2. It was also submitted that the two psychologists had each scored the applicant in the low-moderate risk of offending in one of the scales, the Static-99 evaluation for risk of sexual re-offending ('Static-99'), administered by them in their assessments. The respondent submitted that the applicant must fail because of these considerations under s 26(2) of the Act.

3. The respondent also submitted that even if satisfied of the matters under s 26(2) of the Act, the Tribunal retained a discretion under s 26(3) of the Act to refuse to direct the Secretary to give an assessment notice, where the Tribunal was not satisfied, in all the circumstances, that it was in the public interest to so direct the Secretary. It was submitted that it was not in the public interest for the assessment notice to be given. In this regard the respondent submitted that the applicant did not need the assessment notice, as he was not intending to work with children in his capacity as a trainer or administrator in the hospitality industry. If, in fact, some institutions were requiring a WCC when in fact the Act did not require it, it was unfortunate for the applicant to be caught by such policies, and to be unable to apply for those positions, but this in itself was not sufficient to establish a public interest in the giving of an assessment notice.

CONSIDERATION OF SPECIFIC FACTORS UNDER S 26(2) OF THE ACT

Nature and gravity of the offence and its relevance to child related work

1. The indecent assault did not arise out of the proximity to children by reason of the applicant's work. I accept that the offence of indecent assault is a serious offence, and that it constituted a breach of trust in the circumstances. However, it was an isolated incident. The applicant was immediately remorseful, made full admissions, told his sister of the incident on the night, and has remained very ashamed of his conduct. I consider on the evidence before me that he was depressed at the time, withdrawn and isolated, and suffering after the break up of his first homosexual relationship. He had no prior convictions for any sex offences, nor any later ones. The penalty imposed suggests that this offence was not of the most serious kind in the range of indecent assaults.

1. It is approximately 5 years and four months since the incident occurred. The respondent submitted that not enough time had passed to enable the Tribunal to be satisfied that giving the notice would not pose an unjustifiable risk to the safety of children. This was particularly the case because the two assessing psychologists had scored the applicant on the Static-99 as being at low to moderate risk of re-offending. In addition, it was submitted, there was a prior conviction for theft in 1999, and no evidence of community engagement or the leading of an exemplary life which was present in other cases.

2. I consider that in the circumstances of the present case, the five year period since the offence occurred is sufficient to enable me to form a conclusion as to the likelihood of re-offending. It is clear that the incident was an isolated one, which occurred in the context of an emotional crisis and a depressive episode. There had been no such conduct before and none since. The applicant was immediately remorseful, ashamed, and aware of the impact of the incident on the victim. He resumed counselling after the incident, recovered from his depression, openly acknowledged his homosexuality to his friends and family (apart from his father). The two assessing psychologists have concluded that in their clinical opinion he presents a low risk of re-offending.

Whether a finding of guilt or a conviction was recorded for the offending; and the sentence imposed

1. He pleaded guilty and a conviction was recorded. The penalty imposed was a fine of $1500. The maximum penalty available was 10 years' imprisonment. In the circumstances, it is clear that the magistrate imposed a very light penalty on the applicant. The magistrate did not exercise his discretion to place the applicant on the sex offender register.

The ages of the applicant and of the victim at the time of the offence

1. The victim was 16 at the time of the offence and the applicant was 45 years old. Although the age gap is significant, it is also relevant that the victim was not a very young child, which would exacerbate the offence.

Has the conduct constituting the offence been decriminalised since the offence was committed?

1. The offence has not been decriminalised. Counsel for the respondent submitted that sentences for these offences have increased since the offence was committed, and that as a result of legislative changes to the Sex Offenders Registration Act 2004 (Vic), if the offence had occurred a year later, the applicant would have been placed on the sex offender register for eight years and would have been ineligible for an assessment notice.

The applicant's behaviour since he committed the offence

1. The respondent pointed to the absence of evidence from an employer or other community members. However, I accept the applicant's evidence that he has been so ashamed of his conduct that he has told few people about it. He told his sister on the night of the offence. His evidence was that he was consumed with guilt after the offence and decided to kill himself but after taking an overdose of sleeping pills did not proceed with his plan. His sister said that he rang her on the night of the offence, crying, and was very ashamed and remorseful. She was concerned for his safety and sent one of their sisters to stay with him. She said he was still remorseful and ashamed to this day. She was confident that he could be trusted around children as, prior to the offence, she worked at the hotel with him every weekend and said that he worked with young counter staff at the hotel and they all liked him. In addition, she said that she and others had got together at Christmas for years and left their children in the applicant's care without any complaints.

2. The two examining psychologists also found that the applicant has shown remorse and insight into his conduct since it occurred. He has also shown empathy for the victim. He resumed counselling, and developed insight into the factors which led to his depression in the months prior to the offence. These include his own history of being a victim of sexual abuse to one of his brothers for a period of about five years until he was 17; his low self esteem and his inner conflict about his own sexuality. He has become open and confident about his sexuality and aware of the triggers for depression and the need to remain engaged with family and friends. Since the offence he has been working as a food and beverage attendant on a casual basis but has experience and qualifications as a trainer in commercial cookery, in hospitality, human resources and management which he would like to use on a permanent full-time basis.

The likelihood of future threat to a child caused by the applicant

Mr Bernard Healey, clinical psychologist, provided a report dated 7 March 2006 for the applicant's appearance before the Magistrates' Court. At that time, he felt that the applicant was suffering from depression, anxiety, significant social introversion, with some schizoid and psychasthenic trends. He noted that after the traumatic break up of a relationship with a man in 2005, the applicant had sought counselling which ended prior to the offence. After the offence, the applicant resumed counselling for a number of months.

Mr Healey provided a report dated 3 March 2011 in which he noted the applicant's history which included obesity as a teenager, sexual abuse by one of his brothers for four years from the age of 13, ambivalence about his sexual orientation, and his first serious relationship in 2004 which ended in February 2005. He was devastated by the end of that relationship and was depressed at the time of the offence. He had had counselling for some months which ended before the offence. He was ashamed of his offending behaviour and particularly concerned about its impact on the victim. Mr Healey noted it was significant that he had no interest in pornography or involvement with minors.

Mr Healey administered an intelligence test which revealed that the applicant had superior intellectual capacity and a personality test which indicated no depression or thought disturbance but a mild level of social introversion and mild to moderate anxiety. Compared with the testing which had occurred in March 2006, these results were consistent with 'significant improvement in his emotional state'.[3]

Mr Healey administered the Sexual Violence Risk-20 questionnaire ('SVR-20') which indicated there was no significant risk, and the Static-99, which revealed 'low to medium risk'. He noted that the Static-99 ranking was the result of the fact that he had offended with a minor and had been convicted. He noted that the applicant was now far more confident of his sexual identity, was accepted by his homosexual and heterosexual friends and dealt far more effectively with the ending of a more recent relationship in 2010. He noted that the applicant remained remorseful about the offence.

At the hearing, Mr Healey agreed that the offence showed predatory behaviour, but felt that this was an isolated incident and that the applicant was not a predator. His clinical opinion was that the applicant is at low risk of re-offending because of the fact that he had now accepted his homosexuality and been accepted by his friends. He agreed that with hindsight the applicant should not have stopped counselling prior to the offence.

Dr Aaron Cunningham provided a report dated 28 February 2011. He administered the SVR-20 which he found indicated a low risk of sexual re-offending. He administered the Static-99 which revealed a low-medium risk of sexual re-offending but noted that this test does not take into account the rehabilitative efforts he has engaged in. He administered the Structured Interview of Reported Symptoms ('SIRS-2') which indicated that the applicant was genuinely responding to the assessments. Finally, he administered the OMNI-IV personality inventory which indicated some elevations on the avoidant personality disorder scale. He found that the applicant was not suffering any mental illness or disorder.

Dr Cunningham concluded that on the basis of the clinical interview and psychometric assessments, the applicant presented as a low to low to medium risk of sexual offending. He noted that the offence occurred in the context of a relationship breakdown and depression and there was no indication of an underlying sexual deviance. He noted that the applicant had taken steps to improve his mood and address his risk factors for depression.

At the hearing, Dr Cunningham said that the applicant was open about the details of the offence, showed empathy with the victim, and had benefited from counselling in that he developed insight into the triggers for his depression. He felt that the Static-99 over-estimated the risk because it did not take into account his mental state at the time, his improvement since then, any dynamic risk factors, or the professional judgment of the interviewing psychologist. He felt that the SVR-20 was a more accurate instrument and was more consistent with his professional assessment of the applicant. Dr Cunningham said that his clinical opinion was that the applicant falls in the low risk category. He considered that the applicant did not present with any sexual deviance and it would not be appropriate for him to be involved in a sex offender treatment program. He agreed that while the offence showed predatory behaviour it was an isolated incident and he felt that the applicant was not a predator.

I accept the applicant's evidence as to the circumstances of the offence, his mental state at the time, as well as his lack of confidence about his sexuality. I acknowledge his shame, remorse and empathy for his victim. It is clear that he has come to terms with his sexual identity, learned how to deal with the break up of a relationship, and learned to remain involved with friends and family. His depression has resolved, he has been accepted by friends and family, and he has been working consistently. I consider that his life circumstances are very different to what they were at the time of the offence. I accept the expert psychological evidence that the applicant presents a low risk of re-offending.

Any information given by the applicant or in relation to the application

1. I have considered all the material relied upon by the applicant.

Any other matter that VCAT considers relevant to the application

1. I do not consider that there are other matters relevant to the application.

1. I have taken into account all the relevant matters under s 26(2) of the Act. I am satisfied for the reasons outlined above that giving an assessment notice would not pose an unjustifiable risk to the safety of children.

In addition to being satisfied that giving a notice would not pose an unjustifiable risk to the safety of children, I must be satisfied that it is in the public interest to give the assessment notice.

It was submitted on behalf of the respondent that it was not in the public interest to give the assessment notice, for a number of reasons. Firstly, the Second Reading Speech of the Working with Children Bill[4] refers to applications to VCAT which 'will allow the scheme to deal with extraordinary situations that may arise'. It was submitted that there was nothing extraordinary in the applicant's situation. Secondly, it was submitted that the applicant did not plan to work with children and that even if he wanted to work in hospitality (as a trainer or in administration) at a TAFE college he did not need a WCC due to the relevant exemptions in the Act. It was submitted that if some institutions who could avail themselves of the exemption under the Act nonetheless adopt policies requiring job applicants to have a WCC, the applicant should simply not apply for those positions. Finally, it was submitted, it was not in the public interest to give a person like the applicant the opportunity to work with children or to work in positions where he has further access to children.

I note that the applicant's qualifications and experience are in the area of hospitality and training. He completed Year 12 and then further qualifications (Diploma in Hospitality, Certificate II in Workplace Training). He worked as a hotel manager, food and beverage manager and night manager at hotels here and overseas. He also led a department of hospitality and training at a training college for a few years before running his own bed and breakfast business. Since the offence, he has worked largely in human resources at a hotel, and since 2009 on a casual basis as a food and beverage assistant. He wants to return to working in the administrative side of the hospitality and training industry, but knows from experience that it is often necessary to enter that industry first as a trainer. He applied for the WCC because his research indicated he would need it if he wanted to get work with training organisations.

I am satisfied that it is in the public interest to give the assessment notice, for a number of reasons.

Firstly, the notion of 'public interest' is broad. It includes the central consideration which is the need to protect children from sexual or physical harm. But it also embraces other considerations, including, for example, the right of a person to engage in work or in community affairs or the right of person who has rehabilitated himself to be permitted to re-enter the work force in an area in which they have qualifications and experience.[5] In the circumstances of this case, this does not mean a return to a profession involving working with children; but it may involve a return to training activities which may involve the training of apprentices in the hospitality industry. The public interest may also include the interest in not unnecessarily restricting the employment prospects of older workers, such as the applicant, who have considerable experience in their chosen occupations.

Usually, one would expect that it will be in the public interest to direct the Secretary to give an assessment notice to an applicant if the Tribunal is satisfied that the giving of the notice would not pose an unjustifiable risk to the safety of children.[6]

Secondly, even if it is the case that the Act does not require the applicant to have a WCC to do the work he wishes to do with adults in the training or hospitality sector, it is clear on the material tendered by the applicant[7] that some institutions require the WCC. The material tendered shows that the WCC is required for positions including: student enrichment programs adviser at La Trobe University; part-time catering assistant at Mannix College in Clayton; hospitality trainer with Hospitality Training Australia; and positions as trainers or assessors for BEST.

Having applied for the WCC in good faith, he cannot apply for the positions requiring the WCC without receiving an assessment notice. This is the case notwithstanding the fact that he has never worked with children or sought to work with them, nor seeks to work with them in the future. Although s 15(1) of the Act allows an applicant to withdraw an application for a WCC, an application cannot be withdrawn after an interim notice has been given. The applicant has continued to believe that the WCC is required for some training and hospitality positions. The respondent raised the concern that the Act was being misused by institutions who required the WCC as a matter of policy when the Act did not require it, and by applicants who mistakenly believed that the Act required them to have one.

I acknowledge that this is a matter of concern which may be able to be addressed by the respondent, whether by the amendment of the legislation or by other measures. However, I do not consider that this concern should be visited against the applicant in this case. Having applied for the WCC in good faith, and, having received a negative notice, he is caught by the policies of institutions to which he wishes to apply to for employment in that they require the WCC (even if the Act, in its terms, does not require one).

In the circumstance of this case, I am satisfied that it is in the public interest to give the applicant the assessment notice he seeks.

1. I consider it appropriate to direct the Secretary to the Department of Justice to give an assessment notice to the applicant.

[1] See clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences).

[3] See the report of Mr Bernard Healy dated 7 March 2006.

[4] See p. 2000 of Hansard on 21 July 2005.

[5] See PJR v Secretary to the Department of Justice [2006] VCAT 2455.