CK v Commission for Children and Young People [2005] NSWCA 42 | Case summary

whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person." REASONS FOR DECISION 1 In 1985, the applicant, CK, was convicted, after pleading guilty in the Local Court, of two offences under section 73 (as it then stood) of the Crimes Act 1900. The offences were committed in 1984. In short form, they were offences of 'carnal knowledge' of his 16 year-old daughter. He was sentenced in the District Court and placed on bonds in relation to each matter. 2 At that time, section 73 read: 'Whosoever, being a schoolmaster or other teacher, or a father, or step father, unlawfully and carnally knows any girl of or above the age of ten years, and under the age of seventeen years, being his pupil, or daughter, or step daughter, shall be liable to penal servitude for fourteen years'. 3 As a consequence of those convictions, CK is a 'prohibited person' as defined by section 33B of the Commission for Children and Young People Act 1998. That section applies to all persons convicted of 'serious sex offences' whether committed before or after the commencement of the Act. A 'serious sex offence' is one involving sexual activity committed in New South Wales and which is punishable by imprisonment for 12 months or more. The maximum penalty for offences under section 73 as it stood in 1984 was 14 years penal servitude. 4 CK has now applied to this Tribunal for an order under section 33H declaring that Division 2 of Part 7 of the Act, which prohibits him undertaking child-related employment, is not apply to him. 5 The respondent submits, however, that, by reason of the operation of section 33G of the Act, CK is not entitled to make the application and that the Tribunal is therefore without jurisdiction to entertain it. The applicant who was not legally represented made no submissions on the subject, despite an invitation to do so, but merely told the Tribunal he would accept whatever decision it made. Operation of section 33G 6 Section 33G was introduced by an amending Act in 2005 and commenced on 2 January 2007. CK's application was filed on 24 September 2007. 7 With some very tight exceptions which do not apply in this case, section 33G(1) removes any entitlement a prohibited person convicted as an adult of child murder or offences under subsection 66A, 66B, 66C, 66D or 73 of the Crimes Act or 'a similar offence under that Act or any other law involving sexual intercourse with a child (including a law other than a law of New South Wales)' may have had prior to its commencement to apply for dispensation from the strictures of Division 2 of Part 7. In short, if a prohibited person's offence falls within the scope of section 33G he or she is prohibited from undertaking child-related employment and has no right to apply to this Tribunal (or the Industrial Relations Commission) for review of that prima facie position. Are CK's convictions for 'a similar offence involving sexual intercourse with a child'? 8 It is conceded by the respondent that section 73 of the Crimes Act has been significantly amended since 1984 and that the elements of the offence in the 1984 version of section 73 are different from those of the current section 73. It is clear that when Parliament inserted a reference to section 73 it was referring to the form of section 73 as it was in January 2007, not the form of section 73 under which CK's conviction was entered. 9 The question for the Tribunal, therefore, is whether CK's offences fall within the scope of section 33G and, more specifically, whether they were similar to offences under subsection 66A, 66B, 66C, 66D or 73 of the Crimes Act as in its current form. Mr Bourke for the respondent has submitted that CK's offences were similar to offences of the type specifically referred to in section 33G. 10 In R v Manning (1933) 33 SR(NSW) 285, Street J said: I think that what is meant by "similar offences" is offences, generally speaking, of a similar character. For instance in a case of this kind, a case of forgery, I think that all that is necessary is that the other similar offences relied upon for the purpose of showing intent should be instances of forgery or of the use of forged documents. (at 289). 11 The meaning of the word 'similar' was considered in Mays v Roberts [1928] SASR 217. That was a building contract case in which the contract involved a term that the house to be built would be 'similar' to another (named) house that had been inspected by the parties Angas Parsons J said: The word "similar" is an ambiguous word. The Imperial Dictionary defines it as "like; resembling; having a like form or appearance; like in quality. Similar may signify exactly like or having a general likeness: likeness in the principal points. The latter is the ordinary meaning." The Encyclopaedic Dictionary defines the word substantially the same way. I think the latter is the meaning in the contract; that is to say, the contract is that the respondent shall, subject to the alterations and additions, build a house for the appellant having a general likeness a likeness in the principal points to Hopkins's house. It would be absurd to hold in such a contract that "similar" means exactly like, because that would involve a slavish copy of all defects latent and patent in the house with which the comparison is made. When the surrounding circumstances are examined it may, however appear, from them that the word "similar" was intended in that sense ..." (at 219) 12 The Collins Australian Dictionary (2004) offers the definition: 'showing resemblance in qualities, characteristics or appearance; alike but not identical …' The Macquarie Dictionary, Fourth Edition offers a similar definition, 'having likeness or resemblance, especially in a general way'. 13 Mr Bourke's submission is that CK's offences were of a 'similar character' to two of the offences specified in section 33G, namely subsection 66C(4) and 73. 14 The first obvious similarity between the old section 73 offence of which CK was convicted and the section 33G offences is that they involve sexual intercourse. That, however, is not a decisive similarity because a significant number of offences relating to sexual intercourse have not been specified in section 33G: section 61I ('sexual assault' or non-consensual sexual intercourse simpliciter); section 61J (aggravated sexual assault); section 61JA (aggravated sexual assault in company); section 61K (assault with intent to have sexual intercourse). The maximum penalty for a section 61I offence is 14 years imprisonment; for a section 61J offence, 20 years; for a section 61JA offence, life imprisonment; for a section 61K offence, 20 years. 15 The second similarity noted by Mr Bourke is that the victim of the relevant sexual assault must be a child. In this case, the victim was a child, but one who had turned 16 years. Hence, he fairly conceded that subsection 66A and 66B are not relevant because they concern children under the age of 10 years. 16 He argued, however, that there was a significant similarity between the offence in section 66C(4) - sexual intercourse with a child between the ages of 10 and 16 in circumstances of aggravation, namely that the offender was in a position of authority over the child - and the old section 73 offences of which he was convicted in 1985. CK was in a position of authority over his own daughter who was aged 16, an age very close to the age range specified in section 66C(4). 17 The second offence provision that Mr Bourke relies upon as being similar to the old section 73 offence of which CK was convicted is the current section 73 of the Crimes Act. That section, as now framed, makes it an offence for persons with the 'special care' of children up to the ages of 18 years to have sexual intercourse with those children. Section 73(3) specifies a number of specific categories of persons who are defined as having 'special care' of children for the purposes of section 73. They are step-parents, guardians or foster parents of the victim; school teachers where the victim is a pupil of the offender; coaches, clergy, music teachers, instructors, tutors with an 'established personal relationship' with the victim for the provision of services; custodial officers of an institution of which the victim is an inmate; and health professionals where the victim is a patient of that person. 18 I agree that subsection 66A and 66B are not relevant to the current question: they deal with offences against children under the age of 10. Section 66D is also irrelevant as it concerns attempts to have sexual intercourse and assaults with intent to have intercourse with children under 16 years of age. 19 As previously noted, the victim in CK's case was 16 years old. Had she been under that age, the facts in CK's case would have created a striking similarity between the offences under the 1984 version of section 73 and the current version of subsection 66C(2) and 66C (4) which make it an aggravated offence for a person to have sexual intercourse with, in the former case, a child between 10 and 14 and, in the latter, where the child is aged between 14 and 16 years and is under the authority of the offender. 20 There is some force in Mr Bourke's argument concerning section 66C as the legal age of consent is self-evidently arbitrary and varies according to sections. For children under the 'special care' of another person, it is 18 years - the age of majority - whereas for the generic sexual assault offences it is 16 years. Clearly, there is little difference in terms of vulnerability between a child of, say, 15 years and 364 days and one of 16 years, yet the legal consequences are dramatic. But a line must drawn somewhere and Parliament has made a reasoned determination of the question. For this reason, and for the reasons I develop below, I do not consider that there is sufficient similarity between the old section 73 offences of which CK was convicted and the offences provided for in section 66C. 21 Mr Bourke's principal argument is that the categories of persons listed in the current section 73 as persons with the 'special care' of children and young people are persons 'in loco parentis' in some form or other. He did not use the phrase 'in loco parentis' but it was clear from his argument that an absurd result would follow if a distinction was to be drawn between step-parents, guardians, foster parents, schoolteachers and natural parents that this was his meaning. The effect of his submissions is that Parliament did not intend to split hairs in this fashion and that the Tribunal should given effect to Parliament's intentions. 22 He rightly contends that section 33 of the Interpretation Act 1987 requires the Tribunal to construe section 33G in a fashion 'that would promote the purpose or object underlying the [section]'. In short, a purposive construction must be applied: see RL Time Realty v R & R Realty (1996) 39 NSWLR 24 (at 27); Norcal Pty Ltd v D'Amato (1988) 15 NSWLR 376 at 384. 23 Focussing then on the purpose of the legislation, Mr Bourke referred the Tribunal to the Second Reading Speech (Hansard 15 November 2005, p19699ff) and the Explanatory Notes. 24 In her Second Reading Speech, the Minister for Community Services, the Honourable Reba Meagher said, among other things: This Bill also strengthens the regime for prohibited employment and responds to community concerns about adults convicted of serious violence against children being prevented from working with children. Currently, serious sex offenders, kidnappers and child murderers are banned from working with children. This Bill will now also ensure that those who have been convicted, as an adult of intentionally causing grievous bodily harm to a child will also be prohibited from working in child related employment. This is an important safeguard for children. Of course, there is no intention to cover situations such as fights between young people, or harm caused by accident or negligence. The Bill will also tighten the circumstances in which prohibited persons can apply for a review of their status. The Bill will ensure that persons who have been convicted of the most serious crimes against children, and are therefore automatically prohibited from working with children, will not be able to seek a review of their status as prohibited. The Government stands by this position and makes no apology for it: the protection of the children in our society is paramount. Serious crimes include murdering a child under the age of 18, producing child pornography, or sexual intercourse with a child under the age of 16 or under 18 where the adult is in a special role, like a teacher or sports coach. Of course, it does not include sexual intercourse between young people of a similar age, offences committed as a juvenile, or old offences such as carnal knowledge where the parties were of similar age and no force or intimidation was used. 25 The Explanatory Notes provide the following passage also relevant to the current question: In addition, persons found guilty of the murder of a child, certain child sexual assault offences and certain child pornography offences will be prohibited from seeking a review of their prohibited status (proposed section 33 G). However, persons convicted of an offence involving sexual intercourse with a child not more 3 years younger may make an application for an order with the leave of the Commission or a relevant tribunal.... 26 These passages, in my view, unfortunately do not add much light to the issue to be determined in this case. 27 The maximum penalties for offences under subsection 66A and 66B are 25 years imprisonment in each case. The maximum penalties for offences under section 66C range between 10 and 16 years depending on whether the victim is aged under or over 14 years of age and whether the offence is committed in circumstances of aggravation. Maximum penalties for offences under the current section 73, range from four to eight years depending on whether the victim is over or under the age of 17 years. 28 If the concern of Parliament is to ensure that persons who have committed 'the most serious crimes against children', and one draws an inference from the maximum penalties Parliament has found to be appropriate for the offences specified in section 33G, are offences for which four or more years imprisonment may be imposed, it is not clear why Parliament chose to exclude from the specified list under section 33G, section 78A of the Crimes Act 1900. 29 Section 78A, it seems, is the modern descendant of the form of the section 73 charge under which CK was convicted in 1985. It provides: (1) Any person who has sexual intercourse with a close family member who is of or above the age of 16 years is liable to imprisonment for 8 years. (2) For the purposes of this section, a close family member is a parent, son, daughter, sibling (including a half-brother or half-sister), grandparent or grandchild, being such a family member from birth. 30 In essence this is very similar to the elements of the old section 73 under which CK was convicted. It relevantly provided: Whosoever, being a … father … unlawfully and carnally knows any girl of or above the age of ten years, and under the age of 17 years, being his … daughter … shall be liable to penal servitude for fourteen years. 31 As seen (above at [2]), that section also nominated schoolmasters, other teachers and stepfathers as other possible offenders, the potential victims being pupils and stepdaughters. The striking similarity between the old section 73, as it applied to CK, and the current section 78A is obvious. 32 The Crimes Act 1900 was amended in 1985 and 2003. As a result of those amendments, the offences provided for under the old section 73 were sub-divided. A separate offence of incest was created. At the same time, the current section 73 came into force. 33 That the maximum penalties for incest and for sexual assault upon children over 16 in 'special care' are in the same range probably indicates that incest is regarded by the Parliament as one of the 'most serious crimes against children'. The fact remains, however, that incest has not been included in the types of offences, which shut the gate on an application for review. It was open to Parliament to include it but it did not do so. 34 It is trite law that protective provisions ought be construed liberally and that penal provisions ought be construed narrowly. A difficulty arises, however, when a provision has both characteristics. In such a case, the provision must be construed according to the dominant purpose of the legislation: see Waugh v Kippen (1986) 160 CLR 156. 35 The dominant purpose of section 33G is the protection of child from the risk of harm and that any ambiguity ought be resolved in accordance with that purpose. Nevertheless, unless there has been some grievous error of oversight by the Parliament, of which there is no evidence, it appears to have made a deliberate decision not to bar those convicted of 'the most serious offences against children' from working in child-related employment if their victims have been their own children. 36 This Tribunal has, as a result of hearing many applications under section 33H, developed a degree of expertise and specialized knowledge which it may bring to bear in assessing the current situation: see Hevi Lift (PNG) v Etherington [2005] NSWCA 42 at [91]-[92]. The weight of expert opinion is that incest offenders are the least likely group among sex offenders to reoffend and the likelihood of extra familial offending is low. (See for example report of the Australian Institute of Criminology - Lievore, D, Recidivism of Sex Assault Offenders Rates, Risk Factors and Treatment Efficacy, May 2004.) 37 Viewed in that light, there is no anomaly and no absurdity in finding that section 33G does not catch CK's application. 38 For these reasons, I find that the Tribunal has jurisdiction to deal with CK's application. Orders/Directions 1. The Tribunal has jurisdiction to determine CK's application. 2. Matter is listed for a directions hearing on 6 March 2008 at 10.30am. Leave is granted to all partes to attend by phone, providing the Registrar is advised in writing at least 48 hours before the directions hearing and contact number (land line only) provided.

CK v Commission for Children and Young People

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