When can the Tribunal order an Assessment Notice be given?

1. The WWC Act is protective. The main purpose of the WWC Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for children are subject to a screening process.
2. On a Category A application, the Tribunal must not make an order for the giving of an Assessment Notice unless satisfied that giving the Notice would not pose an unjustifiable risk to the safety of children having regard to factors set out in s.26A(3) of the WWC Act.
3. The WWC Act also requires the Tribunal to consider a separate "reasonable person test" and a "child-related work test." Finally the Tribunal must be positively satisfied that it is in the public interest to give the Notice.

1. I turn first then to a consideration of whether taking into account the factors set out in s.26A(3) of the WWC Act, VTN poses an unjustifiable risk to children.
2. Justice Bell said in ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013) at [13] and again in PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [40]:

The test of "unjustifiable risk" requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the Tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. Assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances.

(a) the nature and gravity of the offence and its relevance to child related work

1. The following Information was received from Victoria Police in relation to the rape charges:

The victim was at home when ex-partner (the applicant visited with daughter. The victim went into pantry to get some food. The applicant (ex-partner) followed the victim into pantry and digitally penetrated her. Several weeks later the applicant visited victim once again and continually attempted to handle her breasts and buttocks. The victim kept pushing the applicant away and in the process scratched the applicant's hand. The applicant then asked the victim for a Band-Aid. When the victim went into the bathroom, the applicant followed the victim and attempted to handle victim's breasts. The applicant then raped the victim-penis/vagina from behind. The victim received a laceration to her breast in the assault.

1. VTN was sentenced to a term of imprisonment in the County Court of Victoria on 12 October 2006. I read the reasons for sentence of His Honour Judge Barnett and the transcript of the plea hearing. I am satisfied that the above statement accurately describes the offending for the purpose of this application, save and except for that it fails to mention that during the first rape, VTN's daughter, aged 9, was in close proximity playing in the lounge room. That, in the context of this legislation, is a relevant feature.
2. I read a report dated 2 March 2007 compiled whilst VTN was in Ararat prison by Corrections Victoria, Sex Offender Programs. It provides a succinct summary of VTN's explanation for the offending.
3. The self-report about the offending by VTN is recorded as:

Prisoner reported a similar version of events as that in the judges sentencing comments (12/10/2006). He stated that on the day of the offence the victim wanted to see his daughter and so he took her to the victim's home to visit. He explained that he thought the victim "still loved" him and wanted to see him, using the visit with the daughter as an excuse. He stated that she had on previous occasions said to him that she loved him and had "kissed" him. He indicated that the victim did not like his new girlfriend and was "jealous of her". He reported that the victim and he broke up because he "couldn't communicate and was drinking a lot". He stated that when the victim went to the food cupboard he touched her on the vagina as he thought "there was still love there". He reported that she said "no" and pushed him away although he "kept going". However, he disclosed that he then got a "sick feeling" and stopped, she asked him to leave and so he did. On the second occasion he explained that he had on previous occasions loaned the victim his car and was there on this day as he was taking the car around to her home to give her the car. Prisoner [VTN] disclosed that he touched her on the breasts and then followed her into the bathroom and proceeded to forcefully penetrate her as he was thinking that "maybe this would get them back together, she would come back."

1. A COATS[1] report dated 28 April 2009 stated that VTN recognised his offending was connected to his daily cannabis and alcohol use prior to incarceration, as on each occasion he had been drinking.
2. I read a comprehensive report dated 12 June 2017, and heard evidence from Dr Aleksandra Belofastov, who is a clinical and forensic psychologist.
3. She noted that VTN offended against his ex-partner of eight years which was the longest relationship he had ever had. She noted that the termination of the relationship did not long precede the commission of the offences. She provided the following analysis of the offending:

It is possible that he still felt an attachment to her/did not "accept" that the relationship had ended, and committed the rapes in the hope that it would somehow bring them back together (noting that for [VTN] notions of love and sex were intertwined at that time. On the other hand, it may be hypothesised that [VTN] considered that he was entitled to have sex with his ex-partner with whom he had shared physical intimacy for so long, or that it was a way of maintaining some control in the relationship. Limited emotional regulation/coping skills, poor impulse control and impaired consequential thinking/cognitive appraisal may have played a role in each of the possible scenarios described. [VTN] appears to fully acknowledge the wrongness of his actions and admitted to selfishly pursuing his sexual interests with the knowledge that it was not consented to. He expressed shame and remorse for this and appeared to have developed a better understanding of the gravity of his actions for the victim.

Sexual penetration of female between 10 to 16 years and indecent assault

1. A thorough search of Victoria Police records was unable to locate any information regarding 1985 offences.
2. In his application to this Tribunal, however VTN said that in 1985 he had been in a relationship with a girl who was aged 14 at the time the relationship commenced. He was 19 and pled guilty to the charge of sexual penetration. He said he received a good behaviour bond which he complied with and that the girl and he continued the relationship for some time afterwards.
3. I accept that this accurately summarises what occurred.
4. It is consistent with what VTN reported to the Department of Justice during his incarceration for the rape offences, at which time he also stated that he had considered the victim as his girlfriend.
5. I note that when sentencing VTN for the rape charges, His Honour did not place great weight on those earlier offences. He made brief passing reference to them and said "by and large you have, up until this time, lead a relatively blame free life."
6. He then said:

The other matter which is of considerable significance and should be understood in relation to the last comments I have just made, is that you have an IQ of 66 which places you in the one percentile, that is, all but one out of 100 persons of your age would do better in terms of intellect. Consequently, your ability to cope with many of life's demands is limited.

It may be argued that his mental age was closer to her chronological age and that he did not appreciate at that time that his actions were wrong and unlawful. At the time of the current evaluation, [VTN] appeared to understand this, and also expressed cognitions that did not suggest a particular attraction to young females.

1. Each of the sexual offences for which VTN has been found guilty are directly relevant to child-related work.
2. VTN committed acts of sexual violence against his former partner. He did so on more than one occasion. Having committed one rape, he returned again, weeks later and again raped his victim. On one of these occasions, a child was in close proximity to the rape of her mother. The offences are extremely serious.
3. Regardless of whether or not VTN regarded the victim of his first offences as his girlfriend, children are unable to consent to sexual acts with adults. He was an adult. His victim was a child. The WWC Act aims to protect children from sexual harm.

(b) the period of time since the applicant committed the offence

1. It is 14 years since VTN committed the rape offences and 33 years since VTN committed the offence of sexual penetration of a female between 10 to 16 years.
2. Many years have passed since VTN has offended.
3. In BHB v Secretary to the Department of Justice [2008] VCAT 1946 at [12] Judge Harbison stated:

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 circumstances of each applicant must therefore be considered when deciding the weight to be attributed to this element.

1. A lengthy passage of time is not always determinative of whether or not a person will reoffend.
2. A significant period of time elapsed after VTN was found guilty of his first offences, before he reoffended. This could raise concerns that in VTN's case, the passage of time is not an indicator that he will not reoffend. I do not however consider this to be the case.
3. I accept that the earlier offending was quite different in its nature to the later offending. I do not consider that the offending can be said to reveal a pattern of behaviour in the true sense.
4. The most that can be said by comparison, is that on each occasion VTN put his own sexual needs first.

1. He has not, however, in the intervening years shown any propensity to reoffend against children. He has had age-appropriate relationships and has himself fathered children. The passage of time is a positive indicator in his favour.
2. VTN is currently in a positive age-appropriate relationship.

(c) whether a finding of guilt or a conviction was recorded for the offence

1. VTN was convicted in the County Court on each count of rape.
2. VTN was found guilty in the Magistrates' Court of the sexual penetration and indecent assault charges.

1. VTN received a 4 year sentence of imprisonment for the rape charges, with a non-parole period set at 18 months.
2. In the sentencing comments, His Honour noted the seriousness of the offences but also noted that VTN was co-operative and displayed remorse.
3. VTN was placed on a $500, 12 month bond to be of good behaviour for the sexual penetration and indecent assault charges.

(e) the ages of the applicant and of any victim at the time the applicant committed the offence

1. VTN was an adult when he committed each of the offences.
2. The offences of rape each occurred when VTN was aged 39 years. His victim was a similar age. As I have already indicated, their child was present on the first occasion.
3. VTN was aged 19 when he committed the offences of sexual penetration. His victim was aged 14.
4. I accept that because of his disability, at age 19, VTN may not have been functioning at a markedly different level intellectually than his 14-year-old victim. His mental age may well have been closer to her chronological age.
5. Nevertheless the WWC Act does not distinguish between those who may have impaired judgement, (for any number of reasons), and those who do not.
6. The legislation, is protective of children and VTN's victim was a child.

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it

(g) the applicant's behaviour since he or she committed the offence

1. VTN commenced and actively attempted to participate in, a prison-based sex offender program. Through no fault of his own, he was unable to complete the program, due to his level of cognitive functioning.
2. VTN's sentence of imprisonment was uneventful. He was a quiet and compliant prisoner who was released on parole on the earliest release date.
3. VTN has not committed any further offences since the rape offences.
4. He successfully completed his parole.
5. VTN had a history of alcohol and cannabis abuse prior to his incarceration. He was intoxicated when he committed each of the rapes. The COATS report said:

Since his early 20s [VTN] reported daily alcohol consumption. Prior to his incarceration, his alcohol intake was depicted as being 24 cans of premixed spirits per day. Upon release, [VTN] plans to attempt to moderate his alcohol use. His cannabis use commenced at the age of 39 and in the six months prior to his imprisonment, he used cannabis daily and estimated that he would smoke between 4 to 7 g per day. In regards to cannabis, his aim is to continue to maintain abstinence upon release.

1. VTN engaged in five sessions of drug and alcohol counselling as part of his parole. He was exited from treatment in August 2009 and the exit report indicated that his attendance was exemplary and he was able to acknowledge that substance use had caused issues for him in the past. He was recorded as making positive changes to abstain from drugs in the future and did not present with drug or alcohol issues during his parole.
2. VTN was unable whilst on parole to engage in a group-based treatment offered through community sex offender programs, because of his cognitive issues.
3. VTN has strong family supports, especially from his mother and current partner with whom he currently resides together with her two adult children. The couple have purchased a home together.
4. VTN himself has 4 children to 4 separate relationships. He also has grandchildren. He maintains regular contact with 3 of his children aged 30, 22 and 11 years. He sees his youngest child on most weekends and his two eldest children, both of whom have children of their own, on a regular basis.
5. Until he received a Negative Assessment Notice, VTN was working and was highly regarded in his workplace. VTN's employment has been extremely important to him since 2002. Even in the sentencing comments of His Honour Judge Barnett, reference is made to VTN being a respected member of the workforce and a courteous and reliable employee. It is a testament to the manner in which VTN was regarded in the workplace that after he completed his sentence of imprisonment, his employer was willing to re-employ him, even knowing his criminal history. According to review reports which took place during VTN's parole, VTN was performing very well in his employment. The notation was made that the employer had commended VTN's hard-working ethic.

(h) the likelihood of future threat to a child caused by the applicant

1. Under this heading I need to make an assessment of the likelihood of future threat to a child caused by VTN.
2. VTN contended that he poses no threat to children. He emphasised that he has children of his own and grandchildren for whom he provides care on a regular basis without supervision.
3. I read letters of support prepared for these proceedings. Family members who are aware of VTN's criminal history are seemingly prepared to leave their children in his care. His mother gave positive evidence about how VTN relates to children.
4. VTN's mother also gave evidence that VTN, has significantly reduced his alcohol intake since his release from prison and now only drinks reasonable amounts on social occasions.
5. I accept that VTN no longer uses illicit substances or drinks to excess.
6. Judge Barnett in his sentencing comments made reference to the fact that VTN was assessed by the Office of Corrections as being a low risk of reoffending on the Victorian Intervention Screening Assessment. He also noted that Dr Elizabeth Warren, who is a consultant forensic psychologist, formed the same opinion.
7. In the 2009 progress report (offender on parole), however, reference was made to VTN being assessed as a moderate to high risk of sexual recidivism. This was in accordance with the Static 99 actuarial risk assessment tool used in isolation from other instruments.
8. The most comprehensive evidence I received was from Dr Belofastov who assessed VTN's risks and protective factors using an actuarial measure (Static 99R) and structured professional guideline instruments (namely the RSVP and SAPROF). Overall, she concluded that VTN's risk of sexual offending fell in the Low - Moderate bracket, (which is an independent category, not a range). She said the current evaluation did not suggest that VTN presents a targeted risk to the safety of children.
9. Dr Belofastov gave evidence that VTN's offending had only occurred within the context of intimate relationships. She opined that VTN was probably never a risk to someone who was not in a relationship with him.
10. In her evidence before me, Dr Belofastov said there is no evidence that VTN presented risk factors targeted against children or that he had any paedophiliac interest.
11. Dr Belofastov also gave evidence that VTN expressed appropriate guilt and remorse and that he could articulate the impact of his offending on his victims and its consequences for them. Whilst she agreed that she was limited in her assessment of VTN because of his disability, she felt that his responses demonstrated appropriate reflection and remorse and understanding of his actions.
12. Having heard from VTN, I also accepted that VTN does have empathy for his victims and knows that his conduct was wrong. He has made multiple statements over the years, in different contexts, to this effect.
13. Dr Belofastov pointed to a number of protective factors that provided a degree of protection against future offending. These included internal, motivational and external factors. Dr Belofastov considered VTN's insight and remorse, the difficulties he faced in prison and his strong desire not to be imprisoned again, and his dedication to his employment and family as protective factors.
14. The Secretary however submitted that, given the protective nature of the jurisdiction, VTN needed to undergo further psychological intervention before I could be satisfied that he did not pose a threat to children. The Secretary pointed to recommendations made by Dr Belofastov that VTN:

... may benefit from further psychological intervention to develop emotional regulation skills training and also to work on developing a relapse prevention plan (re-examining the relationship between his thoughts, feelings and behaviours in the context of an offence cycle).... [VTN] may benefit from intervention addressing "positive relationships"; as strengthening his skills in maintaining healthy and fulfilling relationships will be an important protective factor for him. Of course, any interventions should take account of [VTN]'s disability and modify delivery accordingly.

1. I accept that it may well be desirable for VTN to engage in further interventions if they are possible.
2. That however is not the test I am required to apply.
3. In relation to the meaning of the terms "unjustifiable risk" and "likelihood" Justice Bell said in ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013) at [16] and again in PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [43]:

The legislation creates an important scheme for protecting children from the hazard or danger of being sexually or physically harmed by employees, volunteers and others. But it is not a scheme for protecting children from all hazards and dangers whatsoever, however insignificant be the nature of the potential harm or small be the degree of the probability of that harm occurring. That comes from the word "unjustified"...

Similarly, the relevant ordinary meaning of "likelihood" in s.13(2)(h) is "the quality or fact of being likely or probable". The relevant ordinary meaning of "likely" is likewise "probable". This too requires an assessment, one that may count in favour of or against the applicant depending on the level of probability.

1. I accept that even without further psychological intervention, the likelihood of threat caused by VTN to a child is now lower than his overall risk assessment of low-moderate. I accept that he is motivated to not re-offend.

(i) any information given by the applicant in, or in relation to the application

1. I read a number of very positive references and heard character evidence.
2. I accept that there are people in the community who trust VTN with their children and speak highly of his ability to relate to and look after them. They have no concerns about leaving him unsupervised with their children.

(j) any other matter that VCAT considers relevant to the application

1. VTN is limited by his intellectual disability in the work he is able to perform.

1. In Category A applications, there is a presumption against granting an Assessment Notice unless the test - that the applicant does not provide an unjustifiable risk to the safety of children - is positively satisfied.
2. I am satisfied on the evidence before me that VTN does not pose an unjustifiable risk to the safety of children.
3. I am satisfied of this considering all of the matters before me including:

- the significant length of time without further offending

- the deterrent impact the sentence of imprisonment has had on VTN

- VTN's immediate remorse and subsequent understanding that what he did was wrong

- the fact that VTN has never sought to minimise or deny his offending in any way

- the deterrent impact of engaging in multiple Court and Tribunal appearances and his understanding of the consequences of any further offending

- the reflection and learning that VTN has undertaken whilst in prison and thereafter which has led to a reduction in his drinking and cessation of substance abuse

- the positive protective supports which exist in his life

- my finding that there is no evidence that VTN is sexually interested in children; and my finding that VTN poses a low threat to children.

Reasonable person test- section 26C(2) WWC Act

1. In satisfying myself that giving VTN an Assessment Notice would not pose an unjustifiable risk to the safety of children, I must be satisfied that:
   • (a) a reasonable person would allow his or her child to have direct contact with VTN while he was engaged in any type of child-related work; and
   • (b) VTN's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
2. In VQB v Secretary to the Department of Justice [2012] VCAT, at [36] Vice President Judge Macnamara said:

The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving the applicant for a positive assessment a right to be heard, as well is considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however would not put aside all scepticism and reasonable caution in this most difficult area in some overoptimistic attempt to facilitate rehabilitation.

1. The reasonable person would be very cautious in this case.
2. However the reasonable person would take into account all of the factors I have taken into account in determining the risk/threat posed by VTN to children and would consider that risk/threat low.
3. The reasonable person would understand that VTN has been involved in the raising of his own children and grandchildren without concerns being raised.
4. The reasonable person would accept that when VTN committed the offences that he may not, due to his intellectual disability have fully understood the seriousness of his offending. The reasonable person would be assured that he now does.
5. The reasonable person would be mindful of the protective factors in place.
6. The reasonable person would consider that the time had now come to enable VTN to fully engage in society and would allow his or her child to have direct contact with VTN while he was engaged in any type of child-related work.
7. I am satisfied that VTN's engagement in any type of child-related work would not pose an justifiable risk to the safety of children. I note that VTN's potential work opportunities are extremely limited.

1. If I am satisfied that giving VTN an Assessment Notice would not pose an unjustifiable risk to the safety of children I may, by order, direct the Secretary to give the Assessment Notice to VTN if I am satisfied that in all the circumstances it is in the public interest to do so.
2. VTN has been terminated from his employment because of the Negative Assessment Notice.
3. VTN's employment has been extremely important to him since 2002. Even in the sentencing comments of His Honour Judge Barnett, reference was made to VTN being a respected member of the workforce and a courteous

and reliable employee. Reference was made to the potential impact on VTN's employment and the fact that his employer provides programs for people such as VTN.

In addition to maintaining healthy and supportive relationships (which also provide a degree of external behavioural control), a key protective factor for [VTN] will be to engage in meaningful occupation through appropriate employment and/other structured activities and pursuits.

1. These are matters of relevance when considering the public interest. I read a letter from the CEO of VTN's employer. I also heard evidence from him. It is quite clear that VTN will be unable to retain his employment if he does not have an Assessment Notice.
2. The permanent loss of VTN's employment would be devastating for him both emotionally and financially.
3. There is of course no guarantee that VTN will regain his employment. There can never be such guarantees once an individual's employment has been terminated[2].
4. However I am satisfied that it is in the public interest for VTN to be given an Assessment Notice. It is in the public interest for individuals with disabilities to be supported and encouraged in their working endeavours, where they do not pose an unjustifiable risk to children.

1. I will order the Secretary to give an Assessment Notice to VTN.

[1] Community Offenders Advice and Treatment Service

[2] I note that in September 2014, the Department of Health and Human Services established a Disability Worker Exclusion Scheme to exclude from employment, direct support workers in disability residential services who had been identified as posing a risk to the safety and well-being of people with a disability. The scheme's implementation is through a staged approach. Stage II of the scheme expanded the scheme to all disability services from 1 November 2017. VTN will apparently be captured by it and if he wishes to be re-employed, will need to persuade the director responsible that he is a suitable person to be employed.