II v Commission for Children and Young People [2007] NSWSC 1099 | Case summary

18 Damage to property - 2001 This incident occurred shortly after II had separated from his wife. There were two children of that relationship. 19 On 8 December 2001, II discovered that his ex-wife had left the children in the care of a babysitter while she, and her new partner, a former neighbour, went to a party. II asked his ex-wife if he could see the children that evening; she refused. He then attempted to ring the neighbour and finally left a SMS message to the effect, '…left a message at your front door'. The following day the neighbour discovered two pot plants had been knocked over and a message painted on the front door, '…leave my kids alone or else'. 20 When interviewed by police II made full admissions. 21 Damage to property - 2006 According to II, the trigger for this offence was his ex-wife's refusal to permit him to see his children at after school care. 22 In 2006 the arrangement between II and his ex-wife was that the children would stay with him every second weekend and half the school holidays. He said that he had been visiting the children at after school care without incident for the six months before the incident. He said that for reasons unclear to him, his ex-wife announced 'out of the blue' that she would be putting a stop to his visits because he didn't have a court order. 23 In evidence in these proceedings II agreed he 'blew up'. He denied that he had been drinking or was under the influence of illegal drugs. 24 The police facts sheet before the sentencing court was tendered in these proceedings. It states that when the ex-wife arrived to pick up the children from after school care, II yelled at her demanding to know why he could not see the children at school. A heated argument ensued in front of the children. It continued as she and the children got into her car. II punched the windscreen. 25 The following day when questioned by police, II admitted to punching the car but said he was unaware it had been damaged. The police observed a small 'ripple' which they believed was consistent with the ex-wife's allegation that the car had been punched. 26 II was arrested and charged. 27 Contravention of AVO - 2008 In October 2008 an apprehended violence order was issued against II in respect of a woman with whom he had been in a relationship on an intermittent basis, for about four years. In these reasons she will be referred to as 'Friend A'. That relationship apparently ended in late 2007, however the two remained in regular contact, as did their children. 28 The AVO application was tendered in these proceedings. It stated that II had requested Friend A to care for his children for a day in the school holidays; she refused citing ill health. He became agitated and proceeded to bombard her with phone and text messages. Some but not all messages were innocuous - 'I will take you down and get your family'. 29 In evidence given in these proceedings II conceded that he became annoyed when Friend A did not reply to his messages - especially given that he had regularly cared for her son even after their relationship ended. He said that he only later learnt that the reason for her silence was that she had been hospitalised. He said the main reason he persisted in trying to contact her was out of concern for his son. On his account his son was devastated when he learnt that he would not see Friend A's son - to whom he was close and considered family - over the holidays. 30 When Friend A eventually checked her messages she sought the assistance of the Police and stated that she wanted no further contact with II. 31 An AVO was issued in October 2008. Two months later II was convicted of breaching that order after entering a guilty plea. The following summary is taken from the Police Facts sheet handed up to the sentencing court. In late November 2008, about a month after the AVO had been issued, II turned up at Friend A's home. He knocked on the back door, let himself in, and announced '...Its me. I'm not here to cause trouble or hurt you, I found [your son's] Nintendo DS game and I will give it back'. II then asked how she was and whether her son was missing him. He left apparently without incident. 32 About a week later, II walked into her house again, after knocking and said 'Hi I just called in to say "Hi" and see if you still hate me'. This was said in earshot of Friend A's son and a friend. II left shortly after without incident. 33 The following day II rang Friend A but did not leave a message. She made a report to police. He was arrested. 34 In late December 2008, the police spoke to II about an alleged breach of the AVO. A COPS report records that II told the police that he wanted to report that Friend A had been assaulted by her father when she was younger; that Friend A was vindictive and if she did not drop the AVO charges he intended to bring up the alleged sexual assault by her father in court. 35 History of alcohol and drug use II commenced drinking in his teens. He stated that while not a regular drinker, he binges on occasion. 36 II commenced using cocaine in his thirties and occasionally used methamphetamine (Ice). In evidence in these proceedings he stated that as recently as December 2008 he had been spending up to $300 per month on illegal drugs, depending on availability. 37 II told psychologist, Dr Christopher Lennings that he last used drugs in November 2008 and that was a 'one -off'. He told Dr Lennings that he always makes sure he is safe when using. He also told Dr Lennings that his drug use is never out of control and that he never drives when using. 38 History of mental illness II has a long history of anxiety and depression. He has been diagnosed as suffering from an Obsessive Compulsive disorder. 39 In May 2007, II was admitted to hospital, having been diagnosed as suffering from drug induced psychosis and paranoid delusions. 40 Treatment In early 2008, II was referred by his GP to psychologist, Mr Simon McGuire, for treatment for depression and anxiety. Mr McGuire saw II on a reasonably regular basis throughout 2008. II told the Tribunal that he intended to continue with these counselling sessions. 41 References II tendered a number of references from individuals who attested to his qualities as a father and carer of children. Some indicated that he had cared for their own children and believed him to 'absolutely trustworthy'. One had known him for close to two decades and observed him associate with a range of children from various backgrounds-always in an exemplary manner. He considered II to be an excellent role model for children. Expert evidence 42 A report prepared by Mr McGuire dated 8 February 2009 was tendered by II. 43 In that report Mr Maguire stated that II found it 'incredibly difficult to engage in life at times when he does not have his children with him, as a result of his separation from his wife' and seemed to have a 'constant struggle with thoughts of guilt, worthlessness and a sense of not being able to live a meaningful life'. These feelings, according to Mr Maguire, have at times meant he 'engages in behaviours opposite to his values' which in the past have included drug-taking, gambling and extended periods on the internet viewing pornographic material. According to Mr Maguire after engaging in these behaviours, II experiences more guilt and this at times leads to further 'self critical thoughts'. 44 II told Mr Maguire that his children are his 'number one priority' and he would never do anything to put them at risk. He also said he would not engage in any of the aberrant behaviours referred to above in their presence. 45 Mr Maguire reported that II had made 'significant progress' over the past 12 months, and reported engaging less in behaviours 'opposite to his values'. He noted that his 'focus has been on engaging in more positive activities, and he has expressed a willingness to consent to regular drug monitoring tests 'if this is needed'. 46 Mr McGuire concluded that while he had concerns about II's drug-taking behaviour 'apart from this he did not see him as being a threat to the safety of children'. 47 A report prepared by psychologist, Dr Lennings, dated 27 December 2008, was tendered by the Commission. Dr Lennings had been asked to provide an opinion on whether II posed a risk to the safety of children and young people. Dr Lennings also gave oral evidence. 48 According to Dr Lennings, II presents as a person whose 'self-concept remains fragile and somewhat unformed'. He believed that this explained why his moods and self-evaluation can 'fluctuate considerably'. Dr Lennings thought that to that extent, II presents as 'somewhat unstable'. Dr Lennings believed that while II did not suffer from a personality disorder he presents with 'some features of borderline traits'. 49 In Dr Lennings opinion: There is some sense that [II] has a measure of behavioural disturbance that he minimises, perhaps lacking full insight into the effect on him. He does have an understanding of social mores and rules, and hence can recognise some of his behaviour as wrong, but also excuse it on the basis of his psychological condition or adverse environments at the time. 50 In undertaking an assessment of the risk II might pose to children Dr Lennings examined three broad types of data: static and dynamic factors and psychological (or psycho-social variables). In examining these factors he employed a combination of actuarial and clinical assessment tools. 51 Static risk factors Employing STATIC-99 - an authoritative actuarial tool used to predict recidivism rates among known sex offenders by examining static risk variables (eg offender's age, offending history) - II scored two, placing him in a group of sex offenders with the same score, of whom it is expected that about eight percent will re-offend over 10 years. This according to Dr Lennings, constitutes a 'medium to low' risk. 52 Dynamic risk factors Dr Lennings explained that these represent factors that a person may have a 'need' of or 'deficit' in, and can change over time by treatment or opportunity. Dr Lennings used the test, Sexual Violence Risk-20 (SVR-20) to assess these factors. According to Dr Lennings SVR-20 categorises risk into three main areas - psychosocial adjustment, sexual offences and future plans. Dr Lennings assessed II against 20 dynamic factors. He identified psychopathy, history of mental illness and substance abuse as areas where II had a mild 'risk loading'. 53 Dr Lennings concluded while on the whole the assessment of dynamic risk factors indicated a 'moderate risk', that risk was more likely to be oriented towards adults with whom II is in a relationship, not children. 54 General personality factors Dr Lennings concluded from the history taken that II suffered from low self esteem, vulnerability to substance abuse and impulsive behaviours. He believed these to be risk factors. 55 Assessment of risk Dr Lennings concluded: [II] presents as a man with a long history of moderate psychological impairment, an underlying impulse disorder and poor interpersonal relationships. Overall, the assessment of risk suggests he is more likely to commit a non sexual offence than a sexual offence, and his risk of committing a sexual offence is likely low to moderately low. At some point his behaviour was inappropriate in a pub. He does not present with entrenched paedophilic deviance as far as I can tell. He is an unstable character, and conventional assessment of risk indicates he remains a moderate risk of re-offence, although it is unlikely such an offence would involve a child. The difficulty for [II] is that his risk is higher than expected from [the] general population. The principal driver of such risk remains his psychological disturbance, impulsivity and substance use history. His risk is not simply that of a sexual offence. His profile suggests a man with poor self-esteem who will remain vulnerable to erratic behaviour. The risk of harm includes general psychological instability and whilst he claims he has not used drugs or alcohol whilst driving, since his applications lied about his prior use of drugs or alcohol it is unlikely he is going to say whether he has or not driven when substance affected. I think there are general child protection risks that may need to be considered given the environment in which he is seeking his exemption. There are problems in the assignment of risk in this matter in as much as there is a general child protection risk inherent in such unstable behaviour if, by way of an exemption, his job was then to change so that he had more of a direct role with children. The professional dilemma is that for his current job his risk is not such [that] it would ordinarily preclude an exemption, other than concerns about substance abuse and impulsive behaviour. But as an exemption provides for an exemption in all circumstances, and there remains some doubt in my mind as to his stability and capacity to resit temptation if substance affected (irrespective of whatever guilt or remorse he might feel afterwards), my risk assessment has to be qualified. 56 Shortly before the hearing, the Commission requested Dr Lennings to comment on some additional material which had come to hand which included court and police records concerning the AVO proceedings; Mr Maguire's report and references provided by friends and colleagues of II in support of his application. 57 In a supplementary report dated 13 February 2009, Dr Lennings stated that his original opinion remained largely unchanged by the new material although he thought that the information relating to the incident involving Friend A reinforced his concern that II had impaired impulse control and a poor understanding of the need for boundaries. He concluded: It seems that despite the reasonably positive prognosis provided by Mr. McGuire, [II] remains tortured by his unmet needs and struggles to find a stable psychological state. Given my concerns about whether substance abuse has been properly addressed by him, the combination of high unmet intimacy needs, unstable psychological adjustment, impulse control problems and the disinhibition that substance abuse causes (particularly ATS1 substances provide) indicate ongoing prob1ems. There is a need for supervision and frank disclosure and substance-use testing by his employer if he is to work in a position that provides him with contact with children or places him in a position of responsibility over them. 58 In oral evidence Dr Lennings clarified that he believed the risk of sexual reoffending to be low and the risk of physical reoffending to be low to low-moderate. He thought the main risk to be 'child protection issues', which he assessed as representing a low to moderate risk. 59 In answer to a question by counsel for the Commission, Dr Lennings said that II had not disclosed that he was spending up $300 per month on illegal drugs but rather as recorded in his first report at [18], that his drug use had tapered off over the past two years. Dr Lennings thought this to be a problem as in his view continuous illegal drug use had the potential to exacerbate II's problems of impulse control and result in further episodes of unstable behaviour. Findings and conclusions 60 It falls to II to rebut the presumption that he 'poses a risk to the safety of children'. 61 It is common ground that the index offence was not serious in nature and of itself does not indicate that II might pose a risk to the safety of children. 62 II contends that he is not a risk to the safety of children and contends that the 'proof is in the pudding' given that there is 'not a shred of evidence' to indicate that he has acted in an inappropriate manner with children. He argues that the evidence before the Tribunal supports his claim that he has never put children at risk. As he points out, a number of people from a variety of backgrounds have attested that he is a loving and responsible father; that they have entrusted their own children to his care and would not hesitate to do so in the future. He claims that these references bolster his claim that at all times his treatment of children has been exemplary. 63 The only evidence of inappropriate conduct involving children is the 2006 damage to property offence and the AVO contravention in late 2008. There is no evidence and nor is it suggested, that either incident placed any child in physical or sexual harm or that any were the target of II's outbursts. At the highest the children were witness to a heated altercation between II and former partners. There is no evidence that they were emotionally 'harmed' in anyway and while theoretically possible, having regard to all surrounding circumstances, in my view improbable. 64 There are a number of factors, which favour II's claim that he does not pose a risk to the safety of children. First, he has had considerable contact with children over an extended period and there is no evidence of any child being put at risk. Second, a range of people who have had a first hand opportunity to observe II interact with children have entrusted their own children to his care over extended periods. Third, he has participated voluntarily in counselling over a lengthy period and on all reports made significant progress. Fourth, all offending conduct since the index offence has been domestic in nature. Fifth, there is expert opinion that he does not pose a risk to the sexual or physical safety of children. 65 Dr Lennings' main concern relates to child safety. He was at pains to point out that any such behaviour would be unintentional and not sexual or violent in nature. II's admission of recent heavy drug use in his view was highly relevant because it indicated that despite the significant progress II had made in his life he continued to indulge in behaviours that could hamper his ability to control his impulses and in that way inadvertently put children at risk. 66 Mr Maguire's opinion that II did not pose a risk to children was qualified - providing the illicit drug-taking had stopped. 67 It seems to me that while ever II continues to use illicit drugs he will be unable to discharge the statutory presumption that he poses a risk to the safety of children. That view is consistent with both the expert evidence and commonsense - a person suffering from an obsessive compulsive disorder with a history of drug induced psychotic episodes and poor impulse control is likely to struggle to control their behaviour at least at times, when under the influence of illicit drugs. In reaching that conclusion I have had regard to II's unsupported claim that he has never consumed drugs while children are in his care. 68 While I could not be satisfied that II would not pose a risk to children in all areas of child employment, it is necessary to decide whether the risk he poses could be reduced to one that is not real or material by the imposition of conditions - see s 33I(6). An obvious condition might be that he be restricted to certain types of employment such as bus driving which is relatively structured and supervised, up to a point. In my view if II were able to provide reliable evidence of sustained abstinence from recreational drug use over a reasonable period, say 12 months, he would be able to mount a powerful argument that he has rebutted the statutory presumption that he poses a risk to the safety of children. Until such time as that can be established, I could not be satisfied that he has rebutted that presumption, even if the scope of child employment he could undertake were to be restricted. For that reason his application must be dismissed. 69 As a consequence of this decision II is barred from making a further application until five years after the date of these orders. I have decided that in the circumstances of this case it is appropriate to exercise my power under s 33I(5) to shorten that period to 12 months. 70 I am mindful that even if II elects to make a further application on the basis as outlined he might encounter practical difficulties in obtaining reliable evidence about his drug use. As I understand it the Commission has some expertise in this area and I request that some guidance be made available to II. It may also be that Mr Maguire might be in position to assist him or refer him to someone who can. Orders

II's application for a declaration that the Commission for Children and Young People Act 1998 not apply to him in respect of the offences of 'assault with act of indecency' for which he was convicted on 11 February 1998 is dismissed.
Leave is granted to II under s 33I(5) of the Commission for Children and Young People Act 1998 to make a further application for an order under ss 33I or 33H, at any time on or after 20 February 2010.

II v Commission for Children and Young People

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