EBZ v Children's Guardian - [2020] NSWCATAD 201 - NSWCATAD 2020 case summary — Zoe

NSWNSWCATAD

EBZ v Children's Guardian

[2020] NSWCATAD 201

NCAT Administrative and Equal Opportunity|2020-06-18|Before: Dr J

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2020-06-18

Before

Dr J

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Overview

The applicant was employed as a mental health worker and facilitator. In 2018, his employer required all staff to have a working with children clearance ('clearance'). The applicant applied for a clearance but on the 21 September 2018, the Children's Guardian ('the respondent') refused him a clearance on the basis that he was a disqualified person due to a prior conviction for sexual assault which occurred in 1987. This is a disqualifying offence and the applicant is presumed to pose a risk to the safety of children.
The applicant is now seeking an enabling order to allow him to obtain a clearance so he can continue to work in his community as a mental health facilitator. The applicant acknowledges the disqualifying offence. It occurred 33 years ago when he was 27 years old and the victim was 19 years old. He also acknowledges he has an extensive criminal history dating back to 1981. However, the applicant submits that his offending was primarily due to a chronic addiction to heroin. He states that he has now turned his life around, no longer uses drugs, has not committed any criminal offences for many years and has been working in his community to assist people with mental health issues.
Based on all the evidence, we are satisfied that the applicant has discharged the required burden of proof and find that he does not pose a real and appreciable risk to the safety and wellbeing of children and young people. Therefore, the application for an enabling order is granted. The reasons are set out below.
Due to the sensitive nature of these proceedings the Tribunal has made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 requiring that names of the victim, the applicant or any witnesses are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym 'EBZ' has been used for the applicant's name.

[2]

[4]

The disqualifying offence

The disqualifying offence against EBZ was that together with two other males, he had sexual intercourse with a 19 year old woman in the back of a motor vehicle without her consent. The offence occurred on 2 November 1987. There was no statement of facts available. The Judge's sentencing remarks do not disclose details of the facts of the offence for which EBZ was sentenced. The best evidence available to the Tribunal was EBZ's record of interview by police on 5 November 1987 and evidence given by the victim at EBZ's committal hearing.
In her evidence, the victim stated that she had been picked up by three males including EBZ in a panel van. They had smoked cannabis and talked in the van. One of the males, whom she had previously known, had sexual intercourse with her against her will. At that time, the other two males including EBZ got out of the car. The male who had intercourse with her then told her, "the other two fellows are going to go through you" and she said, "No way". EBZ then got in the car and he struggled to get on top of the victim. She told him that she didn't want to have sex. The victim stated that EBZ did not say anything to her. EBZ then had sex with the victim for about five minutes. She stated that she tried to push him off but he was too strong. After EBZ ejaculated, he left the car and the remaining male got in the car and had sex with her, despite the victim telling him to go away. The victim was driven home and reported the sexual assaults to her boyfriend's father.
On 4 November 1987, EBZ was interviewed by police and admitted to having sex with the victim but he believed she had consented. On the same day, he was charged with having sexual intercourse without consent of the victim. EBZ pleaded not guilty. He was convicted on 7 September 1990 in the District Court of NSW and sentenced to 12 months' imprisonment.
A victim impact statement was tendered at the sentencing hearing. It was prepared by a counsellor on behalf of the victim. It states that the victim had suffered acute traumatic reactions associated with the rape trauma syndrome. She had experienced "strong feelings of humiliation, degradation, guilt and shame" and consequently, she behaved in a self-destructive fashion, especially in her abuse of drugs and alcohol. She also feared retaliation and experienced intense feelings of anger.

[17]

Views of the Medical Experts

Forensic psychologist, Ms Clair Baker provided a report dated 10 February 2020. She assessed EBZ for the purposes of a psychological assessment regarding the decision of the respondent to refuse him a clearance. Her assessment found no evidence that EBZ posed a risk of harm to children. Ms Baker noted that EBZ had shown considerable remorse as well as substantial insight into his historical offending and the negative impact his actions have had on himself and others. She noted that EBZ's sexual offence occurred over 30 years ago, and since that time he has no other similar record, which strongly suggests that since the incident there has been no reoccurrence.
She concluded her assessment as follows: It is my opinion that [EBZ] was sufficiently distressed and ashamed about being charged with sexual assault in 1987, which has subsequently prevented him from placing himself in a situation where such an incident could reoccur. The complete absence of any similar charge over the following thirty-three years provides a strong indication that there is very little risk that he will reoffend in a similar manner again. It is further evidenced in his highly commended work with [communities], his voluntary work at [youth organisation] and his past ten years without using drugs. Finally, it is noted that [EBZ] has expressed considerable remorse and shame regarding his historical conviction and the impact of that on his own personal insight has been profound. As such, when considering all the above information it is considered highly unlikely that [EBZ] poses a risk towards any child, or for that matter any person at all, at the present time or in the future.
Ms Baker provided an addendum report dated 10 April 2020 based on further documentation from NSW Police, NSW District Court and summons material that was not available to her at the time of her first assessment of EBZ. Upon reviewing the material, Ms Baker concluded that she could find no reason to amend her report of 10 February 2020.
Ms Baker was cross examined by the respondent's Counsel. Her evidence was consistent with her assessment and report. She was asked about the results of psychological testing carried out on EBZ when he was in custody in 2000 by another psychologist that were very different to the results of Ms Baker's assessment in February 2020. Ms Baker stated that these differences were to be expected. That is, in her view, "[EBZ] is a different man, in a different world, living a different life; he is drug free, he has a job, he has friends and he is productive." She also believed his chances of relapse were unlikely given he has been drug free now for over 10 years and despite experiencing many stressful events over these years, he has not resorted to any drug use.