These are proceedings for a review of a decision to refuse to grant the applicant a working with children check clearance ("clearance"). The critical question is whether the applicant poses a real and appreciable risk to the safety of children.
The applicant had an unstable childhood, started using illicit drugs in his early teenage years and committed a number of violent offences between the ages of fourteen and twenty-five. He is now thirty, has given up drugs and has changed his life significantly.
The Tribunal is satisfied that the applicant does not pose a risk to the safety of children and has decided that the correct and preferable decision is to grant him a clearance.
[2]
Factual background
The applicant was born in 1987.
The applicant is of Aboriginal heritage on both sides of his family. His mother died when he was five and he remained in the care of a maternal uncle. His father died when he was seven. He remained in the care of relatives but felt excluded and was not well cared for. His uncle had substance abuse issues and was physically abusive to the applicant and his brothers.
The applicant moved out of home at around the age of thirteen. After this, he lived with family, friends and other community members.
CZE v Children's Guardian [2017] NSWCATAD 185 | Case summary | Zoe
During his teenage years, the applicant developed friendships with older males who were using illicit drugs and were involved in the justice system. He also started taking alcohol and illicit drugs. He began binge drinking and smoking cannabis then progressed to using heroin at fifteen and injecting it at seventeen. He also abused ice, cocaine and benzodiazepines.
The applicant committed violent offences, of which he was convicted, of common assault in 2002, common assault in 2005, aggravated robbery and inflict actual bodily harm in 2005 (convicted 2008) and robbery in company to cause wounding/grievous bodily harm in 2012. The first three of these offences were committed whilst the applicant was a teenager.
The applicant also committed many other non-violent offences, from 2001 to 2010, many relating to larceny or drug possession.
The 2002 common assault offence occurred when the applicant broke into a car and stole a brief case. Upon being apprehended by a police officer, he spat in the officer's face.
The 2005 common assault conviction related to a break and enter. The young adult female occupants of a home woke up and found the applicant in their home. During a struggle with the applicant, the applicant punched two female victims. One of them was punched on her left temple, left eye and right side of her jaw. The applicant punched the other twice in the face.
The circumstances of the 2005 offence of aggravated robbery and inflict actual bodily harm were that a victim was ascending stairs to enter a casino when the applicant approached her from behind and tried to grab her handbag. She did not let go of her bag and was dragged down the stairs, suffering a fractured knee cap.
The May 2012 offence occurred when the applicant, in the company of others, assaulted an adult male who was unknown to him, when the victim was walking home from work. The applicant punched the victim in the face and kicked him in the head whilst he was on the ground. The victim sustained a laceration requiring stitches and also suffered bruising and swelling to his face. At the time, the applicant was twenty-five years old.
The applicant was sentenced to a term of imprisonment for five years and six months for this offence. The applicant met the woman who is now his wife whilst in the community, just prior to being sentenced.
Whilst in gaol, the applicant participated in the Compulsory Drug Treatment Program. Despite its name, the applicant's participation in the program was voluntary. He commenced participation in about April 2013.
Participants in the Compulsory Drug Treatment Program are given access to the community to support the process of reintegration. The applicant had such access from March 2014. During that time, the applicant engaged with a non-profit organisation which provides services to children and families ("the Non-Profit Organisation"). He also enrolled in and commenced studies in Certificate IV in Youth Work, which he later completed.
Prior to parole, from January 2015, the applicant lived in the community with his partner as part of the Compulsory Drug Treatment Program. Between January and July 2015, he was subject to three urine samples a week for drug testing.
In February 2015, the Non-Profit Organisation offered the applicant an opportunity to start volunteering with them in a youth advocate program. In April 2015, the Non-Profit Organisation offered the applicant one day a week of paid employment. He worked with children as part of his work for that organisation.
He completed the program and progressed to parole in July 2015.
The applicant used prescribed methadone until May 2016. Apart from that, he gave evidence, which the Tribunal accepts, that he has not used any drugs, smoked or consumed alcohol since October 2014.
In January 2016, the applicant and his partner had a son. The applicant and his partner married in September 2016 and the applicant's wife is expecting another child in October 2017.
In 2016, Community Corrections gave the applicant permission to travel interstate on a number of occasions, without being under supervision.
One of the trips was as part of his work with the Non-Profit Organisation. The trips were connected more broadly with his work in advocating for indigenous people in the criminal justice system and trying to increase awareness of and change the over-representation of indigenous people in prison populations. On one trip, he attended Parliament House in Canberra to launch a campaign to change such over-representation.
In March or April 2017, the applicant's reporting requirements were suspended and he was no longer required to report to the community corrections office monthly.
The applicant remains subject to parole until April 2018. However, he is no longer required to submit to drug tests or report regularly.
The applicant has also started an aboriginal justice consultancy.
[3]
Procedural background
The applicant applied for a clearance in 2015, under s 13 of the Child Protection (Working with Children) Act 2012 ("Act").
The applicant had committed a number of offences involving violence.
The Children's Guardian conducted a risk assessment pursuant to item 1(6) in Sch 1 to the Act. On 29 April 2016, the Office of the Children's Guardian wrote to the applicant, informing him that a recommendation had been made that his application should be refused on the basis that he may pose a risk to the safety of children, and inviting submissions and evidence.
The applicant provided material in response to that letter.
On 3 March 2017, the Children's Guardian decided to refuse to grant the applicant a clearance because she was satisfied that he posed a risk to the safety of children.
On 14 March 2017, the applicant applied for review of the decision of Children's Guardian in this Tribunal.
[4]
Tribunal's jurisdiction and function
The Tribunal has jurisdiction to review the decision of the Children's Guardian pursuant to s 27(1) of the Act, ss 9, 55 and 63 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW).
The Tribunal's function is to decide what the correct and preferable decision is having regard to the material before it (Administrative Decisions Review Act, s 63(1)).
[5]
Applicable law
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 this Act."
Pursuant to s 15(1) of the Act, the Children's Guardian must conduct a risk assessment of an applicant for a clearance, to determine whether the applicant poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant is subject to an assessment requirement.
Section 14 of the Act provides that a person is subject to an assessment requirement if any of the matters specified in Schedule 1 apply to the person.
Item 1(6) of Sch 1 to the Act provides:
A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.
Pursuant to s 18(2) of the Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
A person who has been refused a clearance may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of the decision within 28 days after notice of the decision was given to the person (Act, s 27(1)).
When determining an application, under s 27(1) of the Act, for review of a decision to refuse to grant a clearance, the Tribunal is to have regard to the matters set out in s 30(1) of the Act. Section 30(1) provides:
30 Determination of applications and other matters
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,
(k) any other matters that the Children's Guardian considers necessary.
Neither party bears an onus of proof in proceedings for review under s 27 of the Act: BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [20]-[21] and [135].
[6]
Consideration
The Children's Guardian was required to conduct a risk assessment to determine whether the applicant poses a risk to the safety of children and, in doing so, was entitled to have regard to the factors set out in s 15(4) of the Act (Act, s 15(1) and (4)). These factors are similar to those in s 30(1) of the Act.
In reviewing the decision of the Children's Guardian to refuse the applicant's application for a clearance, the Tribunal must also consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. As the parties acknowledged, the test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44].
In determining whether the applicant poses a risk to the safety of children, we have considered each of the s 30(1) factors in turn. Each factor is dealt with below.
[7]
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 (s 30(1)(a))
The matters that caused a refusal of a clearance are the four violent offences referred to above. The applicant accepts that these crimes are "objectively serious" but says that they are less serious in terms of what they say about the risk to children. None of the victims were children. Mr Free, for the applicant, submitted that the circumstances of the crimes are critically important in that they occurred in a particular context in applicant's life. It was, in his submission, opportunistic violence relating to property theft.
There is no doubt that, taken individually, the applicant's crimes are serious. Kicking a person when on the ground, entering a stranger's home in the middle of the night then assaulting the person and dragging a victim down stairs are all deplorable actions.
Collectively, the applicant's crimes are more serious because, as the respondent submits, they indicate a pattern of violent behaviour.
There is material before the Tribunal indicating that the crimes had significant adverse effects on at least some of the victims. One of the female victims whose home the applicant entered reported, three years after the event, that she suffered ongoing anxiety, nightmares and feelings of insecurity.
The violent offences are not matters to be treated lightly.
We accept the respondent's submission that, where the offences occurred in public, children could have witnessed the assaults and that, in the case of the break and enter offence, it is a matter of chance that there were no children in the home and that one of the victims was nineteen rather than seventeen. The applicant was clearly reckless in a way which could have adversely affected children.
[8]
The period of time since those offences or matters occurred and the conduct of the person since they occurred (s 30(1)(b))
The applicant was fourteen when he started committing offences. About fifteen years have passed since that time. The most recent offence occurred in May 2012, about five years ago.
It is not in dispute that the applicant's conduct in recent years has been commendable. In the decision refusing the applicant's clearance, the delegate of the Children's Guardian stated that the applicant
"appears to have made a positive impact in the community and has been proactive in his involvement with various organisations by using his own experience to model a prosocial lifestyle to young people at risk of coming into contact with the criminal justice system. [The applicant's] conduct since the offences occurred is commendable, and suggests that he has acknowledged his offending behaviour and is using his experience to work towards making a positive difference to the community."
Ms Hartstein said, in oral submissions before the Tribunal, that it was not disputed that the applicant has made a positive change to his life.
In our view, the applicant's conduct since his release from gaol has been exceptional. This conduct was attested to by a large number of references filed on his behalf.
One of these references was from his peer support staff member with his employer, the Non-Profit Organisation, where he was employed from 6 May 2015 to shortly before the hearing in 2017. This reference states that the applicant actively role models best practice ways of working with young people and is a role model to all young people he works with. The reference describes him as a great deliverer of programs and services and states that he demonstrates the creative insight and higher level thinking that reinforces best practice and capacity development for the community sector. It describes the quality of his work with children as "nothing short of inspiring," noting that he "is always mindful of the importance of professional boundaries."
Another referee from the Non-Profit Organisation, a manager, describes the applicant's "performance and interaction with the children" in his work as being "outstanding." She says he is "respectful of management and takes direction well and calmly." She comments that he has "cut connections with past negative associates and his lifestyle is very different to theirs."
A third referee from the Non-Profit Organisation, a direct manager, states that the applicant adds value to the daily lives of the children he is responsible for and that he represents "hope and inspiration" to them. Further, he "constantly role models pro-social behaviour, respectful interactions, boundaries and empathy".
A fourth referee from the Non-Profit Organisation also describes him as a "positive role model" in the children's lives and commends his work.
The Tribunal concludes, from these references, that the applicant's conduct at work at the Non-Profit Organisation has been exemplary.
The most remarkable reference provided by the applicant is from a senior judge of the NSW Drug Court. That Court made the Compulsory Drug Treatment Order applicable to the applicant.
The judge stated that he recognised the applicant when he saw him at a function at Government House launching a Justice ReInvest program. Later, both the judge and the applicant were invited to address a seminar at the Law School at the University of New South Wales. The judge stated that he visited his workplace at the Non-Profit Organisation the week before and watched him working with young people for two hours. The judge then saw the applicant again at an Amnesty International function. The judge commented that the applicant is a "charismatic and talented youth worker" with "the ability to capture an audience, and relate to all" and with "maturity beyond his years."
This reference is partly concerned with the applicant's character and talents. However, it is also relevant to his conduct. It attests that he has attended three significant functions in a professional or advocacy role since his release from gaol, and that his conduct at those functions has been commendable. It also indicates that, in the judge's opinion, he performs well with children in his work.
A reference from the director of an organisation which worked with the Non-Profit Organisation states that she believes that "there is no one better to work with young people" and remarks that the applicant has been "instrumental in the setup of an anti-bullying campaign" which is having a "real impact." She also states that he is "well-regarded for having made such a huge positive change in his life."
Another reference from a co-chair of a collective of indigenous, human rights and community organisations, remarks that the applicant "has a high level of self-awareness and takes responsibility for his action, is working hard to turn his life around, and is giving back."
[9]
The age of the person at the time the offences or matters occurred (s 30(1)(c))
The applicant was aged between 14 and 25 years old when the offences occurred.
[10]
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 (s 30(1)(d))
None of the victims was a child.
The victims were vulnerable in that one was a member of the public alone on a street at night and others were women at home asleep in their beds. They should have been entitled to feel safe in those situations.
[11]
The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s 30(1)(e))
The difference in age between the victim and the applicant is only relevant insofar as there is no pattern of the applicant preying upon younger persons. It appears that most of his victims were older than him.
The applicant's victims were strangers to him.
[12]
Whether the person knew, or could reasonably have known, that the victim was a child (s 30(1)(f))
As the respondent acknowledges, the victims were not children.
[13]
The person's present age (s 30(1)(g))
The applicant is 30 years old.
[14]
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s 30(1)(h))
The applicant's total criminal record is extensive. As well as the violent offences referred to above, he has committed many other crimes, mainly of larceny and drug possession. His last crime was the violent offence in 2012, referred to above.
The applicant's conduct since the offences occurred is dealt within in respect of s 30(1)(b) above.
[15]
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s 30(1)(i))
We are satisfied, from the following evidence, that the likelihood of any repetition by the applicant of the commission of violent offences is very low.
There is no evidence that the applicant has been violent since the 2012 offence. A referee from Corrective Services, who was a staff member involved in administering the Compulsory Drug Treatment Program, stated that, throughout the applicant's participation in the program, no concerns were ever raised regarding aggressive or violent acts. We accept this evidence.
Dr Olav Nielssen, a psychiatrist, provided a report in this matter upon which the applicant relied. He observed "no obvious signs of neurological disorder" in the applicant and noted "no abnormal patterns of speech or odd beliefs indicating an underlying or emerging illness." Further, in Dr Nielssen's opinion, "there were no cognitive distortions, such as projection of blame, to indicate the presence of maladaptive personality traits." He also expressed the view that the applicant did not meet the diagnostic criteria for any psychiatric disorder.
This evidence was not challenged and we accept it.
Dr Nielssen expressed the following opinion about the applicant's potential for violence:
The prediction of future violence is not reliable, because even in people who readily resort to violence, episodes of violence are more to do with specific circumstances that arise and cannot be reliably predicted than inherent traits. [The applicant's] score on the violence risk assessment scale the Historical and Clinical Risk scale (HCR-20 V3) would be 16/40, placing him in the moderate range for probability for further violent offending. However, the striking feature of [the applicant's] scoring on that instrument is that the entire score was in the historical questions, (past problems with violence, antisocial behaviour, relationships, employment, substance use, experience of trauma, violent attitudes and problems with supervision) which can never change, whereas the scores on the clinical and risk management component of the scale (recent problems with insight, violent ideas, current major mental disorder, instability, failed supervision, lack of feasible plans, unstable living arrangements, lack of support, failed supervision and poor stress management) were zero. In other words, no current risk factors for future violence were identified.
Dr Nielssen also expressed the view that the applicant did not require any specific intervention to mitigate the potential for violence, or to prevent relapse into substance use over and above his current arrangements, although Dr Nielssen noted he may derive benefit from some advice regarding anxiety management.
Under cross examination, Dr Nielssen explained that most violence prediction instruments are predicated on the view that most people who are prone to violence are always like that. However, he said, it is hard to apply statistical probability to an individual. He said that the prediction instruments can give you some probability estimate, but that you still have to look at the individual concerned. Dr Nielssen's oral evidence was that it was not always the case that a long period was necessary before you could say with confidence that a person was unlikely to reoffend. He said that, with people successfully treated for drugs, such as the applicant, he could be confident that that transaction would reduce propensity for future violence.
Dr Nielssen acknowledged in cross examination that substance use disorder is considered to be a relapsing disorder, but said that there were strong protective factors in the applicant's case. These included his relationship with a successful partner who can have positive influence on his behaviour, and the fact that, in his current employment, he has a lot at stake. His clinical opinion is that the probability of the applicant relapsing is low. When asked whether his view would change if the applicant were not in a supportive employment situation, Dr Nielssen said it would not.
We formed the view that Dr Nielssen was an impressive and reliable witness. He was prepared to make concessions (such as agreeing that there was still a long time to go before it could be affirmatively stated that there had been a complete recovery from substance abuse), but maintained his view that, having regard to the individual circumstances of the applicant, the applicant had a low risk of reoffending and a low risk of relapsing into illicit drug use.
The respondent submitted that there was a real risk of the applicant relapsing into drug use. The point of the respondent's submissions about the likelihood of the applicant relapsing was the proposition that, if he did so, it would be more likely that he would engage in violent conduct again. Ms Hartstein submitted that, if there should be a problem in the applicant's life, some stressful event, that might be a trigger for relapse into drug use, and she said that his violent offences had been the result of his drug use. It followed, in her submission, that the Tribunal cannot be satisfied that if he were to lapse he would not use violence to obtain the money to buy drugs.
Ms Hartstein relies upon the circumstance that the time that has passed since the applicant stopped using drugs is very short compared with the time preceding cessation of drug use. He last relapsed on 19 October 2014 whilst doing the drug program, under three years ago. She relies upon Dr Nielssen's acknowledgement that it is common to relapse when recovering from poly-substance use over a long period of time. Further, she says, it is only one year since the applicant stopped using methadone.
We accept that there is a risk that the applicant will relapse from his abstention from illicit drugs. However, we are not persuaded that this is a significant risk. It is over two and a half years since the applicant took illicit drugs. This is not a long time, but nor is it short. It is sufficient time for the applicant to have established a completely different lifestyle from that he had prior to his last period in gaol. He has married, had a child and has another one on the way. He has been employed, started his own business and also become a role model for young Aboriginal people. The circumstance that it is only about a year since his last methadone use is not, in our view, significant, given that he used methadone in a controlled way as part of a program designed to help him stop using drugs altogether. We accept Dr Nielssen's view that it is necessary to have regard to the applicant's individual circumstances and that, having regard to those circumstances, the risk is low.
We also rely upon Dr Nielssen's opinion that the passage of time between the ages of 25 and 30 (the applicant's current age) typically represents a greater gain in maturity than a five-year period at a later point of a person's life. The evidence establishes that the applicant has matured significantly in that time.
Ms Hartstein also points out that, in 2002 to 2003, there was a period when the applicant was living in Taree and not using illegal drugs. He was playing sport and living a clean life with one of his brothers. Yet following that he lapsed back into drug use and violent behaviour. This suggests, in Ms Hartstein's submission, that the Tribunal cannot yet be confident that there is not a real risk that he will relapse again.
Whilst the Tribunal accepts that there is some risk that the applicant will relapse into drug use, the applicant's circumstances when he was fifteen or sixteen and living in Taree are very different from what they are today. When questioned in cross examination about whether he was then like he is now, the applicant said that he was not: "I was very young then and I had no structure, no ambitions, no skills, no job, no schooling, no education, no support, no financial support." Mr Free pointed to the evidence about the applicant's journey since then and the skills he has developed, to show that the comparison is not fair. To use Dr Nielssen's language, there are strong protective factors now which were not present at that time. The applicant is married with a child, and with much invested in a career which depends upon his abstention from drugs and violence.
Ms Hartstein also submitted that the applicant had grossly minimised his failures during the Compulsory Drug Treatment Program. In a statutory declaration, the applicant stated that he had failed some drug tests whilst in prison and on the Compulsory Drug Treatment Program because he had used synthetic marijuana. He stated in that statutory declaration that he did not, at the time, think it was a significant lapse. The applicant accepted under cross examination that he had also used benzodiazepines and (non-synthetic) marijuana whilst on the program, although he did not appear to have a clear memory of this. These lapses meant that he was required to regress from Stage Two in the program to Stage One. Ms Hartstein also submitted that the fact that he minimised the importance of those lapses shows that he did not have the insight it was suggested he now has.
The applicant resisted, to some extent, Ms Hartstein's suggestion that the relapses were "significant," but offered a persuasive reason for doing so, namely that what was important for him was to understand why they occurred. He said that the drug program was set up to support these lapses, not to stigmatise you for having a lapse. We are not convinced that he minimised the nature or importance of his lapses. We find, rather, that he does not have a clear memory of the lapses or the types of drugs he was using, and that he attributes a different kind of significance to the lapses than that urged upon him by Ms Hartstein.
Mr Free submitted that the applicant's expression of growing empathy for his victims is one of large number of factors showing a significant change in the applicant. The applicant stated, in a statutory declaration, that he deeply regretted the crimes he committed in the past. He also said that he deeply regretted the impact those crimes had on the victims, their family and the community. He said that an important part of his development had been coming to empathise with the victims and to understand the full impacts of criminal behaviour.
When asked under cross examination about his ability to empathise, he said he had never been in the situation where someone has done something of that nature to him so he did not know what it felt like, but he had the skills to put himself in their shoes and to try to feel that. The applicant accepted, when it was put to him, that he had said to a parole officer in 2009 that he accepted responsibility for his criminal actions and understood the impact of his actions on victims, yet he had gone on to reoffend in 2012. He also said of the 2012 offence that, whilst he knew how his actions would have impacted the victim, he was under the influence of drugs and had no recollection of the incident.
The applicant also responded to the Tribunal's questions about empathy. He said his skills to reflect had significantly improved over the years, since he had been out sharing his story. He said he thought about the victims and that it drove him to keep doing the work he was doing and to keep other people from making choices which would create more victims. He said he had had an unfortunate upbringing, that he had been suffering pain himself, and that he had been angry. Now, being the person he is today, knowing he inflicted some of that pain, was very confronting.
We are persuaded that, despite the statements the applicant made in 2009 before reoffending, his present expressions of remorse and empathy are genuine. We had the opportunity to observe him in the witness box and found him both credible and frank. His account of the 2012 incident, that he was under the influence of drugs, explains why he behaved violently, notwithstanding earlier insights into the impact of his behaviour on victims. Whilst the Tribunal did not observe the applicant in 2009, the evidence indicates that he has a deeper understanding today of the impact his behaviour has had on others, a greater maturity and a better ability to empathise with others. His empathy for victims and his remorse are factors which decrease the risk of him committing violent crimes in the future.
As Mr Free submitted, the changes in the applicant's life have been profound, and they have been reinforced both by external factors, and internal changes in the applicant's understanding of himself. We accept Mr Free's submission that the changes in applicant's life are such that there is no real likelihood that he will repeat the violent conduct that led to his convictions from 2002 to 2012.
We accept that, if the applicant were to commit violent offences again, this could impact upon children adversely. This would depend, of course, upon whether any children witnessed or were the victims of such an offence. We note that children have not been the victims of any of the applicant's offending in the past.
[16]
Any relevant information in relation to the person that was obtained in accordance with section 36A (s 30(j1))
This provision does not apply and neither party relied upon it.
[17]
Any information given by the applicant in, or in relation to, the application (s 30(1)(j))
The applicant provided two statutory declarations, to which reference has been made above. They provided evidence of his conduct since his last offence and of his remorse and personal development since then. His evidence is that he has now given up alcohol, smoking and illicit drugs. We accept this evidence, which was unchallenged.
The applicant provided a large number of references to the Tribunal. These are discussed above, in relation to the applicant's conduct since his violent offences, as relevant to s 30(1)(b) of the Act. We have also taken the references into account more generally, as testimony not only to his conduct, but also to his character as it has developed in recent years.
The applicant and his wife gave evidence, which we accept, that he has recently worked with children at the Non-Profit Organisation for about two years with no complaints or adverse reports about his relationships or conduct with children. References from staff members of the Non-Profit Organisation (including managers) speak of his interactions with children in very positive terms. They include comments that he has a strong understanding of boundaries. This tends to suggest that it is unlikely that he would commit violent offences in the presence of or towards children.
The applicant's wife is a professional, university educated woman working in the criminal justice system. She gave evidence that, throughout the time she has known the applicant, she has always observed him to be safe and responsible when interacting with children and young people. She and the applicant have a one-year-old and they are expecting another child. The applicant has also lived with his stepdaughter who was sixteen when the applicant moved into his wife's home. The applicant's wife has had the opportunity to observe the applicant's behaviour around her daughter and their own child. Her evidence as to her husband's conduct in relation to the children in the family home and as to the applicant's behaviour generally was not challenged in cross examination and we accept it.
The applicant's wife is a positive force in the applicant's life and a good influence upon him. We accept Dr Nielssen's opinion that the applicant's relationship with her is a strong protective factor in terms of maintaining his current behaviour into the future.
[18]
Any other matters that the Children's Guardian considers necessary (s 30(1)(k))
The respondent submitted that there is no service currently monitoring the applicant's abstinence from drugs or therapeutically treating him. The respondent also submitted, in written submissions before the hearing, that he had apparently not sought counselling or other treatment modalities to address the traumas of childhood which resulted in his substance abuse and criminal conduct.
Dr Nielssen's evidence was that the applicant did not need any specific therapeutic intervention.
The applicant and the applicant's wife both gave evidence that the applicant did undergo counselling from about August 2015 until shortly after he started working for the Non-Profit Organisation. He continued to have peer support sessions with a person in that organisation after that. When asked whether counselling would support the applicant, the applicant's wife said that she thought that he had been equipped with tools and strategies to manage his recovery, and that he knows to ask if he needs counselling. The applicant also said that the people at the Non-Profit Organisation were still there for him if he needed them.
We are satisfied from Dr Nielssen's evidence, and that of the applicant and his wife, that the applicant has sought some counselling, that he does not currently need therapeutic intervention and that he has support networks available to him.
[19]
Does the applicant pose a real and appreciable risk to children?
The respondent's case that the applicant poses a risk to the safety of children mainly depends, as we understand it, upon an asserted risk that he will relapse into drug use and become violent again. Once he does this, it is argued, children may be either subject to or exposed to violence.
Ms Harstein submitted that the risk of substance abuse and the risk of reoffending in a violent way are connected. She said that the legislation makes patterned violence behaviour a relevant matter in terms of considering the risk to children. The connection is generally because violence is a risk to children when they are victims and when they are witnesses. In this case, Ms Hartstein conceded, it is a relevant consideration that the applicant has not targeted children. However, his attacks were random. The people who were targeted by him included girls asleep in their beds (one of whom was nineteen). They could have been any age. There could have been children asleep in the next room.
Mr Free submitted that Ms Hartstein sought to get from a risk of relapse to a risk of harm to children "by double jump and speculation." He said that the respondent's submission involved an assumption that, if the applicant relapsed into drug use, he would likely relapse into a life of violent crime. It then assumed that the applicant would, or might, be violent towards or in front of children. Mr Free said that it was a "very large leap" to say that a relapse equals a risk of violent crime, and any violent crime is a risk to safety of children, because the crime might involve a child.
As indicated above, we find that there is a low risk that the applicant will relapse into drug use, and we are not satisfied that there is a real risk that the applicant will become violent again. Even if the applicant were to relapse into drug use on one occasion, for example, this would not necessarily lead to him resuming a life of violent crime.
We accept Mr Free's submission that the respondent's case as to the applicant posing a risk to the safety of children is speculative.
There are strong reasons to conclude that, despite his past violent conduct, the applicant does not now pose a real or appreciable risk to the safety of children. These include that he has never behaved violently to children, that he has given up illicit drugs and alcohol and that he has radically changed his life over the last few years. The applicant is in a stable marriage, and his wife is a strong, positive influence upon him. He has never had any incidents with or complaints in relation to the children he has worked with over the last two years or so, or in relation to his step-daughter or son. A wide range of people with whom he has worked, or with whom he has come into contact, have testified to the exceptional quality of his work with children and the remarkable way in which he has transformed his life. The applicant now has his relationship and his career at stake if he relapses, providing him with a strong incentive to continue his reformed life. He also accepts responsibility for his past actions and shows empathy with his victims.
For all of these reasons, and for the reasons given above, we are satisfied that the applicant does not pose a real or appreciable risk to the safety of children.
[20]
Application of s 30(1A)
Section 30(1A) of the Act requires the Tribunal to be satisfied of certain matters before making an order enabling an applicant to work with children.
Section 30(1A) was inserted into the Act by the Child Protection Legislation Amendment Act 2015 (NSW). The new subsection does not apply to an application for an administrative review of a decision to refuse an application for a clearance made by a person before 2 November 2015 (Act, Sch 3, item 16). As the applicant's application for a clearance was made before that date, s 30(1A) of the Act does not apply.
[21]
Orders
For the reasons given above, we make the following orders:
1. The decision of the Children's Guardian to refuse to grant the applicant a working with children check clearance is set aside.
2. In substitution for that decision, the following decision is made: The applicant is granted a working with children check clearance.
[22]
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
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Decision last updated: 13 June 2017