VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	vcat reference No. Z939/2020	
CATCHWORDS	
Worker Screening Act 2020 ss11, 107—Category B application—conviction on two charges of intentionally causing injury—whether giving a WWC clearance would not pose unjustifiable risk to the safety of children—whether giving WWC clearance would be in the public interest.	

APPLICANT	Dominic Walker	
RESPONDENT	Secretary to the Department of Justice and Community Safety	
WHERE HELD	Melbourne	
BEFORE	Jonathan Smithers, Senior Member	
HEARING TYPE	Hearing	
DATE OF HEARING	18 November 2021	
DATE OF ORDER	16 May 2022	
CITATION	Walker v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2022] VCAT 411	

Order
1	The decision to issue a negative notice under the Working with Children Act 2005 (taken to be a WWC exclusion under the Worker Screening Act 2020) is affirmed. 

Jonathan Smithers
Senior Member			

Appearances
For applicant	Mr D Harris of counsel	
For respondent	Ms S Brnovic of counsel	

Reasons
Introduction
1	On 7 September 2018, Mr Domenic Walker, in company with his brother and a friend, perpetrated life-threatening assaults on two men they encountered in Wellington Parade, East Melbourne, shortly after midnight. At the time Mr Walker was 27. Mr Walker’s primary victim (Victim 2) was 61. The other victim (Victim 1) was 41. All five men were intoxicated, in varying degrees, having been drinking in conjunction with attending a night football game at the MCG. 
2	The most vicious assaults were those carried out by Mr Walker while Victim 2 was lying on the road. He punched Victim 2 in the head 15 times in rapid succession. His head hit the road with each punch. Mr Walker then stomped on Victim 2’s head three times as he lay on the road. The victim was passive. His only actions at that point were feeble attempts to put his arms up to protect his head. Mr Walker’s actions were captured on video taken by observers at the scene using their phones.
3	Mr Walker was criminally charged, and ultimately, on 22 October 2019 pleaded guilty in the Magistrates’ Court to two charges of intentionally causing injury. He was convicted and sentenced to 12 months’ imprisonment, together with a Community Corrections Order (CCO) for 24 months after his release. This was subject to conditions for assessment and treatment for drug and alcohol abuse or dependency. There was also an alcohol exclusion condition for the first 12 months of the CCO.
4	This is a review of a decision by the respondent (Secretary) to issue a negative notice to Mr Walker under the Working with Children Act 2005 (WWC Act). It is a category B application. Under the transitional provisions of the Worker Screening Act 2020 (WS Act), which re-enacted the working with children check regime, that decision is to be treated by the Tribunal as a WWC exclusion on a category B application under the WS Act.
5	The decision to issue a negative notice was made on 22 November 2019 (as a consequence of the convictions on 22 October 2019). 
6	On 21 October 2020, Mr Walker was released from prison. He then re-enlivened the working with children process by applying to VCAT for review on 23 November 2020.
7	Mr Walker seeks to continue volunteer work he has previously undertaken, including for Banksia Gardens Community Centre (where he tutored students from disadvantaged backgrounds in 2019) and Jesuit Social Services Ecological Justice Hub (where he has volunteered at the community garden). He also seeks to engage in community-facing work for the not-for-profit organisation, Melbourne Farmers’ Markets (where he has been involved in sourcing and delivering produce to vulnerable communities during the pandemic). Further, he seeks to work for the Jesuit Mission on agricultural development projects in Timor-Leste. For all these, the relevant organisation has indicated it requires a WWC clearance.
8	The Tribunal Book prepared for this matter included documentation concerning the processing of the application for an assessment notice, the investigation and prosecution of the offences and the appeal on sentence, and the Corrections Victoria material relating to Mr Walker’s time in prison and after.
9	The Tribunal heard oral evidence from Mr Walker, and from two character referees. It also received evidence in written form from seven medical professionals. Additionally, 12 other written personal references were received.
10	The written and oral submissions given by both parties are referred to in the course of the analysis below.
The statutory framework
11	Section 107 of the WS Act provides:
107	Jurisdiction of VCAT—WWC category B
(1)	In a review of a decision to give a WWC exclusion on a WWC category B application or in relation to a WWC category B re-assessment, VCAT must determine that it is appropriate to refuse to give a WWC clearance unless satisfied that giving the clearance would not pose an unjustifiable risk to the safety of children, having regard to any matters to which the Secretary must have regard under section 63(1).
(2)	In satisfying itself that giving a WWC clearance would not pose an unjustifiable risk to the safety of children, VCAT must be satisfied that—
(a)	a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and 
(b)	the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
(3)	Even if VCAT is satisfied under subsections (1) and (2) that giving a WWC clearance would not pose an unjustifiable risk to the safety of children, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.
12	Section 63(1) sets out the 10 matters which must be considered in determining ‘unjustifiable risk’. 
13	In summary, under s 107 of the WSA, the Tribunal must refuse to order a WWC clearance unless satisfied that giving the clearance would not pose an unjustifiable risk to the safety of children, having regard to the 10 matters specified in s 63(1).
14	In doing so, the Tribunal must be satisfied as to the matters in s 107(2). These have been referred to as (a) the ‘reasonable person/parent test’, and (b) the ‘any type of child-related work’ test.
15	And even if those criteria are satisfied, the Tribunal must still refuse to order the clearance unless it is satisfied that it is in the public interest for the clearance to be given.
16	Concerning onus of proof, in Maleckas (LKQ) v Secretary Department of Justice, Kyrou J said:
…while the Act does not impose any legal onus of proof on an applicant, as a matter of practical reality, it is difficult to see how applicant could succeed in satisfying the VCAT that the giving of a WWC clearance will not pose an unjustifiable risk to the safety children unless the applicant adduces probative evidence going to that issue.
17	Kyrou J further said:
A chance of a future threat, irrespective of its magnitude, is a relevant consideration under s 13(2)(h). Clearly, where the chance is minimal, the consideration may favour the applicant. The greater the chance, the less favourable is the consideration from the applicant’s perspective.
18	Section 11 of the WS Act provides that when the Tribunal makes a decision or takes an action under that Act, the protection of children from sexual or physical harm must be the ‘paramount consideration’.
19	Section 11 of the WS Act is in substantially the same terms as s 1A of the WWC Act. That provision inserted reference to the ‘paramount consideration’ in 2014. This was to:
… put beyond doubt that the protection of children is a more important consideration than any other consideration, such as the individual’s right to work.
20	If this application is not successful, Mr Walker is not entitled to make a further application until 13 January 2025 (being 5 years after the date on which that exclusion was given, on 13 January 2020).
Circumstances in which the application comes to be made
21	Mr Walker studied arts and agricultural science at the University of Melbourne. In mid-2015 he moved to New York where he completed a degree in Food Systems, graduating in early 2017. In 2017 – 18, he worked in rural agricultural development and environmental sustainability, in particular in Guatemala City. Although he had been abusing alcohol for some years prior to this, it was around this time that he developed a dependence on alcohol as a self-medicating strategy for anxiety, and increasingly, to use alcohol in conjunction with benzodiazepines. 
22	Mr Walker flew into Melbourne from the United States, arriving on the morning of 6 September 2018. He had been in transit for more than 24 hours and had not slept. He had taken some diazepam and alcohol to try to aid sleep but to no avail. That evening, he went to the football at the MCG, with his brother and a friend. They drank before, during and after the game. 
23	At 11.46 pm, Mr Walker, walked from the MCG up to Wellington Parade. The assaults occurred shortly after midnight on 7 September 2018.
24	In sentencing, Magistrate Reynolds said:
The victims and offenders came across each other in the vicinity of the Pullman Hotel having all walked from the MCG. There was some sort of confrontation between them before Dominic and Samuel Walker entered a taxi leaving Benjamin Fitt and the two victims on Wellington Parade.
There was yelling outside the cab and [Victim 1] grabbed Fitt by the shirt. [Victim 1] or [Victim 2] then with some force punched the outside of the taxi in which the Walker brothers were seated. Following this, the brothers alighted from the taxi, which was driven away. Thereafter occurred the assaults which, in essence, were captured on the well publicised videos taken by witnesses with mobile phones.
The pleas entered by each accused are a concession by them that their attacks constitute the gross and unjustifiable reaction to any conduct of the victims.
…
The charges to which each offender has plead guilty arises from uninhibited assaults near a public road way, perpetrated by three offenders against two intoxicated older men. While the assaults last for about 45 seconds they can properly be described as a sustained attack. The episode was aggravated by the three offenders just walking off from the two clearly injured victims, one of whom was in fact unconscious. There were differing levels of participation in the assaults by each of the offenders.
25	Mr Walker’s conduct was the most serious (as reflected in the sentence ultimately imposed of 12 months’ imprisonment, as compared with six months and four months for the other two offenders).
26	Mr Walker was arrested and charged on 7 September 2018. He gave a no comment interview. There were nine charges. In brief, they included intentionally and recklessly causing injury, affray, recklessly causing serious injury in circumstances of gross violence, and recklessly placing a person in danger of death. 
27	On 19 November 2018, he applied for a WWC assessment notice for the purposes of doing voluntary work with Jesuit Social Services. (He had previously held an employee WWC check between 2012 and 2017.) 
28	There was a dialogue between Mr Walker and the Department in early 2019 about this application. In relation to the 7 September 2018 charges, he said:
The issues notified on my behalf in the Form 32 signed by both parties, which was filed in the Court for the Committal Mention on 12 February, include the circumstances of the engagement of the complainants with me the amount of alcohol consumed by the complainants, and their credibility and reliability, and that it is intended to cross examine the complainant’s regarding the facts and circumstances that go to the proof of each charge.
29	On 2 May 2019, Mr Walker was issued with an assessment notice. As a consequence, he was able to engage in child-related activities while the charges against him were pending. He engaged in volunteer activities at Banksia Gardens Community Centre and Jesuit Social Services Ecological Justice Hub. He also visited Timor-Leste to investigate how to best develop the Jesuit Mission’s involvement in that community.
30	By the time of the committal hearing in July 2019, however, Mr Walker had agreed to plead guilty to two charges of intentionally causing injury, with the other charges being withdrawn.
31	The sentencing hearing in the Magistrates’ Court was on 22 October 2019, and Mr Walker began his one year jail term that day.
32	On 24 October 2019, the police notified the Secretary of the Court outcome from two days before. This triggered a reassessment. and an interim negative notice was issued on 22 November 2019.
33	No submission was made in relation to that interim negative notice by Mr Walker (then in prison), and so a (final) negative notice was issued on 13 January 2020.
34	Mr Walker initiated an appeal to the County Court against the sentence imposed on him. However, in February 2020, in light of a warning from the judge that the sentence may in fact be increased on appeal, he withdrew.
35	During his sentence of imprisonment, Mr Walker at first went to the Melbourne Assessment Prison. He was classified as a minimum security prisoner and sent to Dhurringle. The second half of his sentence coincided with the Covid-19 outbreak during which time prisoners were more isolated than usual.
36	In prison, Mr Walker undertook counselling and a number of courses, particularly focusing on behaviour and anger management, and seeking to understand the patterns of behaviour which led to his offending. The reports concerning his conduct while in prison all appear to be positive.
37	Mr Walker was released from prison on 21 October 2020.
38	He started to see Fred Rossi, psychologist and psychotherapist, in January 2021. Mr Rossi has provided two letters to the Tribunal, referring to his treatment of Mr Walker, his progress, and supporting his application for a WWC clearance, dated 23 June and 15 September 2021.
39	Mr Walker commenced employment with Melbourne Farmers’ Markets (MFM) in May 2021. There he has been involved in sourcing and delivering produce to vulnerable communities during the pandemic. But he seeks to engage in community-facing work for MFM. For that, a WWC clearance is required.
40	He also has what I understand is a part-time role as a consultant with Farm Steward, a US-based organisation which promotes small, sustainable farming projects. In this role, Mr Walker visited Central and South America in March 2019.
41	On 23 November 2020, he made an application to VCAT for a review of the negative notice issued on 13 January 2020.
42	This application was made out of time. The Secretary opposed an extension of time. On 10 February 2021, the contested application for extension of time was heard, and granted, by Deputy President Lambrick.
Mental health treatment/assessment
43	Mr Walker first saw Dr Peter Hanley, psychologist, on 11 October 2018 (the week prior to his sentencing hearing on 22 October 2018).
44	Prior to the plea hearing in the Magistrates’ Court, Mr Walker was examined by Dr Loretta Evans, neuropsychologist. The purpose of the examination was to ‘investigate cognitive status and provide opinion regarding the possibility of any causal factors that may have contributed to the current offending’. 
45	Dr Evans found no evidence to suggest compromised cognition. Therefore, she said, it was her opinion that Mr Walker did ‘not declare an organic cause for his offending behaviour’.
46	She also said:
… from a neuropsychological perspective; given Superior intelligence, reasoning, and problem solving skills, together with intact memory and insight, I consider Mr Walker is well able to benefit from counselling.  Additionally, he has the cognitive skills to maintain various avenues of employment, as well as his volunteer activities, and comply with any Court directives.  Consequently, with appropriate psychological support, should he commit to maintaining abstinence from illicit substances and alcohol, I consider his prospects for rehabilitation are promising at the current time.
47	Mr Walker saw Dr Peter Chen, psychiatrist, on a three-monthly basis in around late 2018 or early 2019 for treatment of anxiety and depression, although there is no material provided from Dr Chen. 
48	Other health professionals who have seen Mr Walker are referred to below. 
Character evidence
49	James Carpenter is a family friend of Mr Walker and his parents. He has known Mr Walker since he was a child. He gave glowing evidence, including about Mr Walker’s performance as a carer in or around 2013 (when Mr Walker would have been about 22) for his then 14-year-old autistic son. At the same time he also had responsibility for Mr Carpenter’s school-age daughter.
50	Asked whether (hypothetically) if he was aware of Mr Walker’s 2018 convictions back in 2013, he would have allowed him to care for his son, Mr Carpenter said yes.
51	Like the other character witnesses, Mr Carpenter referred to Mr Walker’s remorse, and consciousness of the impact of his conduct on his victims.
52	Mr Jaime de Loma-Osorio-Ricon is the Deputy CEO at Banksia Gardens Community Services in the City of Hume. This organisation provides support for young people from disadvantaged backgrounds. As a volunteer, from around March 2019, Mr Walker assisted with tutoring, sport and ‘helping kids fix their bikes’.
53	Mr Jaime de Loma-Osorio-Ricon said Mr Walker was referred to him by a mutual friend. While he was shocked when he saw the footage of the assaults by Mr Walker, he said the philosophy of his organisation was non-judgmental – to give people second and third chances. He said he was prepared to take Mr Walker on as a volunteer. He said he watched Mr Walker closely for the first months, before concluding that the ‘kids were safe’.
54	He said if Mr Walker obtained his WWC clearance again, the service would be delighted to have him back. Aside from his assistance to young people described above, Mr Jaime de Loma-Osorio-Ricon said he believed that Mr Walker’s experiences with the justice system would have equipped him to contribute to the organisation’s program working with young people at risk of involvement with the justice system.
55	Mr Jaime de Loma-Osorio-Ricon has two school-aged children. Asked if he had any concern about Mr Walker having contact with them in a child -related context, he responded ‘none whatsoever’.
Section 107(1) of the Worker Screening Act - the s 63(1) considerations
56	I now turn to the statutory criteria concerning this category B application. 
Section 63(1)(a) – the nature and gravity of the offence or alleged offence and its relevance to child-related work
57	The assaults by Mr Walker on 7 September 2018 were characterised by sickening violence. The prosecution summary described the first part of the incident, which included an assault by Mr Walker on Victim 1. The summary then referred in detail to his assaults on Victim 2: 
19.	When [Victim 2] was punched to the ground Dominic WALKER stood over him and punched [Victim 2] again before kicking him to the head and shoulder twice. [Victim 2] attempted to crawl away from Dominic WALKER but he grabbed him by the jacket and dragged him back along the ground. Dominic WALKER then punched him to the head 15 more times. [Victim 2] 's head hit the road with each punch. He made no attempt to fight back and held his arms up in an attempt to protect himself. 
20.	During this part of the assault FITT stood over [Victim 2] and punched him twice to the-head. 
21.	Whilst assaulting [Victim 2] Dominic WALKER was heard yelling "I'm going to fucking kill you, you're going to be dead." Dominic WALKER sat on top of [the victim], pinning his body down to the road. An unidentified male intervened; attempting to pull Dominic WALKER off [Victim 2], however at this point WALKER stood up and stomped on [Victim 2] 's head three times whilst he remained incapacitated on the road. 
22.	The assaults of [Victim 1] and [Victim 2] occurred simultaneously with Dominic WALKER assaulting [Victim 2] and Samuel WALKER assaulting [Victim 1], FITT stood over the victims, moving between the two and assaulting both. 
23	Dominic and Samuel WALKER both continued to yell at [Victim 1] before walking in a westerly direction along Wellington Parade. FITT walked east on Wellington Parade towards Powlett Street, before turning around and walking back past the scene of the assault and in the same direction as the WALKERs.
24.	[Victim 2] was left unconscious on the road and he and [Victim 1] were assisted by witnesses.
25.	[Victim 2] was subsequently transported by ambulance to the Alfred Hospital where he received treatment for the following injuries:
a.	Left sided subarachnoid haemorrhage (bleeding around the brain) 
b.	Anterior maxillary fracture (broken bones in the face)
c.	Worsening of pre-existing spinal fracture in lower back
d.	Haematoma in left ear
e.	Bifacicular block (changes to electrical activity of the heart)
58	Victim 1 was described as suffering Post Traumatic Stress Disorder, as well as a broken wrist. (The latter injury was apparently not inflicted by Mr Walker.)
59	As Mr Walker acknowledged during the hearing, it was fortunate that the outcome was not much worse for his victim. Clearly, the actions as depicted on the video footage, could have caused severe brain injuries, or even death. 
60	In short, the conduct involved extreme violence, and disregard for human life.
61	It is hard to imagine the psychological impact of this kind of offending on the victims. The assaults were so far outside the realm of how people would ordinarily be expected to be treated, as to be likely to undermine the victims’ normal expectations about the way in which they could participate in community life. 
62	Mr Walker said he had no recollection of the incident. This is as a result of the combination of alcohol, benzodiazepines and jet lag which was impacting on him at the time (see below). 
63	This does not in any way reduce the seriousness of Mr Walker’s offending, however. He remains responsible for his actions despite them having occurred in those circumstances. As noted below, he had used alcohol, benzodiazepines (both alone and together) many times before, and so had experience of the effect that could have on his judgement, and therefore, his actions. 
64	The incident did not involve children or minors (that is, anybody under the age of 18 years). But it is relevant to child-related work, in that children would be particularly vulnerable to unrestrained violent assaults of this type, given their likely inability to defend themselves, and the likelihood of them suffering serious injury. The nature of the assaults was so disproportionate, unpredictable and uncontrolled as to suggest that any person, including children, could find themselves in harm’s way from this type of conduct. 
65	Additionally, after stomping on Victim 2’s head three times, Mr Walker simply walked away from his victims. Victim 2 was left unconscious on the road. This is obviously inconsistent with the qualities required by a person engaging in child-related activities, for example, empathy and care for others. 
66	This factor runs very strongly against the application.
Section 63(1)(b) – the period of time since the applicant committed, or allegedly committed, the offence
67	The offence was committed on 7 September 2018, approximately three years and eight months ago. Mr Walker’s counsel described the period to the time of the hearing as ‘moderate, but not insignificant’. That is an apt description of the position now. 
68	From Mr Walker’s point of view, a lot has occurred in that time. His life has obviously taken a completely different direction to what he might have imagined. He has served his time in prison. In his evidence, he referred to this as ‘an incredibly hostile environment’. He then set about re-building his life. The enormity of the impact of his conduct has become more apparent over time, as he has gone through different stages of coming to grips with what he did. In giving his evidence, he expressed genuine and heartfelt remorse. 
69	While the period since the offences no doubt seems very long to Mr Walker, given all the events which have occurred since 7 September 2018, this must be viewed in the context of the enormity of the implications of the assaults perpetrated by him, the process of developing insight and rehabilitation referred to below.
70	Mr Walker is still serving his criminal sentence. He is still subject to the CCO. The significance of this was the subject of submissions, which are dealt with below. For present purposes, it is sufficient to note that one relevant factor in assessing the significance of the length of time which has passed is that the criminal sentence is still on foot. 
Section 63(1)(c) – whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and section 63(1)(d) – the sentence imposed for the offence
71	Mr Walker was convicted and sentenced to 12 months’ imprisonment, together with a CCO for 24 months. (But for the plea of guilty, the Magistrate said the sentence would have been 24 months’ imprisonment with an 18 month non-parole period.) The CCO was subject to conditions for assessment and treatment for drug and alcohol abuse or dependency. There was also an alcohol exclusion condition for the first 12 months of the CCO. 
72	The fact that despite being a first time offender, Mr Walker received such a heavy penalty, a one year custodial sentence, followed by two-year CCO, underlines the gravity of the conduct.
73	Further, I note that the Tribunal Book included a press report which quoted Judge Tinney in the County Court as describing this sentence as ‘extremely merciful’ and saying he would have passed a sentence of greater than two years. There was no suggestion this report was inaccurate. This precipitated the withdrawal of Mr Walker’s appeal against sentence.
Section 63(1)(e) – the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence
74	Mr Walker was 27 years at the time of the commission of the offence. His primary victim, the subject of the 15 blows to the head, and the stomping on the head three times, was 61. The other victim (the assaults on whom were mainly inflicted by Mr Walker’s brother) was 41.
75	The significance of this factor relates to the vulnerability of the victim. Here Mr Walker’s victim was vulnerable by virtue of the age difference. He was also vulnerable in that he was intoxicated, on the road, attempting to crawl away and not posing any threat to Mr Walker. By the time the stomping on the head had occurred, he was utterly vulnerable, unconscious, lying on the road.
Section 63(1)(f) – whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence
76	The conduct was intentionally causing injury. It has obviously not been decriminalised.
Section 63(1)(g) – the applicant’s behaviour since he or she committed, or allegedly committed, the offence 
77	In his report of 10 October 2019 Mr Patrick Newton, forensic psychologist, said:
Mr Walker's remorse for his actions has developed over time. Initially, his empathy was superficial and he tended to stress the role played by the Complainants in 'provoking' his behaviour. With the benefit of continued counselling with Mr Hanley, his own reflection and his participation in community work, Mr Walker has come to develop better victim empathy and remorse. In our final consultation he said: 
I am deeply remorseful for my actions. I am eternally grateful that the victims did not sustain more serious injuries or die. I am deeply ashamed of my behaviour on that evening. I would like to tell [the Complainants] that I am sorry and [that I] hope they can recover and move on from the events of last year.
78	In cross-examination Mr Walker said he ‘wouldn’t argue’ with the proposition that it took him a year to accept what he had done.
79	For Mr Walker it was submitted: 
Since he committed the index offences, Mr Walker has taken effectively all available positive steps for rehabilitation that appear in the materials and have been referred to above. He attended AA meetings; had treatment for anxiety and depression; undertook counselling with a psychologist; commenced work with Steward Lending LLC; and did volunteer work at the Banksia Gardens Community Centre, the Eco Justice Hub community garden and with Jesuit Mission Australia. It is to be noted that Mr Walker’s history of volunteering activities pre-dates his offending – his recent volunteer work (and his wish to continue it) is not simply an effect of the index offending. 
Relevant here are the sentencing remarks of Magistrate Reynolds where his Honour accepted that each of the offenders including Mr Walker were genuinely remorseful and ashamed of his conduct, stated with reference to the tendered reports of the psychological and psychiatric specialists that it appeared that Mr Walker’s alcohol dependence was in remission, and noted that the offenders (including Mr Walker) had engaged in treatment therapy regimes since the commission of the offences.
Following his release from prison, the assessment prepared by Ms Crabtree for his CCO on 23 December 2020 recorded (inter alia) that Mr Walker: has no criminal history, strong social/familial supports, unlikely to return to criminal behaviour; high insight into behaviour, very willing to implement strategies and participate in treatment; and cessation of substance abuse for more than 12 months, no relapses, willing to engage in treatment. 
80	As noted below, Mr Walker has taken impressive steps towards dealing with the issues which gave rise to the assaults on 7 September 2018.
81	However, it is only about two and a half years since he has commenced to develop meaningful empathy for his victims, and insight. His initial response to the Secretary indicated he would be raising the issues of the circumstances of the victims’ engagement with him, the amount of alcohol they had consumed, their credibility and reliability, and that it was intended to cross-examine them regarding the facts and circumstances of each charge. 
82	The Secretary submitted that his approach initially, in course of the criminal process, involved an element of victim-blaming, even after he had viewed the footage of the assaults he had perpetrated. I accept that submission. It is not easy to understand how Mr Walker could adopt the stance he did in the light of the violence he engaged in, as would have been apparent to him when he viewed the footage. 
83	The start of the process of developing insight appears to have occurred around the time he decided to plead guilty (to a modified set of criminal charges). That is, around two and a half years ago, or a little more. In the context of the life-threatening conduct which occurred, this is not an extended period. 
Section 63(1)(h) – the likelihood of future threat to a child caused by the applicant
84	This is obviously a very important consideration in the analysis of the question of unjustifiable risk.
85	For Mr Walker, under this head, it was submitted:
(a)	He understands and accepts responsibility for his very serious assaults.
(b)	While serious, the assaults did not involve a child, was not of a sexual nature, and have no relevance to child-related work.
(c)	His good personal qualities tell against him doing anything that would harm a child in any way. The assaults were an aberration and out of character.
(d)	The assaults occurred in highly specific circumstances and at a time in his life when he was struggling with a drug and alcohol problem.
(e)	He has taken extensive and consistent positive steps for rehabilitation.
(f) 	He has the support of his partner, family, friends and employer.
(g) 	His conduct since the assaults demonstrates there is no real likelihood or chance of future threat to a child caused by him in performing child-related work or otherwise.
86	It was further submitted he had never behaved in an inappropriate manner around children. Reference was made to a number of roles he had undertaken which involved children, including childcare work while at university, care given to the children of Mr Carpenter and his wife in or around 2013, ESL assistance to high school students in New York 2016, voluntary work at Banksia Gardens in 2019 and for the Jesuits in their community garden and in Timor-Leste.
87	It is appropriate to say at this point, that there is no suggestion of sexual interference with children. The issue here concerns the potential for physical violence.
88	An expert opinion was produced by Dr Matthew Frei, an addiction medicine specialist. It is dated 8 October 2019 (shortly before the Magistrates’ Court sentencing hearing) with a supplementary report dated 19 January 2020 (shortly before the County Court appeal was due to be heard). 
89	Dr Frei said: 
I have discussed the likelihood that Mr Walker had some impairment in cognition as a consequence of fatigue related to poor sleep. This would be further impacted by the level of alcohol and benzodiazepine intoxication. Alcohol and benzodiazepines affect capacity to consider consequences, with an associated effect on actions, including a tendency to behave in a disinhibited or impulsive manner. This lack of ability to understand consequences and related cognitive processing deficits is likely to be associated with some slowing of understanding of situations, along with impairment in motor skills and reaction time.
90	His statement concluded that fatigue, alcohol and benzodiazepines may have limited Mr Walker’s ‘understanding and subsequent actions in the assault and other behaviours that evening’. 
91	In his report of 10 October 2019 Dr Patrick Newton, Clinical and Forensic Psychologist said:
Mr Walker was reportedly severely intoxicated with alcohol and benzodiazepines at the time of his offending. The effects of these substances would have had a significant impact upon his mental clarity, judgement and reasoning. Mr Walker had, however, use of these substances (both alone and in combination) many times before and so was aware of their likely consequences upon his judgement.
92	So while, as Dr Frei said, this combination of factors contributed to the assaults occurring, that does not address the question of future risk. Despite having an awareness of the danger, in terms of reducing inhibitions and impairing his judgement, Mr Walker nevertheless placed himself in those more risky circumstances.
93	Further, in relation to the consideration of the threat of harm to children in the future:
•	An assessment of risk involves the chances of harm occurring, and the seriousness of the consequences if it does. The extreme nature of the violence in this case means that the second of these factors is heightened.
•	As noted in Maleckas, the risk which is to be considered is any risk. So it is not limited to the risk of the same scenario, or a similar scenario, playing itself out again. 
•	The possibility of relapse into alcohol and drug use, must be considered.
94	In the same report, Dr Newton said that Mr Walker presented as a man in the process of addressing significant personal issues. He said that while he had made significant progress, ‘it is clear that there is some distance ahead of him before he could be considered to have resolved his issues’.
95	Regarding alcohol, the report of Dr Evans referred to ‘a 13-year history of problematic and excessive alcohol consumption’, such that ‘he was considered to have been approaching ranges associated with increased risk of alcohol-related compromise of aspects of cognition’, although as noted above, ultimately, she concluded that cognition was not adversely affected. 
96	Her report also set out in detail the extent of his abuse of other illicit drugs. But from a cognition point of view, these were of a lower level of concern than alcohol. 
97	In his report of 19 September 2019, Dr Sullivan said:
[55]	Mr Walker has developed alcohol dependence. This is now in remission, by his account. Predisposing to his alcohol dependence was a tendency to mild anxiety which had required psychological support in the past; immersion in a culture of regular social drinking; and cognitive distortions about the social acceptability of alcohol use and its place in his life.
[56]	Over the year preceding the offence, Mr Walker also moved from irregular use of a benzodiazepine to aid with insomnia, to escalated doses of benzodiazepines obtained in a country in which prescribing regulations were apparently lax. He would also have met a diagnosis of benzodiazepine dependence, which is once more by my understanding in remission.
98	Mr Walker gave evidence that from September 2018 to May 2021, he did not consume any alcohol at all. In addition, during the period October 2020 (upon his release from prison) to October 2021, he had complied with the condition of his CCO that he not consume alcohol at any licensed premises. Outside such premises, he said he had adopted a very conservative and careful approach. He indicated that, from October 2021, he continues to adopt that approach, despite the CCO condition having expired. The personal references are consistent with him having done so. 
99	In relation to drugs, it is understood Mr Walker has avoided both prescription and illicit drugs since the offending. In his evidence, he said that in consultation with his treating practitioners, he had decided to steer away from medications, and to focus on meditation instead.
100	It is clear from the evidence that Mr Walker has good supports around him.
101	In terms of Mr Walker’s personal journey since September 2018, there is much evidence to support the conclusion that he has made substantial progress. 
102	His prison experience was clearly salutary. His own evidence, and that of his referees, indicates a high degree of remorse. He has made efforts to use the incident as a catalyst for a deep analysis of his character and motivations which gave rise to it. These continue. He said he intended to continue to see Mr Rossi (his treating psychologist and psychotherapist) for the foreseeable future.
103	In his letter of 15 September 2021 addressed to VCAT, Mr Rossi expressed the view that ‘there is no indication whatsoever in Mr Walker’s history that he has ever posed a risk to the safety of children/minors – sexual, physical or emotional’.
104	I am conscious, however, that Mr Rossi wrote this reference (and his earlier reference of 23 June 2021) ‘on behalf of Dominic Walker’. That is, it was not written by Mr Rossi as an objective expert report, but rather, with some of the flavour of a personal reference.
105	The emphatic statement by Mr Rossi quoted above seems to assume that the loss of control which Mr Walker exhibited on 7 September 2018 does not, and never could have, manifested itself in relation to children/minors. While I accept there is no suggestion of any risk towards children of a sexual nature, I find it hard to accept such a sweeping statement. I would require convincing evidence to be satisfied that there is not, and has never been, any risk to a person 18 years or under of the type which manifested itself on 7 September 2018.
106	Of course, in my analysis under s 107, I am not considering past risks, only prospective future risks to children. 
107	For the Secretary, it was initially submitted that Mr Walker had been put on notice that a comprehensive psychological risk assessment was desirable, and yet no such reported been provided. Ultimately, that submission was withdrawn.
108	However, I am conscious that aside from Mr Rossi, there is no expert report covering the period since the time of the County Court appeal in February 2020. There is no objective risk assessment. That is not necessarily determinative, but in circumstances where the risks relate to the disproportionate violence exhibited, and where there has been a long history of substance abuse (as much as 13 years in the case of alcohol) it means the Tribunal does not have the benefit of an expert assessment which might provide a basis on which the Tribunal can have confidence there are answers to the questions which this raises.
109	For the Secretary, it was pointed out that Mr Walker has additional incentive to avoid any transgressions at present, due to the fact that the CCO is still on foot (up until October 2022). It was asserted on behalf of Mr Walker that the steps he has taken are in parallel with, rather than being motivated by, the CCO. It was also said that compliance with the requirements of the CCO during this latter period are not onerous. The period of alcohol prohibition has been completed, and Mr Walker is required to see his case worker monthly, and perhaps less often in the future. Despite these matters, the reality of the existence of the CCO at present cannot be ignored.
110	In my view, given the horrendous nature of the assaults, it would be premature to conclude that the level of risk has been reduced to the point where the possibility of conduct which poses a risk to children/minors can be discounted in practical terms, while the CCO remains on foot.
111	The fact an applicant is still serving their criminal sentence is not determinative. There are decisions where this was a factor which contributed to a refusal to issue an assessment notice, and cases where one has been issued even though the sentence was still being served. 
112	But in my view, in the context of this particular offending, it will only be after Mr Walker has completed his sentence, and then a sufficient time has elapsed, such as to demonstrate sustainable continued progress along the path he has so far taken, unconstrained by the boundaries imposed on him by the CCO, that it will be able to be concluded that there can be a sufficiently high level of comfort that the risk has been reduced to the level required by the WS Act. 
113	That is, demonstrating, in that unconstrained environment, that he has dealt definitively with his dependence on alcohol and drugs, and with the personal factors which underlay the assaults, such as lack of impulse control and lack of empathy, such that the doubts which arise from the evidence are dealt with, so that risk is reduced to a level which is justifiable.
114	In his most recent report, of 21 September 2021, Dr Rossi said:
My work with Mr Walker initially focused on understanding the assault incident in detail, and with a view to clarifying that he was able and willing to take full ownership of his actions and the impact upon his victims and the broader community. This can be difficult work as perpetrators typically look to understate their own agency in such matters. In this regard, I can report that Mr Walker has and continues to demonstrate a clear and heartfelt responsibility for his actions. It includes his feelings of profound grief, shame, and remorse. In my opinion, he has a mature understanding that his conviction will cast an ongoing blight on his character which he will have to manage with humility.
Beyond this, my work with Mr Walker has also included exploring and taking ownership of the AOD issues that he had progressively struggled with over at least two years leading up to the assault. He has initiated and maintained positive changes in this regard, and continues to report his abstinence from the prescribed medication abuse that he had been engaged in. Importantly, I am satisfied that he is developing and consolidating his broader wisdom around his alcohol usage. His resolve in this regard has been tested on numerous social occasions that he has reported to me, where alcohol has been present, and which he has partaken in a responsible manner. In my opinion, this stands him in good stead for the future where he may choose to consume alcohol responsibly and safely.
Finally, my work with Mr Walker has included examining the broader social context that partially underlies male aggression and violence across our community. This has included exploring hegemonic models of masculinity and patriarchy and how they can shape men's self-construal. Mr Walker has been a proactive participant in this work and he has generally impressed with his capacity for reflection and insight into how his own identity has been shaped by these influential social models.
115	Again, this is consistent with the conclusion that Mr Walker is making promising progress. But given the gravity of the assaults, in a risk assessment context, I find that further consolidation of these traits is required before it can be said the risk is within the justifiable range. 
Section 63(1)(i) – any information given by the applicant in, or in relation to, the application
116	Both parties acknowledged that the applicant’s reasons for wanting a clearance, or any disadvantage to him in not being granted one, are secondary considerations for the Tribunal. These matters are also relevant to the public interest test, below. 
Section 63(1)(j) – any other matter that VCAT considers relevant to the application
117	On behalf of Mr Walker, it was submitted he understands and accepts responsibility for the ‘terrible offending’, and that he has expressed that insight and remorse in his interactions with health professionals, his friends and family, and his employers. 
118	It is apparent from Mr Walker’s evidence and that of the other witnesses that he is very remorseful, and has put a lot of effort into seeking an in-depth understanding of how he came to commit the assaults. 
Section 107(1) – Conclusion
119	On behalf of Mr Walker, in reference to submissions by the Secretary, it was submitted that the Tribunal should be wary of generalised statements disassociated from the particular circumstances of the case, that an application is ‘premature’ or ‘too soon’. I accept that submission. The Tribunal’s task is to make an evaluative judgment, in measuring risk. 
120	The reality is, however, that in considering the circumstances of this case, time is an aspect which is relevant, in the manner discussed above, in particular, under s 63(1)(b), (g) and (h). 
121	For the reasons stated, weighing up the matters referred to above, I cannot be satisfied that the level of risk has been reduced to that mandated by s 107(1). That is, I cannot be satisfied that giving the clearance would not pose an unjustifiable risk to the safety of children under s 107(1) of the WS Act.
Section 107(2)(a) – whether a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work
122	The Court of Appeal has said of the equivalent provisions under the old WWC Act, that there is ‘considerable overlap’ between what is now ss 107(1) and 107(2). It also said, ‘it is difficult to envisage a case’ where the criterion in what is now s 107(2)(b) (that is, ‘any type of child-related work’ test) ‘will add anything of substance’ to ‘the manifold criteria’ in what is now s 107(1), or to the ‘reasonable person’ test on s 107(2)(a). 
123	In VQB v Secretary to the Department of Justice, Deputy President Macnamara said, in relation to this test:
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 an applicant for a positive assessment a right to be heard, as well as 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 over-optimistic attempt to facilitate rehabilitation.
124	The test is an objective one which relies on a reasonable person having knowledge of all facts and surrounding circumstances.
125	Clearly, by referring to a reasonable person’s own child, the test gives sharp focus to the notion of the welfare of children. In OYJ v Secretary, Department of Justice and Regulation 
as a matter of human nature people are more cautious and concerned about their own child, than about others’ children…this subsection places a more onerous test on an applicant for an Assessment Notice.
126	I note the evidence of Mr Carpenter (long-standing family friend) and Mr Jaime de Loma-Osorio-Ricon (Mr Walker’s supervisor at Banksia Gardens Community Services). They said they would allow their own child to have direct contact with Mr Walker. The Secretary noted that the time when Mr Walker was caring for his son was around 2013, before the point where Mr Walker commenced to use benzodiazepines, and to use them in combination with alcohol.
127	While this evidence provides some reassurance, it is not determinative. The evidence of these two witnesses cannot be substituted for the reasonable person. The reasonable person is a hypothetical person, who does not have a prior relationship with the applicant, but rather, one who is considering afresh whether they would allow child to have direct contact with the applicant while the applicant was engaged in any type of child-related work. 
128	In my view, a reasonable person, giving paramount priority to the welfare of their own child would be aghast at the assaults, which were horrific, and demonstrated a lack of any kind of self-control or restraint. While perpetrated against an adult, the person would be conscious that the victim was clearly vulnerable, as a child would be. They would also be influenced by the fact that Mr Walker simply walked away, leaving his primary victim lying unconscious on the roadway.
129	They would be conscious that the sentence imposed by the justice system is still on foot. They would take into account the promising steps which Mr Walker has made, both in terms of dealing with his substance abuse, and the personal factors which underlay the assaults, such as lack of impulse control and lack of empathy. But in my view, they would still have concerns, given that Mr Walker is still under the supervision of the State, and given the lack of definitive evidence that those issues have been dealt with, which would prevent them from taking the risk of allowing Mr Walker to have contact with their child while he was engaged in child-related work.
Section 107(2)(b) – whether the applicant’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children
130	Neither party made any submission under this head which raised any new matter, not already canvassed under the provisions referred to above.
Section 107(3) – is it in the public interest to give the clearance?
131	The findings I have made above have the effect of determining this review against Mr Walker. But for completeness, I will proceed to consider the public interest criterion in s 107(3).
132	In Secretary to the Department of Justice and Regulation v McIntyre, Garde J said: 
The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad and it is not appropriate to seek to define the boundaries of the public interest, the paramount consideration – the protection of children from sexual and physical harm – is at the very core of the public interest test.
133	The Court of Appeal has held that considerations relevant to the public interest may overlap with considerations relevant to the consideration of unjustifiable risk, perhaps to a significant extent.
134	In Maleckas (LKQ) v Secretary Department of Justice Kyrou J. said that in circumstances where the Tribunal could not find that an individual satisfied the (a) to (j) factors, it would be difficult to envisage how it could then find that it was in the public interest to give an assessment notice under the WWC Act.
135	I readily accept that there is a public benefit in Mr Walker’s voluntary activities. There is also a benefit in enabling him to engage in voluntary work which promotes his rehabilitation. However, the effect of s 11 is that these benefits cannot outweigh the paramount consideration of the protection of children. 
136	I also note that under s 7, a WWC clearance is of course not required under the WS Act for the very many activities which do not usually involve direct contact with children. Further, work is not child-related work by reason only of occasional direct contact with children that is incidental to the work. 
137	Mr Walker’s own experience of the justice system may well enable him to contribute meaningfully, and with particular credibility, to community programs assisting young people at risk of engaging in criminal activities. 
138	But neither this, nor the other benefits referred to above, can be characterised as an overriding public benefit. In the light of my findings under s 107(1) and (2), it does not in my view tip the balance in favour of it being in the public interest at this time to give a clearance.
Conclusion
139	The deemed decision to issue a WWC exclusion is affirmed.
140	In terms of the risk calculus, the gravity of the offence is a key consideration. While Mr Walker is making good progress in his personal journey, there has been insufficient time for this process to have reached the point where the risk can be said to be justified—in terms of the tests set out in s 107 of the WS Act, and bearing in mind the paramount consideration of the protection of children from physical harm—in light of the enormity of the implications of the offending. 
141	In the particular circumstances of this case, including that he has not yet completed his sentence, the sustainability of his personal transformation has not yet been demonstrated. 
142	What needs to occur is that for a reasonable period after the completion of the CCO, Mr Walker must be able to demonstrate that the changes he has made in terms of banishing his dependence on alcohol and drugs, and in coming to a deep understanding of the causes of his previous dependence, and of the personal factors which allowed him to commit the assaults, have been ‘locked in’, such that it is clear he has held onto, and consolidated, the gains he is showing every sign of being likely to achieve.

Jonathan Smithers
Senior Member