had seen a psychiatrist in relation to his offence. I am satisfied that BQV's statement that he had seen a psychiatrist regarding the offence is not inconsistent with his report that he has never required attention for mental health issues as attendance for an offence related issue might be considered a different matter from attendance for mental health treatment.

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, 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.

1. The ages of BQV and JKB at the time of the offence as charged under s. 66C(1) of the Crimes Act 1900 are unclear. The police details of the offence are that between 11 September 2004 and 12 September 2006 BQV had sexual intercourse with JKB. BQV was born on 30 October 1989 and in on 11 September 2004 BQV would have been 14 years old. JKB was born on 12 September 1992 and on 11 September 2004 would have been one day off being 12 years old. On 12 September 2006 BQV would have been 16 years old and JKB would have been a day off 14 years old.
2. At the time of the commission of the offences for which BQV was convicted, he was 17 years old and JKB was 15 years old. There is two years and 11 months difference in their ages and he clearly know that she was a child, as he was.
3. In her report, Ms Robilliard states that the difference in ages between BQV and JKB is just two years which does not suggest a marked power differential.
4. I accept that BQV and JKB were both children at the time of each of these matters occurred. However, there was almost three years difference in their ages and at the time of the offence for which BQV was convicted he was almost 18 years old. It is my view that the difference in power and vulnerability of an almost 18 years old and an almost 15 years old young person is considerable. I am also of the view that the co-habitation of BQV and JKB over the period that most of the offences occurs adds to the vulnerability of the victim, the more so taking into account BQV's evidence under cross examination that he did not care whether or not JKB consented to sexual intercourse.

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

1. BQV has not come under any adverse police notice since the offences.

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

Report of Juvenile Justice Sex Offender Program

1. BQV tendered into evidence, as an attachment to his statement, a report dated 18 July 2008 from the Juvenile Justice Sex Offender Program that was prepared for the Port Kembla Children's Court.
2. The assessment was compiled following three interviews with BQV and included the conduct of a structured assessment interview as well as other psychological tests. The assessment report indicates that: 1. BQV did not have a propensity to violence and instead managed his outward expressions of anger. 2. He had no clinically significant results on a psychological symptom inventory and he had no evidence of unhealthy sexual preoccupation, fantasies or sexual practices. 3. He reported no drug use but some alcohol use. 4. BQV demonstrated that he understood the legalities relating to the age of consent but engaged in some offence minimisation and expressed anger at needing to undergo a court process for what he considered was consensual sex. He was not able to hypothesise about the possible effect of his actions on the victim. He understood at a cognitive level that his actions had impacted on his victim but did not appear to understand this concept at an emotional level. 5. Based on the results of the Estimate of Risk of Adolescent Sexual Offence Recidivism (ERASOR) BQV represented a low risk of sexual offending. His risk assessment results indicated several protective factors including no sexual offence history, no previous history of antisocial behaviour, positive peer relationships and no apparent evidence of unhealthy sexual preoccupation. Risk factors that were identified related to him having assaulted a child victim, evidence of some family discord and evidence of distorted thinking in relation to his offending behaviour and victim.
3. The report includes a formulation to the following effect: BQV seemed to have a cognitive sense of empathetic concern but lacked emotional understanding of that concept. There was evidence of the use of cognitive distortions and minimisation in the content of his discussions about the offence. His offending risk estimate indicates a low risk of sexual recidivism but his beliefs around sex and sexuality at the time of the offence may warrant intervention addressing appropriate sexual behaviour, human sexuality, social skills training and dating skills. During interview he did articulate appropriate responses to questioning in this area with respect to generalised attitudes but his minimisation and justification when discussing the victim indicated a need for intervention in this area. It is recommended that BQV attend intervention focusing on issues of appropriate sexual behaviour.
4. The report recommends that the areas of concern would be best managed through a combination of psycho educational approaches that address human sexuality, appropriate sexual behaviour, social skills training and dating skills.

Report of Ms Robilliard

1. In her report dated 27 March 2015 Ms Robilliard provides information and opinion to the following effect: 1. BQV reported that he and JKB had a close friendship and he did not regard her as he would a sister. 2. He considered their sexual relationship consensual but now understands it was nevertheless illegal. 3. During the interview he demonstrated a mature and insightful understanding of the possible negative impact of his offence behaviour on JKB and deeply regretted it. He has had no subsequent contact with JKB. He said that he was angry about what was said about him at the time and the lack of support that he received but he is no longer angry. 4. BQV reported good physical health and well being. He said that he has never been treated for major illness and is not on any medication. He said that he has never required attention for mental health issues and that his mood state is usually even. 5. Recent research has found that only two factors are significant in distinguishing between reoffending and non-reoffending adolescent sexual offenders. These two factors are: 1. being the victim of sexual abuse in childhood; and 2. inappropriate sexual behaviour such as exhibitionism, voyeurism, compulsive masturbation and use of deviant pornography. 1. BQV was adamant that he has never been the victim of sexual abuse. He lacked any apparent interest in deviant sexual behaviour and his attitude to intimate relationships appeared to be normal and well considered. 2. The difference in ages between BQV and JKB is just two years which does not suggest a marked power differential. They were living in circumstances that facilitated emotional closeness and BQV said they did confide in each other. Given the circumstances of the offence and the ages of BQV and JKB the offences of which BQV was found guilty would not be described as sexually deviant. There was no indication of behavioural disinhibition due to intoxication. In summary, the characteristics of the offence do not indicate deviant sexual interest. 3. An Australian study has found that by an average age of 23.7 only 9% of sexually offending adolescents have been charged as adults for subsequent sexual offences. A further study into long-term recidivism rates of adolescents who sexually offended has found the most sexual recidivism occurred in the first few years after the adolescents were initially charged. 4. BQV is now aged 25. Despite unusual and somewhat unsettled family circumstances he has established a well organised and self sufficient lifestyle. He has undertaken training and has been in secure and stable employment for significant periods of time has never been fired from a job. He is undergoing a traineeship with PGA and his performance has been satisfactory. He has not been charged with any subsequent offences and does not appear to engage in any anti-social activities. He reported no drug use and minimal use of alcohol. 5. Whilst the report of the Juvenile Justice Sex Offender program included reference to BQV being angry about his involvement in the criminal justice system and engaging in some offence minimisation at the assessment interview it was apparent that he had developed a mature and more informed attitude and appropriate victim empathy. 6. The protective factors noted in the report of the juvenile justice sex offender program have continued into his adult years. 7. In respect of the risk factors identified in the Juvenile Justice Sex Offender Program assessment report, the description of his offence as involving a "child victim" was probably based on the fact that at the time the report was prepared BQV was aged 18 and by then was an adult whilst JKB remained under 18. However the fact that there is just a two year age difference between BQV and JKB makes the description of him as an adult and her as a child victim very questionable. 8. While the Juvenile Justice Sex Offender assessment identifies a dysfunctional family background as a risk factor, a recent study (cited by Ms Robilliard) suggests that this is not a significant factor affecting rates of sexual recidivism. 9. The "distorted thinking in relation to his offending behaviour and the victim" refered to in the Juvenile Justice Sex Offender assessment probably refers to the fact that the BQV was angry at the time about his involvement in the criminal justice system and rejection by his mother and lack of family support. At the time of the assessment interview his anger had abated and he demonstrated a mature, insightful and appropriate attitude. 10. BQV was deemed to be a low risk of sexual reoffending at the time of his court appearance. In the opinion of Ms Robilliard, that assessed level of risk is further reduced by reference to current research data and BQV's subsequent and current organised and prosocial lifestyle. Accordingly, in the opinion of Ms Robilliard, BQV presents a negligible risk of sexual reoffending in any context.
2. Counsel for the respondent referred Ms Robilliard to the Police Facts regarding the offence on 28 September 2007 which include a clause to the effect that when BQV requested sex from JKB the latter said "no" and BQV then pulled the bedclothes off her. Ms Robilliard said words to the effect that she did not take those matters into account in her assessment because that description of events was not in the agreed facts to which BQV pleaded guilty.
3. In his final submissions the solicitor for the applicant submitted that I should not place weight on matters alleged in the police facts regarding the offences of which BQV was convicted where those allegations are not a part of the agreed facts. In my view the assertions in the police facts have not been tested in evidence and were not agreed to by BQV and should be accorded limited weight in contrast to the agreed facts about the same event.
4. Counsel for the respondent noted that in her assessment Ms Robilliard focussed on the two offences for which BQV was found guilty and suggested that she might not have taken into account the other five offences which had been withdrawn. Ms Robilliard replied to the effect that all the charges were included in the documents with which she was provided and she would have taken them into account in her assessment of BQV.
5. Ms Robilliard said under cross examination that BQV had not told her that the first occasion of sexual intercourse, resulting in the charge under s.66C(1) of the Crimes Act 1900, took place when he and JKB were not living under the same roof.
6. Under cross examination by counsel for the respondent, Ms Robilliard said that she had not administered any formal personality assessment battery to BQV because she had not noticed any unusual or aberrant factors that would suggest it was appropriate to use such an assessment. She said that she did not administer an actuarial sexual reoffending risk assessment because she was not aware of any factors that would have changed the results of the ERASOR administered by the Juvenile Justice Sex Offender Program assessors.
7. In response to a question from counsel for the respondent as to why she had not used the Static 2002R assessment inventory which, according to counsel would have placed weight on the age of BQV at the time of the offences, Ms Robilliard said words to the effect that she was not familiar with the scoring protocol shown to her by counsel and in any case the Static 2002R assessment was never intended to be administered to offenders who were under the age of 18 at the time of the offence.
8. Counsel for the respondent put to Ms Robilliard that BQV's admission under cross examination that he knew that JKB was not ready and willing to have sex and that he did not care whether or not she consented, compared with his comments during assessment that he believed that JKB had consented, suggests that he has not achieved insight into the offence. In reply Ms Robilliard said words to the effect that in her opinion it is not inconsistent that if he had those attitudes at the age of 17 he now realises that regardless of whether or not he thought she consented, his actions were wrong.
9. Counsel for the respondent suggested that in telling Ms Robilliard that he believed JKB had consented, BQV was engaging in offence minimisation and denial.
10. In answer to a question from the Tribunal, Ms Robilliard said that almost all sexual offenders minimise their offence and engaging in minimisation is not a good indicator of the risk of reoffending.
11. During cross examination counsel for the respondent noted that whilst the Juvenile Justice Sex Offender Program report assessed BQV to be a low risk, it recommended that he attend intervention focusing on issues of appropriate sexual behaviour he had not done so. She proposed that the assessment made by Juvenile Justice was contingent on him attending such a program.
12. In her report Ms Robilliard makes comments to the effect that BQV has said he had never been treated for a major illness. In cross examination counsel for the respondent questioned BQV about his matter and asked why he had not told Ms Robilliard that he had been treated for a cyst in his jaw that was thought to be cancerous as well as scoliosis. BQV said that the jaw issue has not been a problem for the past six to twelve months and the scoliosis has not been a problem for some years.
13. Ms Robilliard's report also states that BQV said he had never been required treatment for mental health issues and his mood state was usually even. Counsel for the respondent questioned BQV about these comments and suggested that if he had seen a psychiatrist, as he reported to the Office of the Children's Commissioner risk assessor, his statement to Ms Robilliard was untrue. BQV said that he had seen someone to who he had spoken about his feeling and he did not know the person's qualifications. Under re-examination BQV said that these sessions were around the time of his court appearance. As noted above, I accept that these sessions were most likely the assessment sessions for the compilation of the Juvenile Justice Sex Offender Program assessment.
14. Counsel for the respondent questioned Ms Robilliard about her acceptance of BQV's comments to the effect that he had never been treated for a major illness or required mental attention for mental health issues. She submitted that Ms Robilliard compiled her report on the basis that BQV was telling her the truth when in fact he had withheld details from her.
15. Counsel for the respondent submitted that in her failure to take adequate account of the matters that were withdrawn and inconsistencies in BQV's accounts of his medical and mental health, Ms Robilliard has taken a positive view of the applicant and has been an advocate for him rather than an impartial witness. She submitted that therefore less weight should be given to the evidence of Ms Robilliard. I have taken that submission into account in reaching my conclusions.
16. In reaching a conclusion regarding the likelihood of BQV repeating a similar offence I have taken into account the following with reference to the positive factors identified in the report of the Juvenile Justice Sex Offender Program assessors: 1. Lack of sexual offence history 1. It is not clear whether the charges that were withdrawn were considered in the Juvenile Justice Sex Offender Program assessment. They are not specifically mentioned and in section of the report headed "sources of information". The report also states that BQV said he has "had a couple of past relationships with peer aged females". I am of the view that had the report taken the withdrawn matters into account they would have been referred to specifically and the lack of reference to them supports a conclusion that they were not taken into account. 2. I have no evidence as to whether or not the assessment would have been different if the withdrawn matters had been taken into account. 3. BQV has had no further sexual offences or proceedings in respect of similar matters. 1. No previous history of antisocial behaviour 1. There is no evidence before the Tribunal that BQV has engaged in anti social behaviour since the offences were dealt with. 2. In her report Ms Robilliard states that BQV advised he does not use drugs and only uses alcohol sparingly once a week. 3. In respect of the submission of counsel for the respondent that I should place limited weight on the evidence of Ms Robilliard in relation to this matter I take into account the consistency between the reports of the Juvenile Justice Sex Offender program and that of Ms Robilliard and the absence of any evidence to the contrary. 4. I am satisfied that there is no evidence that BQV has other than no previous or current history of antisocial behaviour. 1. Positive peer relationships 1. In his statement DK refers to BQV as a "gentleman who is well respected by his peers. 2. In her report Ms Robilliard states that BQV reported that most of his friendships are through his golf and most are older than he is. 3. In respect of the submission of counsel for the respondent that I should place limited weight on the evidence of Ms Robilliard in relation to this matter I take into account the consistency between Ms Robilliard's assessment and the evidence of DK as well as the absence of any evidence to the contrary. 4. I am satisfied that there is no evidence that BQV has other than positive peer relationships. 1. No apparent evidence of unhealthy sexual preoccupation 1. In her report Ms Robilliard opines that BQV's attitudes to "intimate relationships appeared normal". 2. Ms Robilliard also states that BQV "did not evidence any signs of deviant sexual interest or behaviour nor would the behaviour be described as sexually deviant give the respective ages and circumstances surrounding the offence". 3. As noted above in the view of Ms Robilliard, those circumstances include the fact that in her opinion BQV and JKB were "living in circumstances that facilitated emotional closeness". As noted above, I am satisfied that on the first occasion of sexual intercourse the circumstances were not as described by Ms Robilliard. However there is no evidence to suggest that therefore BQV's behaviour was sexually deviant. 4. I accept that the circumstances for the offences of which BQV was convicted and the withdrawn charges of aggravated sexual assault were generally as described by Ms Robilliard. 5. I have been provided with no evidence that BQV has any current unhealthy sexual preoccupations, fantasies or sexual practices. 6. In respect of the submission of counsel for the respondent that I should place limited weight on the evidence of Ms Robilliard in relation to this matter I take into account the consistency between the reports of the Juvenile Justice Sex Offender program and that of Ms Robilliard and the absence of any evidence to the contrary regarding this matter. 7. I am satisfied that there is no evidence that BQV has unhealthy sexual preoccupations or sexually deviant behaviour.
17. In reaching a conclusion regarding the likelihood of BQV repeating a similar offence I have also taken into account the following with reference to the risk factors identified in the report of the Juvenile Justice Sex Offender Program assessors: 1. BQV assaulted a child victim. 1. As noted above, I consider that the difference in the ages of BQV and JKB was significant in contributing the vulnerability of JKB. In this respect my conclusion differs from that of Ms Robilliard. 2. However I accept that at the time of the matters with which he was charged and those of which he was convicted, BQV was also a child. 3. There is no evidence before me that as an adult, BQV is a person who has an interest in sexual engagement with children. To the contrary: 1. The Juvenile Justice Sex Offender assessment states that there was "no apparent evidence of unhealthy sexual preoccupation, fantasies or sexual practices". 2. In her report Ms Robilliard states that BQV lacked any apparent interest in deviant sexual behaviour and his attitude to intimate relationships appeared to be normal and well considered. 3. As noted above there is not evidence before me to suggest that BQV has any unhealthy sexual preoccupations of deviant sexual interests. 4. In his statement DK states that he has known BQV for 14 years and has spent time with him through their mutual involvement in golf and on a social basis. He states that he has seen BQV interacting with a range of people, including children, and has no concerns that he would be a risk to any other person, especially children. 5. I am satisfied that there is no evidence before me that as an adult, BQV has any sexual interests in children. 1. Evidence of some family discord 1. In her report Ms Robilliard cites research conducted in 2011, which post-dates the Juvenile Justice Sex Offender Program assessment of BQV. She reports that the research found that factors including coming from a dysfunctional family were not significant in distinguishing between adolescent sexual offenders who reoffended and those who did not. 2. Whilst counsel for the respondent submitted that reduced weight should be placed on the report of Ms Robilliard due to her inadvertence to certain factors, there was no submission made that the research cited by Ms Robilliard should be questioned. 1. Evidence of distorted thinking in relation to his offending behaviour and victim. 1. The report of the Juvenile Justice Sex Offender Program recommends that BQV undertake a program to address issues such as appropriate sexual behaviour, human sexuality, social skills training and dating skills. I am satisfied that he has not attended such a program. 2. The assessment of BQV as a posing a low risk of reoffending was made taking into account both the protective factors and the risk factors identified in the assessment and was made even though at that time he had not attended such a program. Whilst the assessment recommends attendance at a program I am satisfied that the assessment of BQV as a low risk was not contingent on him attending a program in the future. 3. According to his evidence, the intensity of BQV's supervision by the Probation and Parole Service was reduced after six months. There was no challenge to this statement during the hearing nor was it suggested that attendance at a program was recommended as part of his supervision.
18. In her written submissions counsel for the respondent submits that the applicant has denied the severity of his abusive conduct during the sexual assaults by claiming that lack of consent was only due to the age of the victim. She submits that he has shown no insight into his offending conduct and the risk to his victim. I am of the view that BQV's ongoing minimisation of his culpability reflects badly on his level of insight regarding the offences. However the presence of "cognitive distortions and minimisation" by BQV were referred to by the Juvenile Justice Sex Offender Assessors who nevertheless assessed BQV as having a low risk of reoffending. Further, according to the evidence of Ms Robilliard, offence minimisation by sexual offenders is not indicative of an increased risk of reoffending.
19. During the hearing BQV said that at the time of the offences he did not care whether or not JKB was consenting or not to the sexual intercourse. He said that he accepts that the fact that he needed to use saliva as lubricant indicates that JKB was not "ready and willing" to have sexual intercourse.
20. As outlined in the section of these Reasons dealing with the seriousness of the offence, in my view BQV's admission under cross examination that he did not care whether or not BQV had consented to sexual intercourse and that the use of lubrication to assist during sexual intercourse indicated that she was not "ready and willing" for intercourse does not equate to an admission that he knew she was not consenting to sexual intercourse.
21. Based on the analysis outlined in the section of these Reasons dealing with the seriousness of the offences, I am satisfied that: 1. BQV did not care whether or not JKB consented. 2. The admission that BQV did nor care whether or not JKB consented is not inconsistent with his statement that he believes she did consent. 3. BQV has minimised his culpability by continuing to assert that JKB consented, even though he did not care whether she consented.
22. In her report Ms Robilliard assesses BQV as having a negligible risk of reoffending. She takes the "low" risk assessment of the Juvenile Justice assessors as a starting point and then, taking into account research data and BQV's current organised and prosocial lifestyle she concludes that there is negligible risk of him reoffending.
23. As noted above, counsel for the respondent has submitted that the weight given to Ms Robilliard's assessment should be reduced because her evidence has been in the nature of advocacy for BQV. In her oral submissions she pointed to Ms Robilliard's: 1. failure to take into account each of the index offences; 2. her belief that there was no reason to doubt that BQV was anything other than a low risk; 3. her failure to conduct any structured psychological assessments or actuarial risk assessments on the basis that there was no reason to believe that BQV represented anything as a low risk and the fact that she reached this conclusion only by believing what BQV had to say. 4. her position that whether or not BQV thought JKB had consented or did not care if she consented did not affect his level of risk. 5. Her lack of investigation as to whether or not BQV had attended a program following his conviction.
24. I am satisfied that the matters raised by counsel for the respondent are worthy of greater consideration than they were afforded in the report of Ms Robilliard. However I am also satisfied that they are unlikely to have influenced her conclusion that taking into account the Juvenile Justice Sex Offender program, the research regarding sexual offending risk of adolescent offenders and BQV's current prosocial lifestyle, the Juvenile Justice Program Sex Offender Program assessment that BQV represented a low risk of reoffending could be reduced to an assessment that he represents a minimal risk of offending.
25. In respect of the report of Ms Robilliard, and as noted above, I have reached conclusions that differ from hers in a number of matters including: 1. The circumstances of the earliest matter with which BQV was charged are different from those taken into account by Ms Robilliard, though the circumstances described by her apply to the majority of the matters. 2. I do not agree that the age difference between BQV and JKB was "only two years" and I am of the opinion that the age difference of two years and eleven months is significant in respect of the vulnerability of JKB especially taking into account the actual age of JKB at the times when the matters took place, and adds to the potential effect of the incidences on BQV. 3. I am also of the view that JKB was the more vulnerable because at the time of the majority of the matters she was living in the same house as BQV, and he has said he did not care about whether or not JKB consented. 4. Taking into account his ongoing assertions that JKB consented to sexual intercourse despite acknowledging both that he did not care if she consented and also that she was too young to be able to consent BQV is minimising his culpability for the offence. 5. I am satisfied that in minimising his culpability for the offence as well as asserting that he was in the "wrong place at the wrong time" regarding the offence, BQV has not demonstrated that he had developed a "mature and more informed attitude and appropriate victim empathy" as reported by Ms Robilliard.

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

1. In his final submissions the solicitor for the applicant stressed that the only criminal matters adverse to the applicant's application occurred almost eight years ago and that since that time he has been a productive and contributing member of society.
2. The solicitor for the applicant also submitted that that there is no evidence before the Tribunal that there are current risk factors that suggest that BQV is at risk of further offending.

Conclusion and Orders

1. This is a finely balanced issue. In considering all of the above matters I have reached the conclusions set out below. 1. The offences committed by BQV were serious. However as indicated by the penalty imposed by the court in respect of the offences, it is not at the most serious end of the spectrum of offences such as these. 2. The seriousness is mitigated to an extent by the fact that at the time BQV was himself a child. 3. BQV's attitude to the matters with which he was charged and offences for which he was convicted lacks insight into the possible harm caused and suggests that he continues to attempt to minimise his culpability for that harm. 4. BQV has not developed the insights and attitudes that might have been gained by attendance at a program as recommended in the Juvenile Justice Sex Offender Program assessment report. 5. Despite his views about the offences and matters with which he was charged and his lack of attendance at a program, BQV has not come under police notice as an adult. 6. There is no evidence that BQV's general conduct since the time of the offence has been such that he might pose any risk to children. 7. There is evidence that as an adult BQV has lived a productive and pro-social lifestyle including appropriate peer interactions. 8. The opinion of two assessment reports is to the effect that BQV is a low risk of reoffending. The Juvenile Justice Sex Offender Program reached that conclusion despite noting that BQV's attitudes to his offending indicated distorted thinking about the offences and his culpability. 9. Whilst I have reached some conclusions that differ from those of the author of one of the assessments, they are not such that, taking into account available evidence regarding the risk of reoffending, materially affect an assessment of the risk that BQV would reoffend agains a child. 10. There is no evidence before me that as an adult BQV has a sexual interest in children. I am satisfied therefore that his lack of insight into his offending does not pose a risk to children.
2. Taking into account the professional assessments of BQV's risk of reoffending, the matters considered in reaching those assessments, and also taking into account the lack of any evidence that BQV has a sexual interest in children, or in any other way represents a harm to children, I conclude that he does not present a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child, to the safety and welfare of children.
3. Having reached these conclusions, it is my view that the correct and preferable decision is that BQV should be granted a working with children clearance.
4. Having reached these conclusions I order that: 1. Pursuant to subs 28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant the Applicant a Working with Children Check Clearance. 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

Amendments 03 August 2017 - Order amended - remove order 1 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2017