Victorian Civil and Administrative Tribunal|2010-09-08

The Applicant submitted that on the scale of offences set out in schedule 1 of the Sentencing Act 1991, indecent assault is at the lower end of the range. It was submitted that this particular instance of indecent assault was furthermore at the lower end of examples of indecent assault

Great emphasis was placed by the Respondent on the fact that SVP pleaded not guilty to the offence, which I was told showed a lack of compassion for the victim and a failure to accept responsibility. I was told that this fact distinguished the case from other cases previously determined by VCAT.

The offence of indecent assault is a serious offence. I have had the benefit of viewing the CCTV footage of the offence, reading the statement of the victim and his mother; the Record of interview of SVP and the transcript (part) of the Magistrates' Court proceedings. Taking into account all of the material, I agree with the submissions of the Applicant that this offence was at the very lower end of the scale.

The incident was over in moments. There was some ambiguity acknowledged by the presiding Magistrate as to whether SVP touched the victim on the buttocks or upper hip. There was no obvious distress displayed by the victim at the time, who appeared to simply keep working at his job.

SVP was extensively cross-examined on the content of his police Record Of Interview. I accept that he has little or no recollection of the incident other than having watched the CCTV footage and his answers in the interview are consistent with that. The case is atypical in this respect. It is explicable that when questioned by police, SVP could not recall the incident and could only do so when shown CCTV footage.

I do not, in the circumstances of this case, find that the fact that SVP pleaded not guilty to the offence evidenced a lack of remorse for the offending, disrespect for the victim or a failure to appreciate the gravity of the matter. This is not a case wherein SVP denied the occurrence of the incident in any way. He challenged the interpretation to be put on the intention behind the incident, it being his contention that it was merely a gesture he being a friendly tactile personality. His candid Record of Interview and the way in which his defence was conducted all point not to him denying the incident but seeking to explain how and why it occurred.

It was appropriately conceded by SVP in his evidence before me, that the victim had indeed found the incident to be a very distressing one as evidenced by his victim statement and evidence and that of his mother. I accept the evidence of SVP that he now fully appreciates that it is not appropriate to touch a child.

It is not for the Tribunal in these types of applications to second-guess the findings made by the Magistrate or the County Court Judge who heard the case. Although the Respondent urged me to find that the offending was exacerbated by allegations that SVP walked to the end of the aisle and turned and smiled at the staff member for 10 seconds and then reappeared at the other end of the aisle and smiled again, I was not prepared to do so. There were no such findings made by the Magistrate.

Section 26(2)(b) Period of time since the Applicant committed the offence

The offence occurred on 11 January 2005. The Respondent directed my attention to other matters dealt with by the Tribunal where the passage of time had exceeded 10 or 20 years. I was urged to find that 5 years was an inadequate period of time for me to form an opinion as to the likelihood of re-offending.

I do not so find in the circumstances of this case. The passage of 5 years without further incident gives me some strong reassurance that this was a one -of incident never to be repeated.

Section 26(2)(c) Whether finding of guilt/conviction recorded for the offence

It is relevant to my determination that although a finding of guilt with a fine of $500 was recorded, no conviction was imposed. The maximum penalty for the offence is 10 years.

Section 26(2)(d) the sentence imposed for the offence

As stated in paragraph 22, it is relevant to my determination that although a finding of guilt with a fine of $500 was recorded, no conviction was imposed. The maximum penalty for the offence is 10 years.

The Magistrate in imposing the sentence said: "in this particular case, the charge is a charge of indecent assault, but on the hierarchy of the scale of one to ten, I suppose, as to what indecent assaults are, this has got to be on the lower level"

Section 26(2)(e) The ages of the applicant and of any victim at the time the applicant committed the offence

SVP was aged 42 at the time of the offence and the victim was 16. Although the age differential is significant, it is also relevant that the victim was not a very young child, which would exacerbated the offence.

Section 26(2)(f) Whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it

The offence has not been decriminalised. I was told by the Secretary that legislative changes were made in 2007 amending the Sex Offenders Registration Act. I was told that had the offence occurred 2 years later, those changes would have meant that SVP would have been placed on the sex offenders register and would have been completely ineligible for an Assessment Notice.

Section 26(2)(g) the applicant's behaviour since he committed the offence

It was submitted that SVP still did not accept full responsibility for his actions and that he lacked insight about the gravity of the offence. I was urged by the Secretary to find that SVP was not forthcoming in his evidence about the circumstances of the case.

I did not consider that SVP lacked insight into the offending. I considered his evidence to be credible, frank and reflective of a complete understanding and appreciation of the gravity of the offending. He made it clear time and again in his evidence before me that he knows his conduct to have been wrong. I accept that SVP has completely reassessed what constitutes an appropriate personal boundary. His evidence was clear - he fully appreciates that the touching was inappropriate. I gained the strong impression that this is a matter that has played on SVP's mind constantly since the offending. I do not accept the submissions of the Secretary that SVP lacks remorse or an understanding or appreciation of the gravity of his offending. To the contrary I accepted his evidence that he felt genuinely sorry about his actions and the suffering caused to the victim.

I was urged to find SVP's case to be less compelling because he did not call a current employer or his wife to give evidence for him. I was referred to the decision of Her Honour Judge Harbison in XD v Department of Justice

(Occupational and Business Regulation) [2008] VCAT 118 where (from paragraph 35) she expressed concern at the evidence she had not heard - the failure in that case to call evidence from employers, family, friends and so on. This case is readily distinguished from that case.

I heard strong evidence in support of SVP. I heard evidence from Mr and Mrs G who are family friends of SVP, Mr C a former employer and KJR from SVP's church. Each gave powerful character evidence consistent with their affidavit material in support of SVP's application. None of them had any concerns about leaving children in his care or his working with children. All were upstanding members of the community. Although Counsel's cross-examination of each of the witnesses was relentless, all maintained unhesitant support for SVP.

I was asked by the Secretary to discount the evidence of Mrs G on the basis that she did not know the full extent of the allegations made against SVP. However when Counsel for the Secretary placed the allegations (put at their very highest and not all found proven by the Presiding Magistrate) to her, her support did not waiver for him

The Secretary submitted that SVP's witnesses failed to appreciate the gravity of his offending. Under extensive cross-examination, KJR, who is a Minister with the Uniting Church in Australia, did state that he thought the Courts had erred in finding SVP guilty of indecent assault. He expressed this almost as a legal opinion. The view is consistent with the views held by SVP's own legal team. I did not find that KJR through his evidence on this point, lacked insight into the gravity of the offending, or sought to excuse SVP in any way. He was a witness who appeared to me to show tremendous insight into the inappropriateness of touching children and to have given the matter his grave consideration. He gave evidence, which I completely accepted that SVP was an upright member of the community in all other respects of his life who retained the full support of the witness.

I was also shown a generic reference from the principal of the school attended by some of SVP's children which expressed the view that SVP shows exemplary parenting skills

Although I did not hear directly from SVP's wife, I heard that he has a stable marriage and is the father of 4 children. I accepted this evidence. I accept that there was also a good reason why SVP's current employer was not asked to be a witness in these proceedings. I accept that SVP took advice from his Solicitor on this point and made the decision based on the fact that his work is of a casual nature; he has not been engaged with his current employer for very long and that accordingly his employer could not comment on his work over an extended period of time. I accept that he felt his position as a casual employee may have been compromised. I accept that SVP called and gave appropriate evidence of his employment circumstances and history and that calling a multitude of witnesses to the same effect would not have taken matters any further

SVP is a person of previous and subsequent excellent character who has had to confide in a range of people close to him including friends; colleagues and the church

The Secretary once again under this sub-section of the Act, emphasised, as a distinguishing feature in this case, SVP's plea of not guilty in the Magistrates and County Courts. It is true that in many, if not all of the cases that have come before the Tribunal previously, the Applicant had entered a plea of guilty. I accept however that the circumstances of this case were not so clear-cut as to have that factor count against SVP's application to be issued with an Assessment Notice. I do not therefore and for the reasons I have previously outlined in relation to the offending; view that plea as the decisive factor in this case, despite the Secretary's urgings. The legislation is designed to be protective in nature, not punitive of the approach adopted by the Applicant in the conduct of his previous court proceedings

I was provided with a psychological report of Dr Annie Thomas dated 3 May 2010. Dr Thomas has had extensive experience with sex offenders, particularly in community based and prison based sex offender treatment programs. Whilst acknowledging that risk assessment is an inexact science, she stated that she could find no evidence to indicate that SVP poses a risk of sexually offending against children. Dr Thomas noted the absence of several key indicators in SVP's case. She noted his age and that higher recidivism rates are correlated with commencement of offending at a much younger age; the stability of his 21 year marriage and lack of prior offending history. She also found no indicators of anxiety or depression. She noted the ambiguity as she saw it in the CCTV footage. She gave evidence in which she adopted and expanded on her report.

Dr Tomas's evidence was vigorously challenged by the Secretary. The Secretary was critical of the evidence submitting that Dr Thomas had failed to apply appropriate diagnostic tools to formulate her assessment.

I accepted the evidence of Dr Thomas that she did not feel that the static 99 assessment model would be appropriate as it was not clear that the offending was sexually motivated such that the test may lead to false positive results. She did not see the need to apply other diagnostic tests because the reasons for doing so were lacking and the diagnostic tests may then have led to a false result.

The Secretary expressed further concern that Dr Thomas had spent less than 2 hours with SVP; perused some of the relevant material such as the CCTV footage after the consultation and showed a draft of her report to SVP and his solicitor. She was further criticised for her report not being precisely in accordance with VCAT Practice Notes.

I found Dr Thomas to be an extremely persuasive and highly credible witness. Under extensive cross-examination, she maintained her adamant position that SVP was not a risk of re-offending and posed no future threat to children. SVP attended upon Dr Thomas and fully described the incident and finding of guilt. I was satisfied that Dr Thomas spent sufficient time with SVP to form her assessment. I accept that she did not consider it necessary to reassess him after viewing the CCTV footage or other reports. All were consistent with what she had already been told by SVP. I further accept that it is Dr Thomas' practice to provide reports for perusal and that she would not have changed her opinion. She apologised that her report was not in accordance with VCAT Practice Notes but gave evidence that she has not appeared before VCAT previously as a witness.

Dr Thomas found there was no evidence that SVP was a risk of sexually assaulting children and I accept her clinical assessment of him

I also accept the submissions made on behalf of SVP that he is not a sexual predator; he is not a person who has sought involvement in children's' activities as may be expected if he had an unnatural interest in children. His work has focused predominantly in aged care and adults

I do not consider there to be any risk to any child if SVP were to be given an Assessment Notice.

Both parties referred me to previous determinations of VCAT. What is clear from those cases, is that the consistent approach of the Tribunal has been to deal with each case on its own merits. It is not simply a matter of stepping through the legislative steps - the whole of the evidence must satisfy the Tribunal that children will be protected by ensuring that the suitability of a person to work with children is checked. The Applicant does not however have to show extraordinary circumstances; there does not have to be a finding of zero risk.

Many of the cases in which Applicants have been successful in obtaining Assessment Notices have involved demonstrably more serious offences than the offence of which SVP was found guilty. The offences have been more serious in terms of the extent of the previous offending, the age of victims and the breach of trust involved.

I accept the SVP started a Diploma of Education to enhance his teaching capabilities. Upon receiving the Negative Notice he withdrew from the course after 2-3 months. I accept that he would have maintained health teaching possibly at a tertiary level, but for this fact.

I accept that SVP is employed as a nurse on a casual basis through an agency.

I accept that he has a workplace training certificate and was training in workplace safety but has been unable to continue training without the Assessment Notice. I accept that SVP cannot and has not been able to work as a trainer even with adults since 2009 because he has to have the clearance even if there are no children in his class. Accordingly his ability to work is compromised. His chosen occupation as a nurse and nurse trainer has been curtailed. I accept that his work options have been reduced and that although he is able to work, he is not engaged in work which would be most suitable for him. He has a passion for teaching within nursing and the failure to get the Assessment Notice impacts on this.

I further accept that SVP is married with 4 children; has a mortgage and other bills and needs to be engaged in appropriate work.

I accept he is involved in a wide range of community and church activities. His contribution to the community is significant

Is it in the public interest for the Secretary to give an Assessment Notice to SVP?

The Secretary correctly submitted that public interest is a broad concept which cannot be exhaustively defined and that the Applicant's interest is only part of the equation. It was submitted that because SVP has gainful employment and is not shut out from earning a living that he could not satisfy me sufficiently that it would be in the public interest to direct the giving of an Assessment Notice. I was urged to find that the broader public interest was served in satisfying community expectations that people who fail to appreciate that inappropriate touching of children is wrong, should not be entitled to work with children

The primary aspect of the public interest in these matters is the protection of children. Given my finding that the issue of an Assessment Notice to SVP would not pose an unjustifiable risk to the safety of children and my findings on all of the other matters relevant for consideration in this case, a conclusion that it is in the public interest to refuse the application cannot be sustained or justified.

I am satisfied that SVP does not pose an unjustifiable risk to the safety of children having regard to the matters set out in section 26 and in all of the circumstances it is in the public interest to direct the Secretary to give an Assessment Notice to SVP.

SVP v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1496 (8 September 2010)

SVP v Secretary to the Department of Justice

At a glance

Court

Decision date

Source

Judgment (52 paragraphs)

Parties

Cases Cited (1)

SVP v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1496 (8 September 2010)