DTC v Children's Guardian

The disqualifying offence

1. DTC pleaded not guilty to the charge of unlawful and indecent assault. After a two day trial in October 2016 before the Western Australia Magistrate's Court, DTC was found guilty of the offence. The facts accepted by the Court were: 1. The victim had been visiting a relative in a medical facility and left the facility just before 8pm. DTC had been working at the same medical facility. 2. As the victim walked out to the car park, she was approached by DTC. The victim gave evidence that DTC told her she looked "stunning" and he commented positively on her legs. 3. DTC asked for a hug. The victim hugged him. The victim went to pull back. DTC then pulled her in tighter and kissed and bit her on the right side of the neck. 4. The victim gave evidence that after the hug ended, DTC asked her, "whether her boobs were real". When she replied that they were, DTC asked her to prove it to him. She refused and said that she was going to leave and he should too. They then walked away. 5. The victim gave evidence that DTC's actions made her feel intimidated, uncomfortable and concerned. 6. The Magistrate accepted the victim's evidence and found her to be an honest and reliable witness. The Magistrate found that the CCTC footage was also consistent with her evidence. 7. The Magistrate specifically rejected DTC's assertion that he had no sexual interest in the victim, or that he approached her merely to pay her a compliment.
2. DTC's pleaded not guilty to the unlawful and indecent assault charge. He told police that the victim had walked past him near the carpark and he wanted to give her a compliment. When he made this decision, she was about 100 metres away and he followed her. He then approached her and told her words to the effect that she was beautiful. The victim thanked him and they exchanged pleasantries. They had a handshake and the victim told DTC she had a partner to which DTC replied "this is absolutely okay". DTC then asked her for a hug. She agreed and they hugged. During the hug, the victim placed her arms on his shoulders and he placed his arms around her upper back.
3. DTC agreed he shook the victim's hand and he gave her a hug. He denied stroking her arm, grabbing and pulling her into the hug, kissing or biting her or making any sexual references. His denials were not accepted by the Magistrate in finding the offence proven.
4. The Magistrate granted a Spent Conviction and fine of $1,000.00.

Applicable law

1. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act.
2. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; Section 4 of the Act.
3. As stated, DTC was found guilty of the offence of indecent and unlawful assault. This is an offence contrary s.323 of the Criminal Code (WA). At the time of commission of this offence and his conviction, the offence would have comprised an offence of indecent assault contrary to s.61L of the Crimes Act 1900 (NSW). If committed now, it would comprise an offence of sexual touching against s.61KC of the Crimes Act 1900 (NSW). Offences against both s.61L and s.61KC are disqualifying offences under the Act (cl.1(1)e), and therefore the Western Australian offence committed by DTC comprises a disqualifying offence under the Act (cl.1(1)z).
4. Subsection 18(1) of the Act states the Children's Guardian must not grant a clearance to a person convicted of a disqualifying offence. A conviction also includes a finding of guilt.
5. Subsection 28(1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order.
6. Subsection 28(7) of the Act places the onus on DTC to satisfy the Tribunal that he does not pose a risk to the safety of children.
7. The meaning of the word "risk" in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word meant: "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".
8. The issue for the Tribunal to decide is whether DTC has discharged the presumption under s 28(7) of the Act that he poses a risk to the safety of children.
9. In determining this issue, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is to then consider making an order enabling an applicant to work with children, we must then consider the two-part test set out in s 30 (1A) of the Act.

a) Seriousness of any matters that caused the assessment in relation to the person

1. DTC was found guilty of the offence of indecent and unlawful assault. The offence involved DTC kissing the victim on her face and biting the victim on her neck. The victim described the bite as "not a very sore bite and was more like a peck with his teeth". She also stated that the bite did not break the skin or leave any mark on her neck. DTC's actions appeared to be a spontaneous act rather than a planned or coordinated act.
2. The presiding Magistrate decided to grant a spent conviction on DTC. Under the relevant provisions being s.45 of the Sentencing Act 1995 (WA), the Magistrate must be satisfied that DTC was unlikely to commit the offence again, DTC was previously of good character and the offence committed by DTC was "trivial".
3. The Magistrate made the following comments in sentencing DTC: [DTC] has been convicted after trial of a single offence of indecent assault. It is an offence at the lower end of the scale and I accept that a fine is the appropriate penalty. The concerning feature, of course, has been outlined throughout the reasons, but it is the following of the complainant, but I accept that wasn't done with the intention of committing an offence, but rather, to use the colloquial, to try his luck in approaching her, but the matter went too far and he has found himself in this position. I accept that he's a man of otherwise entirely good character, in fact, exceptional character. He's clearly a very good doctor, someone who's regarded very well in the profession. The real question in this case is whether a spent conviction should be granted. It is an exceptional kind of order, but I accept that he is a man who is unlikely to commit such an offence again given what has transpired since the offence, the court process, the fact it is a low end offence in a situation that arose on a single night rather than one that's said to have been repeated.
4. We agree with the Magistrate and find that the offence, as proven is at the lower end of seriousness of this type of offence.

b) The period of time since those offences or matters occurred and the conduct of the person since they occurred.

1. The offence occurred in June 2016, some three years ago.
2. Apart from a 6 month period of the suspension of his medical registration ending in February 2018, DTC has continued to work as a medical practitioner in several positions. There is no evidence of him being the subject of any further complaints, allegations or charges.

c) The age of the person at the time of the offences or matters occurred.

1. DTC was 36 years of age at the time of the disqualifying offence.

d) The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

1. The victim of the disqualifying offence was 30 years of age at the time of the offence. The offence occurred in a carpark in the evening after DTC followed the victim some distance before directly approaching her. The victim was alone when DTC approached her.

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

1. The difference in age between DTC and the victim of the disqualifying offence was approximately 6 years.

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

1. The victim was not a child.

g) The person's present age

1. The present age of DTC is 39 years of age.

h) The seriousness of the person's total criminal record and the conduct of the person since the matters occurred.

1. DTC has no criminal history other than the disqualifying offence.

i) The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

Evidence of DTC

1. DTC told us that at the time of the offence in June 2016, he had been experiencing low mood and workplace stress. This was due to a combination of factors including the worry of a clinical exam due in July 2019, a recent experience of being belittled in front of his peers by a consultant during a mock medical consultation and the balancing of his family commitments with two young children. He believed that his actions towards the victim were, "guided by a well-recognised strategy of enhancing my personal wellbeing by engaging in a random display of kindness and compassion to another".
2. At the time of the offence, DTC genuinely believed that the victim was happy to accept his compliment and further, that the victim genuinely consented to his request to hug her. When the victim made the complaint, he was shocked and angry. He immediately participated in a police interview and gave his version of the incident and maintained his anger and disbelief for some time. However, after he was found guilty of the offence by the Court, he started to change his thinking and "he became less emotional and started to think from the victim's perspective". He realised he was wrong to follow the victim and randomly approach her late in the evening in a carpark. He could see how his actions made the victim feel intimidated and threatened. In hindsight, he could also see that when the victim told him she had a partner, she was trying to put an end to the conversation with him. He also realised that he acted in haste and without proper thought to how the victim may have felt.
3. DTC told us that the whole experience had caused great shame and embarrassment to himself and his family. It has also impacted on his medical career. A few weeks after the incident, he sat for and failed his second medical specialist examination and was later informed by the teaching college that he could not repeat the examination. He was forced to resign his position as registrar soon after the incident. He was the subject of a 6 month suspension of his medical licence ending in February 2018. Since the incident and for 13 months up until August 2018, he complied with an undertaking to have a chaperone when seeing any female patients. Since the incident he has been forced to accept more junior medical positions with less responsibility which he believed related to his now blemished medical history. The cumulative impact of these events has caused DTC to carefully reflect on his own practice and ensure he acts with caution and considers how his actions and words can be received and perceived by others.
4. DTC told us he is not a risk to the safety of children. He is happily married with a supportive wife and two young children. He has a large network of friends and is often caring and supervising his own children and the children of his friends.
5. DTC told us that he has worked as a medical registrar and medical practitioner since 2009 and he had never received a complaint about inappropriate behaviour. He estimated from 2009 to 2016 he would have treated over 1,000 children and teenagers, both male and female and he had never received any complaints or concerns.
6. DTC was cross-examined by the respondent's counsel and agreed that he continued to deny the offence in so much that he was found to have kissed and bitten the victim and made sexual comments to her. However, he agreed that he should not have followed the victim, approached her and hugged her and he feels "very bad" about the harm and distress he had caused the victim by his actions.
7. The respondent's counsel questioned DTC about an email he sent to a potential employer in November 2018 explaining why he was not working during the time of his suspension. DTC wrote in the email, "I was reported to the Medical Board in 2016 after a female who was not one of my patients or a relation of any of my patients or someone I had come in contact with through my work reported me for touching her inappropriately. I had a purely decent and friendly chat one day, (in full public view) with this complete stranger, outside of the hospital during my meal break and got the biggest shock of my life to know many days later that she had reported me for touching her inappropriately. This resulted in the board suspending me for 6 months…I hope you understand that sometimes people get caught up in unfortunate situations by being at the wrong place at a wrong time and with the wrong person with no fault of theirs. This is exactly what happened to me in this case".
8. Counsel asked DTC whether he considered himself during the incident to be "in the wrong place at the wrong time with the wrong person". DTC told us that he did not agree with this statement and accepted that he alone had put himself in that position and he accepted full responsibility. He agreed the email was not representative of the full facts and explained this omission by stating that he had discussed his response with his employment agency. However, we did not find his explanation persuasive and it was more likely the email is explained by DTC wishing to minimise the severity of the incident to optimise his employment prospects. This is more so given DTC's stated difficulties in obtaining employment as a medical doctor since the offence occurred.

View of Magistrate who presided over the hearing of the disqualifying offence

1. In her sentencing remarks, the Magistrate stated that in her view DTC is unlikely to reoffend.

Views of the Medical Experts

1. Clinical Psychologist, Ms Elizabeth Webb provided a report dated 27 March 2019. Ms Webb treated DTC for 12 months from November 2016 and again recently when DTC's symptoms re-emerged. In her opinion, "there is nothing in [DTC]'s accounts of his personal history, past behaviour or motivation that suggests the events of 20 June 2016 are anything other than an isolated incident. He does not, in my view, pose any risk to others, including patients he may be treating."
2. Professor Paul Skerritt was DTC's treating psychiatrist following the incident in June 2016 and he provided a report dated 26 April 2019. In his opinion, the incident was an isolated one based on an unwise manifestation of a lifelong altruistic personality characteristic and was unlikely to happen again. Professor Skerritt had no objection to the issuance of a working with children clearance.
3. Ms Miriam Wyzenbeek is a clinical and forensic psychologist who was engaged by DTC to provide an opinion on the assessment of any risk he may pose to children.
4. Ms Wyzenbeek found evidence that [DTC] engaged in high levels of positive impression management and defensiveness. This may cause him to under-report any difficulties he may be experiencing and a reluctance to acknowledge any problems or failings. However, overall, she found [DTC] to have a good understanding of how the victim may have perceived his advances and that he had knowledge of appropriate sexual boundaries. He accepted that the victim was perceiving him as sexually aggressive towards her. He also accepted that he had evidenced poor boundaries throughout his interaction with the victim.
5. Ms Wyzenbeek noted that [DTC] had numerous protective factors that mitigated against any future re-offending. These included no prior offending and no other anti-social traits. He is reported to enjoy stable, emotionally close and supportive relationships with his wife, family and friends. He is well connected to his community and is engaged in pro-social leisure activities. He has a consistent work history. He has no history of substance abuse issues.
6. She concluded her assessment as follows: For the purposes of the current assessment, I have accepted the Court's view that [DTC]'s offending was sexually motivated. This represents a higher threshold in terms of assessing his likely future risk, particularly insofar as taking into consideration his responsibility, accountability and insight into the offending behaviour. The most likely risk scenario is that he lacks some understanding of appropriate boundaries when interacting with female patients/ visitors at the workplace (however, as a consequence of the impact that the offence had on him, he is now vigilant in his interactions with others). Although [DTC] is continuing to engage in offence minimisation and justification, in the current assessment he evidenced a good understanding of sexual boundaries and the inappropriateness of his behaviour. He also demonstrated an understanding of the factors that placed him at risk of engaging in the offending behaviour, and he was insightful about the potential impact on the victim for his behaviours. In my opinion, [DTC] presents a low risk of engaging in further sexual offending.
7. Ms Wyzenbeek also wrote that there was no indication that he posed a risk to the safety of children.
8. Ms Wyzenbeek was cross examined by the respondent's counsel. She was asked by counsel whether [DTC]'s denial of some aspects of the offence would increase her assessment of risk. Ms Wyzenbeek did not believe it would unduly increase the risk as [DTC] had insight into what was appropriate behaviour and how his own previous behaviour had been perceived by others and caused them harm.
9. Ms Wyzenbeek was asked about the email of November 2018 and whether this email, being a misrepresentation of the facts changed her view of [DTC]'s risk. Ms Wyzenbeek told us that given the limited information she was not able to provide a valid response.

Conclusion

1. We find the likelihood of DTC committing the same type of offence in the future to be low. This finding is based on the consistent views of the expert medical and psychological professionals that DTC was unlikely to reoffend. This was also the view of the presiding Magistrate after hearing all the evidence against DTC in the criminal proceedings.
2. Our finding is also based on DTC's evidence. We agree with Respondent's counsel that DTC had minimised his offending and engaged at times in "positive impression management". However, we also accept that DTC has experienced significant loss in a personal and professional sense following the Court finding of guilt. This has caused him to reflect on his actions. Having heard directly from DTC we found him to be a genuine witness. We were impressed by his insights that have developed over time about appropriate boundaries and how others may perceive his behaviour. He also demonstrated genuine remorse for his conduct in June 2016 and the harm it caused the victim. We agree with the view of Ms Wyzenbeek, that DTC now has a heightened awareness about these issues and as such, is less likely to engage in similar behaviours again.
3. Any repetition of the offence of indecent assault, if perpetrated against a child, has the potential to cause significant harm to the child. However, it is noted that the disqualifying offence in this case was not committed against a child.

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

1. The evidence in support of the application included an affidavit from DTC's wife affirmed on 15 May 2019. She stated that her husband had been a caring and supportive father who was actively involved in their children's upbringing. From her observations, her husband had not acted inappropriately with their children or any other children or woman in their community. She continues to support her husband, despite having full knowledge of the details of the offence.
2. DTC provided several references from professional work colleagues. They all supported his application and some had worked with DTC and spoke about his conscientious approach to his work and that in their view, he was not a risk to either his patients or to children.
3. DTC requested consideration be given to the fact that the Western Australia Department for Child Protection and Family Support approved a working with children clearance card for DTC in 2017 and 2018. This was after receiving notification of the offence from the Western Australian Police. The Department investigated the matter and found that based on all the material DTC did not represent an unacceptable risk that would cause harm to a child when undertaking child-related work. The respondent's counsel submitted that this approval should be considered in the context of the Western Australian legislation that has a different legislative test and does not include a presumption that a person convicted of an offence such as the disqualifying offence poses a risk to the safety of children. However, the applicant's counsel argued that the Western Australian requirement for the applicant to establish exceptional circumstances was analogous to the presumption in s.28(7) of the Act which requires the applicant to prove that he poses no risk to the safety of children.

j1) Any relevant information in relation to the person that was obtained under section 36A

1. No such information was provided to the Tribunal.

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

1. The respondent's counsel referred to a previous occasion when DTC engaged in similar behaviour. This was based on an admission that DTC made to police during his police interview in 2016 when he told police he approached a woman at Dubai airport who he had not previously known and told her she was beautiful. Counsel suggested that DTC's commission of the offence in 2016 "may have escalated from the instance in Dubai".
2. DTC provided a further affidavit about this incident in the Dubai airport. The incident took place in 2006 when DTC was 26 years old and the mutual conversation is set out in the affidavit. Based on the information before us, we do not see how this could be an escalation of DTC's conduct given the incident, as described, does not give rise to any impropriety or offence on the part of DTC and further, this incident occurred ten years prior to the 2016 offence.
3. The respondent's counsel submitted that were DTC to reoffend, it is likely to be of a similar nature, namely the crossing of boundaries via the unwanted sexual attention. Counsel submitted that while there is no suggestion that DTC has any sexual interest in children per se, however, the repetition of similar behaviour may pose a risk to post pubescent female children, particularly those approaching, but aged under 18 years. Counsel also acknowledged there was no evidence to base this submission and we would therefore characterise this submission as pure speculation and give it no weight.

Consideration of s.30(1) factors

1. Based on our consideration of the s.30(1) factors set out above, we find that DTC has discharged the required onus of proof and he does not pose a real and appreciable risk to the safety of children. In particular, we took account of the low end seriousness of the disqualifying offence, the fact that it did not involve children, the fact that DTC has no previous history of complaints, adverse reports or convictions, the fact that DTC has close and supportive relationships with his family, friends and community and finally, the unanimous view of all medical and psychological professionals who either treated or assessed DTC and stated that he is not a risk to children.

Consideration of s.30(1A) factors

1. Having decided the applicant does not pose a risk to the safety of children, we must consider the "reasonable person" test and the "public interest" test in s.30(1A) of the Act.
2. The section provides that the Tribunal may not make an order under this Part which has the effect of enabling the affected person to work with children in accordance with this 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 any child-related work, and 2. it is in the public interest to make the order.

The "reasonable person" test

1. This test requires us to determine whether a reasonable person would allow his or her child to have direct contact with DTC in circumstances where he would not be directly supervised by another person while engaging in child related work.
2. The case of CHB v Children's Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. In this case, the relevant facts would include the transcript of the 2016 criminal proceedings including the sentencing remarks of the presiding Magistrate, the reports of psychologists, Ms Wyzenbeek and Ms Webb and the report of the psychiatrist, Professor Skerritt. It would include DTC's work record as a medical practitioner and the fact there have been no complaints or adverse reports about him prior to the disqualifying offence and thereafter. It would include the several personal and professional references in support of DTC. It would also include DTC's evidence before the Tribunal regarding his remorse about the June 2016 incident and his insights regarding appropriate boundaries and protective behaviours. Based on the relevant facts we are satisfied that a reasonable person would allow their child to have direct, unsupervised contact with DTC, while he is engaged in child related work.

The "public interest" test

1. We must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount consideration.
2. The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. We also note the decision of ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in community affairs, and people with appropriate skills and experience having contact with children.
3. DTC has worked as a medical practitioner in Australia since 2009. In his evidence, DTC told us that he is a dedicated medical doctor and the purpose of obtaining a clearance is to continue this work. His application included several personal and professional references including those from other medical practitioners who had worked with DTC and all wrote of his work ethic, professionalism and commitment to his patients' interests and care. The applicant gave evidence that, while he was already able to work as a doctor in his home state, the granting of a clearance in NSW would provide the opportunity for him to obtain employment in which his higher level skills and training could be more fully utilised. Based on all the evidence, we are satisfied that it is in the public interest to grant DTC a working with children check clearance.

Orders

1. The Tribunal makes the following orders: 1. The Applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of unlawful and indecent assault in 2016 for which he received a fine and a spent conviction was granted. 2. Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012 the Children's Guardian is to grant the Applicant a Working with Children 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: 23 July 2019