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[2011] NSWCA 111
respondent. The applicant's application for an order under s 33I of the Commission for Children and Young People Act 1998 is refused.
DA was convicted in 1999 of possessing child pornography and taking indecent photos of a 14-year-old boy. Fourteen years later he asked the Tribunal to declare he was no longer barred from child-related work. The Tribunal accepted the offences were at the lower end of seriousness and that DA had not re-offended, but refused the declaration because he continued photographing young men at the surf club without showing he understood the risks. Experts said his depression and limited insight left him at low-moderate risk of further trouble. Child safety came first, so the ban stayed.
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DA, a 54-year-old former ambulance officer and semi-professional photographer, was convicted of two offences in 1999. In New South Wales he was convicted in the Local Court on 21 September 1999 of possessing child pornography contrary to the then s 578B of the Crimes Act 1900. Police had seized videos, computer disks and other material classified RC that depicted children under 16 in sexual acts. DA was fined $2000 and placed on a two-year good behaviour bond. In Queensland he was convicted on 15 November 1999 in the Magistrates Court of an offence under s 210(1)(f) of the Criminal Code: without legitimate reason taking an indecent photograph by means of a camera of a child under 16. The offence arose from a photoshoot on 25 January 1999 in which a 14-year-old boy was photographed, initially clothed, then in speedos and ultimately nude after encouragement from DA and another man. DA was fined $1250.
1 cited instrument linked from this judgment.
These convictions automatically made DA a prohibited person under s 33B(1)(a) of the Commission for Children and Young People Act 1998 because both offences fell within the definition of serious sex offence in s 33B(3). In 2002 he had commenced but not pursued an application under the predecessor Child Protection (Prohibited Employment) Act 1998. In 2002–2003 he was also found guilty (without conviction recorded) of making a false declaration that he was not a prohibited person when renewing employment forms with the Ambulance Service of New South Wales; he was dismissed after 17 years’ service.
In 2012 DA applied to the Administrative Decisions Tribunal under s 33I for an order declaring that Division 2 of Part 7 of the Commission Act did not apply to him in respect of these offences. The Commission opposed the application. The hearing occurred on 17 December 2012. By the time of decision on 11 July 2013, Part 7 had been repealed by the Child Protection (Working with Children) Act 2012, but transitional provisions in cl 6 of Schedule 1 to the Child Protection (Working with Children) Regulation 2013 preserved the Tribunal’s power to determine the application under the former law.
DA gave evidence, called character witnesses, produced references and photographs he had taken of young men at a local surf club. The Commission relied on two expert risk assessments: a 2002 report by psychologist Dr Christopher Lennings that assessed DA as high to medium-high risk, and a 2012 report by Professor David Greenberg that assessed him as low-moderate risk over a 15-year horizon. Professor Greenberg gave oral evidence. Deputy President Higgins found DA to be an open and frank witness but concluded that his continued photography of young males demonstrated a lack of insight. She was not satisfied that DA posed no risk to the safety of children and refused the application.
The Tribunal’s reasoning is anchored in the statutory text and the protective purpose of the legislation. Section 32 makes the safety and welfare of children the paramount consideration. Section 33J(1) prohibits the making of an order unless the Tribunal is satisfied the person does not pose a risk to the safety of children. Section 33J(2) places the onus on the applicant to rebut the presumption that he does pose such a risk.
Deputy President Higgins adopted the definition of risk articulated by Young CJ in Equity in Commission for Children and Young People v V [2002] NSWSC 949 at [42]: a real and appreciable risk greater than the background risk that any adult might prey on a child, linked to the safety of children. She noted that while the index offences were serious they sat at the lower end of the scale. The New South Wales offence involved possession rather than production or dissemination; the material had been received rather than actively sought. The Queensland offence involved encouragement but the magistrate had not found that DA photographed the boy after he became fully nude. Fourteen years had passed without further sexual offending or complaints during DA’s ambulance service employment.
Nevertheless, several factors prevented satisfaction that DA posed no risk. First, he continued to take photographs of young men at the surf club. These were not said to be unlawful, yet both Dr Lennings (in 2002) and Professor Greenberg (in 2012) viewed this activity as exposing DA to risk of further allegations or offending. Professor Greenberg expressed concern about the photographs tendered to the Tribunal, seeing them as evidence of limited insight. Second, DA suffered from long-standing depression, for which he had been hospitalised on multiple occasions. While there was no direct evidence that depression triggered the 1999 offending, Professor Greenberg considered that DA remained at risk during periods of deep depression. Third, the expert evidence, although improved from 2002, still placed DA in the low-moderate risk category. The Tribunal was required to decide on the material before it; future improvement through treatment could not overcome the current lack of satisfaction.
The decision is therefore a straightforward application of the s 33J(3) mandatory considerations—seriousness, time, ages, criminal record and “such other matters”—filtered through the paramountcy of child safety. The borderline nature of the case is expressly acknowledged at [71], yet the absence of demonstrated insight tipped the balance against DA.
Prior to the Commission for Children and Young People Act 1998, New South Wales relied on the Child Protection (Prohibited Employment) Act 1998. That Act contained a similar prohibition on prohibited persons engaging in child-related employment and a comparable test for exemption. The Tribunal notes at [16] that the earlier Act had the same protective, non-punitive purpose. The risk test articulated in Commission for Children and Young People v V (which interpreted the 1998 Act) was carried forward because the provisions were not materially different.
The 1998 Act was repealed by the Child Protection (Working with Children) Act 2012, which introduced a new statutory scheme of working with children checks administered by a new Children’s Guardian. However, the transitional regulation expressly preserved pending s 33I applications for determination under the old law. The definition of serious sex offence was updated; the repealed s 578B was replaced by the broader s 91H offence concerning child abuse material. The Tribunal held that the conduct captured by the old section had not ceased to be criminal, so the convictions remained index offences.
Post-2013 the legal landscape has shifted to a risk-based clearance system rather than automatic prohibition with exemption. The paramountcy principle and the protective purpose remain. The present decision illustrates the strictness of the onus under the former legislation: even a low-moderate risk assessment, coupled with ongoing conduct that echoes the original offending, was insufficient to obtain relief. Later working with children legislation places greater emphasis on a structured risk assessment but retains the central focus on child safety.
At [17] the Tribunal quotes Young CJ in Equity: “risk did not mean ‘minimal risk’, ‘fanciful, or theoretical risk’ to children… 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.” In plain English, the law does not require the Tribunal to eliminate every conceivable possibility; it must decide whether there is a tangible extra danger beyond the ordinary risk any adult might pose.
At [19] the Tribunal repeats s 32: “the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration.” Translation: when in doubt, the Tribunal must err on the side of protecting children even if that restricts an adult’s employment opportunities.
At [49] the Tribunal characterises the offences: “While I find that each index offence is a serious offence, in the scale of seriousness of child sex offences, I also find that in the scale of seriousness for such offences, they are at the lower end.” Translation: these were not the worst examples of child sexual abuse, but they were still serious enough to engage the prohibition.
At [73] the Tribunal identifies the decisive factor: “What is of concern, however, is DA’s ongoing lack of insight about his offending behaviour and hence his lack of appreciation of being able to manage the risks that an activity of this kind might involve.” Translation: it is not enough to have stopped offending; the applicant must show he understands why the conduct was wrong and can avoid similar situations in future. Continued photography of young males without that understanding kept the risk alive.
At [74] the dispositive finding appears: “Accordingly, due to this lack of insight, I am unable to find (i.e. be satisfied) that DA does not pose a risk to the safety of children.” Translation: the onus was not discharged on the evidence presented at the hearing.
This decision is triggered whenever an applicant with convictions for child pornography possession or taking indecent images of children under 16 seeks a s 33I (or equivalent) declaration. Key factual triggers include:
The precedent is especially relevant where the passage of time (here 14 years) and absence of fresh complaints might otherwise suggest rehabilitation, yet the applicant has not altered behaviour that experts regard as risky. It underscores that the test is not whether the applicant has re-offended but whether the Tribunal can be affirmatively satisfied that no real and appreciable risk remains.
The judgment itself applies and follows the Court of Appeal’s reasoning in Commission for Children and Young People v FC [2011] NSWCA 111 at [61] that the jurisdiction is protective rather than punitive. It also directly applies the risk test from Commission for Children and Young People v V [2002] NSWSC 949. The Tribunal’s careful weighing of the s 33J(3) factors has provided a template for subsequent Administrative Decisions Tribunal and Civil and Administrative Tribunal decisions in like applications. The emphasis on insight as a “other relevant matter” under s 33J(3)(i) has been influential where applicants continue hobbies or vocations that mirror the original offence. The finding that the Queensland s 210(1)(f) offence is “similar” to s 91H has guided interpretation of interstate convictions. Because the decision turns on its own facts, later courts have cited it for the proposition that even lower-end offences combined with ongoing risk factors can justify refusal.
The judgment leaves open whether, with further specialist sex-offender treatment and a sustained period without photography of young males, DA or a person in a similar position could succeed on a fresh application after the five-year bar in s 33I(5). It does not decide the precise boundary between acceptable community photography and risky behaviour that demonstrates lack of insight. The interaction between long-term depression and sexual risk is noted but not resolved; the Tribunal accepts there is no direct causal link to the 1999 offences yet still treats unmanaged depression as relevant. The precise weight to be given to an expert’s “low-moderate” risk rating when balanced against 14 years of clean conduct is not stated as a bright-line rule. Finally, the decision predates the full operation of the 2012 Act; the extent to which its reasoning translates to the current Children’s Guardian risk-assessment methodology remains for future cases. These open questions illustrate that each application turns on its particular evidence, with child safety remaining the unchanging lodestar.
reasons for decision 1The applicant, DA, has made an application seeking an order under s 33I of Division 2 of Part 7 of the Commission for Children and Young People Act 1998 (the Commission Act) declaring that Division 2 of that Part is not to apply to him in respect of the following offences of which he was convicted: (a) an offence of possessing child pornography contrary to s 578B of the Crimes Act 1900. DA was convicted of this offence in the Local Court of New South Wales, on 21 September 1999. DA was fined $2,000.00 and given a recognizance to be of good behaviour for 2 years; and (b) an offence of 'without legitimate reason took an indecent photograph by means of a device that is to say a camera of a child under the age of 16 years' contrary s 210(1)(f) of the Queensland Criminal Code. DA was convicted of this offence, in the Magistrates Court of Queensland, on 15 November 1999 and was fined the sum of $1,250.00. 2Division 2 of Part 7 of the Commission Act applies to persons (i.e. prohibited person) who have been convicted of a 'serious sex offence', as defined in s 33B of the Commission Act. Such persons are prohibited from applying for, or obtaining 'child-related employment' (see s33C of the Commission Act), unless the Commission, or the Tribunal, makes a declaration under ss 33H or 33I of Part 7 of the Commission Act. Subs 33J(1), provides that an order can only be made where the Commission, or Tribunal is satisfied that the person the subject of the application 'does not pose a risk to the safety of children.' 3The respondent, the Commissioner for Children and Young People (the Commissioner), opposes any order being made in favour of DA under the Commission Act. 4For the reasons set out below, I am not satisfied, as at the time of hearing this application, that DA does not pose a risk to the safety of children.
Jurisdiction 5Since the hearing of DA's application, on 15 June 2013, Part 7 of the Commission Act was repealed by the coming into force of the Child Protection (Working with Children) Act 2012: see clause 4.2 [6] of Schedule 4 of the Child Protection (Working with Children) Act 2012. I note that Schedule 3 of that Act contained savings, transitional and other provisions. Cl 1 of that Schedule provides that the regulations may contain provisions of a savings or transitional nature consequent on the enactment of that Act or any Act that amends that Act. In this regard, I note cl 6 of Schedule 1 of the Child Protection (Working with Children) Regulation 2013 contain transitional provisions, in regard to applications made under Division 2 of Part 7 of the Commission Act, which were made prior to the coming into operation of the Child Protection (Working with Children) Act 2012. The effect of that provision is that such applications continue to be determined by the Tribunal in accordance with the provisions of Part 7 of the Commission Act. 6Accordingly, I have proceeded to determine DA's application under Division 2 of Part 7 of the Commission Act. It is convenient to first deal with the relevant provisions of that Act.
Relevant Legislation 7The objects of Part 7 of the Commission Act are set out in s 31. That section provides: 31 Object of Part The object of this Part is to protect children: (a) by prohibiting certain persons from being involved in child related employment, and (b) by means of background checking administered by the Commission and other agencies. 8S 32 of the Commission Act provides that 'the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of Part 7. 9As I have already mentioned, section 33C of the Commission Act prohibits a 'prohibited person' from applying for, undertaking or remaining in 'child-related employment'. The term 'child-related employment', is broadly defined in section 33(1) of the Act. The word 'employment' is also broadly defined in subs 33(1) to include self-employed persons. The word 'children' is defined in s 3 of the Commission Act to mean a person under the age of 18 years. Consequently, word 'child' in Part 7 has the same meaning. 10The term 'prohibited person' is defined in s 33B of the Commission Act. So far as it is relevant, subs 33B(1)(a) provides: 33B Prohibited persons (1) For the purposes of this Division, a prohibited person means: (a) a person convicted of a serious sex offence, the murder of a child or a child-related personal violence offence, whether before or after the commencement of this subsection, or (b) ... 11The word 'convicted' is defined in subs 33(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.' 12The term 'serious sex offence' (i.e. an index offence) is defined in subs 33B(3) of the Commission Act. It relevantly provides: (3) In this Division: .... serious sex offence means (subject to subsections (4) and (5)): (a) ..., or (b) ..., or (c) ..., or (d) an offence under sections 91D-91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or (e) an offence under section 91H, 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or (f) ... (4) An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purpose of this Division if the conduct constituting the offence has ceased to be an offence in New South Wales. ... 13A conviction for a serious sex offence is commonly referred to as the 'index offence' as it is the offence, which brings the person within the terms of Division 2 of Part 7 of the Commission Act. 14Subs 33(2) of the Commission Act, provides that a person is not a 'prohibited person' where the person obtains an order under s 33H or s 33I of the Commission Act. The relevant provision in this application, as I have explained is s 33I. That section provides as follows: 33I IRC and ADT may make declarations concerning prohibited persons 1) On the application of a prohibited person, a relevant Tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence. 2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. 3) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. 4) An applicant must fully disclose to the relevant tribunal any matters relevant to the application. 5) If the relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that until after the period of five years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of the refusal. 6) Orders under this section may be made subject to conditions. 7) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs, and (b) an appeal lies on a question of law to the Supreme Court of any party to the proceedings. 15S 33J of the Commission Act sets out the matters that are to be considered by the Tribunal in determining an application for an order under s 33I. That section provides: 33J Matters to be considered in determining review applications (1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children. (2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (3) In deciding whether or not to make an order in relation to a person, the Commission or a relevant tribunal is to take into account the following: (a) the seriousness of the offences with respect to which the person is a prohibited person, (b) the period of time since those offences were committed, (c) the age of the person at the time those offences were committed, (d) the age of each victim of the offences at the time they were committed, (e) the difference in age between the prohibited person and each such victim, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the prohibited person's present age, (h) the seriousness of the prohibited person's total criminal record, (i) such other matters as the Commission or tribunal considers relevant. 16The exercise of the Tribunal's jurisdiction under s 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. That is, the purpose of Part 7 of this Act is not to impose additional punishment on a person, but to eliminate possible risks to the safety of children. The former Child Protection (Prohibited Employment) Act 1998 (repealed) had a similar purpose: see R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130]. 17The word 'risk' in the context of prohibited persons working in child-related employment was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour said that in the context of subs 9(4) of the Child Protection (Prohibited Employment) Act 1998 (repealed), 'risk' did not mean 'minimal risk', 'fanciful, or theoretical risk' to children. His Honour went on to say: '...[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 ''. 18In making these remarks His Honour adopted the analysis of Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101, at [104]. Some care must be taken in applying the entirety of this analysis, as the provisions of the Commission Act are not in exactly the same terms as the Child Protection (Prohibited Employment) Act 1998 (repealed). However, the above remarks of Young CJ (Equity), have been followed by the Tribunal since the Commission Act came into force. 19Finally, I reiterate the requirements of s 32 of the Commission Act, that in exercising this jurisdiction, the paramount consideration is the safety and welfare of children, in particular, protecting them from abuse.
Are the offences of which DA was convicted a 'serious sex offence'? 20As I have mentioned, DA was convicted of an offence of possessing child pornography, contrary to s 578B of the Crimes Act 1900. At the time DA was charged and convicted of this offence, s 578 relevantly provided: 578B Possession of child pornography (1) In this section: child pornography means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16. Classification Board means the Classification Board established under the Commonwealth Act. classified means classified under the Commonwealth Act. Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. computer game, film and publication each have the same meanings, respectively, as in the Commonwealth Act. law enforcement agency has the same meaning as in section 13 of the Criminal Records Act 1991, and includes a person or body prescribed by the regulations for the purpose of this definition. (2) A person who has in his or her possession any child pornography is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years (or both). (3) Nothing in this section makes it an offence: (a) ... (4) Proceedings for an offence under this section: (a) are not to be commenced later than 6 months after the date of the alleged offence, and (b) in the case of a film, publication or computer game that is unclassified at the time of the alleged offence, are not to be commenced until the film, publication or computer game concerned has been classified, and (c) are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone. (4A) ... 21As noted above, a conviction for an offence under 578B is a prescribed offence under para 33B(3)(e) of the Commission Act. S 578B was repealed, in 2004, by the Crimes Amendment (Child Pornography) Act 2004 (see Schedule 1 at [5]). In the same amending Act, a new offence, s 91H, of producing, disseminating and possessing 'child abuse material' was inserted into the Crimes Act 1900. For the purpose of this offence a child is defined in s 91FA to mean a person under the age of 16. 'Child abuse material' is defined in s 91FB to mean: 91FB Child abuse material-meaning (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person. 22The word 'material' is defined in s 91FA of the Crimes Act 1900 to include 'any film, printed matter, data or any other thing of any kind (including any computer image or other depiction).' A photograph, whether in printed or digital form) would fall within this description. 23As can be seen from the terms of the s 91H offence it covers a broader scope of conduct to that contained in the repealed s 578B offence. Nevertheless, the conduct the subject of the repealed s 578B arguably also falls within s 91H. Accordingly, the repeal of s 578B did not mean that the conduct constituting this offence ceased to be an offence. In this regard I note that the s 91H offence is also a prescribed offence under the Commission Act. 24Accordingly, I am satisfied that the conduct of which DA was convicted, in 1999, in the Local Court of New South Wales was and remains a serious sex offence for the purpose of the Commission Act. 25The offence of which DA was convicted in the Queensland Magistrate Court is in the following terms: Indecent treatment of children under 16 210.(1) Any person who- (a) ... (f) without legitimate reason, takes any indecent photograph or records, by means of any device, any indecent visual image of a child under the age of 16 years, is guilty of an indictable offence. 26The word 'indecent' is not defined in the Queensland Criminal Code. It is accepted that the term should be given its ordinary meaning, namely - that which the community regards as indecent; 'it is what offends against currently accepted standards of decency; and indecency must always be judged in the light of time, place and circumstances' (see R v Flynn [2010] QCA 254 at [30] per Fraser JA). 27At the time DA was convicted of this offence, there was no equivalent offence in the New South Wales Crimes Act 1900. S 91G, or s 578B of the Crimes Act 1900, at that time, created an offence of 'using' a child for pornographic purposes, which was defined in subs 91G(2) to mean: (2) For the purposes of this section, a child is used by a person for pornographic purposes if: (a) the child is engaged in activity of a sexual nature (for example, actual or simulated sexual intercourse or a striptease) for the purpose of the production of pornography by that person, or (b) the child is in the presence of another person engaged in such an activity for that purpose 28In my view, the conduct the subject of the offence in para 210(1)(f) of the Queensland Criminal Code is not similar to that contained in s 91G of the Crimes Act 1900 (NSW) at the relevant time. However, it is arguable that the conduct the subject of the Queensland offence, does fall within the terms of s 91H of the Crimes Act 1900 (NSW). Hence, the question is whether, for the purpose of para (e) of the meaning of 'serious sex offence' in subs 33B(3) of the Commission Act, the conduct the subject of the Queensland offence is a 'similar offence' to s 91H of the Crimes Act 1900 (NSW). In my view, having regard to the express terms of subs 33B(3) and para 33B(1)(a) together with the objects of Part 7, the Queensland offence is, for the purpose of the Commission Act, a similar offence to that contained in s 91H of the Crimes Act 1900. Furthermore, it became a similar offence upon the enactment of s 91H in 2004. Even if I have incorrectly construed the meaning of 'serious offence' under the Commission Act, DA's conviction of the Queensland offence would nevertheless be a relevant matter in determining his application as it forms part of his overall criminal conduct. I can indicate that my ultimate findings would have been the same if I were to consider the Queensland offence in the context of his overall criminal conduct alone.
Evidence 29DA is 54 years of age. He previously made an application, in 2002, seeking a similar declaration under the former Child Protection (Prohibited Employment) Act 1998 (repealed). He did not proceed with that application. 30In support of this application, DA relied on the following material:
Seriousness of the index offence 35The offences, of which DA was convicted, in 1999, both arise from a complaint made by the victim (a boy who was 14 years of age at the time) of the Queensland offence of which DA was convicted. 36The complaint was made, to Queensland police, on 1 February 1999. As a result of that complaint, on 8 February 1999, Detective Senior Constable Firth, of the NSW Police, executed a search warrant on the home of DA. Seized from the DA's home were a black folder containing a number of video covers, 4 plastic sheaths containing 33 pages of 'thumbnail pictures', 131 video cassettes, 89 computer diskette, a box and a folder containing negatives and a computer. 37Detective Senior Constable Firth interviewed DA on 9 February 1999. On the same day, DA provided Detective Senior Constable Firth with six negatives of photographs he had taken of the complainant (i.e. the young man who had complained to the Queensland Police). DA was interviewed again on 23 June 1999 in regard to specific items that had been seized from his home. On this day, DA was charged with the offence of possessing child pornography under s 578B(2) of the Crimes Act 1900. The child pornography, as particularised in the charge, was: '2 video cassettes and 17 computer disks containing images of naked children in sexual acts'. 38The Police Fact Sheet, prepared for the Local Court stated as follows: 'On the 8th day of February police executed a search warrant at the home of the defendant ... The defendant is full time but is a semi-professional video and still photographer. In the rooms occupied by the defendant were videos, photographs and equipment relating to photography... Police seized a large quantity of videos, computer discs, photographs, negatives and a computer hard drive. These appeared to contain child pornography. The items were further inspected at a later date and as a result 17computer 3.25" discs and two video discs were submitted to the Office of Film & Literature Classification Board. Those items were returned and issued with a Section 87 Certificate under the Classification (Publications, Films and Games) Act 1995. The items were classified RC (Refused Classification) in accordance with the National Classification Code, Films Table 1(b) as they depict "in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16". The defendant's computer hard drive was also examined and found to have similar images stored on it. On 23-6-99 the defendant attended [name] Police Station and consented to participating in an erisp interview in relation to the matters. In the interview he stated that the videos seized by police all belonged to him and were of a pornographic nature. He stated that he purchased the videos through a legitimate mail order service and thought they were lawful. He stated that he received email from acquaintances that he did not approve of. He stated that he downloaded the images and filed them on his computer. He stated that he had seen the images and had kept them as he was a "hoarder" and received a great deal of material over the internet. He stated that the computer 3.25" discs were his and he had loaded the images onto the discs that appeared on them. He stated he did not recall which images were on the disc. The defendant gave no reason for having possession of the items mentioned. Some of the images appear to be of pre-pubescent males and were of a very explicit nature. The defendant has co-operated with investigating police during the investigation.' 39As I have explained above, the offence of which the applicant was convicted was punishable by a fine and a maximum sentence of 2 years imprisonment. On 21 September 1999, DA pleaded guilty to the offence and was convicted and fined $2,000 and given a recognizance to be of good behaviour for 2 years. 40DA was charged with the Queensland offence some time in March 1999. That charge related to events that occurred on 25 January that year. The Queensland Police Fact Sheet describes the events of that day, so far as they related to DA, as follows: 'The complainant in this matter is [name of complainant] 14 years of age. On the 1st and 2nd February 1999 the compl. child provided a statement to Detectives from the Gold Coast Child Abuse Unit, outlining a number of incidents. Contained within this statement were allegations to [DA]. The compl. child stated that on the 25th January 1999 he was taken to a house, by another male person (Deft [A]), for the purpose of having photographs taken. He stated that whilst at the house a series of photographs were taken by the Deft [DA] with the assistance of another person (Deft [B]). The compl. stated that the Deft [DA] commenced taking photographs of him whilst he was wearing jeans and a t-shirt, and then down to speedos and boxer shorts. He stated that he then posed on a bed and in the shower whilst the Deft [DA] continued to take photographs of him. During the course of the photos the deft [DA] and the other male (Deft [B]) asked the compl. child to remove his speedos, which he did, and then the deft [DA] took further photographs of the compl. child in the nude. ... 41In his complaint to the Queensland Police, the complainant made additional allegations against Deft [A] and Deft [B]. As a result of those additional allegations Deft [A] and Deft [B] were charged with offences of sexually assaulting the complainant. These offences occurred subsequent to the events of 25 January 1999 and there is no evidence to suggest that DA had any involvement in these. 42In sentencing DA, the Queensland Magistrate noted the co-operation DA had provided to police and went on to say: '...[on] the evidence it would appear that there was active encouragement by you and this other gentleman named [Deft B], of the complainant. I refer in particular to paragraph 39, the last sentence of his statement in which by those words he was encouraged to act as he did. Clearly the complainant is susceptible to that sort of flattery. It was clear from his evidence, his demeanour and his age that he is and would be susceptible to that kind of comment and conduct by you and another adult and what you did was a serious, serious thing. You took advantage of him, you were older, you were with another adult, an adult who acted upon his intentions and attraction towards the complainant of which there has been some suggestion of which you were aware. You were present when [Deft B] asked the complainant to remove his Speedos, or that is the evidence and when he did so, as Mr Bagley [DA's legal representative] says, you should have withdrawn. ...' 43In the last sentence of paragraph 39 of his statement, the complainant said: 'During the photos they were telling me that I was a natural and that I was photogenic.' 44The Queensland offence of which DA was convicted was punishable, on indictment, by a maximum penalty of 10 years imprisonment. In this case, DA pleaded guilty to the offence at the conclusion of his committal hearing. 45In his record of interview, on 9 February 1999, with Detective Senior Constable Firth, DA explained the circumstances, which gave rise to him taking the photographs of the complainant on 25 January 1999. He explained that prior to January 1999 he had been chatting to Deft A and Deft B on the internet. He said they did not chat regularly and that he had not chatted to Deft A for about 6 months. He explained that on the weekend in question, he, Deft A, Deft B and others he had been chatting with were all going to be in Queensland and they had decided between them to get together for a B-B-Q on the Saturday of that weekend. At the time DA did not reside in Queensland and travelled there for a 4 day weekend. 46In the interview, DA explained what he did and whom he met during the days in question. He said he met Deft B for the first time. He said the complainant was present when he met up with the men he had been chatting with and that he had taken photographs at the B-B-Q. This included photographs of the complainant. He went to say that on the Monday, 25 January, when he, Deft A and Deft B, were at the home of Deft A and looking at the photos he had taken, he commented on the complainant being very photogenic. He said, that following this remark Deft A contacted the complainant and asked him if he would like to have his photos taken and it was in response to this that DA took his photos. DA went on to explain what photos he had taken. This included photos in the bedroom. DA also said he was getting a bit uneasy at that stage and that he should have stooped then. 47In my view, both offences were serious. The offence of possessing child pornography was serious in that he was in possession of material, which depicted the unlawful exploitation of young males between the age of12 and 16 years and in the case of the videos, even younger. DA did not question the basis on which he was convicted for this offence. However, it seems to have been accepted that the material the subject of the charge had been sent to DA and it was not sourced or bought by him. His possession of it was nevertheless unlawful. 48As pointed out by the Magistrate, his conduct in regard to the Queensland offence involved him, as an adult, taking advantage of the young complainant and failing to withdraw after Deft B asked the complainant to remove his speedos. DA did not seek to question this finding of the Magistrate. The Magistrate, I note did not make a finding that DA had taken any photographs of the complainant after he had removed his speedos. DA has at all times denied that he had done so. Nevertheless, DA was convicted on the basis of the photographs that were taken and the circumstances in which they were taken. 49While I find that each index offence is a serious offence, in the scale of seriousness of child sex offences, I also find that in the scale of seriousness for such offences, they are at the lower end.
Period of Time since the index offences were committed 50It is now 14 years since the commission of the index offences.
Age of DA and victim at the time etc. 51At the time the index offences were committed, DA was 40 years of age. The complainant (victim of the Queensland offence) was 14 years of age. Hence there was a difference of 26 years. In regard to the possessing child pornography offences, while the children were not a victim of DA's offending conduct, they were nevertheless the subject of the material, the possession of which was the subject of DA's offending conduct. As I have indicated, these children were aged between 12 and 16 years. 52In his evidence, DA acknowledged that he knew the complainant was young and in my view, on the material before the Tribunal, could reasonably have known that the complainant was under the age of 16. 53As I have mentioned, DA is 54 years of age now.
DA's total criminal record 54Other than the above-mentioned offences, DA has only been charged and found guilty of one further offence, in 2003. 55On 24 September 2002, DA was charged, by NSW police, with an offence of having made 'a false declaration of fact stating that he was not a prohibited person under subs 7(6) of the former Child Protection (Prohibited Employment) Act 1998 (repealed)(the false declaration charge). In accordance with that Act, in November 2000, DA's then employer, Ambulance of New South Wales, circulated an Instructional Circular informing staff of the 'prohibited person' status of persons convicted of a serious sex offence. On 1 July 2001, DA completed a 'prohibited employment' declaration for the purpose of that Act and in doing so failed to declare his 1999 Local Court conviction. As a result of that failure, the Ambulance Service immediately commenced disciplinary action, by suspending him and charging him with disciplinary offences. On 15 October 2002, following a disciplinary hearing, the Ambulance Service, found that the disciplinary charges were proven and on that basis he was dismissed from the Service, after having served for almost 17 years. 56Subsequently, on 12 February 2003, the Local Court found, without recording a conviction, that DA was guilty of the false declaration charge. He was placed on a 12-month good behaviour bond. 57I note that the false declaration charge was based exclusively on his 1999 convicted of the possessing child pornography charge. This, as I have noted above, is consistent with my findings that at the time New South Wales did not have an offence equivalent to s 210(1)(e) of the Queensland Criminal Code. 58DA explained that he had at no time deliberately made a false statement. DA, as I have indicated, pleaded guilty to an offence of making a statement that he knew to be false. 59A copy of the declaration, the subject of the charge, was included in the folder of documents tendered by the respondent (see Ex R2 at tab 26 p 130). The declaration was a one page document where DA crossed out the word 'am' at the declaration at the bottom of the page, so that the declaration read 'I declare that I am not a person prohibited by the Act ...' While, DA was a prohibited person in that he had been convicted, in New South Wales, of an offence falling within the terms of the meaning of a 'serious sex offence' in subs 5(3) of the former Child Protection (Prohibited Employment) Act 1998 (repealed), the declaration only set out one paragraph of that subs (i.e. para 5(3)(a)). 60I note that during the 17 years DA was employed with the Ambulance Service, no complaints were made against him in regard to his conduct towards any child or young person.
Other matters 61The other matters arising from the material before the Tribunal are: (a) DA's evidence, including references (b) recent medical history of DA (c) expert evidence 62DA's evidence and references - In his oral evidence, DA said that he has not been employed for a number of years and is currently his mother's carer. He said, after being dismissed from the NSW Ambulance Service, he unsuccessfully tried to establish a photographic/video business. However, he has continued to take photographs of people from the local surf club, including young males. He explained that these were never taken at his home, or in private. He said that the photographs he took were not for his personal use. He said they were taken as he had been asked to take them and they were for the person use of those who had asked. In some cases, they were used for the person's personal portfolio. 63DA tendered into evidence an example of the photos he had taken of young men. Photography clearly remains one of DA's strong passions and interests. However, he has a sense of frustration in not being able to pursue this interest because of his status as a prohibited person. 64I accept that DA is highly regarded amongst those who know him. This is reflected in the many references he has provided. Each referee made reference to DA's convictions, which they said were totally out of character. The statement of DA's mother and sister also indicate that DA has the support of his family. I accept that DA has found the circumstances of his convictions, dismissal from the Ambulance Service and his status as a prohibited person to be stressful. 65Recent medical history - The material produced under summons identifies DA as having suffered from depression for a number of years. He received treatment for depression in 1996 and again in September 1999 after he was convicted of the possess child pornography charge. He also received treatment for depression in July 2001, August 2002 and was admitted into hospital for treatment in August 2002, November 2002, January 2006, September 2006 and October 2007. And he continues to take medication for depression. 66Expert evidence - As I have mentioned, Dr Lennings, a clinical psychologist, prepared a risk assessment report for DA's 2002 application. In preparing for his report Dr Lennings met with DA for 3 hours. He was also provided with relevant material in regard to DA's criminal conduct. In making his assessment Dr Lennings applied 3 risk assessment strategies (clinical guided and actuarial approaches) to measure DA's risk of re-offending. In his report Dr Lennings concluded as follows: 34. Formulation [DA] presents as a man of average cognitive ability who reveals a severe disruption of personality function. He is a man who experiences insecurity and anguish over his looks and his sexuality. He is at best naive about his association with known pedophiles, and continues to undertake activities that place him at risk to further allegations of impropriety. It is somewhat sad he does so - it is probable that he is a good photographer and probably performs a useful service to young men seeking to advertise themselves in sport (surfing) that is very much focused on physique and sensuality. However it is unlikely that his interest is purely aesthetic. 35. Overall, all three strategies for risk assessment suggest a high to medium high risk of a future offence for [DA]. It should be noted that the kind of offence he is at risk for has no bearing on his work as an ambulance driver. It is most unlikely the kind of deviant behaviour he might commit (pornographic type photos of young men) is an activity he is unlikely to have much opportunity to do as an ambulance driver. ... 36. ... [the] Tribunal might wish to consider whether it is wise for [DA] to continue to seek the occasional work as a photographer of young men, given the very strong likelihood that it will continue to expose him to risk of either allegations of abuse, or further manipulation by predatory types he seems to have great difficulty in rejecting or holding accountable for their behaviour. ... [since] I believe that [DA's] behaviour is likely to place him at risk of further offences, or at least allegations of further offences, it would be greatly in his interest to avoid such situations. It is likely that [DA] would see that as highly punitive and unfairly limiting. None the less, I am persuaded to continue such behaviour places him in considerable jeopardy.' 67Professor Greenberg also met with DA for the purpose of preparing his report for this application. Professor Greenberg was provided with all the relevant background material in regard to DA. In his report, Professor Greenberg, having adopted the same risk assessment strategies as Dr Lennings, concluded as follows: 'In summary therefore, I am of the opinion that [DA] has a psychiatric diagnosis of Dysthymic Disorder with episodes of Major Depressive Disorder, Socia; Phobia and Hebophillic tendencies with fetish features. In conclusion, I am therefore of the opinion that the ultimate issue of whether [DA] will or will not re-offend cannot be stated with any scientific degree of certainty. Based on a clinically guided risk assessment approach (SVR-20) combined with the actuarial instruments such as the STATIC 99-R, [DA's] current risk for likelihood of committing a further sexual offence would be in the 'low-moderate risk' category range over a fifteen years or more period of time. ...' 68Professor Greenberg went on to reiterate the limitations of the assessment instruments used. However, he remained of the view that there was a low-moderate degree of probability that DA 'is likely to commit a serious sex further offence.' That potential risk of sexual re-offending, he said 'may possibly be moderated but not eliminated by' DA receiving ongoing treatment and monitoring of his depression and compliance with that treatment, psychological counselling for his depression and a number of other issues and counselling by a therapist with expertise in sex offender treatment. 69In his oral evidence, Professor Greenberg said that DA suffered from fairly sever depression. He questioned whether DA had a good support mechanism and he reiterated his concerns about DA remaining unemployed and having explored any alternative means of employment to that he has previously held. 70Professor Greenberg said he did not disagree with Dr Lennings' conclusions. However, in his opinion things had changed since then. DA's age was a factor of change. He was much older now and with age there 'is a gradual reduction in risk.' He said he would be concerned if DA had been taking photos of young males. Professor Greenberg was shown the photos DA had provided to the Tribunal. He said these caused him some concern as to DA's level of insight into his offending conduct. During cross-examination, Professor Greenberg agreed that there was no evidence of DA having re-offended. However, in his opinion, DA remained at risk during states of deep depression. He also said that DA's continuation of taking photographs of young males was of concern.
Findings and Orders 71In my view, having regard to the material before the Tribunal and the matters referred to in s 33J of the Commission Act, DA's application is almost border-line. As I have explained, the index offences of which he was convicted are serious, but at the lower end of the scale of seriousness. They were committed 14 years ago and DA has not committed any further offences of this nature since that time. Nor is there any evidence of any complaints having been made, or questions raised about DA's behaviour towards any child or young person. 72While DA's depressive illness is of concern, there is no evidence that DA's offending conduct is triggered during periods of depression. His states of deep depression appear to have been more recent and are arguably due to the circumstances he finds himself. He clearly requires ongoing specialist treatment and counselling in this regard. Otherwise, DA is fortunate in that he has support from friends and family. With this support and ongoing counselling and treatment, hopefully DA will explore alternative means of employment. 73I also share Dr Greenberg's concerns about DA continuing to take photographs of young men. At the same time, stress that the photographs, provided by DA, do not evidence any unlawful conduct. Nor was it suggested that they did so. What is of concern, however, is DA's ongoing lack of insight about his offending behaviour and hence his lack of appreciation of being able to manage the risks that an activity of this kind might involve. As explained Dr Lennings, in his 2002 report, behaviour of this kind is likely to place him at risk of further offences, or at least allegations of further offences. Professor Greenberg expressed a similar concern, when he saw the photographs of young men DA had provided. 74Accordingly, due to this lack of insight, I am unable to find (i.e. be satisfied) that DA does not pose a risk to the safety of children. With ongoing specialist treatment and counselling in regard to his depression and his offending conduct this may change. However, for the purpose of determining this application, I must be satisfied, on the material before me, that DA does not pose a risk to the safety of children. As I am not so satisfied as at this time, the appropriate order is to refuse DA's application for an order under s 33I of the Commission Act.
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: 11 July 2013
DA
Commission for Children and Young People
[2010] QCA 254
The applicant's application for an order under s 33I of the Commission for Children and Young People Act 1998 is refused.