REASONS FOR DECISION
1 The Applicant, who is now 60 years of age, was convicted of three offences of a sexual nature more than thirty years ago. All involved persons under the age of 16. As a consequence, by the operation of the Child Protection (Prohibited Employment) Act 1998 (Child Protection Act), he is now a "prohibited person" and it is an offence for him to work in child-related employment. He has applied to the Tribunal for an order under s 9(1) of the Child Protection Act, which, if granted, would allow him to work with children. He seeks this order so that he can pursue employment as a bus driver. The Respondent argues that the Applicant has failed to establish that he is not a risk to children and therefore the application should not be granted.
2 In these reasons, because of the sensitivity of this matter, I have decided not to publish any details that could identify the Applicant or anyone referred to in the proceedings other than the experts. The Applicant is referred to in these reasons by the pseudonym, "PV". The official copy of the orders provided to the parties will include the name of the Applicant.
Relevant legislation
3 Section 5(2) of the Child Protection Act provides that a person is not a prohibited person in respect of an offence if an order is in force under s 9 declaring that the Child Protection Act is not to apply to him or her. Section 9(1) provides that, on application from a prohibited person, the Administrative Decisions Tribunal may make an order declaring that the Child Protection Act is not to apply to him or her in respect of a specified offence. Orders made under s 9 may be made subject to conditions: s 9(9).
4 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children. Section 9(5) sets out a non-exhaustive list of factors to be taken into account:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(d1) the prohibited person's present age,
(e) the seriousness of the prohibited person's total criminal record,
(f) such other matters as the tribunal considers relevant.
Onus of Proof
5 The Applicant carries the onus, on the Briginshaw standard, that he is not a risk to children. The meaning of the word "risk", for the purpose of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J's analysis of the meaning of "risk" in R v Commission for Children and Young People [2002] NSWIR Comm 101, Haylen J said that s 9(4) was focussed on:
"…not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights." ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)
6 Young J held at [42] that "risk" in the context of s 9(4) meant "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child". That test is now binding on the Tribunal.
7 His Honour made it clear that the ability to impose conditions under s 9(9) should not be disregarded when considering risk. He dismissed the argument put for the appellant Commission that it was not permissible to impose conditions in order to lift the Applicant over the risk threshold. His Honour said that the power to make conditions under s 9(9) should be read so that the imposition of relevant conditions may make an Applicant "who would otherwise pose some risk to children into an Applicant who does not pose a real unacceptable risk to children": par [46].
Index offences
8 Wilful and Obscene Exposure In 1964 the Applicant, then aged 19, was convicted of the charge of "wilful and obscene exposure" after entering a guilty plea. Sentence was deferred and the Applicant was placed on a recognisance to be of good behaviour for a period of twelve months and fined 30 pounds.
9 The police facts sheet discloses that the Applicant had been masturbating outside a men's toilet block in a suburban park a short distance away from where a ten-year-old boy had been playing.
10 The Applicant gave an undertaking to the Court that he would seek medical and psychiatric treatment.
11 Attempt to procure an act of indecency In 1970 the Applicant, then aged 25, was convicted of the charge of "attempt to procure an act of indecency " and received a six-month custodial sentence which was suspended upon him entering a recognizance for three years and paying a fine of $200.
12 The transcript of the evidence given in court by the victim, a 15-year-old schoolboy, was tendered in these proceedings. The boy stated that he had accepted a lift from the Applicant who then invited him back to his place for a drink. The boy refused that offer and the Applicant then offered him a dollar to "pull him off". The Applicant admitted these allegations but told the police he had only been joking.
13 Aid and abet indecent assault on male person In 1973 the Applicant, then aged 28, was convicted of the charge of "aid and abet indecent assault on male person". The victim was a boy aged 15 years.
14 The police record of interview with the Applicant was tendered in these proceedings. At interview the Applicant admitted that he and the boy had masturbated each other in a public toilet.
Applicant's Age (s 9(5)(d1))
15 The Applicant is now 60 years of age.
Seriousness of Applicant's total criminal record (s 9(5)(e))
16 The Applicant's criminal record includes a number of convictions in addition to the index offences. None are of a sexual nature. They include malicious damage (1973) and assault (1984). In 2003, the Applicant was charged with making a false statement in failing to disclose that he was a prohibited person. That charge was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1992.
Other relevant matters (s 9(5)(f))
17 The Applicant was interviewed and assessed by psychologist, Dr Christopher Lennings, at the request of the Respondent. A report prepared by Dr Lennings, dated 11 July 2005, was tendered in these proceedings. In addition, Dr Lennings gave oral evidence.
18 Dr Lennings tested the Applicant using three assessment tools: STATIC-99, structured clinical assessment and personality assessment.
19 STATIC-99 is an actuarial test used to predict recidivism rates among known sex offenders by weighing key static or historical variables. According to Dr Lennings, on this test the Applicant fell within the high-risk group for sexual reoffending. That score, explained Dr Lennings, should be reduced as a consequence of the revisions to STATIC 99, introduced in 2003, which require the opportunity to reoffend to be taken into account in the calculation of risk. As the Applicant has never been incarcerated and therefore theoretically, has had the maximum opportunity to reoffend, Dr Lennings thought his risk of reoffending would more properly be described as low to medium.
20 Dr Lennings is of the opinion that the very long period since the Applicant has committed offences of a sexual nature means that STATIC 99 might not be a reliable measure for assessing risk in this case.
21 Dr Lennings identified a number of factors that were a cause for concern the assessment of risk. These included the Applicant's history of sexual abuse; alcohol abuse; mental health problems and hostile and aggressive behaviour.
22 At interview, Dr Lennings observed the Applicant to be a person who had difficulty in being able to control and to moderate his personality. He concluded that the Applicant had an "odd and eccentric nature" and presented as a "chronically suspicious and prickly person who has significant difficulties in interpersonal relationships". In Dr Lennings' view, the Applicant presented overall as a person "who has significant conflicts around sexuality, who has quite a disinhibited personality style with a tendency toward hypermania from time to time".
23 In Dr Lennings' view, the Applicant's conduct throughout the period 1967 to 1973 is consistent with a paedophilic orientation. Given the passage of time since the last offence of a sexual nature Dr Lennings considered there was a minimal chance that that behaviour would be repeated. He thought it more likely that the Applicant might commit a violent offence. Given his long history of difficulties in restraining his impulsive behaviours, if he were to work with children there was a real risk according to Dr Lennings that they might be exposed to the Applicant's disinhibited, aggressive and hostile behaviour."
Findings and Conclusions
24 The Applicant's case rests largely on his claim that he is, in effect, a reformed character. He asserts that this is illustrated by the fact that he has not acted in an inappropriate way with children since the conviction for his last sex offence in 1973. He asserts that his past is behind him and the conduct that led to his convictions for sex-related offences will not be repeated.
25 The expert evidence supports this contention at least in relation to the possibility of any sexual reoffending. The basis for Dr Lennings' opinion that the Applicant represents a low risk of sexually reoffending was first, the passage of time since any report of sexually inappropriate conduct and second, the Applicant's age. Of these he considered the first to be the most significant. According to Dr Lennings a decrease in libido and, consequently the urge to reoffend, was inevitable in a man of the Applicant's age. However he cautioned against placing undue reliance on this in the light of research, which he claimed, indicated that while recidivism rates among sex offenders tended to drop off with age, this is not necessarily true for child sex offenders.
26 In the course of these proceedings a number of issues arose which suggest that the Applicant might not have entirely forthcoming in the information he provided the Tribunal, the Respondent and Dr Lennings. For example, he revealed on the final day of hearing that he was a member of a church congregation. On two earlier occasions, once under oath, he claimed he had not participated in any community or voluntary group since 1981. When asked to explain this apparent inconsistency, he stated he had understood the question to be about organisations in which school-aged children participated. On his account, his church was attended primarily by homosexual men and lesbians and the only children that attended were babies. That claim conflicts with evidence given at the commencement of the final day of hearing, which was to the effect that the Applicant came into contact with, and had conversations with, the children of members of his church congregation.
27 At the final day of hearing, the Applicant disclosed he had a partner. According to the Applicant they shared a bed on weekends but did not have a sexual relationship. The Applicant did not tell Dr Lennings about that relationship when he saw him in late June. Nor did the Applicant admit to the relationship when questioned by the Respondent in these proceedings. The Applicant explained that the reason he denied being in a relationship when questioned by the Respondent was because it did not commence until early June and the question was asked in late May. This of course does not explain why this information was not disclosed to Dr Lennings.
28 The Applicant told Dr Lennings that that there had never been any major complaint about him throughout the 15 years he had worked as a bus driver. As Dr Lennnings noted, the searches undertaken by the Respondent revealed otherwise - his employment files were littered with complaints about him, some serious. None was of a sexual nature.
29 There may be an entirely innocent explanation for these apparent inconsistencies. Nevertheless, as a consequence the Respondent has not had the opportunity to make inquiries of the Applicant's church and accordingly the Tribunal has no evidence one way or the other on whether that organisation had received any relevant complaint about the Applicant. In addition, these non-disclosures raise the possibility that the Applicant might not have been candid in other evidence given in these proceedings.
30 These non-disclosures take on particular relevance give the paucity of evidence provided by the Applicant about his conduct over the last 30 years. While he provided some evidence about his employment history, his account of his life outside work was scant and general in nature. The only evidence to corroborate his account was a short testimonial provided by a person who claims to have known him for the past 10 years. He stated, "[d]uring this time I have noted and in fact bought to his [the Applicant's] attention problems which he has noted, taken on board and remedied." It is not possible to discern from that reference what the "problems" are that the referee believes have now been remedied. Notably, the reference is silent about the Applicant's conduct with children and therefore is of limited assistance in this matter.
31 The Applicant wrote to the Tribunal on 2 August 2005 and offered an explanation for his inability to provide any evidence as directed. He explained that those people who knew him in the late 60's and early 70's would no longer recognise him and his current friends and acquaintances have no knowledge of his earlier convictions when he was known by a different name. (The Applicant changed his name by deed poll in 1984).
32 Given that the conduct which gave rise to the three index offences indicates, as Dr Lennings believes, that the Applicant might suffer from paedophilic tendencies, evidence about his conduct since 1973 takes on particular importance. Yet his evidence about his activities outside work is at best scant and entirely uncorroborated. The Respondent's enquiries, which included the Applicant's former employers and the Department of Community Services, have not revealed anything adverse about the Applicant. However, the non-disclosure about his church activities means that those enquiries are not complete.
33 In addition, there is no evidence that the Applicant might be able to call on any factors which might protect him against further reoffending. For example, there is no evidence that the Applicant is in a stable relationship; his employment history has been unstable; there is a long established pattern of him demonstrating a lack of impulse control; there is no evidence that he has developed any insight into the reason for his sexually inappropriate conduct; he has a history of alcohol abuse and, as diagnosed by Dr Lennings, appears to suffer from a psychiatric disorder.
34 It is notoriously difficult in situations such as this for an Applicant to prove the negative. A self-represented Applicant often finds the task of obtaining evidence which might assist their case to be difficult. It may be that, had the Applicant had the benefit of legal assistance, he would have been able to obtain evidence to corroborate his claims about his conduct over the past 30 years.
35 Nevertheless the Applicant carries the onus, on the Briginshaw standard, of proving he is not a real and material risk to children. It is not enough for an applicant convicted of an index offence, especially one which indicates a propensity to act in a sexually inappropriate way with children, to merely assert that he or she does not represent a risk to children and hope that the enquiries made by the Respondent do not contradict that claim.
36 In the absence of better evidence about the Applicant's conduct over the past 30 years, I could not be satisfied that the risk of him reoffending is not real and material.
37 Given this finding, it is not necessary for me to consider the Respondent's submissions that there is a real risk that the Applicant might physically or verbally abuse children if he were to return to child-related employment.
38 Accordingly, I have decided to dismiss the Application.