The applicant is a 'disqualified person' under subsection 18(1) of the Child Protection (Working with Children) Act 2012 ('the Act') and has made an application for an order under subsection 28(1) of the Act declaring that he not be treated as a 'disqualified person' for the purpose of the Act. The order is known as an 'enabling order' and, if made, will have the effect of granting the applicant a working with children check clearance to work in child related work as defined under s6 of the Act. The Children's Guardian, who is the respondent in this matter, opposes the application for an enabling order.
The offence which brings the applicant within subsection 18(1) of the Act is that of indecently assaulting a male person, in contravention of s81 of the Crimes Act NSW. (see Schedule 2 1(k) to the Child Protection (Working with Children) Act 2012.)
In May 1971, the applicant pleaded guilty to five counts of indecently assaulting a male person. The offence will be referred to as 'the index offence'.
An application for an enabling order is required to be made within 28 days of the applicant being entitled to apply for such an order: rule 23(3) of the Civil and Administrative Tribunal Rules 2014. The applicant became entitled to apply for an enabling order on being declared a disqualified person on 1 October 2015. His application for review to this Tribunal was filed on 9 October 2015 and is accordingly within time. On this basis, the Tribunal has jurisdiction to hear and determine the application.
Section 7 of the Child Protection (Working with Children) Act 2012 presumes that unless an applicant is able to prove to the contrary, he or she poses a risk to the safety of children.
The issue to be determined by the Tribunal is whether the applicant poses a risk to the safety of children. In the case of an application for an enabling order, the Tribunal is to presume that, unless the applicant proves to the contrary, he does pose such a risk.
In considering this question, guidance is provided by Young EJ in Eq in the case of Commission for Children and Young People v V [2002] NSW SC 949 at [42] (as cited with approval in BKE v Office of Children's Guardian [2015] NSWSC 523 at [26]):
What one is looking for is whether, in all of 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 children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of children.'
The test applied in determining whether the applicant poses a risk to the safety of children is that of "a real and appreciable risk": see BGX v Children's Guardian [2014] NSWCATAD 173 and BYR v Children's Guardian [2013] NSWADT 310, at [38].
As indicated in the objects of the Act and in section 4 of the Act, the Tribunal's jurisdiction under section 28 of the Child Protection (Working with Children) Act 2012 remains protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSW 111 per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]. That is, the object of the Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children. The Tribunal's review jurisdiction, under section 27 of the Act, is similarly protective in nature.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 that the names of the applicant and his family as well as the name of the victim of the disqualifying offence are not to be published without the leave of the Tribunal. To give effect to this order, the pseudonym CEX has been used for the applicant's name.
[2]
Facts of the index offence
The applicant was 26 years old when, in 1971, he was arrested and charged with five counts of indecently assaulting a male person. He pleaded guilty to each count and received five concurrent sentences of 12 months imprisonment. He served nine months in prison before being released due to good behaviour.
At the time of the offences, the applicant was in charge of a church youth group. The offences involved either the applicant fondling the victims' genitals, who were aged between nine and eleven years, or requesting the victims to fondle his genitals.
[3]
CEX
CEX is a 72-year-old man who has been married for 40 years. He has three adult sons. Apart from the index offence, he has had no further criminal convictions. He wishes to be granted a working with children check clearance in order to participate in musical and church related activities.
He told the Tribunal that he has not offended for over 45 years and does not feel any sexual attraction towards children. He does not have any concerns that he may re-offend. He is appreciative of the trust of his church minister and told the Tribunal that he has never behaved in a way to give her any concerns.
From the age of 16 or 17 years, CEX had a sexual involvement with a church youth group leader who was then in his twenties. In relation to the circumstances of his 1971 conviction for indecent assault, he agreed that he himself had later been sexually involved with a 15 to 16 year-old boy on an irregular basis. He agreed that he had pleaded guilty to the indecent assault of five boys who were between the ages of nine and eleven years at the time and that, whilst on bail, he had been given a course of electric convulsive therapy (ECT).
He explained that from the time of his arrest in 1971, 'everything stopped': his involvement with the older man and his connections with his previous church and that he no longer had any sexual urges towards under-aged boys. He remains unsure as to why this is: whether it was because of the electric convulsive therapy or the shock of the whole procedure, his incarceration or his subsequent marriage. He told the Tribunal that from the time he married, ''everything was for my wife.' In terms of his medical health, a radical prostatectomy for prostate cancer has recently left him impotent.
CEX told the Tribunal that since his release from custody, he has never sought psychological assistance because he has never felt he needed it. When he and his wife were due to have children, he was concerned as to how he would react. When he had no inappropriate feelings at all, he was convinced that he had no need for any treatment. It was for this reason that he expressed the view that it felt odd to be seeing a psychologist after 45 years during which time he has neither re-offended nor had any inappropriate feelings towards children.
He has been a regular churchgoer since he was a child and remains involved with the church. When his own children were growing up, he had agreed to lead the church youth group, but only on a shared basis so that he would not be alone with the children. Rather than being because he didn't trust himself around children, this was because he didn't want to leave himself open to any misperception. He was particularly mindful of the trust his church minister had placed in him and always wanted to make sure that she had no concerns about him. He is adamant that he poses no risk of re-offending. Since the church's requirement for a Working With Children Check Clearance, he no longer maintains the role of church elder and choir director.
Two of his three adult sons are aware of the applicant's offending behaviour and subsequent conviction in 1972. They continue to have a close relationship with their father, who they continue to trust to look after their own young children. The applicant's second son is not aware of his father's conviction. CEX has not revealed it to him because of his concern for his second son's emotional welfare, as he has stress-related issues in his own life.
[4]
CEX's wife
In a statement prepared for the Tribunal, the applicant's wife confirmed that she married the applicant in 1972 and has 'never at any time questioned his behaviour when interacting with children.' She writes that 'at no time have I had any concerns about his interaction with our children or grandchildren who all have excellent relationships with him.'
[5]
CEX's eldest son
In a statement to the Tribunal, the applicant's son writes in support of his father who he describes as 'father, choir conductor, Sunday school superintendent, youth group leader, coach and now friend.'
He states that:
Through my work in the education system I have had reason to become deeply aware of behaviours that can be construed as abusive, inappropriate or just grooming. At no time had I have caused to consider any comment, act or choice made by my father, recent or in my earlier memories as in anyway inappropriate towards anyone, let alone any child… I do not believe that [the applicant] poses a threat of any kind towards any child, or anyone
[6]
CEX's youngest son
The applicant's youngest son provided a character reference for his father who he believes to be a person who 'is no threat to any child so would happily, with full confidence leave any child in his charge knowing that there would be no problems.
The applicant's youngest son describes himself as an educator and states 'I have had child protection training and have never witnessed or had cause to not trust my father around children.'
[7]
CEX's church minister
CEX's current church minister has known him for 12 years and is aware of the circumstances of his 1971 conviction. She has been vigilant in her observation of the applicant and states in her reference that she has 'never had any reason to be concerned by [CEX's] interaction with any child or children.'
According to the church minister:
It is my belief that the mistakes of the past concerning [CEX's] mistreatment of children or inappropriate interaction with young people are not likely to be repeated and that he should be freed from the current prohibitions. I believe [CEX] has sufficient cautions built into his character over the intervening years for there to be no chance of him placing any child, or any other vulnerable person, at risk.
[8]
Other references
In her reference for CEX, a colleague involved in musical theatre stated that she has never 'observed any behaviour that would indicate that he was a threat to any person.'
A retired judicial officer who has known the applicant for close to forty years, describes him as follows:
CEX has been a particularly active member of the church, especially in organisational matters relating to the worship and social activities. I have been able to observe his interaction with people over 40 years and am able to say that he is regarded as having impeccable integrity. There has never been the slightest whisper of any impropriety on his part.
He has disclosed to me events which occurred at a much younger age, more than 45 years ago, for which he suffered the consequences of imprisonment. My observation in that regard is to strongly suggest that he has been absolutely and completely rehabilitated.
[9]
Report of the Classification Committee of the Department of Corrective Services
A 1971 report of the Classification Committee of the Department of Corrective Services describes CEX as follows:
Good appearance and social personality. An intelligent, educated and introverted man he comes from a good religious family. He has had no previous trouble with the law and should not do so in the future. Although his offence is a homosexual linked one, it is in his case more a manifestation of an attempt to find a sexual outlet within the confines of a strict morality. Being a sensitive and very lonely person [he] was anxious to establish something more than the rather superficial relationships which were possible within his religious group and to a large extent this behaviour was a desperate attempt to achieve this. Ironically, as a result of this trouble he has formed a close relationship with a girl from his church and intends to marry her when released, they should stop all other aberrant behaviour. Present behaviour should be very good.
[10]
O'Shaughnessy psychologist
In CEX's session with the psychologist, Mr D O'Shaughnessy, notes reveal that CEX has queried the purpose of the session and expressed some frustration at the 'perceived injustice of the situation.' The notes state that 'the session explored insight and remorse regarding indecent assault of five boys in 1971…[CEX was] openly disgusted with previous behaviour.'
[11]
Psychological Risk Assessment Report
The forensic psychologist, Dr Emma Collins, provided a psychological risk assessment report for the applicant.
In considering his risk of re-offending, CEX scored two in the STATIC-99 test administered by Dr Collins, which places him in the moderate-low risk category of re-offending. It is Dr Collins' view, however, that CEX is better placed in the low category on the basis that he has not had any criminal convictions since 1971 and that his increasing age is a mitigating factor.
According to Dr Collins, the following issues are protective in regards to CEX's recidivism risk:
Only one criminal offence which was committed in 1971;
No substance abuse issues;
No history of child abuse;
No presentation of significant personality or psychopathic disturbance;
No evidence of sexual deviance or attitudes supportive of sexual violence;
No major mental health history;
Reasonable ability to cope with stressors faced;
No history of violent or suicidal ideation;
No evidence of problems with planning;
Current relationship of over 40 years duration;
Relative openness in discussing the offending behaviour.
Factors seen to increase the applicant's risk of reoffending are that the offences occurred in the context of a lengthy period engaging homosexual acts; the applicant was in a position of authority at the time; the applicant reports some history of introversion and difficulty engaging in small talk but nonetheless has some current pro-social peer supports.
On the basis of the risk assessment undertaken for CEX, Dr Collins reached the following conclusion:
Since his arrest, [CEX] has managed any potential homosexual interest well and has prioritised his heterosexual relationship, which he continues to describe as positive and supportive. The risk factors present in [CEX's] case are all historical and there are no current, significant risk factors present. To this end, there are no foreseeable risk scenarios that can be generated based on [CEX's] good functioning for many years in addition to the absence of any problematic risk factors.
Accordingly, the applicant does not present with any major risk management or treatment needs. There is no need for supervision, victim safety planning or otherwise taking precautionary steps to manage risk, given his very low risk rating.
Risk assessment places [CEX] in the low range for sexual recidivism. Has no current risk factors or need for risk management strategies to be utilised in the current case, because there are no obvious risk scenarios for re-offending.
Considering all of the information available to me, there are no indicators that he poses a risk to children anyway. It is my opinion that he is very low risk rating and his pro social behaviour over four decades reflect his ongoing, good functioning and hence there is no observable risk posed towards children in this case.
In oral evidence before the Tribunal, Dr Collins confirmed her opinion that the applicant has a low risk of reoffending, particularly in light of his lack of criminal convictions since 1971 and also in light of his age. She could not think of cases where an offender had re-offended after more than 25 years of non-offending and is of the view that there is a very low risk of the applicant doing so. In trying to understand the applicant's lack of further aberrant behaviour following his arrest, she surmises that the applicant's arrest and imprisonment might have shocked him into an understanding of the nature of the behaviour and an understanding of what he would lose should such behaviour continue. She described this as a 'wake-up call.' In her view, strategies employed by the applicant not to be alone with children were not an indication that he did not trust himself to be around children. It is her standard recommendation to her clients to engage in risk management and self-protective behaviour and not to place themselves in situations that could be misconstrued. This is a recommendation she makes not because of a potential risk to children but rather because of perceptions.
[12]
Findings and reasons
Subsection 30(1) of the Child Protection (Working with Children) Act 2012 sets out the following matters that the Tribunal is required to take into account for the purposes of determining an application made under s 28(1).
[13]
(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.
The applicant pleaded guilty to five counts of indecently assaulting a male person and was sentenced to 12 months imprisonment.
The offending behaviour is particularly serious in light of the young age of the victims, who were aged between 9 and 11 years; the position of authority held by the applicant over the victims and the breach of trust this involved in addition to the persistent course of offending and the number of victims involved.
[14]
(b) the period of time since those offences or matters occurred and the conduct of the applicant since they occurred,
The most recent of the disqualifying offences took place 45 years ago, in January 1971. The applicant has not been charged or convicted of any offences since this time.
[15]
(c) the age of the applicant at the time the offences or matters occurred,
At the time of the commission of the offences, the applicant was 26 years old.
[16]
(d) the age of the victim and any matters relating to the vulnerability of the victim,
The four victims were between the ages of 9 and 11 years. They were vulnerable by virtue of their age and given that they were under the applicant's care at the time of the offences.
[17]
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
The difference in age between the victims and the applicant was between 16 and 18 years.
The applicant was the leader of a church youth group of which the victims were members. At the time of the offences, the victims were under the authority, care and supervision of the applicant.
[18]
(f) whether the person knew, or could reasonably have known, that the victim was a child,
At the time of his offending behaviour, the applicant knew the victims were children.
(g) the person's present age,
The applicant is now 72 years old.
[19]
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
The applicant has no other criminal convictions apart from the index offences for which he was convicted in 1971. Upon his release from custody in 1972, the applicant returned to his previous employment where he remained until he was made redundant in 2000.
[20]
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
The Tribunal agrees with the submissions of the respondent that the impact on children of any reoffending by the applicant would be very significant. The offences involved indecently assaulting young boys who were under the supervision of the applicant and for whom he had a duty of care. The abuse of this duty of care was significant.
It is the opinion of Dr Collins that the applicant is in the very low range for sexual recidivism. According to Dr Collins, the risk factors present in the applicant's case are all historical and there are no current, significant risk factors present.
The Tribunal gives weight to the findings of Dr Collins that, on the basis of the applicant's good functioning for forty-five years and the absence of any problematic risk factors, there is no observable risk posed by the applicant.
The Tribunal does not accept that the applicant's attitude as recorded by Mr O'Shaughnessy may be indicative of a lack of insight on the part of the applicant into the seriousness of the offence. In evidence to the Tribunal, the applicant spoke of his shame and of his recognition that his offending behaviour 'should never have occurred.' On the basis of the applicant's evidence and the risk assessment report prepared by Dr Collins, the Tribunal is satisfied that the applicant does have insight into his offending behaviour.
The Tribunal notes the evidence of the applicant that he avoids being alone with children but does not agree that this is indicative that he has inappropriate urges around children. Rather, the Tribunal accepts his evidence and the evidence presented by Dr Collins that this is simply a self-protective measure to ensure appropriate perception of his actions - a course of conduct that Dr Collins recommends not to avoid risk but rather to ensure his behaviour cannot be misconstrued.
The Tribunal gives weight to the reference prepared for these proceedings by the applicant's church minister who has knowledge of policy and laws concerning the protection of children, who has observed the applicant's conduct for over a decade and who believes that he has 'sufficient cautions built into his character over the intervening years for there to be no chance of him placing any child, or any other vulnerable person, at risk.' The minister was not required by the respondent for cross-examination.
The Tribunal also gives weight to the reference prepared by a fellow parishioner and former judicial officer who has lengthy experience in the area of child protection and whose observation is that the applicant 'has been absolutely and completely rehabilitated. This referee was not required by the respondent for cross-examination.
[21]
(j) any information given by the applicant in, or in relation to, the application,
Following a diagnosis of prostate cancer, the applicant has advised that he has had his prostate removed and reports a marked drop in his libido since this time.
[22]
(k) any other matters that the Children's Guardian considers necessary.
Despite the fact that the applicant has not re-offended in 45 years, the Children's Guardian does not believe that this is sufficient for the applicant to discharge the presumption that he poses a real and appreciable risk to children.
[23]
CONCLUSION
Having regard to all the above factors, the Tribunal is satisfied that the applicant has discharged his onus, as required under subsection 28(7) of the Child Protection (Working with Children) Act, and has displaced the presumption that he poses a risk to the safety of children.
The reasons for this finding are as follows:
The Tribunal accepts that the offences committed by the applicant in 1971 were both serious and abusive. The evidence before the Tribunal is, however, that since this time, the applicant's behaviour has been exemplary. He has not received any further criminal convictions and there is no evidence before us that he has since come to the attention to police or to any welfare or educational authorities.
Despite the submissions of the respondent, the Tribunal is not satisfied that the applicant has tried to minimise his behaviour either in these proceedings or in his consultations with the psychologists Dr Collins and Mr O'Shaughnessy. The applicant accepts that his behaviour was criminal in nature and 'should never have happened.'
The Tribunal has given weight to the reference provided by the applicant's church minister, who has been aware of his conviction and who, in her observations of him, has 'sufficient cautions built into his character over the intervening years for there to be no chance of him placing any child, or any other vulnerable person, at risk.'
The Tribunal also gives some weight to the reference by a fellow parishioner who is a former judicial officer with lengthy experience in the area of child protection and who, in his support for CEX's application for an enabling order, notes that his observations 'strongly suggest that he has been rehabilitated.'
Most compelling for the Tribunal is the opinion of Dr Collins that the applicant poses a low risk to children. In particular, the Tribunal gives weight to Dr Collins' conclusion that any risk factors present in the applicant's case are historical and there are no current, significant risk factors present. The Tribunal also gives weight to Dr Collins' finding that there are no foreseeable risk scenarios that can be generated, based on the applicant's good functioning for many years in addition to the absence of any problematic risk factors. The Tribunal gives particular weight to Dr Collins' conclusion that on the information available to her, there are no indicators that the applicant poses a risk to children in any way and that in light of his very low risk rating and his prosocial behaviour for over four decades, he poses no observable risk posed towards children at all.
The applicant has given evidence that he has taken steps to avoid children since the offences. The Tribunal does not agree with the respondent that this behaviour indicates a continued sexual interest in children. Rather, the Tribunal gives weight to the evidence of Dr Collins that when she recommends to her clients to be self-protective in their interaction with children, it is simply to avoid any behaviour being misconstrued. On the evidence before it, it is the Tribunal's view that the applicant's vigilance in his interaction with children is not indicative of inappropriate thoughts towards them but rather a way to ensure that his behaviour is never wrongly construed.
On the basis of the applicant's evidence in these proceedings and the report prepared by Dr Collins, the Tribunal accepts that the applicant has insight into the criminal nature of his behaviour in 1971 and the impact it would have had on the victims.
On the evidence before it, the Tribunal is satisfied that, since his arrest in 1971, the applicant has not engaged in any criminal or inappropriate behaviour towards children. On the evidence before it, the Tribunal is satisfied that, since this time, the applicant has behaved appropriately towards children and adults alike whilst remaining aware of his need to continue to engage in self-protective behaviour.
Taking into consideration the expert opinion of Dr Collins, together with the other oral and written evidence submitted in these proceedings, the Tribunal is satisfied that the applicant has proved that he is not a risk to children and should not be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the index offence.
[24]
ORDERS
1. The Tribunal declares that the applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the index offence.
2. 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
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: 12 June 2018