Victorian Civil and Administrative Tribunal|2010-03-09|Before: Deputy President J

The applicant told me that a small amount of his volunteer work with the clubs had involved working with under age players, both boys and girls, although not so many girls played cricket and only a few played soccer. There was always adult supervision. He administered first aid though had not had to do that for the soccer players. With football, he was involved with taping and rub-downs. There were netball players also but he tended not to be involved with them. He enjoyed what he did. He said that it filled in his weekends. He attended the clubs on Thursday evening and Saturday morning, looking after teams from 10 a.m. to 6.30 pm.

The clubs had a rule about the supervision of treatment. They were strict about making sure that someone was with the trainers while they were treating an under age player in the rooms. Generally that would be the player's parent or perhaps the President of the club or a coach would stand by.

Cross examined by Mr. Burns, TTK said that he entered a guilty plea to three counts of sexual penetration. The sexual relationship with the victim lasted about two years. Questioned about the contents of the police document mentioned earlier, he agreed that at the beginning of the relationship the victim was aged 13 years and 10 months. The inconsistency in the police record appeared to confuse TTK and he said that he found all this hard to remember because he had been with a "new person" (his wife) for seven years. He said he "honestly believed it would be" the earlier date mentioned in the police record that his relationship with the victim commenced. He agreed that if the dates were correct, then at time he was aged 18 years 4 months and the victim was aged 13 years and 10 months. Within a matter of months they turned 14 and 19 respectively.

At that time TTK was living about 20 kilometres from town with his mother and an elder sister who was aged in her early twenties. His father had left the family home. The victim was living next door with her parents who owned the general store. She had been there for a year or two before the relationship began. TTK was working on a farm. Most of his time was spent milking cows and doing other work. After a while he and the victim began to go out outings such as to the cinema. He said he had no idea how old the victim was at this time. He found out her age afterwards. He agreed with counsel's proposition that she was a "mature young girl". He said he could not tell whether she was attending school or not at the time. He just took her out to movies. They went as "friends". He did not ask her age. A sexual relationship commenced about 6-12 months after they began seeing each other. TTK saw the victim a couple of times a week over the time before they first had sex. He agreed with counsel that this meant that they had spent about 25 hours in each other's company, yet he did not ask her whether she went to school or whether instead she worked in the shop. He saw her only at the shop. He said he was not sure if she was working for her parents. When he visited he chatted with her and parents.

TTK acknowledged that his plea of guilty showed his acceptance that the victim was under age. He said that is was about two months before the charges were laid that he found out that she was under age.

About six or seven months into the pregnancy the victim lost the child. (TTK actually said "'we' lost the child'. I mention also that at various times during the hearing TTK referred to the victim as his "partner" though he did not ever suggest that it would be wrong to describe her as "the victim"). TTK said that from his understanding the baby was still alive when the victim arrived at hospital but died there. He did not see the child. The coroner became involved which lead to the parents' dates of birth coming to light and, ultimately, the laying of charges.

Asked by counsel whether the victim's parents' were shocked to hear about the sexual relationship, TTK said they were. After the death of the baby the victim, her parents and he were all upset. They decided to go their separate ways. Before that time her parents had accepted that he and the victim we were partners. It was just after the victim became pregnant that her parents learned about the sexual relationship. The sexual relationship did not continue beyond the time of the child's death. He and the victim had actually "split up" a month or two before she went into labour. He conceded that he had sex with the victim on one further occasion after her parents found out about the relationship and despite them "possibly" saying to him that she was under age. He spoke to the victim and her parents after she gave birth. The parents wanted to talk to him. They sat down and had "a civil conversation" during which they agreed that it would be best for them to go their separate ways. He and the victim had already agreed to that.

TTK acknowledged that what he had done was wrong and that he knew at the time that it was wrong.

About 18 months after these events TTK formed a new relationship with the person who is now his wife. They had two children, the older one of whom was aged eight years.

TTK had had no involvement with the clubs since receiving the negative notice. The clubs had adult members. While he agreed it was possible to work with adults there were some juniors filling in for members of the adult teams. The cricket club had three senior and two junior teams. Juniors filled in for the seconds and thirds. A couple of juniors had filled in for firsts as well. The soccer club had senior and junior teams. In response to counsel's questions TTK said that he could see no difficulty about training adult teams only.

The two persons who provided written character references were aware of the offences. He told them about this when he received the interim negative notice. He asked them to attend the hearing and told them the hearing date as soon as he knew it but they could not attend because of their work commitments.

TTK said he could understand public concern about someone with his record holding a certificate that would enable him to do any child-related work.

When he was at the Court 10 years ago he had a barrister who asked the Court not to record a conviction because of his age.

TTK did not agree with the suggestion put to him by counsel that he was a threat to children.

I asked TTK what more he could say about how he had lived since his Court appearance. He told me that he obtained work in town manufacturing dairy products. He had been employed since that time, starting as a machine operator and becoming a leading hand a few years ago. He was still employed full time in that work and, as he was trying to pay off his house, he also worked a couple of nights a week in another job. There had been an eight-month break when he and his wife, whom he married a few years ago, moved to another part of the State to manage a dairy farm. That ended when there was a dispute with the owners over his wife's pay and the couple returned to their town where soon after TTK was accepted back at work and his wife recommenced some work herself. It was clarified that when TTK met his wife she already had a child who was then about a year old. They met through the football club. They had a child together about five years later. His wife knew about his offences. His mother also knew about that. She was present at Court when he was convicted.

TTK worked long days and some evenings. He occasionally went bowling and before receiving the interim notice spent his Saturdays with the sporting clubs. Otherwise he was at home with his wife and the children. TTK also told me that since his appearance at Court he had received one speeding fine. He said, though, that he had tried to keep a clean slate and live life with his family. He said that if he were not involved in sports training he did not think there would be another role for him at the clubs. He enjoyed the work. He made the comment that most Australians love that involvement. He enjoyed getting out and helping out and keeping himself busy. While the public had "a right to know" about his past, he would not be a risk of "anything like that" happening ever again.

Mr. Burns submitted that it was laudable that TTK wanted to volunteer for the sporting clubs but that the Tribunal had to consider that granting a certificate would mean that TTK could perform any child-related work over the next five years.

Mr. Burns further submitted that if the offences were committed today this would mean that TTK's name would be on the Sex Offenders Register for life. He described it as TTK's "good fortune" that he committed the offences at the time he did, that is before the legislation was enacted.

With regard to the public interest, Mr. Burns submitted that the public would be concerned that a person who committed these offences would be "deemed not unsuitable" to work with children. The offences were "only" 10 years old. They warranted conviction. Even after TTK came to know that the victim was under age the sexual relationship continued. The public would be concerned about that.

At the end of the hearing TTK said that he believed that he would not be a risk of re-offending. He said he got along very well with the parents at the clubs. He was hopeful that he would be allowed to continue his role there. He enjoyed it and it gave him something to do around the club.

The main purpose of the Working with Children Act 2005 is to assist in protecting children from sexual or physical harm by ensuring that people who work with or care for them have their suitability to do so checked by a government body: section 1. The Act categorises applications with reference to the seriousness of offending and its relevance to the possibility of sexual or physical harm to children. A category 1 application is one where the applicant has been convicted or found guilty of one or more specified offences that include a sexual offence committed by that person as an adult against a child. The Secretary must generally refuse to give an assessment notice on a category 1 application: section 12.

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, cited earlier, 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.

The applicant was not legally represented. Still there is more that he could have done to assist his case. Had he attended the Directions Hearing last November he may have gained some appreciation of what that might have been. For instance, he may have put forward some additional witnesses and ensured that his witnesses attended the hearing. In an appropriate case an applicant would also produce expert evidence such as the report of a psychologist.

During his evidence there were times when the applicant did not assist his case. His responses to questions about his initial knowledge of the victim's age, and whether she was still at school, were unsatisfactory. In another case Judge Harbison, Vice President, recently said this:

"It is true that often an applicant will have little recollection of the detail of offending behaviour, particularly if it occurred a long time ago. Sometimes it is said that an offender has deliberately blocked out details of the events from his mind because of his shame ..." (HBC v. Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130, at paragraph 36)

In this case it is not so much the detail of the offending behaviour as it is the detail of the victim's circumstances regarding which TTK displayed poor recollection. His confusion about the victim's age at the time the relationship commenced may have been contributed to by the inconsistency in the police record. His stated lack of knowledge about whether the victim was then at school or working with her parents appeared disingenuous. On the other hand TTK acknowledged his wrongdoing. He acknowledged that after he knew the victim's age he knowingly committed a further offence. Despite the reservations I have about those aspects of his evidence that I have referred to, I found TTK generally to be a reliable witness.

PJR v. Secretary to the Department of Justice was the first proceeding to come before the Tribunal under the Act. Since that time there have been numerous applications. The decisions the Tribunal has made in other cases can provide some guidance but each individual case must of course be examined on its own merits. Similarly, in considering the "section 26 criteria", regard must be had to the individual circumstances. For instance, the more serious the offence, and the greater its relevance to child-related work, the greater may the time elapsed need to be before the Tribunal could safely conclude that granting an assessment notice would not pose an unjustifiable risk to the safety of children. That is not to suggest that there may not be cases where the nature and gravity of the offence more or less overwhelms the other considerations.

I make those comments as a prelude to referring to some remarks I have found helpful that Morris J made in PJR v. Secretary to the Department of Justice. In 1975 PJR pleaded guilty to committing acts of intercourse as a 19 year old man with a female victim who was aged 15 years. At paragraphs 40 and 41 of the decision, His Honour said:

"Although the offences committed by the applicant in 1974 were serious, it is significant that they took place in the context of a consensual relationship between post-pubescent persons. It is also significant that the applicant committed the offences as a young adult (then aged 19 years) in circumstances where the person against whom the offence was committed was not a young child (but was aged 15 years). As I have observed, the applicant and V were part of the same general age cohort when the offences occurred. This is relevant because social relations commonly occur between persons in the age cohort of 15 years to 19 years. It is also relevant, and I think important, that the sexual relationship between the applicant and V did not occur in circumstances where the applicant was entrusted with the care of V. And the fact that the County Court imposed a very lenient penalty is also relevant as to the gravity of the offences.

In my judgment, the nature of the offences which the applicant committed in 1974 have little relevance to child related work. The essence of child related work is that an adult is put in a position of care and responsibility for a child. This was not a position in which the applicant found himself when he had sexual intercourse with V. Rather that relationship was of a different character: a character which is much closer in nature to the social and sexual relationship between equals than that between a carer and a child. In making this finding I am conscious of the actual maturation process of boys and girls; and the extent to which this can differ, not only between the sexes, but from person to person." (Paragraph numbers omitted).

I had the benefit of hearing from TTK. He is obviously a different individual to PJR and the victim in each case is different but the two cases appear to have some similarities. Despite the confusion, it appears likely that TTK was 18 and the victim just under 14 years when their relationship began. Therefore she was younger than the victim in PJR and a difference of two years for someone in that age group is significant. TTK however was also younger than PJR. He had just reached adulthood which does not mean that he had really matured. It would be dangerous to stretch the notion of "same general age cohort" too far, but I do not think that it is unreasonable to apply it in this case.

On the other hand, far less time had elapsed since the offending in this case and the offending in PJR. Nevertheless, in my view, 10 years is a significant period of time in the context of TTK's lifespan - being over a third of that. And the direction that his life has taken during that time is significant.

TTK's offence was very serious but from the point of view of its nature and its relevance to child-related work was reasonably comparable to the offending in PJR. Counsel for the respondent sought to emphasise that the bond was for two years rather than one but still no custodial sentence was imposed. I accept too that after the tragedy of the loss of the child, TTK faced the victim's parents, his own mother and the police. He pleaded guilty. He still acknowledges the wrongfulness of his actions.

I accept the applicant's evidence, and the evidence of his character witnesses, about his behaviour since the offences were committed. There was no submission that the traffic offence he mentioned, or an earlier charge of theft dealt with by the Children's Court, that was disclosed in the police report, had any bearing on the application.

There was no expert evidence regarding the likelihood of a future threat to a child. In my view there is no likelihood of that when regard is had to the circumstances that I have already considered, especially the evidence, which I accept, that TTK has for several years now been married and has been engaged in steady work and community activities in which he is well regarded.

I am mindful that an assessment notice would enable TTK to extend his activities beyond those with the sporting clubs. His work history suggests that the possibility of him wishing to or being able to do that is remote, although that is not the point. The possibility does not detract from my overall conclusion.

There other factors that I consider relevant. TTK has been involved with the clubs for a considerable period of time and the only evidence about that is that he has provided valuable service there. I think that it is also significant that his involvement was more or less a transition from his involvement as a participant after he sustained his injury. He met his wife there. There is nothing in the evidence before me to call into question TTK's motivation for becoming involved as a volunteer.

Although TTK agreed with counsel that he could limit his activities to the adult teams at the clubs, this did not appear to me to be properly thought through by him. His earlier evidence about the involvement of junior players in adult teams indicates rather that this would not be practicable and that if an assessment notice were denied TTK's role as volunteer at the clubs could not be resumed for now.

For the above reasons I am satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children.

This brings me to the final question, being the question of the public interest. On this subject, Morris J had this to say in PJR:

"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).

However any right to engage in community affairs may be expressed this must of course be balanced against other considerations. (The Charter of Human Rights and Responsibilities Act 2007 section 7 expresses Parliament's will regarding the reasonable limitation of the human rights protected and promoted under the Charter). There being, as I have found, no unjustifiable risk to the safety of children in this case, the public interest - in club members having the benefit of TTK's services and in TTK having the chance to contribute to his local community in this way - can be readily identified.

I conclude by emphasising the importance of the purpose of the Working with Children Act. I do not discount the seriousness of TTK's offending. Rather, despite some of the shortcomings in TTK's case, I have regard to the circumstances of the offence and the other matters that the legislation requires be taken into account.

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.

Human Rights and Responsibilities Act 2007

TTK v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 278 (9 March 2010)

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

HBC v. Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130

TTK v Secretary to the Department of Justice

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)

TTK v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 278 (9 March 2010)