FMO v Children's Guardian

FMO v Children's Guardian - [2023] NSWCATAD 85 - NSWCATAD 2023 case summary — Zoe

[4]

The disqualifying offence

As outlined above, on 13 June 2019 FMO pleaded guilty in the Local Court to one count of aggravated indecent assault. FMO agreed to a statement of facts for his criminal proceedings which was provided to the Tribunal. The following summary is based on the agreed facts.
On Saturday 17 November 2018, FMO, his niece (who we refer to as Anne), and Anne's partner (who we refer to as Jim), were together at Jim's house following a party. After midnight, FMO was introduced to Jim's sister (who we will refer to as Sky), who was 21 years old at the time. FMO, Jim and Jim's father drank beer together. Sky kissed FMO. After 2am, FMO and Sky went to her bedroom. Her father and Jim saw Sky laying on the bed, with FMO also on the bed, leaning over Sky, apparently kissing her, with his hand on her upper leg.
Following this, Sky's father grabbed FMO and started to assault him. FMO said "I'm sorry" a number of times.
Sky is autistic and socially challenged. Her appearance and behaviour are likely to have indicated that she was severely disabled and lacked the capacity to consent to sexual touching.
An ambulance was called and FMO was taken to hospital with severe facial and head injuries. Sky was taken to hospital where she indicated that "she had been kissed and a tongue was used during the kiss". She indicated she did not like it and that nothing further had occurred.
In an interview with police, FMO informed police that he had consumed between approximately 16 to 18 beers on 17 and 18 November 2018 and by 2am "he was well affected and drunk". FMO also agreed that he kissed Sky and was kissed by Sky a number of times. FMO also told police that no one told him that Sky was disabled, he thought she was drunk because he was drunk. Had he known that Sky was disabled, he would not have kissed her.
After pleading guilty to the s 61M(1) offence in the Local Court, FMO was ordered to enter into a Community Corrections Order for 18 months with 100 hours of community service. However, on appeal to the District Court, FMO's conviction was quashed and a 12-month community release order was imposed on him with no conviction recorded.
Under the Act, a conviction includes a finding "that a person is guilty of an offence, even though the court does not proceed to a conviction". Therefore, under the Act, FMO has been convicted of a disqualifying offence.

[6]

Assessment of risk

Under s 28(7) of the Act, the applicant is presumed to pose a "risk to the safety of children" unless proved otherwise on the application before the Tribunal.
Section 5B of the Act provides that "[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". An assessment of risk requires the Tribunal to determine "whether, in all the circumstances, there is a real and appreciable risk that is greater than the risk of any adult preying on the child" as opposed to a "fanciful or theoretical risk": Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42]; BKE v Children's Guardian [2015] NSWSC 523.
The Tribunal is required to consider the matters set out s 30 of the Act which provides: 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 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.
Further, under s 30(1A) of the Act, the Tribunal may not make an order which enables a person to work with children unless also 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.

[19]

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

As detailed by the Watson-Munro report, FMO was administered the Sexual Violence Risk-20 (an instrument designed to assess a person's risk of engaging in sexual violence) which produced an 'unremarkable' result. Dr Watson-Munro found that FMO is at low risk of "reoffending or being in some way a risk to minors". We accept this evidence.
We also note that FMO has abstained from alcohol since February 2020. He gave evidence that he has been playing music again (which he did in his youth) and that meeting his current partner has contributed to his ability to abstain from alcohol. We find that FMO's prolonged abstinence from alcohol is a significant factor given that alcohol contributed to FMO's disqualifying offence.
There is also evidence before us, which we accept, that FMO is currently mentally healthy and employing strategies to ensure his mental health remains stable such as playing music, meditation, and prayer.
There is some evidence from FMO which might appear to indicate that he has not taken responsibility for his offending or remorse for the harm caused by his offending. In this regard, we note in FMO's 15 September 2022 statement he says the following: "In 2018 the night this offence [sic] I have very little memory as I was highly intoxicated, it was an after party of my niece's engagement party, I was led there by my youngest niece in order to provide beer for her boyfriend's family who she was living with at the time. My niece left me around strangers who took advance of me. [sic] A girl was there who I thought was drunk kept kissing me. All I can remember then is sitting on a bed, the girl was there kissing me. Then I was severely assaulted by two men." (emphasis added)
In FMO's 12 November 2022 statement, he says "I am very sorry about the entire episode - especially the savage beating I received". This appears to represent that FMO sees himself as the victim while at the same time explicitly remorseful for the harm caused to Sky. However, one of the character references from his doctor states that FMO has expressed "sincere remorse and [a] deep sense of shame regarding his actions", and that FMO is "fully accepting of responsibility for what had occurred".
We also note that FMO pleaded guilty to the unlawful conduct which in our view demonstrates him taking responsibility for his actions.
On balance, we conclude that FMO is remorseful and has taken responsibility for his offending. This is persuasive in reaching our view that the likelihood of repetition of the offence or conduct is low.

At a glance

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Judgment (27 paragraphs)

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Cases Cited (10)