ECY v Children's Guardian

The applicant's evidence

1. In his written statement the applicant said: 1. some time around 1980, when he was 20 years of age, he was involved in a motorcycle accident and then a car accident. He said he had little to no recollection of these accidents. He said he now suffers from some memory loss and has difficulty with his short-term memory; 2. he has been married twice. He married the first time around 1985 and has a son from that marriage. After a few years he and his first wife separated. His son is now 35 years of age. He married his second wife in around 1991. He also has a son from this marriage. He is now 27 years of age. He and his second wife separated about 18 months after their son was born. Initially he and his second wife continued to live in the same house until their son was 18 months old. While they have remained separated they have not been divorced; 3. in 2009 he moved to a country town in New South Wales. Since moving to the country town the applicant has been in shared accommodation in the home owned by Ms A. He said he and Ms A have a close friendship. He cares for her and helps her in the yard; 4. for over 30 years he has worked at fairs, shows and carnivals. His work has been varied and included, truck driving, setting up and pulling down rides, loading and unloading rides, working the ticket box, covering meal breaks of other employees and collecting tickets; 5. he has mainly worked for Mr B. In 2010, he and Ms A started their own business. They purchased a jumping castle which they have provided and operated at fairs and shows, together with their own stall selling items such as kites, clothes, jewellery and other trinkets; 6. in August 2019, he applied to do some volunteer work with another amusement company which required a working with children check clearance. When his application was refused he immediately told Mr B and he has not done any work which involved direct contact with children since that time. He and Ms A have also ceased conducting their business; 7. he has never been the subject of a complaint, or disciplinary proceedings during the course of his employment; 8. he deeply regrets what happened in 1983 and he is truly sorry. In regard to the murder charge, the applicant said he had been working at the showgrounds of a town in north Queensland. After he had finished work he and some friends went to a nightclub. He said he understood he had danced with the victim that night but left the nightclub and returned to the showground where he was staying. He acknowledged that he had been charged with the woman's murder but that charge was later dismissed and he believes another man was convicted of her murder; and 9. he very rarely drinks alcohol and has not used marijuana for four years. He said he had used marijuana for back pain, but ceased using it when he became aware it could affect his employment.
2. In his oral evidence at the hearing, the applicant reiterated that his recollection of the 1980 motorbike and car accident was poor. He did not remember how long he was in hospital, but he did remember his injuries included a broken ankle, broken ribs and head injuries. He said he was not working but had work coming up. In regard to his current health, he said he had a minor heart attack in February this year and was now taking medication for his heart. He was also taking medication for depression. He was also scheduled to attend counselling for his depression, but this had been postponed due to COVID-19 restrictions.
3. In cross-examination the applicant was asked a number of questions. In particular he was asked why he had told Ms Manoski, during her assessment of him, that he had not 'penetrated' the victim of his disqualifying offence and that the victim 'had choices, she chose rape.' The applicant said he had not penetrated her because he had already ejaculated. When taken to his 1983 record of interview, the applicant agreed he must have raped her because this is what he was recorded as having said at that time.
4. The applicant was also asked about his mental health. He said his mental health had never affected him in the past. He said that when it was suggested to him that he had depression he started to take medication. He has found that he is now more relaxed and happy. He reiterated that he would commence counselling as soon as he could.

Evidence of Ms Manoski

1. Ms Manoski interviewed the applicant via audio-visual link on 6 February 2020. It was a four-hour interview during which the applicant assessed under the Static 99R, STABLE 2007 and Level of Service/Case Management Inventory (LS/CMI) risk assessment tool.
2. Ms Manoski's report is comprehensive. She said the applicant engaged in the assessment process relatively easily and was co-operative and polite throughout. She said he described his general mood as depressed and noted that he often utilises humour to cope with his sadness, which he appeared to be doing during his interview.
3. In her report, Ms Manoski set out what the applicant had told her about his education and employment history, medical history, substance use, social and relationship history, sexual history and criminal history.
4. Based on what the applicant told her, Ms Manoski's psychological assessment of the applicant is that he meets the criteria for Persistent Depressive Disorder (Dysthymia) (300.4/F34.1) with mood-congruent psychotic features, in partial remission in accordance with the Diagnostic and Statistical Manual, Fifth Edition (2013). She said the applicant would benefit from a more thorough review by a psychiatrist and referral to a psychologist for psychological treatment. She noted that, on the information she had, the applicant's mental health had not impacted adversely on his ability to perform his work or that he has placed anyone, including a child, at risk during the time he has been working.
5. Ms Manoski noted that the applicant's assertion that he had not penetrated the victim of his disqualifying offence was inconsistent with that contained in the police report of the incident. She noted that the applicant had not been charged or convicted of any further sexual offences since 1983.
6. In regard to her risk assessment Ms Manoski said that the applicant's score on the actuarial risk assessment, Static 99R, was 4. Ms Manoski explained that this score placed the applicant in the average risk category relative to other male sexual offenders. She went on to say that research had found that the rate of re-offending decreased the longer an offender has been offence free. That is, in general, for every five years the offender is in the community without a new sexual offence, the offender's risk of recidivism roughly halves and after 10 to 15 years, 'most individuals with a history of sexual offences were no more likely to commit a new sexual offence than individuals with a criminal history that did not include sexual offences.' In this case, Ms Manoski said, at [40], of her report: … [the] lapse in time since [the applicant's] last sexual offending (36 years ago) would render him in the lowest risk category statistically, he would be considered very unlikely to sexually reoffend.
7. In regard to her dynamic risk assessment, Ms Manoski said: 1. the applicant's score on the STABLE -2007 was 3. In this regard the dynamic risk factors were that the applicant is not in a current relationship, he has some feeling of social rejection and he has some feelings of negative emotionality. Ms Manoski also found that there were several identifiable protective factors against the applicant re-offending. These included stable accommodation and employment, general pro-social attitudes, a lack of engagement in antisocial behaviour and some positive supports that have assisted him in remaining offence free for several years; 2. the applicant's score on the LS/CMI was 7, which Ms Manoski said suggested that he poses a low risk of general reoffending. She said offenders with a similar scores demonstrated a low likelihood of re-offending, noting an 8% chance of recidivism. She said this suggested that the applicant did not require any treatment or supervision in order to moderate his risk of general offending and it was noted that the applicant had remained offence free in the community for 23 years.
8. At [50] of her report, Ms Manoski concluded: Considering the length of time he has resided in the community offence free, [the applicant's] risk of sexual and general reoffending is well below average risk. As such, it is my view that [the applicant] poses minimal risk to children and does not require therapeutic intervention do address this. Furthermore, given the time that has passed since his last offence, it is likely that [the applicant] poses no more risk of harm to children than an individual who has not been charged with a criminal offence.
9. In her oral evidence at the hearing, Ms Manoski noted she had not been provided with a copy of the larger bundle of documents that were subsequently filed and served by the respondent in these proceedings. That bundle contained a copy of the remarks of the sentencing Judge in regard to the applicant's disqualifying offence. It also contained a copy of the applicant's record of interview and a statement of the victim. Having been provided with a copy of this material, Ms Manoski said it did not alter her assessments or conclusions.
10. In regard to the applicant's inconsistent account to her about the 1983 offence, Ms Manoski said she saw this as a form of minimisation where the applicant was trying to put himself forward in a better light. When asked why he would have done this, she said he was embarrassed and felt guilty. It also brought back bad memories. She said a number of times that this inconsistency did not affect her assessment of risk. She said the 1983 offending appeared to be opportunistic and it was possible that he may have had some bonding fantasies - but there was no further evidence of this.
11. She said that the applicant's mental health was a pervasive sadness though out his entire life. However, in her opinion, the applicant's mental health did not impact on her assessment of risk. Why he stopped offending she does not know but she went on to note that he has matured and probably realised that his offending had a negative impact on his life and hence, a recognition that this was something he did not want to do.
12. Ms Manoski also reiterated the protective factors against a risk of reoffending, namely stable employment, pro social attitudes, no anti social peers, positive support and having lived in the same situation for some years.

Consideration

1. 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

1. It is not disputed that the applicant's 1983 disqualifying offence was serious. It was an offence the applicant admitted to when questioned by police two days after the incident had occurred. Nevertheless, we find that the offence was not at the very lower end of seriousness for such offences, as found by the sentencing Judge in imposing a three year term of imprisonment.
2. We also accept the applicant genuinely regrets what happened and that he is truly sorry.

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

1. It is 37 years since the commission of the disqualifying offence. As we have noted above, since that time the applicant offended in 1987 and 1992. This offending was property related and drug related. The offences were all at the lower end of seriousness of offences of this kind. He married in 1985 and again in 1991. Neither marriage lasted very long and he has a son from each marriage.
2. In 1992, the applicant was charged with murder. He denied any involvement and was discharged during the committal hearing, as there was no evidence that actually linked him to the crime. We understand another man was charged and convicted of the crime.

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

1. The applicant was 23 years of age at the time he committed the disqualifying offence.

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

1. At the time of the applicant's disqualifying offence, the victim was 19 years of age. The victim was the fiancé of his friend and while she had initially participated willing in the applicant's bondage demonstrations, he knew she did not consent to be sexually assaulted by him.

(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 between the applicant and the victims of the disqualifying offence was about four years. How often the applicant had met the victim is not clear. However, we note that in her statement to police, the victim said she had met the applicant about 12 to 15 times in the previous six months and that he had stayed overnight with her and her fiancé about five times.

(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 applicant is currently 59 years of age.

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

1. Apart from his disqualifying offence the applicant has been convicted of three property related offences. These having occurred in 1980, 1982 and 1987. In our view these appear to have been opportunistic and not serious. We make a similar finding in regard to the applicant's 1987 and1996 drug offending.
2. The most serious alleged offending is the 1992 murder charge. However, there is no information before us to indicate that he had any involvement in this offence.
3. None of the applicant's offending involved a child. The respondent also noted that the applicant does not have an AVO history in NSW and the NSW Police or the NSW Department of Communities and Justice do not have any record of allegations of violence, child abuse or sexual offending having been made against the applicant. The respondent also noted that there had been no record of any offending by the applicant for almost 24 years.

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

1. We accept the evidence of Ms Manoski that the likelihood of the applicant re-offending is very low, including offending in the manner he had in 1983. We agree that his offending in 1983 was opportunistic. He was relatively young at the time and is now much older. He has at no time denied the offending and his minimisation of the offending after so many years is not unusual as explained by Ms Manoski.

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

1. 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

1. In her statement, Ms A said that she and the applicant have been working together for 10 years. She said the applicant is her carer and also a very good friend. She said they have a wonderful friendship and that they spend most of their time together. She said she suffers from chronic pain and the applicant assists her with cooking, cleaning, work in the yard, laundry, shopping and he does most of the driving. She would struggle to complete her day to day tasks if he was not there.
2. Ms A said that in the ten years she has worked with the applicant he has always conducted himself in a professional manner. She said he is a hard worker and she has never known him to be a risk to anyone, especially not children. She said the applicant has never hidden his criminal record from her and that she has assisted and supports the applicant in making this application to the Tribunal. She said that she has seven grandchildren and has not hesitated in leaving any of her grandchildren with the applicant unsupervised.
3. In his reference, Mr B said that the applicant had made it quite clear to him about his past history with police. He said he had always found the applicant to be honest, reliable, trustworthy and truthful and for this reason he intends to keep him on. Mr B said that, since being refused a clearance, the applicant was not undertaking any work that involved direct contact with children. However, for many years, prior to the introduction of the requirement for a working with children check clearance, the work undertaken by the applicant for his company involved working with small children, teenagers and adults. Mr B went on to say that in all the years the applicant has worked for his company there has never been a complaint from any member of the public about the applicant.

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

1. In the course of her inquiries, the respondent obtained information from South Australia and Queensland where the applicant had lived or worked and where his criminal offending had occurred. A copy of that information was contained in the second bundle of documents relied on by the respondent at this hearing.

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

1. In her written submissions, the respondent opposed the making of the orders sought. It was contended that the applicant lacked insight to his 1983 offending and on this basis alone he had failed to discharge his onus to rebut the presumption that he poses a risk to the safety of children.
2. At the conclusion of the hearing, counsel for the respondent advised that the respondent neither supports, nor opposes the orders sought.
3. In this regard, counsel for the respondent noted that, the respondent remained concerned about the applicant's lack of insight to his 1983 offending. At the same time it was noted that, during the course of the hearing, Ms Manosky remained of the opinion that the applicant poses low risk of re-offending generally, including any sexual offending.

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

1. 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. the disqualifying offence of which the applicant was convicted in 1983, while very serious, occurred 37 years ago, when he was a young man. The victim was not a child and the applicant made full admission of the offending conduct two days after the incident. He pleaded guilty and served his sentence; 2. the applicant is now 59 yeas of age and is genuinely sorry for what he did in 1983; 3. there is no evidence of the applicant having acted in this way previously or since that time; 4. while the applicant has a criminal history, his other offending was property related and drug related. He has three property offences which occurred when he was 20, 22 and 27 years of age. He has not committed a similar offence since then and is trusted by his long-term employer, Mr B, and Ms A in whose home he has resided for the last 10 years. His last recorded offending occurred 24 years ago. It was a minor drug offence and as the applicant explained he had previously used marijuana for chronic pain. However, he ceased using marijuana four years ago; 5. although the applicant was charged with the most serious of offences in 1992, we accept his denial of any involvement in that offence. The Magistrates finding, at committal, that the prosecution had not produced any evidence that linked the applicant to the offence supports what the applicant has said; 6. the applicant's offending did not involve a child and there is no material before the Tribunal to indicate that the applicant has ever acted inappropriately towards a child at work or otherwise; 7. in her comprehensive risk assessment of the applicant, Ms Manoski concluded that, today, the likelihood of the applicant reoffending generally (including sexual offending) is very low. In reaching her conclusions Ms Minovski accepted that the applicant had minimised his 1983 offending when being assessed by her, but found that this was probably because he was embarrassed and still felt guilty about what he had done. Ms Manoski also found that the applicant's long term depression did not impact on her conclusion, but it was noted that the applicant has been seeking treatment for his depression and he has found the medication to make him calmer and happier; 8. finally, we accept Ms Manoski's finding of the identifiable protective factors against the applicant reoffending. These include the applicant's history of stable employment for many years, his stable living arrangements with Ms A which has been ongoing for ten years, his general pro-social attitudes, his lack of engagement in antisocial behaviour since his last offending and the very positive supports that he has developed over the years.

Section 30(1A) matters

1. 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.
2. 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.
3. 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, while serious, occurred 37 years ago. The victim was not a child and the applicant made full admission of the offending conduct two days after the incident and pleaded guilty; 2. the applicant was 23 years of age at the time and the victim was 19 years of age. The applicant knew the victim and his offending appears to have been opportunistic; 3. the applicant is now 59 yeas of age and while he has a criminal history, there has been no further record of the applicant having offended or acted inappropriately since 1996. The applicant's most serious offending is the disqualifying offence, which occurred 37 years ago; 4. the applicant's offending did not involve a child and there is no material before the Tribunal to indicate that the applicant has ever acted inappropriately towards a child at work or otherwise;. 5. the conclusions reached by Ms Manoski following her comprehensive interview and risk assessment of the applicant, that, today, the likelihood of the applicant reoffending generally (including sexual offending) is very low. In this regard, Ms Minovski found that there were a number of the identifiable protective factors against the applicant reoffending. These include the applicant's history of stable employment for many years, his stable living arrangements with Ms A which has been ongoing for ten years, his general pro-social attitudes, his lack of engagement in antisocial behaviour since his last offending and the very positive supports that he has developed over the years; 6. Ms Minovski's finding that the applicant's long term depression did not impact on her conclusion and the fact that the applicant has been seeking treatment for his depression which he said has made him calmer and happier; and 7. the open and frank manner in which the applicant has acknowledged his past offending at the time it occurred and to the best of his recollection in these proceedings. He is not a sophisticated man but presents as being open and honest.
4. We are also satisfied that it is in the public interest to make the order sought by the applicant.
5. 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.
6. 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.
7. 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."
8. 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.
9. As we have noted in the introduction, the applicant is seeking a clearance so that he can continue to work in the area he has worked for many years and during which no complaints appear to have been made against him, in particular no complaints that involve children.
10. Accordingly, we are satisfied that it is in the public interest to make the orders sought.

Decision

1. 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.
2. Hence, we made the following orders on 31 July 2020: 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 offence of rape of which he was convicted, on 26 October1983. 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: 02 September 2020