Victorian Civil and Administrative Tribunal|2009-08-27

The Applicant works as a volunteer at a junior football organisation attended by his children, training children in football and also as a volunteer instructor at a karate club, also attended by his children, where he has progressed to be graded as a black belt. These activities are 'child related work' as defined in section 9 of the Act.

Under section 33 of the Act it is an offence to engage in child-related work without an assessment notice. There is an exemption (in section 27 of the Act) from the requirement for a notice, for a parent who participates only in an activity in which his or her child ordinarily participates.

Section 26(2) requires that I have regard to the following factors about the offence committed by the Applicant:

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

(b) the period of time since the applicant 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 the offence; and

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and

(g) the applicant's behaviour since he or she 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 VCAT considers relevant to the application.

Paragraphs (g) and (h) of section 26(2) are about the Applicant himself rather than about the offence, so I will consider them last.

As to the nature and gravity of the offence, the material available to me was minimal. There were six pages copied from various records. The court extracts from the Magistrates and County Courts showed only:

(a) that the events occurred in September 1991;

(b) that the Applicant having pleaded not guilty was convicted on 10 November 1992 of unlawful and indecent assault and fined $1,000 at Preston Magistrates' Court;

(c) that the Applicant having pleaded not guilty was convicted on the same date of being unlawfully on premises and fined $500 by the same Court;

(d) that on appeal to the County Court the convictions were upheld and the fines reduced to $750 for the indecent assault and $250 for being unlawfully on premises.

There was also provided to me a "Court Outcomes Report", apparently printed on 10 November 2008, which had a number of blacked-out lines and recorded only the County Court results. This also included the name of the informant police officer.

Then lastly there was a letter from the Police Information Liaison Office, which set out five questions and the answers to them as follows:

(b) Under what section of what Act was the above charged?

(c) What were the circumstances of the offence?

"I have spoken to the Informant in this matter as no paperwork is available. He recalls that the Applicant was a lawn mowing contractor. He entered the residential premises and touched the victim on the breast."

(d) What was the age of the victim and the relationship b/w the victim and defendant?

"The victim was late teens, not sure of exact age."

(e) Any other information available which may assist the WWC Check Unit on the assessment of his application?

"The Applicant denied the charges and appealed to the County Court".

The Applicant continues to deny that he committed the offence although he accepts he was convicted. In his statement, he outlined his version of the events on the day of the assault. He said that he was a mowing contractor, had never seen the girl before but usually spoke to her mother by phone to arrange the mowing. On the day of the offence, he said that he collected money from a teapot in the backyard as usual, then knocked on the front door, not really expecting a response as usually no one was home. He then placed the invoice under the door mat and as he bent down a girl of 13 or 14 opened the door. He said "hello, here's the invoice" and left.

In his statement and at the hearing, the Applicant said he accepted he had been found guilty and that he could not clear his name, but did not want those events to determine what happened in his life now. He said "I don't want that girl to win completely over me".

Each of the other four witnesses who gave evidence for the Applicant was asked about the degree of detail the Applicant had related to them concerning his convictions. Each of them testified that he had told them he was accused of touching the victim on the shoulder and asking her for a kiss. When recalled and asked why he had not told the full truth to those witnesses, the Applicant explained that he recalled nothing about being accused of touching the victim on the breast. He said he recalled he was accused of touching her on the shoulder and asking for a kiss. His wife, who also provided a statement and gave evidence, had been married to him at the time of the offence for three years and had known him for six. She was present at the hearings in 1992 in the Magistrates and County Courts. Her evidence before me was that she also did not recall any evidence about her husband having touched the victim on the breast.

As the Respondent's counsel submitted, a kiss and a touch on the shoulder do not amount to an indecent act, so it is likely there was more evidence at the time of the conviction than the Applicant and his wife have recounted before me. However, I had no reason to doubt their evidence that they could not recall the more serious part of the evidence against the Applicant.

No other information about the offence was available to me. The Applicant's undisputed evidence was that he made a Freedom of Information request to obtain the brief of evidence relied upon by the police at the time, but was advised it had been destroyed.

I must conclude that whatever facts were found by the courts in 1992 and 1993 to have occurred amounted to an indecent assault. Given that the informant was unable to recall the age of the victim accurately, his/her recollection of the other evidence may also be inaccurate. I did not have the benefit of any direct evidence from the informant. Even though the exact facts found by the Court in 1992 and 1993 are not established, I will assume the worst version is true, as the aim of this exercise is to protect children, not to re-consider decisions already made by the Courts.

At worst, the facts found by the Court were that the Applicant kissed the victim and touched her on the breast. Our society prohibits and punishes this sort of behaviour towards an adolescent girl from a man in his late thirties. It is regarded as an indecent assault.

The court extracts do not refer to the section and Act under which the Applicant was convicted. However, the most likely provision seems to be section 39 of the Crimes Act 1958, which prohibits indecent assault. In 1993, the maximum penalty under section 39 of the Crimes Act 1958 was 10 years imprisonment or $12,000. If that was the section under which the Applicant was charged, the Court was in a position to impose a much greater penalty. There does not appear to have been any other relevant legislative provision at the time under which the applicant could have been charged.

Any indecent assault against a thirteen year old is a serious offence. However, the sentence imposed (conviction and a $750 fine) compared to the maximum allowable at the time for indecent assault suggest that the nature of the offence was regarded by the court as towards the less serious end of the scale. Section 26(2) (d) requires me to have regard to the sentence imposed.

At the time of the Applicant's conviction, section 5(2) of the Sentencing Act 1991 provided:

"(2) In sentencing an offender a court must have regard to -

(a) the maximum penalty prescribed for the offence; and

(d) the offender's culpability and degree of responsibility for the offence; and

(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances."

Given that those provisions applied at the time the Applicant was sentenced, I should assume that the court took them in to account in sentencing. In the light of the much greater penalties available, I can only conclude that the assault, indecent as it was, was regarded by the Court as towards the less serious end of the scale taking in to account sentencing practices, the nature and gravity of the offence, the offender's culpability and degree of responsibility, his previous character and the presence of any aggravating or mitigating factor.

I am required by section 26(2) (c) to have regard to whether a conviction was recorded and I note that it was. The recording of a conviction was in itself a penalty, as is clear from the options available under section 8(1) of the Sentencing Act 1991(as it was in 1993). However, the Applicant's plea of not guilty probably made the recording of a conviction inevitable, once he was found guilty.

The ages of the Applicant and of the victim are also relevant - section 26(2) (e). The victim was 13 or 14 years old, according to the Applicant's own statement. The informant's recollection was that the victim was 'late teens' which might make the offence less grave. However, as the purpose of this exercise is to protect children from any risk I will assume the victim was 13 or 14. The Applicant was about 38 years old. When perpetrator and victim are close in age, that might be a factor excusing the behaviour of the perpetrator to some extent or indicating that the risk of future offences is low, but here there was quite a wide disparity between the ages of perpetrator and victim.

In summary, the Applicant was convicted of an indecent assault on an adolescent girl and that assault was apparently regarded by the Court at the time as being towards the lower end of the scale of such assaults and he was convicted and fined much less than the maximum penalty for the offence.

Under section 26(2) (g), I am to have regard to the Applicant's behaviour since he committed the offence. It occurred in September 1991, according to the extract from Preston Magistrates' Court. That is almost 18 years ago. The Applicant has committed no offence since then.
At the hearing, the Applicant gave evidence about his life since the offence. His wife provided a statement and gave evidence, as did the following people: GF, an instructor from the karate organisation to which the Applicant belongs; JK, a regional organiser for that organisation; RB a coach with the junior football organisation with whom the Applicant worked as an assistant coach and NH, a female colleague from the karate organisation to which the Applicant belongs.

According to the Applicant's own evidence, after the conviction, he altered his work practices to avoid being left alone in any possibly comprising situation. He was at the time the father of two sons and had been married to his second wife for three years and now has three more sons. He has now been working employed in a field related to gardening for 10 years. He is involved with his children's sporting activities, particularly football. Six years ago, he took up karate, with his children, and is now graded as a black belt and instructs classes which include his own and other children and adults. Usually the parents of the children are present at those classes. He has instructed at hundreds of classes and never had a complaint from any child or parent.

The evidence of the Applicant's wife was that they have a stable marriage and that he is a wonderful husband and father, fostering the achievements of his own and other children by his commitment to supporting and training them in sporting activities, about which he is passionate.

GF, an instructor from the karate organisation to which the Applicant belongs, also provided a statement and gave evidence. He said the Applicant has assisted as an instructor in over 280 classes, comprising about 350 hours. He said there has never been any complaint or issue regarding the Applicant's treatment of the students. Mr F said that he and the Applicant are friends outside karate and often have barbecues and other family gatherings together. He said he has never heard anyone have any concerns about the Applicant's behaviour and even now that he knows about the conviction, would be happy to leave his own daughter in the care of the Applicant.

JK, a regional organiser for the karate organisation to which the Applicant belongs, provided a statement and attended the hearing. He said the Applicant has a great following of students, teaches his own classes and helps with others and also assists in a program for children involved in their organisation across many suburbs. He said the applicant is a terrific instructor. JK said it is part of his job to check with the students and obtain feedback about the instructors and that the feedback about the Applicant is always positive. JK said he regards the Applicant as an asset to the karate organisation to which they both belong, that he has never heard of anyone having any concerns about inappropriate behaviour by the Applicant and that he would be happy to leave a 13 year old female in his care.

RB provided a statement in support of the Applicant and gave evidence by telephone. He said the Applicant had looked after grade 2 and 3 children under RB's leadership in a junior football organisation for the period of 2004 to 2007. In that time, there had been no complaints and the Applicant had been well liked and done a good job, he said. He also said that he considered he knew the Applicant well from observing him with children and even knowing the full details of the offence of which the Applicant had been convicted, would be happy to leave a 13 year old girl in his care, based on what he had observed of the Applicant's behaviour.

NH also provided a statement and gave evidence at the hearing in support of the Applicant. NH is part of the same karate program as the Applicant, trains in the same class as he does and works along side him in a children's program. NH said that the Applicant is a popular and well-liked instructor, who is kind a patient with children and she said she knew of no complaints or concerns about his behaviour.

Also provided to me were three written references from colleagues and managers at the Applicant's work place, where he has worked for the last ten years. They described him as "capable", "dedicated" and "trustworthy by nature".

The Applicant acknowledges that he was convicted of an offence and has been open with his colleagues about it in asking them to come and give evidence in his support. I have accepted that when he failed to tell them of the worst aspect of his conviction - that it included touching the victim on the breast- he did not recall that being part of the Court's findings. However, the applicant continues to maintain his innocence and says he was wrongly convicted. This was a concern to me. It was not open to me to question the decision made by the courts at the time. The applicant's conviction in the Magistrates' Court was upheld by the County Court.

It was submitted for the Respondent that in not acknowledging his guilt the applicant has failed to face up to his crime. The Respondent referred me to the case of XD v Department of Justice [2008] VCAT 118, in which the fact that the Applicant in that case had not faced up to his crime was a factor in the tribunal's decision to affirm the secretary's negative notice. Her Honour Judge Harbison said (at para 34):

"it seemed to me that the Applicant had not himself faced up to the reality of what he did 20 years ago, and I was left to wonder whether his witnesses would still have supported his application to work with children had they known the chilling details of that second series of offences".

However, in my view the cases are quite different. The offences committed by the Applicant in XD were extremely serious rapes, some of which involved violence and he had not revealed the extent of the violence. The Applicant's offence in the present case is far less serious. A further distinction between this case and XD is that the Applicant's witnesses were all aware (as far as the Applicant was able to make them) of the details of the offence and gave evidence at the hearing that knowing those details in full they would be happy to leave an adolescent girl in his care.

Whatever the reason for the Applicant's continued maintaining of his innocence, it is only one element of his behaviour since then. The evidence also shows that he is a good husband and father, trusted by colleagues at work and by the volunteers and others with whom he works in karate and football organisations.

I must also consider the likelihood of a future threat to a child caused by the Applicant - section 26(2) (h). There was no evidence that the Applicant has ever been a threat to any child other than the victim of his offence. Several witnesses gave convincing evidence that they would trust him to care for a young girl.

Also, I was impressed that the Applicant has been involved in many hours of instruction in karate and there has never been any complaint or hint of impropriety. The evidence was that there are often parents there and that the classes often include adults, so it could be said that the Applicant has not had any opportunity at karate to be alone with any child or young female. However, karate is a physical activity, involving an instructor in observing and guiding the movements of students. The Applicant must in the course of hundreds of hours have had many opportunities to look at children inappropriately or to be closer to them than strictly necessary, if he were so inclined. His colleagues in this activity, one of whom has the task of receiving feedback about the instructors, gave evidence that no one has ever hinted that they are uncomfortable with the Applicant's attitude to the students.

While I am concerned about the Applicant's failure to acknowledge his guilt, the rest of his behaviour since the offence has given no hint of a risk to children. The offence was a long time ago and the Applicant has in my view had opportunity to demonstrate whether his attitude to children is in any way likely to lead to the behaviour which would constitute a risk to them. Looking at the circumstances as a whole, I am satisfied the likelihood that he is a risk to the safety of children is low.

Section 26(2) makes it clear that the tribunal must not make an order for the giving of an assessment notice unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children. The evidence before me, including all the evidence about the Applicant's offence, his subsequent behaviour and the opportunities he has had to commit further offences were he so inclined satisfy me that he does not pose an unjustifiable risk.

Having considered the question of risk, in section 26(2), the tribunal is then empowered, under section 26(3), to direct the Secretary to issue an assessment notice if satisfied that in all the circumstances it is in the public interest to do so. I am aware that once a notice is issued the Applicant would be free to do any sort of child-related work, not just the volunteer work in which he is presently engaged.

I agree with the Respondent's counsel that the primary public interest consideration in an exercise such as this is the purpose of the Act - the protection of children from physical or sexual harm. However, I have found that the Applicant does not pose an unjustifiable risk to children. Therefore it is open to me to consider other aspects of the public interest.

There is an advantage to the community (and hence a public interest) in people participating as volunteers in community activities. In the second reading speech introducing the legislation, the Attorney General said:

"Developing the working with children scheme has been an exercise in striking the right balance. Minimising the risk of harm to children is our priority. In achieving this, however, the government is aware of the need to ensure that all Applicants for an assessment are treated fairly, in accordance with the principles of natural justice. Also important is the need to create a scheme that does not bury employers and community organisations in red tape and responsibilities, and the need to create a scheme that does not discourage the volunteers that are so vital to Victoria's community."

The activities in which the Applicant wishes to engage are as a volunteer karate instructor, working with people of all ages, including children and as a coach in a junior football organisation. There is a public interest in encouraging participation in sport and other activities which promote fitness, as well as in encouraging volunteers who wish to instruct others.

The Respondent submitted that the Applicant would still be able to engage in karate and junior football programs with his own children, under the exemption provided by section 27, so that I should not direct a notice be given as there is no public interest in the Applicant having such a notice - in effect, it was submitted that he does not need one.

The Applicant's counsel on the other hand referred me to the words of Deputy President McKenzie in STO v Secretary to the Department of Justice [2008] VCAT 2537:

"The public interest is a broad concept which the Tribunal should not attempt exhaustively to define. Given that the purpose of the Act is to protect children from sexual or physical harm by ensuring the suitability of those who care for or work with them, this factor must be a primary aspect of the public interest. But there are others, such as not unfairly constraining employment prospects, not discouraging participation in employment or in volunteering in connection with community activities."

The Applicant's evidence was that he wants to be able to attend gradings and take classes when his own children are not present, as they do not attend all the programs in which he is involved. He said he wants to be confident he can attend and progress and develop as a karate instructor in the organisation without them always being involved in the class. It is true section 27 would allow him to be involved in a class ordinarily attended by one of his children if the child was occasionally absent, but it probably would not provide an exemption for example if the Applicant were to instruct a class or attend a program at another branch of the karate organisation when his child was not a regular participant. It is this sort of activity which the Applicant wishes to pursue.

Further, the evidence of JK was that the karate organisation to which he and the Applicant belong requires instructors to have an assessment notice in case they are left alone with children when they are dropped off at classes. It may be that the exemption under section 27 would apply to such a situation, but it may not. Any organisation which works with children will be anxious to avoid breach of section 35 of the Act which prohibits engaging a person in child-related work when the person does not have a current assessment notice.

Thus if the assessment notice is not given to the Applicant, he will still be able to engage in karate and football when his children participate regularly, but not to continue as an instructor or coach when his children are not involved.

The organisations in which the Applicant is involved may well be able to replace him, so that the public interest in those activities would not be directly affected by his absence. However, there would be indirect effect. Restricting the Applicant from engaging in those activities would mean one less volunteer participant in worthwhile community activity. The building of community which results from such activities is nothing other than the sum of the many parts, so the loss of one volunteer is still a loss. There is a public interest in encouraging volunteers to contribute to the community.

Therefore there is in my view a public interest in the Applicant being able to participate freely in the activities he wishes to pursue.

HNO v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 1809 (27 August 2009)

HNO v Secretary to the Department of Justice

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Judgment (77 paragraphs)

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HNO v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 1809 (27 August 2009)