Victorian Civil and Administrative Tribunal|2009-03-24|Before: Mr P

EGS v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 505 (24 March 2009)

Occupational & Business Regulation List - application for Assessment Notice - category 2 offences - review of decision - whether issue of notice would pose an unjustifiable risk to children - public interest - Working with Children Act 2005 s 13

EGS v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 505

The decision of the Secretary not to issue the applicant with an assessment notice is set aside and is substituted with a decision to give the applicant an assessment notice.

EGS is a bus driver in the metropolitan area. On his assigned route, school children board his bus in the morning and afternoon. Additionally, in every 12 week roster cycle, he does approximately 10 special runs in which his passengers are entirely school children, picking them up from school and taking them direct to the train station. His contact with children in those circumstances is regarded as "child related work" for the purposes of the Working with Children Act 2005 (the Act).
He applied to the Secretary to the Department of Justice for an Assessment Notice under the Act. Having considered his application, a delegate of the Secretary refused him an assessment notice. He has applied to this Tribunal for review of that decision.
The Secretary classified his application as a Category 2 application where the Act provides for a number of potential categories.
Section 13(1) of the Act lists Category 2 applications. Under s 13(1)(b) an application is a category 2 application if it is in respect of a person -

(b) who has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence specified in clause 2 of Schedule 1 to the Sentencing Act 1991 (violent offences);

Clause 2 of Schedule 1 of the Sentencing Act 1991 concerns violent offences. One of the offences listed is incitement to commit murder.
More than 15 years ago EGS met with a person, who, unbeknown to him, was an undercover police officer and agreed to pay him $10,000.00 to murder his wife. He was convicted of incitement to murder and sentenced to be imprisoned for five years with a minimum period of 2½ years to be served before being eligible for parole. He was released after serving his non-parole period and successfully completed his parole. He has been in no trouble whatsoever with the law since his release from prison almost 13 years ago.
Where a category 2 application is made, under s 13(2) of the Act the Secretary must refuse to give an assessment notice unless satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to -

(a) the nature and gravity of the offence or alleged offence and its relevance to child-related work; and

(b) the period of time since the applicant committed, or allegedly committed, the offence; and

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and

(e) the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and

(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and

(g) the applicant's behaviour since he or she committed, or allegedly committed, the offence; and

(h) the likelihood of future threat to a child caused by the applicant; and

(i) any information given by the applicant in, or in relation to, the application; and

(j) any other matter that the Secretary considers relevant to the application

On review, the Tribunal too in considering whether to grant the application must be satisfied that to do so would not pose an unjustifiable risk to children having regard to those matters some of which will be of more relevance than others because of the individual circumstances of each case. Having had regard to those matters, additionally I must have regard to whether, in all the circumstances, it is in the public interest to give an assessment notice[1]. On review, the Tribunal has power to affirm the decision to give a negative notice or set it aside and either give an assessment notice or send the matter back to the Secretary for reconsideration[2].

Mr Hurley of counsel appeared for EGS. EGS had prepared a statement, gave evidence and was cross-examined. His employer and two of his adult children and prospective son-in-law gave evidence and were cross-examined. He called a psychiatrist who had seen him monthly for three years while he was on parole and more recently eight times, because of this application. The psychiatrist had prepared a report, gave evidence and was cross-examined. Several letters from neighbours were tendered in evidence.
Mr Panayi, counsel for the Secretary, called no evidence. Both parties made submissions.
I found EGS to be a straightforward witness. I do not agree with Mr Panayi's submissions that EGS had downplayed what he had done. As I understand it, the downplaying referred to was made with reference to matters in a letter to the Secretary from EGS's solicitors. The letter said EGS had only ever had discussions with the undercover operative, when in fact he had handed money over and given him a photograph of his wife. The letter also referred to the size of EGS's home loan and his ongoing contact with his former wife.
When these matters were put to him, he responded in a very literal way not surprisingly, given his background and education. He did not appear to me to have downplayed the seriousness of what he had done. For example, when it was put to him he had omitted to mention he handed money over, he explained that he had not handed money over but had put it down between the seats of a car. He had no idea where the home loan figure in the solicitor's letter had come from and why it was wrong. He was candid about his present contact with his former wife. His solicitors had prepared the letter, he had never told them his loan was more than it actually was. He candidly admitted he was hoping at that time that his wife would be murdered. He appeared to me to be genuinely remorseful and he acknowledges that he did not think matters through and the consequences of his actions at the time. These matters were reinforced by the evidence of his psychiatrist. In her opinion, he had fully acknowledged his wrongdoing, which had been motivated by his fear of losing his children. Whilst the two children who gave evidence had different levels of knowledge of all the details, I make nothing of that difference, given their ages at the time.

(a) The nature and gravity of the offence and its relevance to child-related work

There is no doubt that the offence committed by EGS is very serious. EGS does not deny that. Some background information about the offending gives it some context. Very briefly, the background is this. The proposed victim was EGS's second wife. His first wife had killed their two daughters aged 5 and 2 and then taken her own life. He married again. His second wife was unfaithful and ultimately they separated. EGS became distraught when his children told him their mother told them to call another man "daddy", believing he would lose his children once again. Against that background, EGS approached the person to kill his second wife.
Mr Hurley submitted that the offence has little relevance to child-related work. On the other hand, Mr Panayi submitted, as I understand it, that its relevance to child-related work is this. Because EGS did not consider the indirect effect that the death of their mother would have had on the children, therefore I should not be satisfied EGS can think about indirect consequences. It would follow, as I understand the submission, that were children to misbehave on his bus for example, I could not be satisfied EGS would not act erratically, failing to contemplate any effect on children on the bus.
Quite how that submission establishes the relevance of the offence to child-related work is difficult to see. The submission is really about EGS himself, not about the relevance of the offence to child-related work. It draws a connection of the most tenuous kind. It is an offence in which the potential violence was directed at an adult by another adult, in the context of a personal relationship, not in a work context of any kind, particularly not any child-related work.
As the second reading speech tells us "This Bill is about putting barriers in those [those in our society who would, given the opportunity, hurt children] people's way to reduce their chances of being in positions of trust with children". It is for that reason the relevance the offence has to child-related work is a consideration that must be considered. In this case, the offence is of the most marginal relevance, if at all.

(b) the period of time since the applicant committed the offence

It is more than 15 years since the offence was committed. Whilst not in the very distant past, a significant period of time has passed without any hint of any further offending of any kind, which are matters in EGS's favour.

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and

EGS was convicted of the offence, apparently on a plea of guilty. The sentence imposed of five years imprisonment with a non-parole period of 2½ years whilst not insignificant, is at the lower end. Whilst no one drew my attention to any sentencing remarks, the sentence, being at the lower end, would tend to confirm the solicitor's submissions to the Secretary that the sentencing court accepted there were mitigating factors and that the risk of re-offending was very low.

(e) the ages of the applicant and of any victim at the time the applicant committed the offence; and

(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed the offence

I accepted Mr Panayi's submission that these considerations are not relevant in this case.

(g) the applicant's behaviour since he committed the offence

All the evidence suggests that EGS has properly rehabilitated himself. Mr Panayi conceded he has been a good worker and is a loving father to his children. The three older children have lived with him for the past 13 years and are now all adults leading happy and productive lives. His two daughters, who gave evidence, spoke of him as being a mother and father to them, having chosen to live with him. They themselves feel they have grown up in a loving, protective and very caring household. His prospective son-in-law who gave evidence spoke highly of him.
His employer too spoke very highly of EGS. The families have actually known each other for many decades. He was supportive of him and knows about his criminal history. EGS has worked for him for over four years on a difficult and challenging bus route and has found him honest, reliable and ethical. His record as a bus driver is exemplary. In his opinion, it would be a loss to the company and public transport in general were EGS not permitted to continue to drive buses.
Some of the most helpful evidence about his behaviour since was given by the psychiatrist. Mr Panayi was critical of her evidence, suggesting she showed favouritism to EGS. He said that every time he asked her a specific question, she refused to answer, thus she was not a credible witness, nor reliable, he submitted and her evidence was not objective and should not be relied upon.
The psychiatrist had prepared a report on EGS's "suitability to work with children". I accept in her report she strongly recommends that EGS be allowed to continue with his job because it is his livelihood and his hobby. Having had extensive contact with EGS whilst he was on parole and more recently because of this proceeding, in her opinion, EGS has fully rehabilitated, has not had any emotional or behavioural problems when in contact with women or children and has learnt how to deal with things in the proper way. I accepted that evidence. She confirmed that opinion in her answers to questions put to her in vigorous cross-examination.
I accepted Mr Hurley's submissions that there is no suggestion other than that EGS has served his time, honoured his parole obligations, accepted his error and has done all he can to rejoin society. He has been fully employed, retrained as a bus driver and worked in that capacity with no hint of any concerns.

(h) the likelihood of future threat to a child caused by the applicant

It is always a difficult thing to predict the future. I am required to consider the likelihood of any future threat to a child caused by EGS.
Mr Panayi submitted that a simple trigger in the past had, as I understand his submission, threatened his children because he had not thought things through. I do not accept it was a simple trigger. That submission flies in the face of the psychiatrist's evidence that there was a convergence of a number of matters all coming together at the one time, that led to the offending.
The psychiatrist gave evidence that EGS was fully rehabilitated, had proven himself by his work and parenting record, such that in her opinion he was not a risk to children. Even when Mr Panayi put it to her whether he presented any risk, her opinion was that as far as she knew, he posed no risk. When Mr Panayi pressed her by asking her could she ever be 100% sure, she rightly conceded no one could say that, but in her opinion for him to re-offend, there would again have to be "a perfect storm". From what she knew of him he had followed advice and instructions she had given him in their sessions and, for example, had diligently obtained the custody of his children and certainly posed no risk to adults. I accepted her evidence.
One can never be 100% certain, and that is not the test. I need to be satisfied as to the likelihood of future threat. I am satisfied that the likelihood of future threat to a child in this case is remote, particularly so as his past offending was not directed to a child, nor did it occur in the context of mixing with or working with children. His psychiatrist has no concerns and there has been nothing in his behaviour since, or indeed before the event, according to her evidence that suggests such a likelihood.

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

I have previously discussed my impressions of EGS's evidence and reject Mr Panayi's submission that EGS downplayed the events and his actions, a matter he submitted was relevant with respect to this consideration.

(j) any other matter that the Secretary considers relevant to the application

Mr Hurley submitted that I should have regard to the fact that EGS has served his term of imprisonment and rehabilitated himself. Given those circumstances, the community, he submitted, should support him. He submitted that were he to lose this job, at his age and in the current climate, he would have difficulty finding other employment. He referred to the employer's evidence that he would not be able to be kept on were an assessment notice not issued to him.
Mr Panayi suggested that EGS could obtain other driving work that did not involve children. The employer was clear during the hearing that to his knowledge, there were no routes that did not incorporate special school services. He confirmed EGS was not qualified to drive coaches. In my view, it would be unrealistic to expect that EGS could readily find employment elsewhere.

Given my findings about the nature of the offence, and its relevance to child-related work; the period of time since the offence was committed; the sentence imposed; the applicant's behaviour since; the likelihood of future threat to a child; information given by the applicant and the other matters considered, and having regard to all those matters, I am satisfied that EGS would not pose an unjustifiable risk were an assessment notice issued to him.

Further, given his excellent driving record and the regard his employer has for all his bus driving skills and diligence on a difficult bus route, and in circumstances where EGS has done so well in rehabilitating himself, he should be supported in his ongoing endeavours, as Mr Hurley submitted. For those reasons, I am satisfied that it is in the public interest to give an assessment notice.
I set aside the decision of the Secretary and substitute a decision to give EGS an assessment notice.

[2] See s 26(5) Working with Children Act 2005

EGS v Secretary to the Department of Justice

At a glance

Court

Decision date

Before

Source

Judgment (39 paragraphs)

EGS v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 505 (24 March 2009)

Parties