Victorian Civil and Administrative Tribunal|2010-02-10

HBC v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130 (10 February 2010)

Working with Children Act 2005- category 1 application - conflict of evidence as to circumstances of offence- principles to be applied - application refused.

This application for an order under section 26 (3) of the Working With Children Act 2005 for the Secretary to give an assessment notice to the applicant is refused.

This applicant is a man in his late forties. For approximately nine years he has volunteered as a trainer for a football club in suburban Melbourne. The team comprises young men between the ages of 16 and 18. The club is a large one, and there are up to 50 young men in this age group in the club.
Before working with this club, he briefly worked as a volunteer with two other football clubs in Melbourne.
He has attended this club three times a week over the last nine years, during club training nights and at games. He has done so without payment and because of his desire to contribute to this worthwhile community activity.
He holds certificates in remedial massage and first aid, and his duties as a trainer involve strapping, rubbing down and massaging the players, and monitoring their injuries and general health.
In the senior teams these duties are carried out by qualified physiotherapists. The junior teams use persons with lesser qualifications, working in groups of two (a trainer and an assistant trainer) per team.
Recently the applicant became aware that he needed a Working with Children assessment to continue in this role. He applied and was given a negative assessment. As a result, his volunteer work with club came to an end, and he is bringing this application to have the Secretary's decision overturned.

The reason the Secretary refused the application was that in 1997 the applicant was convicted of offences which are classified under the Working with Children Act 2005 as Category 1 offences. Because of this classification the Secretary is precluded from issuing an assessment and must refuse to do so.
As is the case in many of these applications, there was very little detail provided to me as to what the exact offences were. The certified extracts provided by the Department indicate that the applicant, who was 36 years of age at the time, was charged with eight counts of committing an indecent act with a child under 16, which counts were said to have occurred between two months in late 1997.
Four of the counts were either struck out or withdrawn. On the remaining counts, the applicant entered a plea of guilty, and orders were made on each of those counts that he be convicted and placed on a community based order for a period of 24 months and that he perform 250 hours of unpaid community work.
There were two further conditions placed on the order.
The first was that he not have contact with children under the age of 16 years without permission of a community corrections officer.
The second was that he participate in a relapse prevention program as directed by the Office of Corrections.
The Department has obtained a description of the circumstances of the offences from the police records. In summary, the Department says that the offences occurred against two 10 year old boys between August and October 1997.
It is suggested that the applicant took those boys to his home separately with the permission of the boys' parents. The applicant ensured the boys engaged in activities which would make them get dirty as an excuse to get them into the shower. He then took the boys, on separate occasions, into the shower, showered with them naked, and washed them.
After the shower he refused to return them their clothes and had touched both boys on the genital areas. He lay naked on top of one of them. It was also suggested that he had shown the boys magazines with naked women. The police summary notes that there was no sexual penetration of either boy.
This summary was taken from the police records office by the Working with Children Division of the police information liaison office. It was hotly contested by the applicant in this proceeding.
The applicant gave sworn evidence before me. He agreed that he had looked after each boy on separate occasions. He said that on each occasion this was with the permission of their mother.
In relation to one of the boys the applicant said the boy was at his property assisting the applicant to build a fence. He said the work involved digging through clay and mud, and the boy became covered with clay, and so he suggested the boy had a shower. He said he was himself also covered with clay and mud as a result of the work, and needed to shower himself as well.
He said that the only activity that occurred between himself and the boy was that he entered the bathroom while the boy was having a shower. He did so naked because he was next in turn to have a shower. He admitted that the boy saw him naked and that he saw the boy naked for the brief time when the boy exited the shower and he entered it. However, he emphatically denied any sexual contact between himself and the boy.
In relation to the second boy, he said that this boy had also been on his property with the permission of his mother. Whilst on the property, the boy had fallen into a creek. The applicant jumped into the creek as well to rescue him. He said as a result of that incident both of them were soaked and freezing cold and required a shower. Once again, he said that the boy had a shower first and he saw the boy naked when he walked into the shower room to have his shower. At that time he also was naked. He denied any sexual contact at all between that boy and himself.
The applicant asserted that these charges were brought at the behest of his estranged wife, with whom the boys' mother was friendly, and that the charges were manufactured, and the incidents blown out of proportion, to assist his wife in her Family Court application to prevent him having access to his young son.

Discussion of the evidence relating to the Category 1 offences

A precise understanding about the circumstances of the offences is important in this application. This is because in coming to a decision about whether the Secretary's decision should be overturned, I need to take into account the nature and gravity of the offences committed by the applicant and their relevance to child-related work. Thus I need to make a finding on whether the events took place in the manner set out by the applicant, or in the manner suggested by the Department.
The applicant's counsel suggested to me that there was no evidence before me other than that of the applicant and I should consider this application on the basis of his description of the offence. If the applicant's description is accepted, then his offences are to be viewed as simply an error of judgment in allowing himself to be in position of being momentarily naked in the presence of young boys.
His counsel submitted that the applicant's case should not be jeopardised by the Departments inability to produce the statements of witnesses, or other evidence which may have established the precise nature of the offences for which he was convicted, or the facts established or agreed at the time of sentencing.
Although this Tribunal is not bound by the rules of evidence, in my view it would be a serious breach of the rules of natural justice if I were to accept the statements set out in the documents produced by the Department as accurate in circumstances where the applicant has denied their accuracy, and the makers of those statements have not given evidence before me.
I have however received into evidence the certified court record and do propose to rely on the contents of that document, the accuracy of which was not challenged in this hearing.
The certified court record makes it clear that eight offences were laid against the applicant, and that on four of those he was convicted. Each of the four offences related to the applicant having committed an indecent act with a child under 16. The way in which the offence was described to me by the applicant as I have set it out above does not appear to be consistent with this record.
The applicant gave evidence that he was represented at the sentencing hearing. He said that he was told by his barrister to plead guilty to each count, even though he explained to his barrister that he had done nothing wrong, because he was told this was the best way for the matter to be put behind him and that he would receive a light sentence if he was to plead guilty. His case had apparently attracted media attention, and he said this pressure, which was so great that it caused him to move house, also led him to decide not to attract more publicity by defending the charges.
In a letter of complaint sent by the applicant to the Department in April 2001, the applicant maintained that he had made false admissions whilst under duress in a three hour police interview.
Counsel for the Department pointed to several reports of the Department of Corrections made during the time that he was undertaking the community based order, which indicated that he had at times denied the offences, but at other times had admitted them. The applicant maintained in cross-examination that he had no recollection of having done so.
In applications such as this, all the Tribunal can do to ascertain the precise nature and characteristics of the offence is to assess the evidence given by the applicant, in conjunction with any other admissible evidence.
In my view the applicant's evidence about the circumstances of the offences was not satisfactory. The way in which he described what had occurred did not seem to correlate with the offences with which he was charged. He did not give a convincing explanation as to why he would have pleaded guilty to such serious offences which were so different from the events which he described in his evidence before me. If his version of events had been accepted by the Magistrate, he appears to have had a complete defence to the charges.
Under cross-examination, he admitted that he had seen the statements of the boys which were the basis for the charges, but was unable to satisfactorily describe those statements at all.
He said that one of the boys may have suggested that he had touched him "on the backside". Significantly, he said he could not remember whether he had done that or not. He did not categorically deny having done so. Similarly, he said he could not remember if he had touched either of them on the genitals. He did not clearly deny having done so. He claimed to be unable to remember the details of the allegations put to him by the arresting officers, or provided to the Magistrate at the time he was convicted and sentenced.
His description of the events is not consistent with his evidence that he had not told anyone of the offences because he was "too ashamed to discuss" what he had done, or his barrister's description of his conduct as "reprehensible".
It is true that often an applicant will have little recollection of the detail of offending behaviour, particularly if it occurred a long time ago. Sometimes it is said that an offender has deliberately blocked out details of the events from his mind because of his shame. However, this does not appear to me to be such a case. The applicant has given detailed evidence about what he says happened. In my view that evidence was not candid.
This being said, and not having been provided by the Department with evidence in any admissible form as to what was alleged against the applicant, I am left with very little information as to the details of exactly what happened. I will proceed with this application on the basis that the nature of the offences to which these four convictions relate is a series of four sexual offences of some description against two 10 year old boys, committed on at least two separate occasions some time between August and October of 1997, at a time when the victims had been entrusted into the applicant's care by their parent.
I specifically find that the ameliorating aspects of the offences described by the applicant are not to be relied upon. I find that the offences were of a serious nature, serious enough for the Magistrate to have a significant concern about the applicant's potential to be a danger to children under the age of 16 years, and to have decided to try to put steps in place to address the offending behaviour.

In assessing this application s 26 (2) of the Working With Children Act sets out various factors which I must take into account. I have dealt above with the question of the nature and gravity of the offences committed by the applicant. I need to also consider the relevance of such an offence to child-related work. It is clear that the commission of any sexual offence against a 10 year old is highly relevant to child-related work. I find the commission of the offences, as I have described them above, and having been committed whilst the children's parent had entrusted the children into the applicant's care, to be highly relevant to child-related work.
I must also consider the period of time since the applicant committed the offences. Here, there is a substantial period of time which has elapsed. The offences occurred over 10 years ago. The length of time since the offences is to be taken in the applicant's favour, although I agree with counsel for the Department that this is not a case in which the offences occurred so long ago that they should be heavily discounted as having no potential present relevance.
Further, I must consider the finding of guilt and sentence imposed for the offences. In relation to each of the four offences it appears that a conviction was recorded and I have described above the sentence imposed.
Counsel for the applicant urged me to consider the sentence to be a lenient sentence. It was agreed between counsel that the applicant received half of the maximum available tariff of hours available to be ordered by the Magistrate for the offences which he committed.
The sentence is, I agree, not severe, but it cannot be said to be such a lenient sentence that one could conclude that the offences were not seen as a serious example of those offences by the presiding Magistrate.
A significant term of community work was imposed, and as I have said, the conditions to the sentence appear to indicate the Magistrate was very concerned to make sure that there was no further offending, by his insistence that the applicant not have contact with children under 16 years, and also that he participate in a relapse prevention program. I treat those conditions as being significant factors to consider under s 26 (2).
The applicant successfully completed the 250 hours of community work. He told me that he complied with the condition that he have no contact with children under the age of 16 years, save that on some occasions he was directed by the Department to undertake community work at primary schools, in direct proximity to schoolchildren.
Counsel for the applicant suggested I should see this as an indication that the Department of Corrections did not consider him to be a risk to children. I think it is more likely to have been an oversight. It is unlikely that the Department would have deliberately placed him in a position of breaching his obligations under the sentencing order.
The applicant did not complete the relapse prevention program. I will consider the reasons for that shortly.
Section 26(2) also directs me to consider the ages of the applicant and the victims. It is relevant here that the applicant was a mature man of 36 years and his victims were 10 years of age. The applicant is not entitled to be viewed in the same way as applicants who have committed sexual offences when they were not much older than children themselves, or where the sexual offending occurred within the context of the same age cohort.
Weighing up all of the factors described so far it is my view that the offending was significant, grave and clearly relevant to child-related work.

It thus remains for me to consider the applicant's behaviour since he committed the offences and the likelihood of a future threat to a child to be caused by the applicant.
I have received very little information as to this applicant's personal circumstances. I understand that he was divorced some eight years before the happening of these events and that he has lived either alone or in a shared household since that time. He has a son and two stepsons, but has no contact with them.
The person with whom he presently shares a house has known him for apparently at least ten years, and yet was not called to give evidence in this application. No-one from his family or friendship circle was called to give evidence in this application.
I did hear from the president of the football club for which he volunteers. He provided a character reference and gave evidence before me. He said that he had come to know the applicant very well in his position with the club. He said that his own son had been in the team for which the applicant was a trainer, and that his observation was that the applicant had a very good rapport with the players, and that he was very highly regarded as a trainer in the club.
Similar character evidence is contained in another reference from another member of the club who occupies the role of trainers' coordinator. This person described the applicant as "competent, trustworthy and professional" and also said that his three sons had been in teams for which the applicant had been allocated.
The club president told me that he had received no complaints at all about the applicant's behaviour whilst at the club. He said that if any untoward behaviour had been engaged in by the applicant during his time at the club, he would have known about it, because the club committee maintained a very close and watchful eye on the welfare of its junior members. He gave as an example a completely unrelated incident in which the club had become aware of inappropriate behaviour and had sacked the perpetrator.
He said that the club would suffer if the applicant was not able to continue in his role.
However, the president told me that he knew very little about the applicant's personal circumstances and did not socialise with him. His evidence was that the applicant had spoken with him in two relatively short conversations about these offences.
The value of his evidence was somewhat diminished when it became apparent that the club president and the writer of the additional reference were aware only in very general terms of the offences which the applicant had committed. The president said that he understood the offences were very minor and that there was "not much in it".
He did not appear to realise that more than one offence was committed, and that the offences involved two separate boys on separate occasions. He did not realise that it had been alleged that the boys had been naked, and that it was suggested that the applicant had committed a sexual offence of some description against the boys. He thought that all that was said to have happened was that the applicant was inadvertently seen by the boys whilst they were clothed and he was naked.
The applicant told me that at the time of these offences he was not in a stable work or family situation. He said that he had been under medication some time beforehand to address a chronic pain condition, and that he had developed an addiction to the sedatives prescribed to him. However, he agreed that this medical condition and accompanying addiction had been resolved well before the offences were committed. At the time he had been separated from his wife for approximately eight years.
He told me that he was confident that he would not offend in the future because he was now in a situation of stability at work, in his accommodation, and in his life generally.
He has committed no other offences either before or since. He moved into accommodation with his present flatmate at the time when publicity erupted as a result of these charges, and his circumstances are now much more settled. He told me that he has a well paying job, having worked up through the company for which he has now worked for many years, and that he has a significant amount of responsibility in his employment both for quality assurance and for staff.
Prior to committing these offences the applicant was closely involved with the Scouting movement. He said that he had worked in various capacities in scouting for 9 years. He said that he was so highly regarded that he was chosen to represent the movement and care for scout delegations at two international conferences. He said that he had been involved with supervising "thousands" of scouts, and that there had never been any hint of impropriety in him doing so.
He said he ceased active involvement with scouts when he became ill, and did not plan to resume any scouting activity, although he was still registered as a leader.
He says that he takes steps to ensure that he is never placed in any compromising position with children or young people and in particular that he does not contact or socialise with the youths in the football club for whom he coaches. This evidence was supported by that of the Club President who described the arrangements at the club whereby younger players train and play from a different location than that of the senior club.
The applicant gave evidence that he was very sorry, and that he now realised that he had done wrong and caused harm - although he did not explain exactly how this evidence could be married up with his insistence that he had done nothing wrong at all.
He told me that he had deliberately not socialised with members of the football team, in order not to put himself in a compromising situation, and that he had done so as a result of his experience of having been charged with these offences.

It is often the case in applications such as this that there is psychological evidence provided bearing on the likelihood of a future threat to a child caused by the applicant.
The Department produced a report from a psychologist which appeared to have been commissioned as part of the supervision conducted by the Department of Corrections arising out of the community based order. This report suggested that during counselling sessions the applicant fluctuated between acceptance of his offending and denial that he had done anything wrong, and that as a result he was not assessed to be a suitable candidate to undergo a relapse prevention program.
Other reports provided from the Department of Corrections continued this theme that he was resistant to treatment, fluctuating between denial of the offence and acceptance of his guilt, and suggested a continuing attraction of a sexual nature to young people.
The applicant emphatically denied the contents of these reports. He gave evidence that he had not been given proper counselling by the Department and that none of the sessions organised through the Department of Corrections were of value. He said this was because the counsellors refused to accept that he had not been sexually abused as a child, and that he had not made any sexual overtures towards his victims. He said he was unable to undergo the relapse prevention program as a result of friction and personality issues with various department officers charged with his rehabilitation.
He wrote a letter to the Department in 2001 complaining that he had found counselling sessions "confusing and non-productive" and that the sessions had "no apparent purpose or result".
No-one from the Office of Corrections was called to give evidence in relation to any of these matters. Given my previously expressed concern as to the accuracy of the applicants evidence as to the circumstances surrounding his offending, and the lack of direct evidence called by the Department, I am not in a position to make positive findings as to the truth or otherwise of the applicant's criticisms of the Department program, or of the truth of the matters contained in the Department file.
All that I can say in relation to these issues is that there is no evidence before me of any participation by the applicant in a program which would give me comfort as to the likelihood of the applicant committing future offences.
The applicant has seen David Bruce, a psychologist, on several occasions of his own volition. He saw him first at the time of commission of the offences and Mr Bruce provided a report for the purposes of the sentencing hearing.
Bruce administered a recognised personality test. In relation to the outcome of that test he reported:

"The MMPI-2 result suggests a rather insecure and unhappy individual who would be at risk of overstepping the mark if he was in a position in which he thought some warm and friendly interaction was taking place. This often does result in tickling or play-fighting games with children being taken too far."

"I suspect that he has a covert loneliness and on this occasion he allowed it to carry his need for a close and friendly relationship much too far.

I strongly recommend that the applicant should have some regular psychological assistance to deal with his adjustment problems which, although not severe, have still led him into this most unacceptable situation which, without proper treatment, could occur again."

Neither of the above comments from Mr Bruce appears to me to be consistent with an innocent explanation of the interaction between the applicant and the two boys the subject of the offences.
The applicant has seen Mr Bruce approximately four times recently and at some other times in the years between the offence and now. It appears that a great deal of this earlier contact was because the applicant wished to obtain access to his son in Family Court proceedings, and could not do so without some proof that he had participated in the relapse prevention program directed by the Magistrate and was not a threat to children.
Mr Bruce produced a second report in January of this year for the purpose of this hearing. In that report he describes the difficulty the applicant had encountered with obtaining access to his son.
Although the report was produced in support of this application, it does not seem to me to be a wholehearted endorsement of the applicant's submissions. Bruce places great emphasis in his report about the vigilance of the football club in ensuring "propriety" and says that he infers that the club has kept close watch on the applicant, along with other volunteers.
He makes this observation:

"Paedophilia tends to be a very compulsive offence and if an offender is placed in a situation of temptation, reoffence is very likely."

Although his conclusion is that the applicant is "fit to continue to coach football", he does not express any detailed view on the circumstances of the offences or the matters which led up to them.
In my view Mr Bruce's second report is significant not for what it says but what it does not say.
The applicant told me in evidence that he had spoken "in depth" to Mr Bruce regarding the offences. Bruce's second report describes him having conducted "many very testing interviews" with the applicant.
I find it significant that there is no description in either of Bruce's reports of the offending behaviour, the reasons for the applicant's shame about the behaviour, the triggering events which led to the behaviour, or the likelihood of the applicant reoffending, apart from the quotations reproduced above. He does not indicate that the applicant has successfully completed any program relevant to sexual offending.
It is also significant that Mr Bruce describes, in that report, the applicant having told him when he first saw him that he had probably "overstepped the mark" and that he realised now that "it was totally reprehensible". As I have said, Mr Bruce does not go into details as to the circumstances of the offences, but these descriptions from him seem at odds with the applicant's evidence that nothing of a sexual nature happened between himself and the boys.
There is no insight to be gained from those reports as to why the offences were committed or whether the applicant has been successfully rehabilitated. It does not appear that the applicant has had any significant beneficial psychological treatment from Mr Bruce.
The applicant himself did not appear to have any understanding of the reason why the offences were committed or what he could do to ensure that he will not reoffend in the future. He claimed to not understand what was required of him. He said:

"If someone can find something wrong with me I'm quite open to look at what they want me to do".

But still he gave evidence that the victims had exaggerated and that the events had been taken out of context, demonstrating his refusal, right up to the time of this hearing, to accept that his behaviour towards his victims was inappropriate or that he needed to accept responsibility for his own rehabilitation.

Am I satisfied that giving the notice would not pose an unjustifiable risk to the safety of children?

It is apparent from the above that I have not accepted the applicant to be a witness of truth in this application, and that I am not confident that he has accepted his culpability in the events which resulted in the Category 1 offences.
I have also outlined the sparse nature of the information provided to me in relation to the applicant's personal circumstances, any treatment that he has had since the offence was committed and the likelihood of him committing a future offence.
The test set out in the Act in relation to category 1 offences is very high. I must not overturn the Secretary's decision unless I am satisfied that giving the notice would not pose an unjustifiable risk to the safety of children.
In the circumstances of this case I am unable to be satisfied, as required under s 26 (2), that the giving of a notice to this applicant would not pose an unjustifiable risk to the safety of children.

Section 26 (3) provides that I may direct the Secretary to give an assessment notice if I am satisfied that, in all the circumstances, it is in the public interest to do so. I have previously observed that it is hard to imagine a case in which one could be not satisfied having regard to the s 26 (2) factors that the notice would not pose an unjustifiable risk to the safety of children, and yet be satisfied that it was in the public interest for the notice to be given.
Counsel for the applicant relied upon the evidence of the president of the football club, and the further written reference from the trainers coordinator at the club, as demonstrating that it was in the public interest that the football club should have access to the applicant as a trainer.
In particular, he relied on the evidence of the president that it was very difficult to recruit quality trainers with the experience of this applicant.
The applicant also gave evidence that the 16-18 year age group had been specifically targeted by the club to provide a community activity to keep local youths off the streets.
It is unfortunate that this age group will suffer by not having a trainer of the applicant's expertise. However, I do not think it inevitable that the club will lose the applicant's services altogether. The applicant is held in high regard at the club. The club has several adult teams. Although I understand that these teams are presently serviced by qualified physiotherapists, there seems no reason why arrangements could not be made in the future to use this applicant's expertise in other areas where a working with children assessment is not required.
I do not agree that consideration of the above matters should lead me to determine that the issue of an assessment to this applicant would be in the public interest.
The team for which the applicant was previously a trainer already has a coach, assistant coach, and other office bearers. The evidence is that none of the players or parents knows of the applicant's criminal history. I do not think it can be said that it is in the public interest for this man to be working, albeit in a voluntary capacity, with underage players.
Accordingly, the application is refused.

HBC v Secretary to the Department of Justice

At a glance

Court

Decision date

Source

Judgment (23 paragraphs)

HBC v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130 (10 February 2010)

HBC v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130 (10 February 2010)

Parties