DNU v Children's Guardian

Does the applicant pose a risk to the safety of children?

1. 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. 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].
2. Set out below are our findings in relation to each of the s 30 (1) factors.

The seriousness of the offences and the period of time since those offences occurred (s 30(1)(a) and (b)

1. The applicant pleaded guilty to the disqualifying offence and he was placed on a bond for 12 months with supervision but no conviction was recorded. We accept that the penalty imposed reflects that the seriousness of the offences was at the lower end of the range for such offences. However overall we find that the objective seriousness of the offences is a factor that weighs against granting an enabling order (s 30 (1) (a).
2. We consider the length of time since the offences occurred weighs in favour of the applicant being granted an enabling order. The offences occurred nearly 15 years ago.

The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30 (1) (d)-(g))

1. The applicant was 40 at the time the offences occurred and is now 54. The victim was 24. There was therefore a difference in age of 26 years. The victim was not a child. She was vulnerable by reason of the fact she was asleep at the time. The applicant was in a relationship with the victim's aunt.

The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30 (1) (h-i)

1. The applicant has a criminal record which is serious. He has been convicted of a large number of driving offences which have involved drink driving and driving whilst disqualified. He has received custodial sentences for a number of these offences. Apart from the driving offences he also has one conviction in 1983 for break enter and steal and a conviction in 1991 for use firearm.
2. Since the disqualifying offence the applicant has been involved on a volunteer basis in various aboriginal community groups and has clearly made an effort to engage in pro-social activities in his local community. On his evidence he has been involved in raising a number of children in his extended family and there have been no issues or concerns raised in regard to his conduct with children on the material before us.
3. The applicant has had employment as a casual maintenance person at a local pre-school since 2016. He has reduced significantly his use of alcohol although his evidence at the hearing was that he still drinks about every second day and when he does he has five or six schooners. He still uses cannabis although has also reduced his consumption of this. We accept the applicant's evidence which is supported by notes from the local Aboriginal Medical Service that he has had counselling with a mental health nurse between 2016 and 2018 however there is no reference in those notes of any discussion with the nurse about the disqualifying offence.
4. The applicant's evidence, which was not challenged by the respondent on this issue, was that he was approached by some members of his local Aboriginal community to see if he would be willing to run workshops and support groups for young Aboriginal men. He said he was told by those who made this approach to him that his own life experiences are known in the community as are his attempts to overcome alcohol issues. These issues have led to him being convicted of driving offences in the past and he was told he will be able to assist young men by talking to them about his experiences and ways to avoid mistakes he has made. We draw the conclusion from this evidence that he is well regarded within in his local community.
5. Apart from the driving offences, the last of which occurred in 2010, the applicant has had no known criminal offences and there is no evidence before us of any conduct which could be considered adverse to the applicant since the disqualifying offence.
6. The respondent has raised the fact that the applicant did not disclose to Dr Seidler that he had received custodial sentences. The applicant's presentation was consistent with the opinion of Dr Seidler that he has limited cognitive capacity and that he is psychologically and socially unsophisticated. He was able to express clearly that he considers he is now a very different person to the one that he was at the time of the disqualifying offence having taken steps to address his drug and alcohol abuse.
7. Overall, we formed the view that the applicant was frank in his evidence and demonstrated a very clear awareness and understanding of the impact of his actions on the victim. We consider the applicant showed genuine remorse for his conduct.
8. Having regard to all of the evidence before us we are satisfied that the likelihood of the applicant re-offending is low. In reaching this conclusion, we placed particular weight on the evidence of Dr Seidler that the applicant poses a low risk to the safety of children and specifically a low risk of sexual offending with children.

Information given by the applicant in, or in relation to, the application (s 30(1)(j))

1. The applicant has provided a statutory declaration and gave oral evidence. He sets out in his statutory declaration his family background. He had a difficult childhood and left school in Year 9. He continues to struggle with literacy. His relationship with his long term partner, who was the victim's aunt, broke up after the disqualifying offence and he has not re-partnered. He said he is currently a board member of the local Land Council and is a member of the local State Emergency Service.
2. The applicant requires a working with children check clearance in order to continue to run workshops and mentoring groups for young Aboriginal men in his community which he has been requested to do by other members of the community.

Any other matters that the Children's Guardian considers necessary (s30(1)(k)

1. The respondent concedes there is no evidence of the applicant being alleged to have posed a specific risk to children. The respondent points out that the applicant's account of the disqualifying offence to Dr Seidler and in his statutory declaration contain some inconsistencies. The applicant's continued use of alcohol and cannabis is said to be of concern given the disqualifying offence occurred in the context of alcohol and cannabis use.
2. The respondent in final submissions maintained the view that the application was neither opposed or supported by the respondent.

s 30 factors that are not relevant to the application

1. As far as the material before the Tribunal indicates, no relevant information in relation to the applicant was obtained in accordance with s 36A of the Child Protection (Working with Children) Act (see s 30(1)(j1)). There is no order of a court or tribunal that is in force in relation to the applicant (s 30(1)(i1)) and none of the applicant's victims were children (see s 30(1)(f)).

Conclusion

1. By reason of his disqualifying offences there is a statutory presumption that the applicant poses a risk to the safety of children. The question is whether he has rebutted that presumption. Having regard to all of the material before us we are satisfied that the applicant has rebutted that statutory presumption and does not pose a real and appreciable risk to the safety of children for the following reasons: 1. We find that the applicant's 2004 sexual offending was serious. However, the victim was not a child and in the intervening 15 years the applicant has not committed an offence of this kind again. His driving offences are of concern even though they did not involve a child or young person. However, the most recent of these driving offences occurred in 2010 and there is no evidence of the applicant offending in the same manner again since then. 2. We find the applicant has been a stable and pro-social member of his community for many years and his services to the local Aboriginal community have been providing a dual benefit to him and the community. We accept that the applicant is well-regarded and respected within his community and has been requested to run workshops and mentor young men in the community. 3. The evidence of Dr Seidler, which we have accepted, that the applicant does not pose a tangible or specific risk to children and that the applicant's risk of offending today is very low.

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant?

1. Section 30 (1) (A) of the Child Protection (Working with Children) Act 2012 applies to this application. That section provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that: 1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work, and 2. it is in the public interest to make such an order
2. The onus is on the applicant for an enabling order in VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires: the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
3. We are satisfied that a reasonable person would have regard to the fact it is 15 years since the disqualifying offence and the opinion of Dr Seidler that he is a low risk of sexual re-offending and does not pose a tangible or specific risk to children. The reasonable person would have regard to the fact that the applicant has not been convicted of any other sexual offences since the disqualifying offence and has not been convicted of any driving offences since 2010. The reasonable person would also have regard to the applicant engaging in prosocial activities since the disqualifying offence.
4. Having regard to all the evidence available to us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work.
5. The Tribunal must also be satisfied of the second part of the test in s 30 (1) (A) that the order is in the public interest.
6. The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
7. The onus is on the applicant to establish this. The applicant committed a sexual offence against a 24 year old woman nearly 15 years ago. It is not in the public interest that the Child Protection (Working with Children) Act operate where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence we are satisfied that it is in the public interest to make the orders sought by the applicant. We accept that the applicant is well regarded in his local community to the extent that he has been requested to run workshops and act in the role of mentor to young Aboriginal men. In our view based on all the material before us that enabling the applicant to work with children is in the public interest.

Orders

1. For all of these reasons, we make the following orders: 1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of act of indecency Crimes Act 1900 (NSW), s 61N 2. Pursuant to s 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a working with children check clearance.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2019