Applicant v Minister for Immigration and Multicultural Affairs

[2000] AATA 696

APPLICANT and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W1999/402

DEPUTY PRESIDENT FORREST

Perth
10.8.2000
Extempore Reasons for Decision [2000] AATA 696

The applicant – you have applied to this Tribunal for a review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 15 October 1999 that you be deported from Australia.  You were convicted in the Supreme Court of Western Australia and sentenced on 28 February 1996 to a total sentence of 10 years imprisonment for the following offences:

Count 1: Unlawful and indecent dealing with a child under the age of 14 years.  Sentence:  1 year and 6 months imprisonment – concurrent.

Count 2:Unlawful carnal knowledge of a girl under the age of 17 years by a guardian.  Sentence:  2 years imprisonment – cumulative.

Count 3:Unlawful carnal knowledge of a girl under the age of 17 years by a guardian.  Sentence:  2 years imprisonment – cumulative.

Count 4:Unlawful carnal knowledge of a girl under the age of 17 years by a guardian.  Sentence:  2 years imprisonment – cumulative.

Count 5:Sexual penetration without consent.  Sentence:  4 years and 6 months imprisonment – cumulative and taking into account 18 months in custody.

Count 6:Sexual penetration without consent.  Sentence:  4 years and 6 months imprisonment – concurrent.

An application for leave to appeal against conviction and extension of time in which to appeal on counts 1, 5 and 6 was dismissed by the Court of Criminal Appeal.

The deportation order was made pursuant to s200 of the Migration Act 1958 ("the Act") which empowers the Minister to order the deportation of a non-citizen who (under s201of the Act) has been convicted in Australia of an offence for which the person was sentenced to imprisonment for not less that one year and who, at the time of the offence, had been in Australia as a permanent resident for less than 10 years. At the time of commission of the first of the deportable offences (Count 1) you had acquired less that 3 years permanent residence in Australia.

You were born in London on 6 December 1943 and are a British citizen.  You are a qualified freezer mechanic and domestic appliance engineer and worked in that trade for 10 years.  You also worked as a maintenance engineer in the family hairdressing businesses in England.  You migrated to Australia in October 1982 with your wife, who you married in 1967 and your two adopted children, Jason and Amanda.  Your children were adopted by you and your wife in 1972 when they were infants.  The family members have lived in Australia since.

In Australia you worked for a number of years, providing maintenance assistance for your wife in hairdressing businesses and in a beauty therapy business for 5-6 years, before you purchased a property with your wife on which you both operated an agistment and horse riding business.  You ran this business until your arrest in March 1995.  The property was subsequently sold by mortgagee sale in 1996.

On 20 March 1995 Amanda, then aged 23 years of age, made a statement to Police in which she alleged she had been sexually abused by you, in England from when she was 5 years of age and then in Australia from 1983 until a few days prior to the date of her statement.  You were subsequently tried and found guilty by a jury of the offences for which you were convicted.  You pleaded not guilty.  When you were sentenced on 28 February 1996, Judge Walsh remarked:

"The offences commenced in 1985 and continued until 1994.  It is important to emphasise that you are to be punished in relation to the offences set out in the indictment.  I appreciate that there is in this case overwhelming evidence that your sexual abuse of your adopted child commenced when she was much younger and continued intermittently over the years.

Whilst I do not overlook that these offences are representative ones, nonetheless I am constrained by the number of the specific offences in the manner in which I can properly deal with you.  The victim in this case was your adopted child.  The way in which you treated her from a young age, having regard to the responsibility that you had to her as a parent, can only be described as outrageous.  You sexually exploited her to satisfy your own sexual needs over very many years.

You did so in a manner which I myself consider to be extraordinarily degrading and abhorrent to any right-minded person in the community.  I have particular regard to your admitted mutual masturbation of her and yourself commencing at an earlier age but more particularly to the use of the broomstick, you having both provided that and the vaseline and made her use it on herself, aggravated even more by the use of sponges when you were sexually penetrating her.

It is quite apparent from the manner in which you gave your evidence that you do not appreciate the extent of your misconduct or indeed the disgusting way in which you treated your daughter.  Sad as the contents of her victim impact statement are, nonetheless I don't find them surprising.  The emotional trauma that you have brought to her will probably remain with her for as long as she lives.  I don't overlook also the dreadful damage emotionally that you have done to her mother, who once again is an innocent victim in the overall context of these offences.

In my view, you are fortunate that you have only been brought before the court in relation to six specific counts and also the fact that some of the offences occurred a long time ago when the penalties were less serious than they are now.

In my view, having regard to the gravity of your conduct over such a long period of time and to all the circumstances in which these offences have been committed, the appropriate sentence without having regard to the time you have already spent in custody is one of imprisonment for 10 years, but of course you are entitled to and I allow a deduction of 1 and a half years from that for the time you have spent in custody."

You were granted parole to take effect on 28 October 1999.  However the deportation order intervened and you have been held in custody pending the final determination of these proceedings.

In considering the merits of the deportation order I am required by s499 of the Act to have regard to the terms of the Ministerial Direction as to Australia's criminal deportation policy issued by the Minister for Immigration and Multicultural Affairs, with effect from 21 September 1998. The Direction – a copy of which is included in the s37 documents served on you (pages 5-16) – requires a decision maker to have due regard to the importance placed by the government on two primary considerations but also to adopt a balancing process taking into account all relevant considerations. The two primary considerations are:

(a)the expectation of the Australian Community; and

(b)the best interests of any child aged less than 18 years.

The second of these primary considerations does not apply in your case.

The expectations of the Australian community has two aspects – firstly, the expectation that the community will be protected and not put at risk and secondly, the expectation that non-citizens who commit crimes that are abhorrent to the Australian community will be removed from Australia.

In assessing the level of risk to the community and the need for it's protection, the Direction identifies three factors as relevant:

(a)the seriousness and nature of the crime;

(b)the risk of recidivism; and

(c)the likelihood that deportation would be likely to discourage similar offences by others.

The Direction nominates sexual assaults on children among the very serious offences.  Your offences against your daughter which extended over a long period fall into this category. The comments of the sentencing Judge on your behaviour reveals exploitation of your daughter in a calculating and degrading fashion for your own sexual satisfaction.  Although the six offences for which you were convicted and sentenced were committed between 1985 and 1994 from when your daughter was 13 to 23 years of age, the sentencing Judge noted that there was overwhelming evidence that the sexual abuse commenced when your daughter was much younger.  The seriousness of your offending is in my view heightened by the continuity of your behaviour over a long period of time.

I turn to the second of the factors in assessing the level of risk to the community, the risk of recidivism. 

I take into account that you have no other convictions and that you have spent your time in prison usefully by undertaking self-development and rehabilitation courses as were available.  Your behaviour in prison was of no concern to authorities. For your part you say that you are not a risk to anyone, there is no chance that you will re-offend, you made a big mistake and that you are sorry for what occurred.

In May 1996 you were assessed as suitable for inclusion in the Sex Offenders Treatment Programme by Cinzia Zuin, psychologist.  At that time you expressed a willingness to participate in the programme but the psychologist thought that given the entrenched pattern of your offending coupled with the lack of insight into the moral and legal implications of your behaviour that you presented as a high risk of re-offending.  That report was made before any treatment.  A more recent report is contained in the Ministry of Justice Treatment Completion Report (Exhibit 3).   The report was written after you had completed a 9-month Sex Offenders Treatment Programme in September 1999.  The authors wrote that initially you were not fully cooperative with the assessment process as you did not believe that you had committed a sexual offence and were angry with your daughter for having you imprisoned.  However, although the report noted you may be at risk of offending in a similar manner if you were to enter an adult relationship where a young female was present, it concluded you to be a low risk of sexually re-offending in the future and recommended your parole on the basis you continue with a maintenance sex offenders programme.  I note that you have agreed to undertake the maintenance programme.

You were also assessed by Kirstin Bouse, psychologist, at the request of the respondent, in July 2000.  In her report (Exhibit 1) she assessed you as having limited empathy for your victim and a paucity of understanding of your offending while at the same time a high degree of self-interest with regard to remaining out of trouble and in Australia.  You did not exhibit a generalised paedophilic interest.  You were assessed as low risk of re-offending against the victim, sexual or otherwise.  However should you develop a close relationship with a female child you were assessed as a high risk as you lack fundamental insight into the issues relevant to your offending.

In my assessment that limited empathy with your victim mentioned by Kirstin Bouse was evident during the hearing –you would not accept your guilt under any circumstances in relation to the first count, that of unlawful and indecent dealing with a child under the age of 14 years and the two counts of sexual penetration without consent.   That leads me to conclude that either you believe your daughter to be untruthful about events or you blindly refuse to accept the gravity of your behaviour.  Either way raises serious questions about the extent of your remorse and your rehabilitation.  Because you do not accept these convictions, I have real reservations that you are truly rehabilitated and not a danger to the community particularly, as the reports noted, in any relationships you may develop with a female child.  In that sense and in those circumstances you are an unacceptable risk to the Australian community because the gravity of your offending is such that only a very low risk of recidivism is acceptable to the community: Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100. I do not accept that you are a very low risk.

The third relevant factor in assessing the level of risk to the community is the general deterrence factor.  I do not see this as a factor of much weight in that it is unlikely that deportation would act as a deterrent to other non-citizens who may be contemplating similar behaviour.

I have no doubt that the Australian community regards sexual offences against children as abhorrent.  Judge Walsh expressed that abhorrence in his sentencing remarks.  Paragraph 15 of the Direction states that deportation may be appropriate even if there is no serious likelihood the person will be a threat to the community simply because of the nature of the offences. The policy espoused in paragraph 15 of the Direction is not a statement which either precludes or obviates the necessity to weigh up all relevant considerations: see Deng and Minister for Immigration and Multicultural Affairs [1999] AATA 386.  My understanding of community attitudes to your offending requires me to give this factor considerable weight.  That is not to say the abhorrence issue is an overriding consideration, but a relevant factor to be taken into account in the balancing process being undertaken.

The other considerations that I now turn to consider are essentially hardship factors, both to yourself and to Australian citizens or permanent residents.

You are now 56 years of age.  As mentioned earlier you migrated here with your family in 1982 when you were 38 years of age and have lived in Australia since.  Your wife physically separated from you in 1994 when she left you.  For two years previously you were separated under the one roof.  Whether you resume a relationship with her is at this stage a matter of conjecture.  At one time she considered divorce proceedings and consulted a lawyer but did not proceed.  She said in evidence that she would like to resume the relationship and I accept her evidence.  She is filled with self-doubt and uncertainty which is understandable given all that has happened. She has endured loss of marriage, family, home and a business that she had with you.  Her health has deteriorated.  She has re-established some business links with an interest in a small business.  In 1999 she acquired Australian citizenship. I accept that she will, despite the uncertainty of your relationship with her, suffer hardship if you are deported and I take this into account.  Her parents, sister and nieces also live in Australia.  Her parents would not suffer hardship as such but would, I am satisfied, be distressed by your removal. 

The sad fact in all of this is the havoc your conduct has wreaked on your family, having irrevocably destroyed any relationship with your children, Amanda and Jason, who want nothing further to do with you and have expressed in strong terms their views about your behaviour.  Their relationship with their mother has also been fractured.  Your family ties in Australia are an uncertain relationship with your wife, you have a brother here, your sister in law and her family and your parents in law.  Your mother in law, who testified that you are a hard worker, expressed a distorted view of your offending in that she blames your daughter for what has happened.

Your daughter Amanda has, I am satisfied, been severely traumatised by your behaviour.  You have degraded and humiliated her and over a long period ruthlessly abused the trust and guidance a child is entitled to expect from a parent.  She has had counselling over an extended period to cope with her distress.  While she has got on with her life, with marriage and a child and recently resumed contact with her biological parents, the emotional scars remain.  She feels unsafe at the prospect of your presence in the community which in her mind inhibits her freedom to enjoy her everyday life.  In opposing your continued presence in the community she has the strong support of your son, Jason.  He left the family home on the eve of his 18th birthday to live elsewhere and although part of what he had to say in his statement was repeating matters told to him by his sister, I accept that he is a witness of truth despite your efforts to paint him as untruthful.  Paraded before me was the sad and sorry spectacle of a family rent asunder by your behaviour.  The depressing aspect is that you appear not to fully comprehend what you have done.

Although you have spent the greater part of your life in England, I accept that your ties are now predominantly to Australia in that this is where you wish to live. You "sold up" in England and migrated to Australia in 1982 with your family and in-laws.  Nevertheless you have ties in England.  You lived and worked in England until you were 38 years of age.  You have 2 sisters, Patricia and Jean, living there. You remain in contact with your sisters, occasional phone calls, letters, birthday and Christmas cards.  Patricia has offered you accommodation should you return.  I accept that you have no social contacts in England and because of your age, your prospects of employment in England would be poor.  By comparison, you say your prospects in Australia are good, with the offer of accommodation with a friend and also of a partnership in an upholstery business on your release.  Your prospective business partner is a fellow inmate who is apparently serving a custodial sentence for sex related offences.  I accept that business wise you would be able to resettle into the community in Australia without too much difficulty.

Having considered all the evidence and weighing up the considerations required by the Direction to be taken into account, the competing considerations fall on the side of your deportation.  I am satisfied that despite the undoubted hardship factors which flow from deportation these considerations are, in my opinion, outweighed by the nature and circumstances of your offending, the doubts I have about the extent of your rehabilitation and the best interests of the Australian community, which includes the right of your daughter as a member of that community to enjoyment of life free from your presence in the community to which you would return. 

For these reasons I affirm the decision under review.