DYX v Children's Guardian

DYX v Children's Guardian - [2020] NSWCATAD 45 - NSWCATAD 2020 case summary — Zoe

[5]

Undated statement of himself

In his undated statement, the applicant: 1. sets out the difficulties he faced in high school, particularly in relation to peer pressure regarding sex and his upbringing with strict parents; 2. sets out his reasons for undertaking tertiary studies in speech pathology; 3. explains the circumstances that led to the disqualifying offence: During this time was when myself and the girl were messaging. She would manipulate me online by saying seductive things to me, things that I have never been told before and have only heard from stories during school. I was always hesitant about everything. I never truly thought about age, that thought never really occurred to me. The way she would speak to me was as if she was my age or slightly older. She sounded so confident and experienced and that was all new to me. She kept asking me to meet up with her but it wasn't easy for me. I kept delaying and delaying. One night, I felt really alone. I felt out of place. I felt really defeated with myself and all she did was just keep giving me attention. She asked me again to meet up and weakly, I agreed. 1. explains the help he has received from his parish priest and his protective strategy: I told myself that I was not going to put myself in situations or environments where I could be weakened. 1. sets out his involvement at church which includes interactions with children but not in a Sunday school class, his work history which has included contact with children without complaint, and progress in his tertiary studies which he has had to defer due to restrictions with his remaining placements which involve children; 2. records his reflections on the the disqualifying offence and its consequences: My restriction to work with children heavily affects me. Not just in regards to studies, future employment and church services but also on my mental health. I am thankful and forever will be thankful for the outcome I received in 2014 in court - but I still feel suffocated. I was given a two year good behaviour bond in which I did not breach. I made one mistake as a young adult in which I personally felt like I was the victim, and have now become labeled as a risk to the community. I have never hurt or upset anyone. 1. sets out the effect of not having a WWCC clearance: Since being advised that I need to seek an appeal, everything about that night replays in my mind. I struggle to sleep. I feel so strangled by this restriction because I know I don't deserve it. I am not a risk to anyone. I am not a danger to anyone. I never have been and I know I never will be. One mistake, where I felt like I was the one being used, is not a definition of who I am. I feel like I can't ever progress in my life because of how much this suffocates me. I feel like I can't ever enter a relationship because of this. I feel like I can never have a family of my own because of this. This restriction. This label. It's giving myself a false image in the eyes of the law. I was given a Section 10 because of my innocence.

[8]

The 25 November 2019 Duffy report

In the 25 November 2019 Duffy report, Ms Duffy: 1. sets out her qualifications and experience; 2. sets out the sources of her information, being her interview with the applicant and documents received from the applicant; 3. sets out her observations of the applicant's presentation and engagement: He was emotional and tearful at times, and his mood was sombre. He has never forgiven himself for the moral transgression that led to his arrest and charge in 2014, and continues to be condemning and harshly judgemental of himself. He still feels guilty and ashamed of what he had done and since this incident, has remained celibate and aversive to any sexual contact, until his marriage. However, his restriction of his social environment to avoid romantic involvement is a cause of some concern a* he appears isolated and depressed. 1. states that she applied the Personality Assessment Inventory (PAI) and the following risk assessment tools: Static-99R, Stable 2007, and Structured Assessment of Protective Factors (SAPROF); 2. sets out the information received from the applicant in relation to his background, educational and employment, community activities, health and habits, drugs and alcohol, psychosexual history, and the disqualifying offence; 3. records the results of the PAI completed by the applicant: The scale scores reflect a person with marked anxiety and tension; he may be uneasy about his personal relationships some of which are a source of his current distress and may be responding by becoming socially withdrawn. The disruptions in his life have left him uncertain about his goals and priorities and tense and fearful about the future. 1. sets out an explanation and the results of the Static-99R: [The applicant's] total score was 3 based on factors of his age. having no lover for at least two years, and unrelated victim. This placed his level of risk in category III, in the Average range. 1. sets out an explanation and the results of the Stable 2007: At the time he committed the offence. [The applicant's] dynamic factors may have been difficulty in sexual self regulation including sexual preoccupation, as he had described his circumstances. Now there are no dynamic risk factors that may lead to sexual reoffending, especially with females younger than 16. 1. sets out an explanation and the results of the SAPROF: Based on these protective factors, [the applicant's] risk of sexual recidivism is minimal. He has strengths in internal, motivational and external factors: he has strong links to the community particularly his [name omitted] Church, he has stable employment, he has goals for his future and he has a very strong moral compass in regard lo especially sexual relationships. After the experience of his arrest and the shame and guilt that followed, he has exerted strong controls over his behaviours which have been reinforced by the teachings of his church. 1. expresses the following conclusions: [The applicant's] presentation at our session, the history he gave and results of a comprehensive personality questionnaire indicate a young man who exhibits symptoms of Post Traumatic Stress Disorder as well as anxiety and depression, which have occurred in response to his sex offence, arrest and charge which occurred in 2014. … … As the psychologist Sam Borenstein suggested in his report, [the applicant's] psychosexual age was no greater than a 14 or 15 year old at the time of the offence, in terms of his naivety and lack of experience. … Having assessed [the applicant's] risk of sexual re offending, I am of the opinion that he shows an extremely low risk, especially when dynamic and protective factors are taken into account. He has the ability to exercise strict controls over his behaviour and has aspired to be a good Christian and an active member of his church congregation. In my opinion, there are no issues of concern that would preclude [the applicant] from working with children. There are no dynamic or static risk factors that pose problems for working with children, his risk of reoffending is reduced further by being more than five year's free of any charges, and there are numerous protective factors that lower risk of sexual offending. There should be no impediment to his gaining a Working with Children Clearance.

[14]

The interview of the applicant at Mount Druitt Police Station on 30 May 2014

As recorded in the transcript of his interview at Mount Druitt Police Station on 30 May 2014, the applicant relevantly: 1. did not appear to be aware of the legal definition of "sexual intercourse", the unlawfulness of engaging in sexual activity with a person under the age of 16, or the significance of consent for a person under the age of 16. He said, "I just thought it was sexual intercourse to be honest, if it's 16" and that he had not engaged in sexual intercourse with the victim because "I partook in something like this, but at the same time I'm still a virgin". The reason why the victim's age had concerned him was because she was three to four years younger than him, which he regarded as being a considerable age difference; 2. said that when an opportunity to be with a girl presented itself, "you don't think about her age when you do it, you think about the advantage you 're gonna get"; 3. said that he knew speaking to the victim in a sexualised manner was wrong due to their age difference and his religious views. He explained that he would regret speaking to her after every occasion on which they conversed but "then the next day when I start talking to her again it's, its like I want to do it again". Similarly, he explained that he was considering calling off their meeting on 30 May 2014 but, "at the same time I wanted to do it for experience 'cause I've never done anything like that before"; 4. stated that he experienced an emotional breakdown after he and his girlfriend of three years broke up. He explained that he wanted to "take the opportunity" with the victim as she was the only girl who had showed any interest in him since and he was desperate for contact with anyone. As she appeared to be much more sexually experienced than he was, he did not feel like he was speaking to a child. He was instead overcome by the possibility of experiencing new things with her; 5. reported that he felt he missed out on a lot of experiences arising out of relationships and sex that his new university peer group were discussing which made him feel out of place; 6. did not appear to have conducted himself in a predatory manner towards the victim but explained that he was guided by her as a result of his sexual inexperience. He said, "I felt like I didn't know what I was doing. I, she, made the first move, she obviously was so much more confident than I was, and I even told her before I came, told her I'm frickin' nervous, I don't, I've never done anything like that before"; 7. stated that he had been talking to a few other girls at the time but none, other than the victim, was under the age of 16.

[16]

The hearing at Penrith Local Court on 21 November 2014 in relation to the disqualifying offence

At the hearing at Penrith Local Court on 21 November 2014 in relation to the disqualifying offence, the following agreed facts on sentence were tendered: 1. The 14 year old complainant (DOB: 09/11/1999) and 18 year old accused (DOB: 09/10/1995) met online in early 2013 when the complainant was 13 years old. The pair conversed with one another through various social media sites and a number of those conversations developed into sexually explicit discussions. During these initial conversations, the complainant informed the accused that she was 14 years of age. Concerned with her young age and the stress of completing his Higher School Certificate, the accused ceased contact with the complainant after a few months. 2. In early 2014, the complainant initiated online contact with the accused and the pair began having sexually explicit conversations with each other via a number of social media sites including Facebook. The accused told the complainant that he didn't believe in sex before marriage and was sexually inexperienced. At this time the complainant disclosed that she was 14 years old and was only 13 when they initially began talking online. 3. In the week commencing 26 May 2014, the accused and complainant began making arrangements to meet in person. They talked about having a sexual encounter on Friday, 30 May 2014. The complainant suggested she choose a suitable private location given her local knowledge, for the pair to engage in the sexual acts. The accused made it clear that he didn't want to have sexual intercourse with her because of his religious beliefs but was willing to try other sexual experiences. 4. At about 5:45pm on Friday, 30 May 2014, the accused drove a blue Toyota RAV4 bearing [registration number omitted], to the pre-arranged meeting point with the complainant at [location omitted]. The complainant entered the accused's vehicle and gave him directions from [location omitted] to [location omitted]. 5. [Location omitted] is a dead end street bordering on a semi-rural/residential area of [location omitted]. The street is partially lit by street lighting, but carries limited traffic due to it being closed at the eastern end. 6. The accused drove east along [location omitted], before getting to the end and conducting a 'U turn', stopping the vehicle on the southern side of the roadway, facing west. The accused and the complainant climbed into the back seat of the vehicle and moved the front passenger seats forward to give them more room in the back. 7. After talking for a short time, the accused and complainant commenced kissing, cuddling and heavy petting. The complainant removed all of her clothing except her underpants and the accused removed his shirt and pulled down his tracksuit pants. The complainant commenced stroking the accused's penis whilst kissing him. The accused fondled and kissed the complainant's breasts. After a short time, the complainant placed the accused's penis into her mouth and performed fellatio on him for about five minutes before he ejaculated in her mouth. The complainant swallowed the semen and continued to kiss and cuddle with the accused. 8. A short time later, a highway patrol officer drove along [location omitted] and sighted the accused's vehicle parked in the darkness. The officer stopped his patrol car and saw the fogged windows and naked body of the accused move quickly from the back seat of the vehicle to the front. The officer approached the vehicle and sighted the complainant naked and attempting to hide herself behind the front passenger seat. The pair were told to get dressed and exit the vehicle. The police officer requested identification from the accused and complainant. The complainant gave police a false dale of birth, but police checks revealed that she was only 14 years old. 9. The accused was cautioned, placed under arrest and conveyed to Mount Druitt Police Station where he was entered into custody. A Crime Scene was declared and Detectives summoned to the location. Detectives spoke briefly to the complainant who admitted to engaging in fellatio with the accused. She was conveyed to Mount Druitt Police Station, before being taken to Westmead Children's Hospital for a SAIK examination. 10. An initial search of the vehicle located personal items belonging to the complainant and the accused. A check of the accused's mobile phone's 'Facebook' site revealed extensive, sexually explicit conversation between the pair leading up to this incident. 11. Having been explained his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002, the accused participated in an electronically recorded interview with police and made full and frank admissions to engaging in consensual sexual intercourse (fellatio) with the 14 year old complainant. The accused conceded what he had done was wrong, but was overwhelmed with emotion and excitement with the opportunity for his first sexual encounter. The accused was apologetic for his behaviour and displayed deep remorse for his actions. 12. The accused consented to a forensic procedure and his vehicle was towed to a holding yard for forensic examination. 13. The complainant was interviewed by police and provided a similar version of events to that given by the accused during his interview. The complainant told police that she performed fellatio on the accused. She told police that this was the first occasion the pair had met and they had discussed what sexual acts they were going to undertake. The complainant told police that the accused was sexually inexperienced and made it clear that he did not want to have sexual intercourse (penile/vaginal) with her because he was saving himself for marriage.
The applicant relied upon a report dated 28 August 2014 of Sam Borenstein (Mr Borenstein), a consultant clinical psychologist (the 28 August 2014 Borenstein report) which relevantly includes the following opinions: The offence which brings [the applicant] before the Court stems from sexual suppression and lack of opportunity/permission for [the applicant] to express sexuality as he as subject to very strict religious doctrine. … In summary, [the applicant] did not groom or initiate the behaviour which brings him before the Court. [The applicant] is not a sexual predator. [The applicant] was functioning at a very similar psychosexual age as that of the victim's chronological age. [the applicant's] psychosexual age would have been no greater than of a 14 or 15 year old at the time of the offence.
Magistrate Van Zuylen relevantly made the following sentencing remarks: The Court must weigh up the seriousness with which the community views this sort of behaviour. [The applicant] fully knew her age yet went ahead or went along with what was going on with the sexual intercourse that took place. The Court has given very serious consideration to convicting him. … The Court is however on balance persuaded that given his prior background it was a very bad mistake that you made. A very serious criminal offence. You made a very bad decision. You committed a criminal offence. It is not a matter of her consent or participation in it that excuses your actions and the community accepts that 18 year old men even given the circumstances, your relative inexperience in this sort of matter and naivety to some extent but you are responsible for actions, it is your responsibility to not engage in it, not seeking to blame the others and the Court does not accept that you are blaming her. However the Court will deal with it as submitted for the reasons that [name omitted] has outlined. It was one area and you did own up to it. You pleaded guilty. ..(not transcribable).. and there are a number of reasons why this is a case where the Court will deal with it pursuant to s 10.

[22]

The WWC Act

Part 1 (which is comprised by ss 1-5C) deals with preliminary matters, and relevantly provides that: 1. the object of the WWC 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: s 3; 2. the "safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act": s 4; 3. the word "conviction" includes 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: s 5(1); 4. the expression "risk to the safety of children" means "a real and appreciable risk to the safety of children": s 5B.
Part 3 (which is comprised by ss 12-25) deals with WWCC clearances, and relevantly provides that: 1. a person may apply to the respondent for a WWCC clearance: s 13(1); 2. a person whose WWCC clearance is cancelled under s 23 is not entitled to make a further application for a WWCC clearance until 5 years after the date notice of the cancellation was given to the person: s 13A(1)(a); 3. the respondent is not permitted to grant a WWCC clearance to a person, who is referred to as a "disqualified person", convicted of an offence specified in Schedule 2 to the WWC Act, if the offence was committed as an adult: s 18(1)(a). The offence of sexual intercourse with a person between 14 and 16 years of age under s 66C(3) of the Crimes Act is specified in cl 1(1)(h) of Schedule 2; 4. the respondent must cancel the WWCC clearance of a person if the respondent becomes aware that the person is a disqualified person: s 23(1).
Part 4 (which is comprised by ss 26-30) deals with reviews and appeals, and relevantly provides that: 1. the Tribunal may, on the application of a disqualified person, make an order, which is referred to as an "enabling order", declaring that the person is not to be treated as a disqualified person for the purposes of the WWC Act in respect of an offence specified in the order: s 28(1). If the Tribunal makes such an order, it may also order the respondent to grant the person the subject of the order a WWCC clearance: s 28(6); 2. an applicant must fully disclose to the Tribunal any matters relevant to the application: s 28(5); 3. 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: s 28(7); 4. when determining an application under Part 4, the Tribunal is to have regard to the following matters which are set out in s 30(1): (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or 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. 1. the Tribunal may not make an order under Part 4 which has the effect of enabling a person (called "the affected person") to work with children in accordance with the WWC Act unless the Tribunal is satisfied of the following matters which are set out in s 30(1A)(a) and (b): (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.
Part 5 (which is comprised by ss 31-36B) deals with the provision of information to the respondent, and relevantly provides that the respondent may, by notice in writing, which is referred to as an "assessment notice", require any person to provide the respondent with a statement or information relevant to an assessment of whether a person poses a risk to the safety of children: s 31(1)(a).

[23]

Applicable legal principles

As indicated in the objects in s 3 and s 4 of the WWC Act, the Tribunal's jurisdiction under s 28 remains protective and not punitive in nature. That is, the object of the WWC Act is not to impose additional punishment on a disqualified person, but to eliminate possible risks to children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 (AYU) at [34]; Commissioner for Children and Young People v FZ [2011] NSWCA 111 (FZ) at [61] in respect of the former Child Protection (Prohibited Employment) Act 1998 (NSW) (CPPE Act).
The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children: AYU at [35]; FZ at [61] in respect of the former CPPE Act.
The definition under s 5B of a "risk to the safety of children" draws upon the explanation given in relation to the word "risk" as it appeared in the former CPPE Act of "whether there 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 (V) at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 (BKE) at [26]; CJT v Office of the Children's Guardian [2016] NSWSC 738 (CJT) at [40].
In CJT, Fullerton J at [39] observed that the remarks of Young CJ in Eq about the meaning of risk in V at [42] have "been consistently applied in construing the concept of a 'risk to the safety of children' for the purposes of ss 27 and 28 of the Working with Children Act". In BKE (a case concerning an application for an enabling order), Beech-Jones J at [26] referred to the meaning of "risk to the safety of children" in s 28(7) of the WWC Act and said that this was to be understood by reference to the comments of Young CJ in Eq in V at [42]. His Honour at [28] also said that "the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children".
Section 28(7) does not permit a calibrated assessment of the risk posed to the safety of particular children. Instead, an applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area": BKE at [4], [27].
In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered in ZZ v Secretary, Department of Justice [2013] VSC 267 (ZZ), where Bell J [215]-[216] held that the matters, as prescribed in s 30(1A), 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.
The Tribunal may not grant an enabling order unless "satisfied" of the matters referred to in s 30(1A). That requires, at a minimum, that the Tribunal has made up its mind reached a conclusion, based on the evidence, about the particular matters in sub-paragraphs (a) and (b): Children's Guardian v CVE [2017] NSWSC 1342 at [23], [26].
The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal, which is a person privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].
In Secretary, Department of Justice v LMB [2012] VSCA 143 at [25]-[26] the Victorian Court of Appeal explained the operation of the "public interest" test in s 26(3) of the Working with Children Act 2005 (Vic), which operates to similar effect as s 30(1A)(b) of the WWC Act, in the following terms (footnotes omitted): [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.
In CSW v Children's Guardian [2017] NSWCATAD 326 the Tribunal at [136]-[137] said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would find that any risk was insufficient to cause them to have concerns about access to their child.
In CYY v Children's Guardian (No 2) [2017] NSWCATAD 262 at [75] the Tribunal held that the concept of public interest gives priority to the broader interests of the community over private interests, and referred to ZZ where Bell J at [202] adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
In ZZ at [202] Bell J referred to the relevance and importance of rehabilitating offenders. Bell J at [203] said: [203] In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment or in the field in which they are most suited to work, in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.
In FZ, Young JA at [67]-[68] expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 in Commissioner for Children and Young People v IK [2005] NSWSC 1136 at [83]-[84] that the applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.
It has been observed that it is difficult to envisage how the Briginshaw standard applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in the Tribunal that pursuant to s 38(2) of the CAT Act is not required to apply the rules of evidence: BKE at [29].

At a glance

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Judgment (37 paragraphs)

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Legislation Cited (7)

Cases Cited (17)