CHI v Children's Guardian

Assessment of risk

1. 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".'
2. These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE, at [26].
3. In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."
4. The issue for determination in this matter is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children.

Factual Background

1. On 13 October 1969, the applicant was found guilty of the offence of commit act of indecency with a male. At the time he was 21 years old. However in the Court of Petty Sessions at Newtown, the Magistrate found the offence proven but did not record a conviction against the applicant pursuant to the now repealed s 556 A of the Crimes Act 1900.

The 1993 conviction.

1. On 28 May 1993 the applicant was convicted as an adult of the offence of assault person under the age of 16 with act of indecency, under s 60 E Crimes Act 1900. The offence occurred in January 1991. The facts alleged that the victim of the offence was a 12 year old boy although the victim was in fact aged 11 at the time of the offence. The victim was the applicant's cousin. The applicant pleaded guilty to the offence and was sentenced to five months imprisonment.

The 1994 conviction

1. On 21 March 1994 the applicant was convicted of the offence of aggravated act of indecency on a person under 16 years pursuant to s 61N of the Crimes Act 1900. This offence occurred on 21 September 1992. The victim was the applicant's nephew who at the time of the offence was aged 13.
2. The evidence is now considered under each of the subheadings of sections 30(1) of the Act.

(a) Seriousness of any matters with respect to which the person is a disqualified person or any other matters that caused the refusal of a clearance or the imposition of an interim bar

The 1993 Conviction

1. The circumstances of the 1993 conviction were that the applicant was the victim's cousin. The victim was staying with the applicant in January 1991 when on three separate occasions the applicant rubbed the victim's penis under the victim's pyjama pants. The victim was in bed at the time.
2. The applicant was charged with three counts of aggravated indecent assault on the victim. However a plea of guilty was entered to one count in full satisfaction of the indictment. A transcript of the proceedings which was in evidence before the Tribunal indicates that a hearing was conducted on the limited issue of fact as to whether or not count one was an isolated incident. The transcript records that the sentencing judge was satisfied that the incident was not isolated.
3. The applicant was sentenced to five months imprisonment.

The 1994 conviction

1. A fact sheet in evidence before the Tribunal states that the victim was the 13 year old nephew of the applicant. The applicant was at the time of the offence staying with his sister who is the mother of the victim. The victim was in his bedroom at the time of the offence. The applicant rubbed the victim's penis on both the outside of the victim's pyjama pants and inside the victim's pyjama pants. This offence occurred on 21 September 1992.
2. The applicant pleaded guilty to this offence and his sentence was deferred on him entering into a recognisance and a bond to be of good behaviour for two years.
3. The applicant does not deny the offences although he disputes some of the circumstances of the offences including that he put his hand inside his nephew's pyjama pants. He also denies that he committed more than one offence against his cousin.
4. The Tribunal finds the disqualifying offences were serious. They involved the commission of indecent acts on young vulnerable children. The applicant was in a position of authority and trust as a close adult relative of the victims, and this aggravated the offences.

(b) The period of time since the matter occurred and the conduct of the applicant since that time

1. The conduct which was the subject of the 1993 conviction occurred in 1991 and the conduct that was the subject of the 1994 conviction occurred in 1992. Therefore 15 and 14 years have lapsed since these matters occurred.
2. Since then the applicant has been the subject of three apprehended violence orders (AVO's) as the defendant. The information in evidence from the NSW Police does not provide any further details about the circumstances of these AVO's.
3. The applicant says in an affidavit filed in the proceedings that the AVO's arose out of verbal altercations with his ex-wife.
4. Apart from the AVO's there is no evidence before the Tribunal of any conduct which could be considered 'adverse' to the applicant since these matters occurred.

(c) The age of the applicant at the time the matters occurred

1. At the time of the 1991 offence the applicant was 42 years old and at the time of the 1992 offence he was 43.

(d) The age of the victim of the conduct at the time it occurred and any matters relating to vulnerability of the victim

1. The victim of the 1991 offence was the applicant's cousin and was at the time 11 years old.
2. The victim of the 1992 offence was the applicant's nephew and was 13 at the time.
3. The children were vulnerable in their relationship with the applicant because of his greater age, experience and maturity, and also because of his position and authority as their cousin and uncle respectively.

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

1. The applicant was 31 years older than the victim of the 1991 offence. He was 32 years older than the victim of the 1992 offence.
2. The applicant was the cousin of the victim of the 1991 offence and the uncle of the victim of the 1992 offence.

(f) Whether the applicant knew, or could reasonably have known, that the victim was a child

1. By virtue of his relationship as their uncle and cousin, the applicant was aware they were children.

(g) The applicant's present age

1. The applicant is now 68.

(h) The seriousness of the applicant's total criminal record and the conduct of the applicant since the matter occurred

1. In addition to the matters referred to above being the 1992 conviction and the 1994 conviction the applicant was convicted on 13 October 1969 for commit act of indecency with male. This offence no longer exists. At the time of this offence both the applicant and the other male were both adults.
2. Since the 1994 conviction there have been no other convictions recorded against the applicant. Further, there have been no complaints or incidents of inappropriate behaviour or any other conduct that could be considered adverse to the applicant since these matters occurred.
3. Since the 1994 conviction, the applicant has worked as a volunteer with at least two organisations. He was in paid employment for a number of years in aged care facilities.

(i) The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition

1. The applicant tendered an affidavit which was undated but received by the Tribunal on 21 March 2017. He also relied on a handwritten statement received by the Tribunal on 10 May 2016. He gave oral evidence and was cross-examined.
2. In his handwritten statement the applicant refers to only the offence leading to the 1993 conviction and he says he has never been in trouble before or since then. In cross-examination he said the reason he did not mention the 1994 conviction was because he had forgotten about it. The Tribunal found this explanation implausible given he had been asked to provide a response to a letter from the Children's Guardian dated 30 October 2015 which clearly set out the two convictions.
3. In evidence before the Tribunal were a number of reports obtained in connection with the criminal proceedings against the applicant which lead to the 1993 and 1994 convictions.
4. A report from Dr Graeme Robbie dated 4 June 1992 says the applicant is someone who is "able to massively deny and suppress things. If something happens that they don't like they can simply push it away from them and it is as though it hasn't happened. The problem with this is that they don't learn from the experience either, since in effect for them the experience has not occurred."
5. In a report dated 23 February 1994 from the NSW Probation Service authored by Mr Merv Sprague, the applicant is noted to be focused on putting the offences behind him. However Mr Sprague said there was no real thought by the applicant to the impact on the victims of his conduct. Mr Sprague put to the applicant that the conduct which led to the 1994 conviction was not the first time this had occurred. Mr Sprague says "I had severe misgivings about his lack of honesty."
6. Mr Paul Richter, Psychologist in a report dated 11 March 1994, expresses concerns about the applicant being able to deny and suppress things. Mr Richter says it is of concern that the applicant continues to deny paedophilic tendencies in circumstances where the applicant has committed two offences.
7. Dr Robbie and Mr Richter thought the applicant was a low risk of reoffending however they both recommended that the applicant have ongoing counselling and limit the amount of contact he has with children.
8. The applicant said in evidence that he has not engaged in re-offending behaviour and is not a risk of re-offending. He said his attendance at a Christian organisation has enabled him to work through a lot of issues in his life. There was however no evidence before the Tribunal apart from the applicant's self-report that he is not a risk to the safety of children. In the context of the opinions of Dr Robbie and Mr Richter that the applicant is able to deny and suppress issues, this lack of evidence about whether the identified risks remain or have been mitigated, is of concern.
9. In his evidence the applicant tended to minimise his conduct and its effect upon his victims in relation to the 1991 and 1992 offences, despite his expressions of remorse. Under cross-examination he conceded it was "possible" that his offending may have had an effect on his victims but that he would need to see them again to assess whether they had been harmed by his behaviour. This response was given by the applicant after Counsel for the respondent had taken him to the contents of a Victim's Impact Statement and Counsellor's report in relation to the victim of one of the offences. These documents set out the serious psychological consequences of the offence on the victim which included low self-esteem, sleep disturbance, repressed anger and inappropriate acting out.
10. There is some doubt that the applicant shows sufficient insight into his offending behaviours for us to be satisfied that they will not re-occur. The applicant said in evidence that his workload following the 1991 and 1992 offences prevented him from being able to seek ongoing counselling or to undertake relevant courses relating to child protection issues. However, the applicant found time on his own evidence to engage in significant amounts of voluntary work.
11. Under cross-examination he was asked about the circumstances of the 1991 and 1992 offences and what had led to them. He was unable to provide an adequate explanation as to why the offences occurred. This is of concern as without adequate understanding of why the behaviour occurred there remains the possibility that he will not be able to identify triggers and situations which could lead to a reoccurrence of the behaviour. Apart from saying he will continue to minimise his contact with young people he was unable to outline any strategy he would use to ensure that he does not again engage in the offending behaviour.
12. The impact upon children of a repetition of those offences in 1991 and 1992 would be not only frankly abusive, but also deleterious in more subtle ways to the healthy development of those children.

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

1. As set out earlier in these reasons the applicant has provided an affidavit and handwritten statement in support of his application and also gave oral evidence.
2. The applicant provided two character references. The Tribunal was however able to place little weight on these references given neither referee acknowledges they are aware of the applicant's 1993 and 1994 convictions.
3. The applicant contends that he does not pose a risk to children.

(k) Any other matters that the Children's Guardian considers necessary

1. It is the respondent's contention that the applicant has not discharged his onus.

Consideration

1. In our opinion, having regard to all the material before the Tribunal, the applicant has not discharged his onus to prove he is not a risk to the safety of children.
2. The harm perpetrated by the behaviour of the applicant was beyond reasonable community norms. The behaviour in relation to the indecent assaults was unplanned and opportunistic and exhibited a lack of self-control and incapacity to implement any ameliorating strategies. The applicant has not been able to show that he has the capacity to prevent repetition of these threats to vulnerable children.
3. The applicant has not made a full acknowledgment of the extent of his offending conduct either in his written material filed in support of the application or in his oral evidence before the Tribunal.
4. The behaviour, if repeated, would do significant harm to the victims. The paramount principle under the Act includes protection of children from suffering abuse.
5. There is a lack of evidence of mitigating factors such as examination of the reasons for the behaviours towards his cousin and nephew since the behaviours occurred. There is little evidence before the Tribunal of genuine and sustained effort to remedy the conduct and past behaviour.
6. Since 1994, there have been no further convictions for criminal offences. However, on all of the evidence before us, we are unable to make a finding that the applicant has any real insight into his offending, and we are not satisfied that he has taken sufficient steps to mitigate the risk of further offending.
7. The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered.
8. If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance.
9. The evidence establishes that there is a real and appreciable risk of harm to children if the applicant repeats his unacceptable behaviour.
10. In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act and having regard to the material before the Tribunal it is concluded that the applicant poses a risk to the safety of children and should not receive a working with children check clearance. It is presumed unless proven to the contrary that the applicant is such a risk. The applicant has not discharged his onus to prove that he is not such a risk.
11. The Tribunal's refusal on this occasion to grant an enabling order does not necessarily mean that with treatment and counselling, the applicant will fail to do so in the event he makes a further application at some time in the future.

Order 1. The applicant's application for an enabling order is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2017