Victorian Civil and Administrative Tribunal|2010-04-20|Before: Deputy President J

The applicant can apply to the Tribunal for an assessment notice: section 26. The Tribunal must not make an order for the giving of an assessment notice unless satisfied that this would not pose an unjustifiable risk to the safety of children having regard to the following matters:

(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
- (d) the sentence imposed for the offence; 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.

Subject to that, the Tribunal may by order direct the Secretary to give an assessment notice to an applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so: section 26.

As noted by Morris J, President, in PJR v. Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 the applicant does not bear an onus of proof as such but he is presented with a challenge to show why the Tribunal should be satisfied of the matters set out in the Working with Children Act.

There may be appear to be some ambiguity about the nature of the offence and PPE's intention but the offence has significant gravity. It is relevant to child-related work. The gravity is heightened not only by PPE's and V's respective ages, to which I return below, but also the fact that V was entrusted to PPE's care. I accept PPE and his witnesses as truthful in their evidence but I was concerned by the discrepancies in PPE's evidence. At least initially he gave an account that tended to put matters in the best light. On the other hand, when cross-examined he was prepared make concessions. This impressed me as consistent with what Mr. Bruce and Dr. Cunningham said - essentially that while there were discrepancies, possibly explained by the trauma associated with the episode and its consequences, there was not an essential denial of the offence or any attempt to suggest especially that it had not had an adverse impact on V. Whether, in Mr. Bruce's words, this was an instance of "misguided affection" for V or otherwise, PPE made no excuse for his conduct. I accept that he realises that, whatever his true intention, his actions must be described as wrong. By "his actions" I mean at least getting onto or into the bed occupied by V and making contact with her bottom.

Over eight years have passed since the offence was committed. Mr. Panayi submitted that in many cases determined by the Tribunal where the applicant had been successful twenty years or more had passed since the offending behaviour. He referred to BHB v. Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 1946 where Her Honour Judge Harbison, Vice President, made these remarks:

"It is self-evident that an offence which occurs in recent time will generally be more concerning than an offence which has occurred a long time ago. The fact that an offence may have occurred a long time ago may be an indication that the person concerned may no longer have a predilection for committing such an offence. On the other hand, it may just be an indication that the person may not have had the opportunity to commit further offences of this kind, having been found out once and punished in such a public way. The individual circumstance of each applicant must therefore be considered when deciding the weight to be attributed to this element." (at paragraph 12).

It may generally be so that the more time to have passed the more confidence the Tribunal can have in deciding that a notice should be issued. This will depend on all the circumstances. In the circumstances of this case I consider the time to be significant, in the way that Mr. Bruce expressed that.

A conviction was recorded but the sentence was lenient and the Magistrates' sentencing remarks are relevant. Mr. Panayi submitted that sentencing patterns have changed and Mr. Bruce commented that sexual offences involving children are generally nowadays viewed more seriously. Mr. Hayden conceded that a sentence now might be greater but submitted that the Tribunal was not in the position of the sentencing Magistrate. Mr. Panayi referred to BHB, cited above, where Her Honour also said that the leniency of the sentence imposed in that case did not diminish the gravity of the offence (at paragraph 10). I agree, but in that case the offence was much more serious than the offence in this case. The important point is to take proper account of all relevant considerations. I have regard to the lenient sentence and the remarks made by the Magistrate who imposed it.

The disparity in the ages of PPE and V is very significant. PPE was well into adulthood and V was still a young girl.

PPE's conduct remains an offence under the section the Crimes Act 1958 under which he was convicted.

In considering PPE's behaviour after the offence, I consider both his response to the offence and his general behaviour. I was troubled by evidence of his initial denials, and what strikes me as the ill-advised letter that he wrote to V but I accept that these were the result of the trauma and panic he expressed. I have also referred to some of the discrepancies in his account of events. Mr. Panayi submitted that PPE consistently used the word "back" instead of "bottom" in an attempt to diminish his culpability not only to the Tribunal but to the witnesses called in his support and that his concern had been more for himself and his immediate family than for V. Mr. Panayi referred to STO v. Secretary to the Department of Justice (Occupational and Business Regulation) [2008] VCAT 2537 where the Tribunal took into account that the applicant had not told his family about his offence. The Tribunal there formed the view that he had not come to terms with it and that he tended to downplay it (paragraph 46): see also XD v. Secretary to the Department of Justice (Occupational and Business Regulation) [2008] VCAT 118. In response, Mr. Hayden referred to HNO v. Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 1809 where the Tribunal observed that the applicant's witnesses were aware (as far as the applicant was able to make them) of the details of his offence and gave evidence that knowing those details in full they would be happy to leave an adolescent girl in his care.

I am satisfied that in PPE's case, within a reasonable time of committing the offence, he commenced counselling, he pleaded guilty even though he had a "no comment" interview with police, he cooperated with Mr. Bruce, he expressed empathy for V and made no attempt at the hearing to justify his behaviour.

So far as his general behaviour is concerned, there is no evidence that would give rise to concern. On the contrary, the evidence indicates that but for the offence PPE has led an exemplary life leading to various witnesses attesting to their confidence in him with children. And the offence itself, though serious, was isolated and was not one that I can be satisfied was committed for the purpose of obtaining sexual gratification.

Concerning the question of future threat, Mr. Hayden submitted that the crux of PPE's case was that the experts' view was that the risk was low. I do not delegate the "ultimate issue" to the experts, but I regard the psychological evidence in this case as having considerable weight. Mr. Bruce and Dr. Cunningham agreed that the risk of reoffending was low or minimal. Mr. Candlish accepted at least that Dr. Cunningham's methodology was appropriate. Mr. Bruce had the benefit of assessing PPE within a year of the offence as well as recently. When I consider also the evidence of PPE's behaviour prior to the offence as well as subsequently, I consider that there is no likelihood of a future threat to a child caused by him. As Mr. Panayi submitted "low risk" does not mean "no risk", but the legislation does not require that there be "no risk", recognising I think the difficulty for some suitable applicants to demonstrate that. Mr. Hayden submitted that there would be a risk with any applicant but that PPE was an "extremely" law abiding man who cared for others. He had always behaved well apart from the one relevant offence.

Regarding the other information given by the applicant and any other matters, Mr. Panayi highlighted what he described as the curious way in which this application had come before the Tribunal: PPE had not made a statement to the police; he had not given any material to the Secretary when the application was first considered; and he had merely adopted his solicitor's affidavit. There will of course be cases where an applicant will increase his or her prospects for success by perhaps being from the earliest opportunity more forthcoming. However, I do not see the failure to do so as necessarily fatal to an application. All the circumstances must be examined. As Mr. Hayden pointed out, PPE attended the police interview with his solicitor and the Working with Children Act was not in operation at the time. He acted on advice not to provide material to the Secretary but rather gave his evidence to the Tribunal and submitted to rigorous cross-examination.

Mr. Panayi submitted further that it was telling that there was an absence of "official" evidence on behalf of the basketball clubs. Mr. Hayden however pointed out that the witness had been in an official capacity for a number of years, including some time when PPE was coaching, and he was in a position not only to observe PPE but also receive feedback from parents and others about him.

Therefore, having regard to the matters in section 26, I am satisfied that issuing an assessment notice to PPE would not pose an unjustifiable risk to the safety of children.

I turn to consider the public interest. There is more than one way of looking at the public interest. In PJR v. Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 Morris J said this:

"The notion of 'the public interest' is broad. Certainly I would regard a central consideration to be the need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm. In this regard, many of the factors that are relevant in deciding whether the giving of an assessment notice would not pose an unjustifiable risk to the safety of children are also factors that are relevant in assessing whether it is in the public interest to direct the giving of such an assessment notice. However the notion of 'the public interest' might also embrace other considerations. In interpreting similar legislation in New South Wales it has been said that the right of a person to engage in work is relevant ... A similar contention might be advanced to the effect that a person has a right to engage in community affairs. It is not appropriate to seek to define the boundaries of what is in the public interest. But I do think it will usually be the case 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." (at paragraph 45).

Mr. Panayi referred to MH v. Secretary to the Department of Justice (Occupational and Business Regulation) [2008] 1514 where Judge Harbison, Vice President, made these remarks:

"the wishes of an Applicant, and any disadvantage to him in not being able to pursue the work he wishes to do, is very much a secondary consideration under this Act. The need for children to be protected is the first and foremost consideration." (at paragraph 33).

Her Honour's comments in MH should always be borne in mind. However, in

my view it would be in the public interest for PPE to be given an assessment notice. This is not only because I consider that he would not pose an unjustifiable risk It is also because I am satisfied his strong desire to return to coaching is matched by the special attributes he has that would make his further contribution to that sport particularly valuable.

The question might then be asked whether the public interest requires the granting of an assessment notice to PPE when he is already exempt under the Act and might either request that the policy of Basketball Victoria be departed from in his case or, if not, seek to challenge that policy.

If the Tribunal decided cases against PPE and others in like circumstances, he or they might approach Basketball Victoria in such a way. In my view, that would not be a proper reason to refuse PPE's application where I am otherwise satisfied that an assessment notice should be issued to him.

Pursuant to s 26(3) of the Working with Children Act 2005, the Tribunal directs the Secretary to the Department of Justice to give an assessment notice to the applicant.

PPE v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 485 (20 April 2010)

BHB v. Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 1946

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

MH v. Secretary to the Department of Justice (Occupational and Business Regulation) [2008] VCAT 1514

PJR v. Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455

STO v. Secretary to the Department of Justice (Occupational and Business Regulation) [2008] VCAT 2537

XD v. Secretary to the Department of Justice (Occupational and Business Regulation) [2008] VCAT 118

PPE v Secretary to the Department of Justice

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

PPE v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 485 (20 April 2010)