The nature and gravity of the offence and its relevance to child-related work 13(2)(a)

1. The background of the Upskirting charge is set out in summary above. Although this offending is at the lower end of the scale for sexual offences, it is nevertheless a serious offence of a sexual nature and it involved a breach of trust.
2. There is no direct relevance between the offence and child-related work and no suggestion that the Applicant has a sexual attraction to children.

The period of time since the Applicant committed the offence - 13(2)(b)

1. The offence is a relatively recent one. The best indication about when the videos of recordings of Subject 2 were taken is 12 February 2014. The alleged but unproven upskirting of Subject 1 occurred some five months later on 29 July 2014.
2. There is still time remaining on the CCO. Making an application for an Assessment Notice while still subject to a CCO is a strong indicator that an application is made prematurely. As noted by His Honour Judge O'Neill in QUK v Secretary to the Department of Justice[9]:

The applicant has not completed his Community Based Order and if any breach of that order were to be found proven, the applicant would be subject to further proceedings. In my view, the application is premature.

1. As discussed further below, the limited passage of time means that the Applicant has not had the opportunity to demonstrate good behaviour while unsupervised.
2. The short passage of time also means that the Applicant has not had sufficient time to complete psychological therapy and counselling. Evidence of his treating psychiatrist Dr Katz, which the Applicant accepted, confirms that he is still managing the immediate consequences of his offending. Furthermore, there is significant psychotherapy to be undertaken, to address his underlying personality profile.

Whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending - 13(2)(c)

1. JQB pleaded guilty to the charge. No conviction was recorded.
2. The Applicant was not placed on the Sex Offenders Registry.

The sentence imposed for the offence - 13(2)(d)

1. JQB was sentenced to a CCO for 18 months and ordered to complete 100 hours of unpaid community work.

The ages of the Applicant and of any victim at the time the Applicant committed the offence 13(2)(e)

1. JQB was 48 years old at the time of the offence. Subject 2 was aged 53 years. Subject 1 was aged 38 years.
2. The victims are mature adults and this is a relevant consideration in favour of the Application, given that the WWC Act is concerned with unjustifiable risks to the safety of children.

Whether or not the conduct that constituted the offence has been decriminalised since the Applicant committed the offence - 13(2)(f)

1. The conduct constituting the offence has not been decriminalised.

The Applicant's behaviour since he committed the offence - 13(2)(g)

1. The Applicant advised that he has completed his 100 hours of unpaid community work. The CCO will expire late November 2015. He has not committed any other offences.
2. He has sought to re-train and gain employment in the area of real estate, so far unsuccessfully.
3. He has been treated by Ms Layton and it is anticipated that he will continue treatment with Dr Katz.

The likelihood of future threat to a child caused by the Applicant - 13(2)(e)

1. As noted above, the offence does not have a direct link with child-related work. However, the circumstances of the offending and the Applicant's unresolved psychological issues raise concerns about the possibility of a future threat to children.
2. A significant unresolved risk factor is that the Applicant, when faced with bullying at work, retaliated against random women. The victims were third parties who were not participants in any bullying against JQB. They were innocent bystanders. In fact, the evidence appears to suggest that only one person was involved in the alleged bullying, namely his manager.
3. I describe the risk factors as being unresolved because the Applicant's treating psychiatrist gave evidence that he had only just started his work with the Applicant, and that 2-5 years of further treatment was required. This further treatment is considered necessary in order to equip the Applicant with the skills necessary to express his anger and frustration in more socially appropriate ways.
4. The clear implication is that at least until treatment is complete the Applicant remains at risk of manifesting has anger and frustrations into socially inappropriate behaviour when faced with stressful situations in a workplace. I cannot be satisfied that such risk would not extend to the safety of children.

Any information given by the Applicant in, or in relation to, the application 13(2)(i)

1. In his response to the Interim Negative Notice issued, JQB provided a written submission to the Respondent on 15 May 2015 and 10 September 2015. I have considered the contents of those letters, together with the submissions and evidence given orally by the Applicant at the hearing. The contents of the written submissions have been outlined throughout the Reasons above and need not be repeated here.
2. In his closing submission, the Applicant noted that the swimming pool is an open environment, the water is clear and parents are on site watching over. He finds the suggestion that he would commit an offence in the privacy of the change rooms to be highly offensive. The Applicant re-affirmed that he is certainly not a paedophile (Counsel for the Respondent and the Tribunal confirmed that no such submission has been made against him).
3. He has a strong passion for teaching swimming, which also allows him to forget about his depression. It is his ambition to teach socially disadvantaged children to swim, especially migrants. He gains great satisfaction from teaching children a skill for life. He has full respect for woman, and indeed intervened and called the Police when he witnessed a rape taking place near his house.

Any other matter that the Secretary considers relevant to the application - 13(2)(j)

1. Although admitting guilt for the purpose of the criminal proceedings, he has significantly resiled from that admission before the Tribunal and put forward alternative implausible theories. In my view, that approach is demonstrative of a lack of candour and it has undermined his credibility.
2. As stated by His Honour Kyrou J[10], it is appropriate for the Tribunal to consider an Applicant's insight and remorse when assessing whether there was an unjustifiable risk:

In my opinion, the questions of whether the [applicant] has insight into his offence, has accepted responsibility for the offence and has demonstrated remorse are relevant considerations under s 13(2)(j). As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such an offence.[11]

1. The implausible denials are consistent with a lack of insight into the cause of the offending. Until he can accept full responsibility, it will be difficult for the Applicant to satisfy the Tribunal that he has appropriate insight into the causes of the offence or that he has genuine remorse.
2. The Respondent noted that prior to the Category B offence, the Applicant's criminal history discloses no other offences.

1. After considering the matters in s 13(1)(a)-(j), I am not satisfied that the Applicant is not an unjustifiable risk to the safety of children. My findings are set out further below. For the sake of completeness, I make the following comments about the Reasonable Person Test and Public Interest Test.

1. The Applicant's own evidence was that he would never inform parents of the students he sought to teach about his offence. He agreed that, apart from it being a private matter, one of the reasons for not telling parents is that if they knew, they would not allow him to be with their children. In my view, the Applicant's anticipation of parents' reaction is well founded.
2. The Upskirting offence which resulted in a Charge in this case, occurred without the knowledge or suspicion of the victim. The very nature of the offence entails covert behaviour. I consider that a reasonable parent, appraised of all the relevant facts, would apprehend that a child would be even less likely to recognise when such offending behaviour was taking place, particularly where the child is placed under the supervision of the Applicant.
3. I am also not satisfied that the Applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. The Applicant's retaliatory behaviour, as described by Dr Katz, occurred in the very context in which the Applicant claims he was subjected to bullying. If similar stressors were to occur in another workplace, which included children, there can be no assurance at the present time that a similar response might not occur. In my view, having considered all the evidence, the Reasonable Person Test is not satisfied.

1. The Public Interest Test is not entirely separate from the matters in 13(1)(a)-(j) of the WWC Act. Where an Applicant fails to satisfy the Tribunal that he or she is not an unjustifiable risk, then it weighs against the public interest to give an Assessment notice. As stated by His Honour Justice Kyrou in LKQ:[12]
   1. Where the VCAT determines that a category 2 applicant does not satisfy s 13(2) of the WWC Act, it is difficult to envisage how the VCAT could find, ... that it is in the public interest to give an assessment notice.
2. However, the Tribunal must take into account matters, in addition to the public interest in protecting children against unjustifiable risk of harm. What is involved in the notion of public interest, is necessarily broad.
3. In LKQ, Kyrou J acknowledged that public interest considerations potentially relevant included:[13]
   • (a) whether the applicant's current or proposed activities constitute childrelated work;
   • (b) evidence that an applicant was dishonest, or suffering from a serious mental illness, or had problems with drugs or alcohol;
   • (c) evidence that the applicant had skills that could benefit children; or
   • (d) evidence that the applicant was a positive role model for children.
4. The Applicant's purpose for obtaining an assessment notice is so that he can resume swimming coaching. This is an activity which clearly does constitute child related work and the Applicant has skills that can benefit children in this regard.
5. There is no evidence that the Applicant has any problems with illicit drugs or alcohol or that he is suffering from a serious mental illness. However, his depressive symptoms are still being treated with medication; his insight into his offending and acceptance of responsibility is somewhat tenuous; the Applicant's pornography addiction remains a concern which his psychiatrist Dr Katz has not yet had the opportunity to explore and resolve; and there is otherwise an acceptance by the Applicant that he requires ongoing regular psychotherapy from his treating psychiatrist to address the causes of his aberrant behaviour.
6. While the Applicant gave anecdotal evidence about ways in which his swimming coaching had benefited his students and his aspiration to provide discounted services to socially disadvantaged children, who may otherwise be unable to afford lessons, there was no objective evidence that the Applicant possesses any special skills which might distinguish him from another competent and dedicated swimming coach. The Applicant did not provide any references.[14]
7. Finally, I note the Applicant's oral evidence that previous earnings for swimming coaching were in the order of $2,500-$4,000 per year.[15] Accordingly, swimming coaching has never been his primary or even a significant source of income for him, in terms of supporting his livelihood.
8. I am not satisfied that it is in the public interest to give an assessment notice.

1. It is clear from the objects of the WWC Act that Parliament's intention is to protect children from sexual and physical harm. The legislation is not punitive, the protection of children is paramount.
2. The Tribunal must determine that it is appropriate to refuse an assessment notice unless satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, having regard to the matters listed in s 13(2) of the WWC Act.
3. In this case, for the reasons given, I am not satisfied that the Applicant would not pose an unjustifiable risk to the safety of children. In addition, I am not satisfied that the Applicant satisfies the Reasonable Person Test or the Public Interest Test.
4. Critical to the Tribunal's determination at this stage is the relatively short elapse of time since the offending conduct, which has given rise to a number of direct and indirect consequences, including:
   • (a) The Applicant is still subject to a CCO;
   • (b) He presents as having not fully accepted responsibility for his offending or having come to terms in his own mind, about the true nature of the offending;
   • (c) He has demonstrated a lack of insight into the cause of the offending;
   • (d) His previously expressed remorse was undermined by his oral evidence; and
   • (e) The Applicant accepts the evidence of his treating psychiatrist that treatment is in the early stages and that an additional 2-5 years of treatment is required to ensure that the Applicant has learned to respond to stress in a socially appropriate way.
5. The decision of the Respondent to revoke the Applicant's Assessment Notice and to issue a Negative Notice is affirmed.

[1] See Ferrier Hodgson, Preliminary Forensic Investigation Report, [Government Department], 6 August 2014.

[2] Statement of DSC Ractliffe, paras 37-45.

[3] The Tribunal was not provided with a copy of the Magistrate's sentencing remarks.

[5] In fact the recording of Subject 2 took place on 12 February 2014 and alleged attempted Upskirting of Subject 1 took place on 30 July 2014

[6] See ZZ v Secretary, Department of Justice & anor [2013] VSC 267 [103-111]

[7] Submission to the Working with Children Check Unit in response to the issuing of an Interim Negative Notice, received by the Tribunal on 6 July 2015, paras 5 and 6. Amended for minor typographical errors.

[9] Unreported decision of Judge O'Neill VP, 14 October 2011, para 53.

[10] And endorsed by His Honour Justice Bell, ZZ v Secretary, Department of Justice & anor [2013] VSC 267 [103]

[11] Maleckas ('LKQ') v Secretary of the Department of Justice [2011] VSC 227 (31 May 2011) [80].

[12] Maleckas ('LKQ') v Secretary of the Department of Justice [2011] VSC 227 (31 May 2011) at [93].

[14] The Applicant noted that the organisation which he works for does not provide references. It will only confirm that a person is an employee and the hours for which that person has worked. However, this does not preclude the Applicant from seeking a reference from colleagues or parents of his students directly.

[15] The actual figure for the last financial year was approximately $400. The Applicant explained how he was not in a good frame of mind to teach swimming while he dealt with the criminal proceedings and other stressors, hence the reduced earnings.