DYM v Children's Guardian

NCAT Administrative and Equal Opportunity|2019-12-16

The applicant's criminal history

The applicant has a long criminal history of offending. That offending having occurred primarily when he was intoxicated.
The applicant's first offence was committed in 1984, when he was 17 years of age. The offending conduct was a drink driving offence and driving while unlicensed. He was also convicted of drink driving related charges in April 1988 and April 1992.
In mid 1990, the applicant was charged and convicted of assault. The offending conduct occurred late in the evening when, he was asked by a railway officer to leave the train station as he was 'well affected by intoxicating liquor'. The applicant was fined $400.00.
In 1991, the applicant was charged with a number of offences as follows: 1. January 1991 - the applicant was charge with an offence of assault. The charge was subsequently dismissed in May of that year; 2. April 1991 - the applicant was charged with three separate offences of assault with intent to rob, assault occasioning actual bodily harm and indictable assault. The offending conduct occurred at around midnight at Central Station where the applicant tried to steal the handbag from a 46 year old lady. The Station Supervisor intervened and took the applicant back into her office. She noticed that the applicant 'smelt strongly of intoxicating liquor' and she asked the applicant what he thought he was doing - he said: 'arrest me'. The applicant acknowledged that he had offended and co-operated with police. In June 1992, the applicant was convicted on a single charge of assault with intent to rob. He was sentenced to six months imprisonment for this offence. He was also sentenced on the remaining charges, which were taken into account as a group, together with those offences of which he was subsequently charged and pleaded guilty. In regard to this group of offences taken into account, the applicant was sentenced to an additional one year of imprisonment; 3. July 1991 - the applicant was charged with assault of a female in that he did beat and otherwise did ill-treat her. He pleaded guilty to this charge and it was an offence, taken into account in the group of offences on which he was sentenced in June 1992; 4. August 1991 - the applicant was charged with an offence of malicious damage and behaving in a disorderly offensive manner. This offence occurred late in the afternoon when the applicant was at the local train station seeking to catch the train back to Sydney. The applicant was 'very intoxicated' and became abuse and aggressive when the Station Master would not allow him to enter his office. The applicant threw a tin garbage bin at the door of the Station Master and took a baggage trolley and pushed it off the platform onto the railway track. The applicant was convicted of these offences in September 1991 and fined $250.00 on each offence; 5. September 1991 - the applicant was charged with an offence of stealing and the unlawful use of a conveyance - the applicant pleaded guilty to these charges and they were also offences, taken into account in the group of offences on which he was sentenced in June 1992; 6. October 1991 - the applicant was charged with an offence of steal from a person - the offending conduct occurred late in the afternoon when the applicant approached the victim (a woman) who was carrying a bag over her shoulder. The applicant asked the victim for directions. In doing so the applicant took the victim's bag and proceeded into the nearby block of units. The applicant was subsequently arrested and at the time he still had the bag in his possession. He pleaded guilty to the charge and again, it was an offence, taken into account in the group of offences on which he was sentenced in June 1992; and 7. December 1991 - the applicant was charged with stealing a lawn mower. When police came to his home, he 'freely admitted' to having taken the lawnmower, which he had hidden in his spare room. He informed police that he was going to pawn the mower. Police recorded that the applicant was 'moderately to well affected by intoxicating liquor'. He pleaded guilty to this charge and it was an offence, taken into account in the group of offences on which he was sentenced in June 1992.

The applicant's evidence

In his written and oral evidence, the applicant: 1. said he was very ashamed and sorry of what he has done in the past - he acknowledged that he had been no angel but he has never been a threat to any child. Nor is he looking to work directly with children. He is now living in country New South Wales and is trying to start a new life; 2. acknowledged his past offending. He agreed that he may have scared children in the past, but at no time has he physically harmed a child. Nor has he ever had thoughts of doing so; 3. said he did not recall grabbing the women's breasts, in 2001, while he was on the train, but understood that they were fearful of him; 4. agreed that the young girl in his 2008 offending must have been scared. He acknowledged he was intoxicated at the time and the 'kidnapping offence' scared 'the shit' out of him; 5. said his 2017 offending, of which he was convicted in 2018, occurred when he went into a tobacconist shop. He said saw someone had left their wallet in the shop, so he took it. His sister subsequently rang him and told him that a photo of him taking the wallet had been posted on social media and that he needed to sort it out. Hence, he went to the shop and returned the wallet; 6. acknowledged that he has been in and out of rehabilitation - some of which was voluntary and others were subject to a court order. In his written response to questions asked of him by the respondent the applicant estimated that, since 2007, he had attended four different rehabilitation centres as follows: 1. 2007 - 12 months 2. 2011 - 4 months 3. 2013 - nine months and 4. 2017 - 15 months. It is the most recent period of rehabilitation that the applicant said was the best thing that has happened to him. As noted above, the rehabilitation facility is located in a country town within NSW. He initially lived within the rehabilitation facility. He has now moved out and lives in a three-person share house within the town and has applied for social housing. He said he wants to stay in the same town as he has made many connections and is at last 'fair dinkum' about changing his life. He has enrolled and undertaken courses at the local TAFE, keeps active by going to the gym, sees a psychologist as he had found counselling to be helpful in building his self confidence, continues to attend the local Alcoholics Anonymous group and remains connected to the rehabilitation facility and its staff; and 1. explained he was a chubby kid, who, at age 13, lost weight by taking up boxing. He said his mother was a drinker and that he had issues with his brother. He said he was very angry and disrespectful in his youth, but no longer feels that way today. He has also suffered from anxiety and has had a lack of confidence which he has been addressing through counselling.
In his letter of support, Mr AB said that the applicant had been a participant in their residential rehabilitation facility for about 15 months. He said that during the time the applicant was at the rehabilitation facility he did not display any predatory behaviour. Mr Ab said that the applicant had also observed all the rules and regulations of the facility and at no time did he need to speak to the applicant for being disrespectful towards others within the facility. In his oral evidence, Mr AB said: 1. he has been working in drug and alcohol rehabilitation for the last 10 years; 2. the purpose of the rehabilitation program he runs is to work with clients, in residence, for up to 2 years. There are three phases in the program in which a client's mental health is supported, the client must live harmoniously with 23 strangers and learn strategies on how to avoid relapsing (i.e. a 'tool box of strategies'). Statistics show that long term treatment of 12 to 18 months have better outcomes for the clients. Hence, the program provides for ongoing assessment (after care) once the residential treatment has finished; 3. the applicant remains in after care, where they catch up once a week - this will continue for as long as the applicant decides; 4. he has seen a large amount of growth in the applicant since he came to the rehabilitation facility for treatment. He said there was considerable insecurity in the applicant that appears to have arisen from his childhood. The applicant also appears to have suffered some cognitive damage from his past days of boxing and a car accident; 5. since engaging in treatment, the applicant has made valued connections in the community, which he values more that relapsing; 6. in his opinion, if the applicant continues to engage with his community connections his chances of relapsing are minimal. The community connections, include TAFE courses, Alcoholics Anonymous twice a week and work as a volunteer in a tree-planting group.

Consideration

The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose any punishment on a person for past acts, but to eliminate possible risks to the safety of children by persons working in child-related work.

(a) the seriousness of the offences with respect to which the person is a disqualified person

We agree with the respondent that the applicant's 2001 disqualifying offence is serious. He was intoxicated, made sexually explicit and inappropriate remarks and indecently assaulted two young women. The applicant does not dispute his offending conduct and is ashamed and sorry for what he did.

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

It is 18 years since the commission of the disqualifying offence. Since that time the applicant has also committed further offences in 2006, 2008, 2016 and 2017.

The applicant was 35 years of age at the time of the 2001 offending.

(d) the age of each victim of any relevant offence … and any matters relating to the vulnerability of the victim

The victims of the applicant's 2001 offending were aged between 18 and 19 years. They were young women with small babies, who were strangers to the applicant. The evidence is that they were very distressed about the applicant's behaviour.
The respondent contends that the babies of the young women would have been distressed by what the applicant did and said, as they would have witnessed the incident. In our view, there is no evidence to support this contention. However, we accept that if they had witnessed behaviour of the kind the applicant had displayed, they would have been distressed.

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

There was a 15 to 16 year difference between the applicant and the victims of the disqualifying offence. As we have noted, there was no relationship between the applicant and the victims - they were strangers.

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

The victims were not children. However, they were young women and the applicant appears to have known this. He did not think they were children.

(g) the person's present age

The applicant is currently 53 years of age.

(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred

As we have noted above, the applicant has a long history of offending, the majority of which was committed while he was intoxicated and or drug affected. His most serious offending, other than the disqualifying offence, is the 2008 offending for which he served a term of imprisonment. Again, the applicant said he is ashamed of what he did. He was drunk and affected by ice. However, we accept his evidence that he intended no harm to the young girl that he was alleged to have grabbed. Nevertheless, he should not have entered the house, even if the door was open as he alleged.
The majority of the applicant's offending occurred prior to the disqualifying offences and were committed while he was intoxicated. Again, the applicant did not seek to use this as an excuse for his offending. On the contrary, he has taken responsibility for his offending and worked to change his life with appropriate help.
While the applicant's criminal history spans many years, since 2001, there have also been a number of years where he has not offended. For example, he did not offend between 2008 and 2016 and his offending subsequent to this is not child related or very serious. This is reflected in the sentences that were imposed.
Given the length of his ongoing offending, the applicant's criminal history might be viewed as being very serious. However, in our view, given the nature of his offending and the sentences imposed, it should be viewed at the lower end of seriousness of criminal offending. He has not been charged or convicted of a child related offence, yet we note that his 2008 offending did involve a child. However, there in no evidence of that offending or any other offending involved predatory behaviour by the applicant towards a child.

(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition

The respondent contends that the likelihood of the applicant reoffending is high, as no psychological risk assessment report has been obtained and there was insufficient evidence before the Tribunal about what steps the applicant has taken to address the matters that triggered his past offending.
The applicant explained that he could not afford to pay for a psychological risk assessment report. Nor is there a statutory requirement for a report of this nature to be obtained.
In his evidence, the applicant acknowledged that he could not say he will never drink again. However, what he was able to say was that he now acknowledges that he is an alcoholic and following treatment he has developed strategies to minimise the risk of him returning to drinking alcohol and taking prohibited drugs. These strategies include, engagement with his community, continuing with Alcohol Anonymous and counselling. Mr AB supported this evidence of the applicant.
We accept the evidence of the applicant, who we found to be a truthful witness and well aware of his own shortcomings. Hence, in our view, on the material before the Tribunal, the risk of the applicant relapsing and reoffending is low given the strategies he has put into place.

(i1) any order of a court or tribunal that is in force in relation to the person

There is no evidence of any order of a court or tribunal that is in force in relation to the applicant.

(j) any information given by the applicant in, or in relation to, the application

The respondent noted that the applicant had been forthright in providing details of his employment history and his involvement in rehabilitation programs. The respondent also noted that the letter of support the applicant had provided from his sister was positive.

(j1) any relevant information in relation to the person that was obtained in accordance with section 36A

As the applicant resides in country NSW, the respondent has not exchanged any information about the applicant under s 36A of the WWC Act.

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

As we have noted above, the respondent submitted that, on the material before the Tribunal there was a high risk of the applicant re-offending because it could not be said that he has abstained from drinking alcohol for a sufficient period of time. The respondent also contended that the applicant lacked insight to his offending in that he failed to recognise that his offending did involve children and violence. Hence, it was the contention of the respondent that the applicant had failed to rebut the presumption that he poses a risk to the safety of children

Has the applicant discharged his onus in rebutting the presumption that he poses a risk to the safety of children?

As we have noted, by reason of his 2001 conviction of a disqualifying offence, there is a statutory presumption that the applicant poses a real and appreciable risk to the safety of children. The question is whether he has rebutted that presumption.
Based on the material before the Tribunal, the matters set out in s 30(1) of the WWC Act, the paramount consideration in s 4 of the WWC Act and our findings above, we are satisfied that the applicant has rebutted the statutory presumption and does not pose a real and appreciable risk to children. In summary we have reached this conclusion because: 1. we accept the applicant is genuinely ashamed and sorry for what he has done in the past; 2. the disqualifying offences occurred 17 years ago and his most serious offence since that time occurred 12 years ago. His most recent offending, in 2016 and 2017, was opportunistic and did not involve violence; 3. other than his 2008 offence, the applicant's offending has not involved children. There is no evidence of the applicant having engaged in predatory or inappropriate behaviour towards children; 4. the applicant's offending has primarily occurred when he was intoxicated. The nature of his offending has not escalated in seriousness and is overall at the lower end of seriousness of criminal offending; 5. we accept that the applicant has made several attempts to address his excessive alcohol consumption, with his most recent attempt being the most successful. In that regard we accept his evidence that he has not consumed any alcohol for almost two years; and 6. we accept the applicant's anxiety and mental health has been treated through counselling and that he now has a good connection with his community, is in stable housing and has appropriate support mechanisms in place which make it unlikely for him re-offend as he has done previously.

Section 30(1A) matters

As noted above, section 30(1A) of the WWC Act provides that the Tribunal may not make an order which has the effect of enabling a 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 any child-related work; and 2. it is in the public interest to make the order.
It is accepted that the first part of the test is an objective one. In VQB v The Secretary to the Department of Justice [2013] VCAT 789, at [36], held the following in regard to a similar provision in the Victorian legislative scheme in that the 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 at [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.
In our view, a reasonable person, acquainted with the material that is before the Tribunal and the oral evidence given by the applicant, would allow his or her child to have direct unsupervised contact with the applicant in any child-related work because: 1. the disqualifying offence occurred more than 18 years ago. The victims of the offence were not children; 2. the applicant's most serious offence since that time was in 2008, which is now 12 years ago - while his offending did involve a child, there is no evidence of the applicant having harmed the child or having entered the house with the intent to harm a child; 3. there is no evidence of the applicant having sexually or inappropriately harmed a child or having an intention to do so; 4. the applicant's offending has primarily occurred while he was intoxicated and has been at the lower end of seriousness of criminal offending; 5. the applicant has matured and in recent years has demonstrated his commitment to address his excessive alcohol consumption and has been both alcohol and drug free for almost two years; 6. the applicant has sought help, through counselling, to address his anxiety and mental health generally - he regularly attends Alcoholics Anonymous and other counselling; 7. since being alcohol and drug free the applicant has developed a good connection with his local community through undertaking TAFE courses, participating as a volunteer in community programs and attending the gym regularly. The applicant is also now in stable housing and has appropriate support mechanisms in place which make it unlikely for him re-offend as he has done previously; and 8. also because of the support which has been given to the applicant by his sister and Mr AB.
We are also satisfied that it is in the public interest to make the order sought by the applicant.
It is accepted that whether it is in the public interest to make the order sought by an applicant, under s 28(1) of the WWC Act, will depend upon all the relevant facts of which the Tribunal is aware: CHB v Children's Guardian [2016] NSWCATAD 214.
The public interest test requires the Tribunal, in the context of the paramount consideration in s 4 of the WWC Act (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant: Mielczarekv Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255 and CYY v Children's Guardian (No 2) [2017] NSWCATAD 262.
The Victorian Court of Appeal has considered the meaning of the term 'public interest' in the context of the equivalent provision in the Victorian Act: see Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143, at [24]-[26]. In that decision the Victorian Court of Appeal said: "[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]: The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question. [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in 'protecting children from sexual or physical harm'. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body'. [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest."
For the reasons we have already set out above, we are satisfied that the applicant has discharged his onus and have found that he does not pose a risk to the safety of children.
As we have noted in the introduction, the applicant is seeking a clearance so that he can work as a volunteer for a large charitable organisation. Having members of the community work in a volunteer capacity helps the community at large. Such work will also help the applicant in his connections with his wider community and with his self-esteem and mental wellbeing.
Accordingly, we are satisfied that it is in the public interest to make the orders sought.

Decision

In summary, we are satisfied that the applicant has rebutted the presumption that he poses a risk to the safety of children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make an enabling order.
Hence, we make the following orders: 1. Declare 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 two offences of indecent assault of which he was convicted, on 14 December 2001. 2. The Children's Guardian is to grant the applicant with a working with children check clearance within 28 days of the publication of this decision.

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: 15 July 2020

WWC Act

The objects of the WWC Act are 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 a working with children check clearance: see WWC Act, ss 3, 8 and 9.
The paramount consideration in the operation of the WWC Act is the 'safety, welfare and well-being of children and, in particular, protecting them from child abuse': WWC Act, s 4.
Child-related work is broadly defined in ss 6 and 7 of the WWC Act and it includes working as an unpaid volunteer in chid-related work. It is not for the Tribunal to determine whether the work for which an applicant seeks a WWC clearance is, or is not child-related work. That is, a WWC clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children's Guardian & Anor [2015] NSWSC 523 at [27].
Section 18 of the WWC Act sets out how the respondent is to determine an application for a clearance. That section relevantly provides as follows: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons) - (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, …
In this case, the applicant's 2001 conviction was for the offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW), which is an offence listed in cl 1(1)(e) in Sch 2 of the WWC Act.
The applicant's application has been brought under s 28 of the WWC Act which relevantly provides as follows: 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) … (3) A disqualified person may make an application under this section only if - (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled under section 23, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) … (6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children's Guardian in accordance with the Tribunal's order. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions.
The term 'risk to the safety of children' is now defined in s 5B of the WWC Act as follows: 5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children. (inserted by Sch 1, cl [2], of the Child Protection (Working with Children) Amendment (Statutory Review) Act 2018,)
In determining an application made under s 28, the Tribunal is required to consider the matters set out in s 30 of the WWC Act. That section provides as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the … matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those … matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the … matters occurred, (d) the age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the … conduct and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given by the applicant in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) 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 (b) it is in the public interest to make the order
The Tribunal has accepted that the matters in s 30(1A) of the WWC Act only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk: see CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] and ZZ v Secretary, Department of Justice [2013] VSC 267. That is, in this case, where there is a presumption that the applicant poses a risk to the safety of children, there is no need to consider the matters in s 30(1A), unless we are satisfied, on the material before us, that the applicant has discharged his onus in rebutting the presumption that he does pose a risk to the safety of children by reason of his 2001 convictions.

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Judgment (20 paragraphs)

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Cases Cited (11)