Victorian Civil and Administrative Tribunal|2010-07-16|Before: Mr P

The applicant's behaviour since he committed the offence

I was told the applicant served his sentence in a low security prison and was allowed on work release. During his sentence, he was released on parole at the earliest opportunity and served that without problem. Apart from one conviction for dishonesty in 2004, he has not been charged with or convicted of any other offences. He has a good work history. He has coped with significant adversity, including the death of his wife from cancer, when his children were very young. He became the sole parent of those children for some years, until they were well into their teens. He has had a number of apparently stable and long-term relationships. He has had a long involvement in volunteer work, through his umpiring. All this, apart from the dishonesty conviction, point positively to his rehabilitation.
I did not find WSO's explanation for the circumstances in which he pleaded guilty to theft in 2004 convincing. According to him, he was innocent. He identified another person as the offender. He said his lawyer advised him he had a 50% chance of being acquitted. He said he feared if convicted after a contested hearing he would be sent to gaol. He decided to plead guilty so he could remain at liberty, and continue to care for his children. Despite the unconvincing nature of the explanation, the offence is of a very different nature to the sexual offending. It did not involve putting any child at risk of harm from him. I do not consider it to be something which significantly detracts from the other evidence of his rehabilitation.

The likelihood of future threat to a child caused by the applicant

At the time of making his confessional statement, WSO attributed his offending to the disintegration of the sexual relationship with his then wife, and weakness, in the sense of giving way to his desire for sexual gratification. He also said that he just didn't think, and that it was not until the child had her first boyfriend that he realised his conduct could not continue.
WSO has not committed any further sexual offences. He has lived in households with his biological daughter, and the daughter of a partner. He has had opportunities for contact with, and the development of trust with young people through umpiring. I am satisfied he has had the opportunity to offend sexually against children were he minded to do so. How much this is due to the deterrent effect of exposure of the offences, with the significant personal, professional and criminal consequences that flowed from it, and how much to an appreciation of the wrongfulness of his conduct and the impact on his victim is difficult to tell.
Mr Panayi queried whether WSO had real insight into his offending with his stepdaughter. His confessional statement, whilst accepting full responsibility, used inappropriate terms such as "sexual relationship", which suggests a mutuality or equality, which such conduct clearly does not entail. Although acknowledging the wrongfulness of his conduct, and acknowledging he was solely to blame, there was little in his confessional statement to suggest he had insight into the impact of his behaviour on his victim.
Dr Clarke's report, and WSO's evidence before me, indicated that he was not readily able to verbalise his feelings. I am satisfied that that was not because he lacked empathy for his victim or an understanding of the seriousness of his behaviour. I consider it more likely attributable to an inability to express his deeper feelings easily. However, I consider what he said, when pressed in cross examination, and the vehemence with which he expressed himself about his shame, and in acknowledging the harm he had caused his victim, to be genuine.
WSO also relied in his application and evidence on the fact he was housed in a low security prison, allowed into the community without supervision, and was not required during sentence or on parole to undertake any counselling or treatment. I consider the absence of treatment or supervision to be a feature of the times, rather than an indication he was assessed by the correctional authorities as not posing a continuing risk of sexual offending.
I did not consider Dr Clarke's opinion about WSO's level of risk to add much to the opinion an informed lay person could give. He did not administer the STATIC-99, RSVP risk assessment, or Stable and acute risk assessment tools. He said he was aware of them, but considered them irrelevant to an assessment of risk now. All he knew about the circumstances of the offending was what WSO chose to volunteer. That was very limited. He said he took the view that the detail of the offending was not relevant to his assessment of present risk. He did not read the formal interview, or the confessional statement. He was satisfied on what he was told that WSO met the DSM-IV criteria for paedophilia at the time of the offending, but no longer did.
In assessing the risk of reoffending, he relied solely on his clinical judgment, based on his years of experience in clinical practice. Although he has been in practice for many years, he is not a registered clinical psychologist. He therefore does not have to meet the registration standards governing registered psychologists, which include area of practice endorsements (of which clinical psychology is one) and continuing professional development standards. He acknowledged he had no particular expertise in the realm of sexual offending, and his practice did not concentrate on that.
In forming his opinion Dr Clarke relied predominantly on the length of time between the offending and now, the exposure WSO had had to other girls, through his domestic arrangements and his umpiring activities during that time, the absence of like offending in that period and WSO's expressions of remorse. He relied on the absence of further offending in concluding WSO's rehabilitation was complete once he went to gaol.
In Dr Clarke's opinion, WSO presented with a naivete about interpersonal relationships, most obviously manifested by an inclination to intrude into personal space. He said he did not know how to draw a distinction between personal and professional relationships. He formed the view WSO was a concrete thinker, not aware of higher order issues such as power imbalance and ethical behaviour.
Although I accept WSO's evidence he is remorseful about his behaviour, I found it troubling that even now, 25 years after the event, WSO was assessed to be not aware of the power imbalance between him and his victim. I was also concerned that when he told Dr Clarke about the offending behaviour, WSO was still describing his sexual offending in terms of a sexual "relationship", with a 12 year old child in his care, and that, despite the assessment WSO was not aware of the power imbalance, Dr Clarke did not consider that to be an inappropriate description.
Dr Clarke said he spent some time in the sessions he had with WSO educating him about appropriate boundaries. My impression was that education centred around WSO's habit of touching people in a non sexual way, and warning him that was no longer acceptable behaviour in a professional context, or at any time with children. So it would appear, the education centred around dissuading him from engaging in non sexualised touching, to avoid giving the "wrong impression". That in my view has little, if anything, to do with the issue Dr Clarke was asked to consider, namely whether WSO posed a risk of sexual exploitation of children.
It would in my view have been of assistance to have had WSO's risk of reoffending assessed by reference to a more comprehensive questioning of him about the offending and his reasons for it, including his insight and victim empathy, and by reference to his account in his original interview and confessional statement. It would also have been of assistance had the assessment tools I have referred to used to give some objective assessment of risk, and a clinical judgment made by a person with expertise in the assessment and treatment of sex offenders.
Considering all matters for myself, and despite my concerns about WSO's limited insight, including his inappropriate use of the term "relationship, and his failure still to understand the power imbalance between him and his stepdaughter, and the absence of informed clinical judgment, I have come to the view that the risk of further sexual offending by WSO against children is low. I rely in particular on the absence of like offending for the past 25 years, despite exposure to children and circumstances which would have provided WSO with many opportunities to reoffend, the impact on WSO of the loss of reputation, family, career and liberty resulting from the exposure of his behaviour, and his remorse.

I do not consider there is any other information apart from the matters I have already referred to which is relevant to my assessment of risk.

Any other matters VCAT considers relevant to the application

An issue arose in the hearing about whether WSO had continued to officiate at games, or undertake other activities for the Football Umpires Association after the stay of the negative notice was revoked. Although there was some ambiguity in the evidence, I am satisfied the last time WSO officiated at a game was at the district grand final just days before the revocation. I am satisfied he had some involvement with the Association, after the season ended, and up to the time of the AGM in October. I do not consider that I should take that into account adversely to WSO. I accept he and the president of the Association believed he was acting in conformity with the restrictions placed on him.

Having regard to all these matters, I am satisfied that giving a notice would not pose an unjustifiable risk to the safety of children. Despite the unarguable seriousness of the offending, WSO's conduct in the intervening 25 years is strong evidence of rehabilitation. Most importantly, and despite the inadequacy of Dr Clarke's evidence in this regard, for the reasons I have already identified I consider he is a low risk of further sexual offending against children.

IS IT IN THE PUBLIC INTEREST TO DIRECT THE SECRETARY TO GIVE AN ASSESSMENT NOTICE?

What is meant by "in the public interest"? In my view, it must permit the Tribunal to take into account other matters in addition to the public interest in protecting children against unjustifiable risk of harm, as a finding under s.26(2) that giving a notice would not pose an unjustifiable risk to the safety of children is a precondition to making an assessment of the public interest under s.26(3).
Mr Panayi submitted I could take into account the position of the Government when introducing the legislation, namely that the power given to VCAT to direct the Secretary give an assessment notice in respect of a Category 1 application was to allow for extraordinary situations that may arise.[8]
In my view, s.26(3) does not permit of such an interpretation. Had parliament wanted to say that VCAT, even if satisfied that giving a notice would not pose an unjustifiable risk to the safety of children, could only direct the giving of a notice in extraordinary or exceptional circumstances it could say so. "Exceptional circumstances" is the test for the exercise of a number of judicial discretions enshrined in statute.[9]
In PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 at [45] Morris P said:

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.

Morris P's formulation was applied by Billings ADP in PPE v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 485 at [77].
I consider that in this case, in addition to the need to protect children from unjustifiable risk of harm, it is appropriate to take into account the public interest in encouraging community involvement and participation in local sporting clubs and competitions, in encouraging volunteers to train and act as mentors to younger participants. There is also clearly a public interest in not unnecessarily restricting a persons' right to participate in paid work. Whilst I consider that the need to protect children from unjustifiable risk of harm must be the paramount consideration, these other interests are nonetheless matters to take into account here. WSO has had a long history of community involvement in umpiring, including mentoring and training of new umpires. He has recently taken a more active role in supporting the Football Umpires Association, and has been elected to the committee of the Association. Such volunteer activities are a valuable part of community life and engagement. There is also in my view a public interest in not placing unnecessary barriers in the way of employment prospects for workers, particularly older workers such as WSO whose experience and work history outweigh their formal vocational qualifications.
Mr Panayi did not submit there were any matters which weighed in favour of a finding it was not in the public interest to issue an assessment notice, once satisfied there was not an unjustifiable risk. In my view there are no matters which are relevant to an assessment it is not in the public interest to give an assessment notice.

I therefore direct the secretary to give an assessment notice to WSO.

ONE FINAL MATTER: EXPERT EVIDENCE AND THE ROLE OF THE SECRETARY

Mr Panyai challenged, both in cross examination and submissions the methodology and findings of Dr Clarke. In particular, criticism was made of Dr Clarke's failure to assess WSO using assessment tools such as the STATIC-99, Stable and RSVP tests. He also criticised Dr Clarke's limited experience in treating and assessing sexual offenders, and the limited information on which relied in forming his clinical assessment. There was merit in those criticisms.
As I observed to Mr Panayi in the course of the hearing, I am aware that psychologists with specialist experience and training in sexual offending prepare reports, based in part on the assessment tools he referred to, and in part on comprehensive sources of information about the psychosexual history of a person to assess their risk of sexual reoffending in criminal cases and applications for Extended Supervision Orders in this State. In particular, I am aware they are commonly used by Forensicare, by Community Correctional Services when preparing pre-sentence reports, by the Adult Parole Board, and, on behalf of the Secretary for the purposes of making application for an Extended Supervision Order. It follows that other arms of the Department of Justice retain psychologists with relevant expertise and who use these methodologies, and rely on their opinions in other proceedings where an assessment of risk of future sexual reoffending needs to be made.
The object of this Act is clear. It is to protect children from sexual and other harm from those who have contact with them through their work. The test for making an order under s.26(3) is equally clear. It requires the Tribunal to be satisfied that giving a notice would not pose an unjustifiable risk to the safety of children.
Whilst protection of children from the risk of harm is the paramount consideration in an application such as this, it must also be borne in mind that this is legislation which places significant restrictions on the freedom of a person to choose the type of work or voluntary activity they engage in.
In a contested application for the issue of an assessment notice, where the Secretary's opposition is based, at least in part, on the prospect of continued risk of sexual reoffending, and where there is criticism of the failure of a psychologist retained by the applicant to use what the Secretary puts to be the appropriate methodology including use of these assessment tools, she should in my view seek to have the applicant assessed by a suitably experienced psychologist, using the appropriate methodology including these assessment tools, and to place a report based on such an assessment before the Tribunal.
It seems to me to be incumbent on the Secretary, if opposing an application, and criticising the basis on which an expert concludes the applicant does not pose a risk to children, to take such steps as she can to place before the Tribunal a report based on what she says is the correct methodology.

[8] Victoria, Parliamentary Debates, Legislative Assembly, 21 July 2005, 2000 (Rob Hulls, Attorney General).

[9] See, for example, s.4(2)Bail Act 1997, s.26(3B) and s.31(5A) Sentencing Act 1991, and s.12 Adoption Act 1984.

WSO v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1522 (16 July 2010)

WSO v Secretary to the Department of Justice

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Parties

Cases Cited (1)

WSO v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1522 (16 July 2010)