Baskin and Minister for Immigration and Citizenship
[2008] AATA 420
•22 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 420
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0964
GENERAL ADMINISTRATIVE DIVISION ) Re KEITH WILLIAM BASKIN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date22 May 2008
PlaceMelbourne
Decision The decision under review is set aside. Mr Baskin’s visa is not cancelled.
..................[Sgd].......................
Egon Fice
Member
MIGRATION - Visa cancellation – character test – exercise of discretion – very serious offence – murder – Direction 21 – admissibility of evidence – risk of recidivism – expectation of Australian community – rehabilitation – family support
Goldie v the Minister for Immigration (2001) 111 FCR 378
Pomare v Minister for Immigration and Citizenship [2008] FCA 458
Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202
Minister for Immigration and Multicultural Affairs v SRT (1999) FCR 234
Dapino Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003
Migration Act 1958,s 499(1), 501(2),(6),(7) s500(6H), (6J)
Administrative Appeals Tribunal Act 1975, s33
Migration Reform (Transitional Provisions) Regulations
Ministerial Direction No 21, 23 August 2001
REASONS FOR DECISION
22 May 2008 Mr Egon Fice, Member 1. Mr Keith William Baskin is a New Zealand citizen who came to Australia on 7 October 1984 when he was 22 years of age. As a New Zealand passport holder, he was not required to hold a visa but following the introduction of the Migration Reform (Transitional Provisions) Regulations on 1 September 1994, Mr Baskin was deemed to be the holder of a Class TY Subclass 444 Special Category Visa (visa). The consequence of that was he could remain in Australia indefinitely as long as he remained a New Zealand citizen.
2. Between 1985 and 1998, Mr Baskin was convicted of various offences on 12 separate occasions. Some were drug related, others were driving offences and yet others were property related. Two of them were offences against the personal integrity of others. One of those was a conviction for intentionally causing serious injury and the other was a conviction for murder. Mr Baskin was imprisoned for 16 years on the charge of murder.
3. On 7 November 2007 Mr Baskin was notified by the Department of Immigration and Citizenship (the Department) that consideration was being given to whether his visa should be cancelled under s 501(2) of the Migration Act 1958 (the Act). He was invited to provide information regarding whether he satisfied the character test set out in s 501(6) of the Act and information that would assist the Minister’s delegate in determining whether his visa should be cancelled. Mr Baskin’s solicitor provided a response on 28 December 2007 which included letters of support from his ex-wife and relatives. After consideration of the documents provided by Mr Baskin’s solicitor, the Minister’s delegate decided on 18 February 2008 that he reasonably suspected Mr Baskin did not pass the character test and that the discretion to cancel Mr Baskin’s visa under s 501(2) of the Act should be exercised. Mr Baskin, who had only just been released from gaol on parole, was taken into custody by officers from the Department and placed into detention at the Maribyrnong Immigration Detention Centre.
4. The parties agreed at the hearing that Mr Baskin had a substantial criminal record (as that term is defined by s 501(7)) and so did not pass the character test. Therefore, the only issue before me is whether, having regard to all of the relevant considerations in Ministerial Direction No 21, dated 23 August 2001 (the Ministerial Direction), the preferable decision is to cancel Mr Baskin’s visa.
RELEVANT BACKGROUND
5. Mr Baskin was born in New Zealand on 16 June 1962. He was 22 years old when he first came to Australia in 1984. Since his arrival in Australia, Mr Baskin has returned to New Zealand for a period of 3 months in 1985; for 12 months between March 1987 and March 1988; and for a period of 4 days in 1992. Otherwise, he has resided in Australia.
6. Mr Baskin’s mother, who is 73 years old, lives in a retirement village on the North Island of New Zealand. Mr Baskin also has a sister who lives on the South Island. The remainder of Mr Baskin’s family live in Australia. He has two sisters who live at Penrith in New South Wales. He has a son from his former wife, whom he married in 1987. That marriage ended in 1994. He also has two adult step-sons from that marriage. Mr Baskin is now in a relationship with Ms Maria Rodriguez (known as Akasha Romero). This relationship is relatively recent having commenced in 2005 while Mr Baskin was in prison.
7. Mr Baskin has an extensive criminal record. Prior to his arrival in Australia in 1984, Mr Baskin was convicted on three occasions for possession of drugs and on two occasions for driving with excess blood alcohol levels. He was fined and his driving licence was disqualified. After his arrival in Australia, the following convictions are recorded against Mr Baskin:
(a)1985 – possession of a drug of dependence, theft, unlicensed driving, providing a false name and address and speeding;
(b)1986 – driving with excessive alcohol, exceeding the speed limit, failing to display ‘L’ plates and possession of a drug of dependence;
(c)1988 – possession of a drug of dependence, failure to appear and drunk in a public place;
(d)1990 – intentionally causing serious injury and burglary;
(e)1992 – driving whilst disqualified;
(f)1993 – unlicensed driving;
(g)1993 – unlawful possession of drugs, failure to answer bail and unlicensed driving;
(h)1994 – possession and use of cannabis;
(i)1995 – unlicensed driving;
(j)1996 – breach of community based order, possession and use of cannabis and unlicensed driving;
(k)1996 – failure to answer bail, burglary and theft; and
(l)1998 – murder.
8. Upon conviction for intentionally causing serious injury and burglary in 1990, Mr Baskin was sentenced to ten months imprisonment, suspended for twelve months with a three year good behaviour bond. That crime involved the applicant breaking into the victim’s house and striking him with a hammer. Not only did Mr Baskin take a friend with him on the night the victim was attacked, but his step-son also attended, although Mr Baskin did not agree to his attendance. His step-son was then 16 years old and he was charged in the Children’s Court as a result of the incident. The community based orders which were imposed on Mr Baskin between 1992 and 1996 were breached and he received two prison sentences of two months and one month, to be served concurrently.
9. The following account of the events that lead to Mr Baskin’s conviction for murder are taken from the sentencing remarks made by Coldrey J. There was no dispute about their accuracy, although Mr Baskin’s account at the hearing about two aspects varied from the sentencing remarks. I have addressed these below where I deal in more detail with the events that took place on the day of the murder.
10. Mr Baskin was sentenced to 16 years imprisonment with a non-parole period of 12 years on 23 April 1998 when he was convicted of the murder of Noel Anthony Connolly. The murder was committed together with a Mr John Bewley Evans, who was intellectually disabled. Coldrey J noted that the evidence given by Mr Evans of the murder varied significantly from the account given by Mr Baskin to the investigating police. Coldrey J said that he could only have regard to Mr Baskin’s version of the events of the killing of Mr Connolly (the two defendants were tried separately) and said that the approach was, necessarily, somewhat artificial. His Honour noted that the motivating conduct for Mr Evans’ actions on the night of the murder was his involvement with Mr Connolly’s partner. However, Mr Baskin claimed to know nothing about those matters and there was no admissible evidence against Mr Baskin to the contrary. Coldrey J also noted there was no admissible evidence in Mr Baskin’s case of a plan between Mr Evans and Mr Baskin to kill or seriously injure Mr Connolly.
11. According to Coldrey J, when first interviewed by the police, Mr Baskin said he did not know how Mr Connolly’s wounds were inflicted and it was not until the police produced the murder weapon, a tomahawk, that his version of events dramatically changed. Mr Baskin’s version of events was the opposite of that of Mr Evans. Mr Baskin nevertheless persisted with the story that he temporarily left the scene before Mr Connolly was attacked and moved some distance away in the dark to urinate because he considered himself to be a private person. Justice Coldrey then said:
… I have no doubt the jury regarded this assertion as absolutely ludicrous and were satisfied beyond reasonable doubt that you never left the scene of the killing. On your new version of events you admitted to striking Noel Connelly two or three times with the tomahawk. This was after John Evans handed it to you and told you Mr Connolly was a kid basher and a women basher. You told the police… I just lost it. Just lost the plot. You described a blow to the jaw and two blows to the throat area…
12. Justice Coldrey noted that Mr Connolly received more than 20 injuries to his head and neck area from the tomahawk. A number of those injuries fractured the skull and penetrated the brain itself. Mr Connolly’s body was dragged into undergrowth and Mr Evans drove Mr Baskin back to his Melton South address. Coldrey J concluded:
The killing of Noel Connolly was a brutal crime. I am satisfied that you were present throughout its commission and, on your own admission, you took part in the killing, striking three blows to the helpless victim. On the evidence Noel Connolly was a gentle, decent and hardworking man. He did not deserve to die in this terrible way.
13. Coldrey J noted that it was put to him, by Mr Baskin’s counsel, that the trigger for Mr Baskin’s actions in the murder of Mr Connolly:
may be found in his own turbulent family history. He said it appeared that the relationship between Mr Baskin’s parents was marked by drunken assaults by his father upon his mother and, on occasions, Mr Baskin also suffered particularly severe beatings at his father’s hands.
He noted Mr Baskin’s employment history since leaving high school, stating that Mr Baskin had a work record of consistent gainful employment. Coldrey J referred to a report by Mr Tim Watson-Munro, a consultant psychologist, detailing a history of drug and alcohol abuse commencing with the consumption of alcohol at the age of 14 years. He said that over the years, Mr Baskin experimented with marijuana, amphetamines, cocaine, narcotics and hallucinogens such as LSD. Coldrey J also referred to Mr Baskin’s prior convictions. His Honour particularly mentioned the 1990 charge of causing serious injury intentionally and burglary. He noted that the similarity of that offence with the murder was one of concern. Coldrey J also noted that Mr Watson-Munro was of the view that, in Mr Baskin’s present alcohol and drug-free state, he had developed some insight into his problems and was prepared to seek treatment for them. Coldrey J said that although Mr Baskin’s counsel asserted he felt very remorseful over what had happened:
There is, however, no real evidence of this although I accept that you regret the effect on your family of your actions.
14. During his 12 years of imprisonment, Mr Baskin completed a number of programs and 18 months of a one-on-one weekly counselling session with Mr Hugh Thompson, a psychiatrist. The programs included drug treatment, anger management, relapse prevention, drink driver education, peer educator/support and various work projects within the prison system. I was shown a number of certificates which evidence Mr Baskin’s completion of these programs and am satisfied that he did so.
15. In 2000 Mr Baskin was selected for the Nalu program and was appointed a peer supervisor in the Nalu intermediate facility for young offenders. According to Mr Baskin, he co-ordinated many of the 16 week courses designed to help young offenders learn new life skills and skills to enable them to remain out of trouble with the police once released. He said the programs involved camping trips, horse-riding trips, canoeing and white-water rafting on the Thompson River. All of these activities were outside prison grounds and although away from direct supervision, Mr Baskin did not commit any offences or let down the people who had placed their trust in him while running these courses. I accept Mr Baskin’s evidence about his involvement in the Nalu program as I was shown documents and photographs which show his participation in the types of activities described.
THE LEGISLATIVE SCHEME
16. Section 501(2) of the Act provides:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character
Section 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record. That term is defined in s 501(7) of the Act which provides that, for the purposes of the character test, if amongst other things, the person has been sentenced to a term of imprisonment of 12 months or more, the person is regarded as having a substantial criminal record. The notice from the Department also stated that if a decision was made to cancel Mr Baskin’s visa, any other visa that he may hold would also be taken to have been cancelled. Therefore, if his visa were cancelled under s 501(2) of the Act, he would become an unlawful non-citizen and when released from criminal detention, he would be required to be detained and removed from Australia.
Although Mr Baskin concedes that he does not pass the character test, it was submitted on his behalf that the Minister’s discretion should be exercised in his favour in accordance with the guiding principles set out in the Ministerial Direction.
PRELIMINARY MATTER – ADMISSIBLE EVIDENCE
17. The hearing of this matter was initially set down to commence on Wednesday 30 April 2008. On 29 April 2008 the Minister’s solicitors notified Mr Baskin’s counsel and the Tribunal that they had received documents from Mr Baskin’s solicitor late in the afternoon on Monday 28 April 2008. The Minister’s solicitors objected to the Tribunal having regard to any of those documents on the basis of what is set out in s 500(6H) and (6J) of the Act. Those sections provide as follows:
(6H) If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
18. On the morning of the date set down for the commencement of the hearing of this matter, after both counsel announced their appearances, Ms D Manova, who appeared on behalf of Mr Baskin, said she wished to raise a preliminary matter. She explained that she had only come into this matter very recently after counsel engaged by Mr Baskin’s solicitors became ill and that she was aware that there was additional evidence which would assist the Tribunal in making a decision, but which could not be put before it. Ms Manova then applied for an adjournment of the commencement of the hearing indicating that it would not be possible to present Mr Baskin’s case at that time. Given the significance of this matter and the fact Mr Baskin should have every opportunity to properly present his case before me, I accepted that the hearing should commence on 15 May 2008. Mr D Brown, who appeared on behalf of the Minister, did not object to the adjournment sought by Ms Manova. However, he was of the view that s 500(6H) and (6J) would nevertheless continue to constrain the Tribunal because the hearing of this matter had commenced. Mr Brown referred to Goldie v the Minister for Immigration (2001) 111 FCR 378. He also referred me to the case Pomare v Minister for Immigration and Citizenship [2008] FCA 458, a decision of Lindgren J. In Pomare’s case, Lindgren J held that time to lodge an application to the Tribunal had not commenced to run because the applicant had not been properly notified of the Minister’s decision. However, it was not argued that Mr Baskin had not been properly notified. I do not consider that any assistance can be derived from this case regarding the application of s 500(6H) and (6J).
19. Ms Manova submitted that the hearing had not commenced and accordingly, if she were to file further material within two clear business days before commencement of the hearing, the Tribunal should have regard to it. She repeated that her application was to adjourn the commencement of the hearing of this matter and that the hearing had not begun.
20. After taking time to examine the cases to which I had been directed, I returned and gave my decision that the hearing had not commenced and therefore the condition necessary to enliven the restrictions set out in s 500(6H) and (6J) had not been triggered. The reason I came to this conclusion was that Ms Manova made it clear at the very outset that, as a preliminary matter, she wished to apply for an adjournment of the commencement of the hearing. In my view, the reference in s 500(6H) and (6J) to a hearing, is a reference to the substantive hearing of the matter. That much is clear because immediately following that expression in parentheses are the words other than a directions hearing. It is common practice in the Tribunal, where parties wish to adjourn the commencement of a hearing, to hold what is described as a telephone directions hearing regarding that adjournment application. At such a hearing, if the adjournment is granted, directions are usually made about the new commencement date and any other matters which need to be dealt with in connection with the hearing of the matter in accordance with the procedures of the Tribunal set out in s 33 of the Administrative Appeals Tribunal Act 1975. The fact that such an application was made face-to-face rather than by telephone, on the day set down for the commencement of the hearing, does not, in my view, necessarily mean that the hearing had commenced. It seems to me that a hearing cannot commence until such time as counsel, usually for the applicant, opens the applicant’s case. That of course did not occur in this matter on 30 April 2008.
21. I was also referred to the case Re SAAC and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 202, a decision of Deputy President D G Jarvis. After commencement of the hearing, the applicant indicated that he wished to call evidence from two witnesses but he had not provided the respondent with a written statement outlining the information to be given by those witnesses at least two business days prior to the hearing. Although Deputy President Jarvis admitted the evidence for reasons which are not relevant here, it is clear that the Deputy President was dealing with a very different case. The substantive hearing had commenced and the Deputy President indicated that it was after the applicant had completed his examination-in-chief and his cross examination had commenced, that the issue about admission of the evidence arose. That is very different to the matter before me.
22. I also note that Goldie’s case dealt with a different point. Gray J in that case was concerned with the right of the Minister to file documents at the start of the hearing or at a later stage in the course of the hearing. The question was whether the applicant ought to have more time to put in further material in order to be allowed a fair hearing. However, Gray J said, at 391: Once the Tribunal began a hearing the entitlement of the appellant to rely on information and documents crystallised.
23. I have not been able to locate any other authority which can assist in identifying the precise time at which a hearing commences but my conclusion is consistent with the scheme of the provisions in the Act as summarised by Gray J in Goldie at 389-390:
. “25 The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).
26 It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to the case. …”
24. Therefore, my view is that no hearing had commenced on 30 April 2008 at the time when Ms Manova sought an adjournment of the commencement of the hearing. It follows that I can have regard to any evidentiary material on which Mr Baskin sought to rely for the purposes of his hearing provided it was given to the Minister no later than 12 May 2005. Prior to 12 May 2005, additional materials and a witness statement from Mr Bernard Healey were given to the Minister and I have had regard to them in making this decision.
THE MINISTERIAL DIRECTION
25. Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Further, a person or body must comply with the directions made by the Minister under s 499(1). Broadly, the Ministerial Direction states that when exercising the discretion under s 501 of the Act, the decision maker must take into account a wide range of factors including the expectations of the Australian community; the nature of the crimes committed; the non-citizen’s links to Australia; and any relevant international law obligations. The Ministerial Direction states that the purpose of refusing or cancelling a visa under s 501 of the Act is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole, as to who should be allowed to enter or remain in the community.
26. Although the Ministerial Direction sets out three primary considerations, which are regarded as most important, there are other considerations which should also be taken into account, but given less individual weight, in balancing all of the relevant considerations. The primary considerations when making a decision to cancel a visa are:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
protection of the australian community and members of the community
27. Consideration of the first primary factor requires me to assess the level of risk to the community if Mr Baskin were to remain in Australia. The relevant matters which I must consider are:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
seriousness and nature of the conduct
28. It was not disputed and I accept that Mr Baskin has been convicted of two serious acts of violence. The first occurred in 1989 and was committed against Mr Peter Roberts. Ms Sandra Fletcher was Mr Roberts' de facto at that time. According to Ms Fletcher, she met Mr Baskin in 1988. She had two children, Adam and Lance, and was in an extremely abusive relationship with Mr Roberts. In 1989, Ms Fletcher left Mr Roberts and took her children with her. Some months later, Mr Baskin developed a relationship with Ms Fletcher and moved in with her and the boys. At that time, Mr Baskin was drinking excessive amounts of alcohol, between 12 and 18 cans of beer a day. Mr Roberts continued to stalk Ms Fletcher and he made threats against her and the boys. Ms Fletcher was threatened on many occasions and then, approximately 12 months after entering into a relationship with Mr Baskin, Mr Roberts attended their home and spray painted the word “slut” on Ms Fletcher’s car. Although Mr Roberts’ behaviour had been reported to police, it continued unabated. According to Mr Baskin, at that point he decided to take the matter into his own hands.
29. According to Mr Baskin, one night, not long after the spray painting incident, he took a friend to Mr Roberts’ home where they assaulted him. That assault involved the use of a hammer which, according to Mr Baskin, was found in Mr Roberts’ back yard. He said he did not take a weapon with him and did not intend to injure Mr Roberts. When Mr Baskin and his friend went to assault Mr Roberts, Ms Fletcher’s son Adam, who was then aged 16, insisted on going along with them. Mr Baskin said that he insisted that Adam not go with them but, according to Mr Fletcher’s evidence, he got on his bike and he went to Mr Roberts’ house. At the time he arrived, Mr Baskin and his friend were remonstrating with Mr Roberts in the front yard. According to Mr Fletcher, he found the hammer and he attacked Mr Roberts by beating him with the hammer around the legs and lower body area.
30. Mr Fletcher gave evidence that he never knew his father because his parents separated when he was three years old. When he was about six years old, his mother became involved with Mr Roberts. He said that within 12 months, Mr Roberts began to physically abuse his mother and that some of the beatings were so severe that the police had to be called and his mother taken to hospital. The police took photos of Ms Fletcher’s injuries but, according to Mr Fletcher, nothing came of the complaints made by his mother. When Mr Fletcher was ten years old, Mr Roberts started to hit him and his younger brother Lance. Mr Fletcher said that he raised the possibility of going around to Mr Roberts’ place to “sort him out”. He said it was his anger and all of the years of abuse suffered by him, his mother and brother that pushed him into taking matters into his own hands. However, he also said that Mr Baskin would not let him go to Mr Roberts’ house on his own and tried to stop him from going. He said that he insisted on going despite Mr Baskin telling him that he should not. Mr Fletcher was charged with assault and pleaded guilty in the Children’s Court. I accept that this is an accurate account of this incident on the evidence of Mr Baskin, Ms Fletcher and Mr Adam Fletcher.
31. The second very serious criminal offence committed by Mr Baskin was the murder of Mr Noel Connolly on 11 April 1996. It is necessary to go into the background of this offence in some detail in order to understand what motivated Mr Baskin to commit it. It is based on Mr Baskin’s evidence and the sentencing remarks of Coldrey J. In doing so, I am mindful of what the Full Court of the Federal Court said in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234. I must accept the essential facts as found by the sentencing Judge in the course of his deliberations concerning the sentence. As the Full Court said, at page 244:
…
But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. …
and further, at page 245:
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent.
32. In 1994 Mr Baskin separated from Ms Fletcher, with whom he had a child in 1990. He then commenced a de facto relationship with Ms Marilyn Quirk. Ms Quirk had a brother, Mr John Evans. Mr Baskin had regular contact with Mr Evans and they would go to the pub or shop together. Mr Evans was friendly with a couple, Ms Ivy Waite and Mr Noel Connolly, who lived at Bacchus Marsh. In fact, Mr Evans became extremely fond of Ms Waite and he said he was in love with her. Mr Evans was assessed to have a full scale IQ of 65 which placed him in the middle of what was described as the mentally defective range where 99 percent of the community would perform better than him. Ms Waite was more sophisticated than Mr Evans and was able to manipulate him. According to the sentencing remarks in Mr Evans’ trial, Ms Waite and another person made comments which Mr Evans took as meaning that they wanted Noel Connolly killed. According to Mr Baskin, about two days before the murder, Mr Evans asked him if he could assist him to collect some car parts from Ms Waite’s home. Mr Baskin said that he agreed to go with Mr Evans on 11 April 1996 after work. He said that on that day, at approximately 7pm, he was at home when Mr Evans came to pick him up in his car. He said he had been drinking all day and had another two or three stubbies before Mr Evans arrived. They purchased more alcohol on the way to Bacchus Marsh. Mr Baskin said that on the drive to Bacchus Marsh, Mr Evans told him how worried he was for Ms Waite and her children. Mr Baskin said that Mr Evans told him that Mr Connolly was constantly beating Ms Waite, pouring hot water on her and hitting the children on the legs. He also said that he heard Mr Connolly threatening Ms Waite with the rape of their daughter. He suggested that they have a word with Mr Connolly when they saw him. According to Mr Baskin, when they arrived at Ms Waite’s home, Mr Evans went inside to get the car parts and came out with Mr Connolly. He said this was the first time he had seen Mr Connolly. Mr Evans then told Mr Baskin that they had to give Mr Connolly a lift to Melbourne so he could pick up a car that he was buying. On the way to Melbourne Mr Evans pulled over at a place called Deep Creek Cutting and that is when the murder took place.
33. In his sentencing remarks in Mr Evans’ trial, Coldrey J said that the evidence in his case was that Mr Evans had brought a change of clothing with him on that day and had put the tomahawk in the boot of the car earlier. However, Coldrey J said that although Mr Evans changed his clothes after the event, on the basis of the police record of interview, he could not conclude that the change of clothes were put in the car in case Mr Evans got blood on them. He also said that the Jury, in convicting Mr Evans of murder, were satisfied that there was an agreement between him and Mr Baskin to either kill Mr Connolly or to cause him really serious bodily injury. In the sentencing remarks in Mr Baskin’s case, Coldrey J said there was no admissible evidence in his case of a plan agreed between him and Mr Evans to either kill or cause serious injury to Mr Connolly. Therefore, I find that if there was an agreement to kill Mr Connolly on the night of 11 April 1996, that agreement was made when Mr Evans and Mr Baskin travelled to Mr Connolly’s house to pick up the car parts.
34. According to Mr Baskin, his reason for attacking Mr Connolly was that he was told that he was a wife basher and a kid basher. He said that he was drunk at the time and not able to think clearly about the situation. Mr Baskin had no evidence that Mr Connolly was abusing his family and in fact, that was not the case.
35. Mr Brown suggested that Mr Baskin’s account of the events was not plausible because, in his sentencing remarks, Coldrey J noted that Mr Baskin told the police that at the time of the murder he was not drunk. However, Mr Bernard Healey, a clinical psychologist with some 46 years experience of dealing with criminal offenders, said that it was not unusual that a person who was an alcoholic would not consider themselves to be drunk. He had no doubt at all that Mr Baskin was an alcoholic at that time. In fact, in the sentencing report, Coldrey J referred to a report by Mr Tim Watson-Munro. Mr Watson-Munro detailed a history of drug and alcohol abuse commencing with the consumption of alcohol at the age of 14 years. He also noted that, according to Mr Baskin’s counsel at his criminal trial, Mr Baskin's consumption of alcohol was such that after his arrest, he suffered withdrawal symptoms. Mr Baskin’s own evidence was that he suffered withdrawal symptoms for a significantly long period of time after his arrest. Also, Mr Baskin said that because it has now been some 12 years since he has consumed any alcohol, he is convinced that he was drunk at the time of this event. I accept that it is probable that Mr Baskin was intoxicated at the time he committed the murder despite what he told the police when interviewed. This finding does not impugn the sentence because the statement about him not being drunk in the sentencing remarks merely refers to what Mr Baskin told the police when interviewed. Mr Baskin did not deny that was what he said to the police at that time. I also accept that Mr Baskin was motivated by the story told to him by Mr Evans about Mr Connolly being a wife basher and a kid basher. According to Mr Watson-Munro, Mr Baskin was suffering from long standing and deep seated depression, anxiety and low self esteem which stemmed from the traumas of his early family life. He said that, in turn, resulted in inappropriate self medication with alcohol and drugs. Mr Watson-Munro was of the opinion that when intoxicated, Mr Baskin’s modest intellect would affect his ability to make appropriate judgements and to control his impulses.
36. Mr Brown also attempted to cast some doubt on the recorded events as given by Mr Baskin about who struck Mr Connolly. Mr Baskin nevertheless maintained that his recollection of the killing was as is stated in the sentencing remarks. He said that after Mr Evans had stopped the car at the cutting, he got out to relieve himself. When he returned, Mr Evans was striking Mr Connolly with the tomahawk. He said Mr Evans then passed the tomahawk to him and he struck Mr Connolly with it. He also said that at one point he tried to persuade Mr Evans that they should put Mr Connolly in the car and take him to a hospital. However, he said Mr Evans threatened him by saying that he would do that to his family. This version of events is sharply at odds with the account recorded by Coldrey J in his sentencing remarks in Mr Evans’ case. There, Mr Evans is recorded as having said that the plan to kill Mr Connolly was devised by Mr Baskin. Mr Evans was to pretend that he had engine problems and to drive his vehicle down a side road at Deep Creek Cutting. When Mr Connolly was looking under the bonnet, Mr Baskin, who was to pretend to go to the toilet, would strike Mr Connolly from behind with the tomahawk. Be that as it may, not only is there no means by which I can determine whether Mr Baskin was telling the truth about the killing, if I were to make findings about Mr Baskin’s account of the killing which are contrary to what is stated in the sentence remarks, that would be impermissible. . Accordingly, I decline to make any finding of fact about who did the killing or whether the plan to kill Mr Connolly was made at some time before the evening of the murder.
37. Coldrey J sentenced Mr Evans to 14 years imprisonment with a minimum of nine and a half years. He said that sentence governed, to some extent, the sentence which he was able to pass on Mr Baskin. He also said there were significant differences between Mr Baskin’s situation and that of Mr Evans, particularly because Mr Evans was intellectually disabled and therefore the principle of general deterrence could not be regarded as applicable in his case. Nevertheless, balancing all of the factors, Coldrey J determined that the appropriate sentence in Mr Baskin’s case was that he be imprisoned for a period of 16 years with a minimum period of 12 years to be served before becoming eligible for parole. Given the brutal nature of this murder, it seems to me that a sentence of 16 years, while significant, is certainly not at the higher end of the range for this type of offence which is imprisonment for life.
LIKELIHOOD THAT CONDUCT MAY BE REPEATED
38. It is clear from Mr Baskin’s criminal history that his past criminal behaviour was often fuelled by alcohol and cannabis. His prison record discloses that since imprisonment, he has been frequently tested for drugs. Although he tested positive on two occasions in 1998 and on one occasion in 2001, every test since that time has proved negative. That indicates he has been drug free for the past seven years. Also, he has not consumed alcohol since his incarceration. While in prison he completed courses dealing with anger management, alcoholism and drug addiction. Furthermore, he appears to have been a model prisoner throughout the period of his incarceration. He has never been involved in any fights or confrontations with prison officers.
39. In 2000 Mr Baskin was selected as a peer educator for the Nalu program which is designed to assist young first-time offenders in their rehabilitation efforts. The Nalu program runs for 16 weeks. Mr Baskin was one of four prisoners selected out of 150 C rating prisoners who were eligible to be considered. Mr Healey is not only familiar with that program but has been an active participant in a professional capacity. He described Mr Baskin’s role in the Nalu program as a listener and educator. Mr Healey said that the selection process was stringent and that only moderate, conforming and drug free prisoners were selected as peer educators. They were required not to be anger inclined and not to be easily influenced by adverse forces. They were placed in a position of trust outside the walls of the prison to take the young offenders on a variety of outdoor skills exercises such as bush walking and bush survival. Apparently the evidence indicates that this type of training builds self confidence and personal resilience which can be transferred to real life situations such as resisting drug use and negative peer group pressures. Mr Baskin was chosen as an educator in this program because of his staunch resistance against resuming drug use in prison.
40. According to Mr Healey, the pressures in prison to conform by using drugs are high and prisons can be quite violent places. Although Mr Baskin’s role was described as a peer educator, Mr Healey pointed out that he was not strictly a peer but rather a youth educator. He said that because Mr Baskin has experienced the drug and violence problems for which many young offenders were also imprisoned, he was able to communicate effectively with those young offenders because he had been there and he had done that. According to Mr Healey, people like Mr Baskin are essential to programs such as Nalu because, although as a professional he is also involved in that program, young offenders are more likely to be influenced by someone who has experienced their situation and actively encourages them to a different way of life. Also, because the outdoor activities under the Nalu program involved camping out in the bush, hiking, canoeing and white water rafting, Mr Baskin was not in any way restrained while supervising those courses. Despite that, Mr Baskin never attempted to run away nor did he commit any offences while outside the prison. According to Mr Healey, Mr Baskin has developed insight into his wrong-doing and he was impressed by the fact that Mr Baskin has been involved in the Nalu program for almost three years. He said this demonstrated Mr Baskin’s remorse and the fact that he was determined not to let down people who had reposed confidence in him.
41. Mr Brown expressed concern that, although Mr Baskin had undertaken some courses while in prison, he had not undertaken an Intensive Violence Program. However, as Mr Healey pointed out, it was a condition of Mr Baskin’s parole, as evidenced by a notice of variation of parole order, that he participate in the Intensive Violence Program as directed by his Community Corrections officer. Mr Healey also said that Mr Baskin would be under close scrutiny and supervision over the next four years while completing his parole period. If he offends at any time before the end of his parole period, his parole could be cancelled and he would go back to prison. Mr Healey believed that given Mr Baskin’s strong desire not to disappoint people who had placed trust in him, the level of risk of Mr Baskin re-offending was very low. In fact, Mr Healey assessed Mr Baskin’s level of risk, without undergoing the Intensive Violence Program, to be quite low. Mr Healey agreed that Mr Baskin’s risk of recidivism depended very much on his abstinence from alcohol and drugs. The fact that he had not used alcohol or drugs for seven years led Mr Healey to say he did not expect a recurrence of that behaviour. He regarded it as highly improbable and said there was a very low percentage risk of a relapse. I accept Mr Healy’s evidence and am satisfied that the risk of Mr Baskin reoffending is very low.
GENERAL DETERRENCE
42. The Minister’s Direction states that general deterrence is an important factor in determining whether to refuse or cancel a visa. Therefore, the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences. Deputy President G D Walker, in Dapino Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003, said that criminology and social science research indicated that general deterrence is a more important factor in influencing crime rates than was sometimes previously believed. Deputy President Walker referred to an empirical investigation conducted by P M Bodman and C Maultby, published in 1997 in the International Journal of Social Economics. In that article, the authors said that an increase in both the probability of punishment and the severity of punishment appears to have a significant impact on crime. After the hearing had concluded, Mr Brown provided me with a copy of the journal article. Although Mr Brown submitted that the findings of Bodman and Maultby were relevant to this matter, it is clear that their study only involved the examination of four categories of property crime in Australia. The authors concluded:
The significance of expected sentence length (ESEN) also supports a significant negative deterrent effect for the crimes of robbery, motor vehicle theft and fraud. An increase in both the probability of punishment and the severity of punishment appears to have a significant negative impact on crime, at least for the categories of property crime examined here.
43. In my opinion, it would almost certainly be erroneous to apply the findings of this empirical research to crimes of violence against a person. The study was based on an economic model of crime and the causal link between the state of the labour market and the level of property crime.
44. The question which I must answer is whether the nature of the offence in this case is such that visa cancellation would deter others from committing similar offences. The problem is that Mr Baskin’s offending began as a consequence of his addiction to alcohol and his heavy use of cannabis. While such an addiction persists, it seems to me to be highly unlikely that the person affected by addiction would even consider the possibility that his or her visa might be cancelled. In fact, as such person's crimes are fuelled by their addiction, it is only a breaking of the addiction that might cause such a person to reconsider their position and the possibility of cancellation of their visa. By necessity, that might involve giving the offender a second chance. Therefore, while I accept that the possibility of visa cancellation for failure to obey the laws of Australia could, in some circumstances, act as a general deterrent, where an immigrant’s addiction is established prior to entry into Australia and continues unabated after arrival, it is unlikely that there will be any deterrent effect. I do not therefore see the cancellation of Mr Baskin’s visa in this case having a significant deterrent effect.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
45. The second primary consideration set out in the Ministerial Direction is based on the fact that the Australian community expects non-citizens to obey Australian laws while in Australia. The Ministerial Direction also states that visa refusal or cancellation and removal of the non-citizen from Australia may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should be removed from Australia.
46. If Mr Baskin’s criminal record and the seriousness of his violent crimes were the only matters to be taken into account when considering the expectations of the Australian community, there is little doubt that the community would expect Mr Baskin’s visa to be cancelled and that he be removed from Australia. However, I believe that those expectations would be tempered by Mr Baskin’s subsequent conduct during his term of imprisonment. I am also of the view that when the underlying cause of Mr Baskin’s offending is understood, particularly the effect that his difficult childhood had on him coupled with alcoholism and drug use, the community might not so readily arrive at the conclusion that Mr Baskin’s visa should be cancelled. This is particularly so when, as Mr Healey explained, the trigger for Mr Baskin’s crimes of violence was the fact he believed that the victim of his crimes were wife and child beaters. That understanding, coupled with Mr Baskin’s inability to properly reason due to his alcohol and cannabis consumption, seemed to be the trigger for the violent events. Mr Baskin has now been alcohol and drug free for at least seven years despite the fact that in that seven years, he has had ample opportunity to use drugs and in fact, according to Mr Healy, may have been under some pressure in prison to do so. Further, he has substantial family members in Australia who are strongly supportive of him. They have visited him frequently during his time in prison and are ready to support and assist him with obtaining work upon his release on parol. Mr Baskin expressed a strong intention to continue to work in the Nalu program as a peer educator during his parole period, on a volunteer basis. Mr Healey also indicated that Mr Baskin’s contribution would be most welcome and of considerable assistance in ensuring the success of that program.
47. Mr Baskin had not previously been warned about the possibility of visa cancellation. This is the first occasion he has had to seriously consider the consequences of the crimes he has committed and what he intends to do with the rest of his life. His good behaviour in prison coupled with the fact that he has worked effectively in the Nalu program for almost three years is proof of the fact that Mr Baskin has set his mind on a new course. Additionally, his good behaviour in the past seven years demonstrates a determination to succeed. If all of these factors were before the Australian community, I expect that the community would be prepared to give Mr Baskin a second chance.
BEST INTERESTS OF THE CHILD
48. Mr Baskin has one child, Keith Baskin Jnr, who is 18 years old. The Ministerial Direction states that this consideration applies only if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. Therefore, the interests of Keith Baskin Jnr cannot be considered to be a primary consideration. However, as the Ministerial Direction states, this may be considered along with other considerations which, of course, have lesser weight.
OTHER CONSIDERATIONS
49. The most significant other matter which I must consider is the effect on Mr Baskin’s family. Most of Mr Baskin’s family live in Australia including his son, two stepsons, six grandchildren and two sisters. There was substantial evidence before me of the support Mr Baskin has from his family. His son was seven years old when Mr Baskin was sent to prison. Although Mr Baskin and Ms Fletcher separated when their son was four years old, regular contact continued after they were divorced in 1994. Ms Fletcher confirmed that she took all of her sons to prison to visit Mr Baskin. Keith Baskin Jnr has only just had the opportunity to reastablish his relationship with his father when his father was released on day leave in February 2008. It was clear from his evidence that he would be very distressed if his father were removed from Australia as he regards contact with him to be most important.
50. Ms Fletcher also gave evidence of a continuing relationship with Mr Baskin despite their divorce in 1994. She has continued to visit Mr Baskin on a regular basis and has noted that he now appears more patient and calm than he was prior to imprisonment. She also noted that he maintained an interest in all of the boys and has always been concerned to see them doing well.
51. Mr Baskin’s stepson, Adam Fletcher, was also strongly supportive of him. Adam Fletcher and his fiancée, Ms Trudy Smith, have frequently visited Mr Baskin while in prison. They are both of the view that he is a changed man. Adam Fletcher said that he noticed that Mr Baskin was now calmer and approached matters in a more level headed way.
52. Mr Baskin’s two sisters also provided statements of support. They have indicated their willingness to have Mr Baskin with them in Sydney and to provide him with a home and work.
53. The evidence clearly indicates very strong family ties in Australia and that members of Mr Baskin’s family are keen to support his rehabilitation here. Although Mr Baskin has a mother and sister in New Zealand, he said that his mother is elderly and he did not want to impose upon her. His sister in New Zealand was in the process of divorce and he did not want to impose on her either. As Mr Healy said, if Mr Baskin were to be given any real chance of rehabilitation, he will need family support. Therefore, if he were removed to New Zealand, it is likely that his process of rehabilitation will most certainly be far more difficult.
CONCLUSION
54. The discretion of the Minister to cancel Mr Baskin’s visa has clearly been enlivened. Mr Baskin conceded that he could not satisfy the Minister that he passed the character test. Therefore, in exercising the Minister’s discretion, I am required to take into account the factors set out in Part 2 of the Ministerial Direction. In doing so, I must have regard to the three primary considerations and any other considerations which may be relevant. The primary considerations are most important but I must adopt a balancing process which takes into account all relevant considerations. The other considerations, while necessarily taken into account, are generally given less individual weight to that given to the primary considerations.
55. In considering the protection of the Australian community and members of the community, I am required to take into account the nature and seriousness of the conduct; the likelihood that the conduct may be repeated (including any risk of recidivism); and whether cancellation of the visa may prevent or discourage similar conduct.
56. There can be no doubt that the offence of murder is considered by the Government to be very serious. Further, Mr Baskin also had a prior conviction for violence when he assaulted Mr Roberts in 1989. He has an extensive criminal record which commenced when he was in New Zealand and continued after he came to Australia. The majority of those convictions related to alcohol and drug use. On the other hand, I am also required to take into consideration the sentence imposed on Mr Baskin; the time that has elapsed since the most recent events; and any mitigating factors.
57. Although the crime of murder committed by Mr Baskin was particularly brutal, the sentence imposed on him was at the lower end of the scale for such a crime. He has been incarcerated for the past 12 years and his behaviour in prison has been satisfactory, particularly over the last seven years. He has not been involved in any altercations with other prisoners or with prison authorities. Both of his crimes of violence were triggered because the victim of his crimes was seen to be a person who was violent towards their spouse and children. In his intoxicated and drugged state, Mr Baskin was unable to make proper reasoned decisions about that conduct causing him to react in a violent way. The absence of alcohol and cannabis in the past seven years has clearly altered Mr Baskin’s insight into his prior conduct. He understands his wrong doing and has displayed a determination to remain alcohol and drug free. I have relied on the evidence of Mr Healey regarding Mr Baskin’s risk of recidivism. Mr Healey is a very experienced clinical psychologist who has worked with prisoners for many years. Mr Healey was satisfied that Mr Baskin’s risk of reoffending or committing crimes of violence was very low. He was clearly pleased with Mr Baskin’s progress towards rehabilitation as a result of his involvement in the Nalu program. He was also satisfied that this was evidence of Mr Baskin’s remorse for his past wrong doing and his very strong intention not to let down people who had now placed their trust in him. Further, the strict conditions of Mr Baskin’s parole, together with the very strong support he has from family members in Australia, fortify his opinion that the risk of recidivism is very low. Mr Healey was also of the view that Mr Baskin could make a very positive contribution to the community if he continued to assist in the Nalu program. Mr Healey said he would be pleased to have Mr Baskin assisting him in his involvement in that program.
58. Whether the cancellation of Mr Baskin’s visa in these circumstances would act as a general deterrent to others who might commit the same or similar offences is not clear. While empirical research indicates that there is an association between punishment and deterrence, it is difficult to readily apply that broad principle to Mr Baskin’s case. His abuse as a child and his alcohol and drug addictions would not, according to Mr Healey, allow him to make rational decisions about his behaviour. That leaves open a question about whether the cancellation of his visa could in any way affect the behaviour of others in a similar situation. I am not satisfied that it would.
59. Therefore, it is my view that, considering all of the matters which are relevant in deciding the first primary consideration, the balance requires exercising the Minister’s discretion in favour of Mr Baskin remaining in Australia. Although he may continue to pose a very low risk to the Australian community, given Mr Baskin’s excellent progress towards rehabilitation and the strong support he has from family members, that risk is acceptable.
60. The Australian community might, if simply told of Mr Baskin’s criminal record and in particular his crimes of violence, form the view that his visa ought to be cancelled. However, if the community were made aware of the circumstances which led to Mr Baskin's offending and his very significant progress in the course of rehabilitation including a demonstrated resoluteness not to breach the trust imposed in him by others, my view is that the community would be prepared to give Mr Baskin a second chance. Accordingly, this factor also weighs in favour of the exercise of discretion not to cancel Mr Baskin’s visa.
61. Of the other considerations which are relevant in the exercise of discretion, the most significant is the strong ties Mr Baskin has with family members in Australia and their support for his remaining here. I accept that this factor will significantly increase Mr Baskin's chances of successful rehabilitation and is clearly in his favour.
62. It follows that neither the primary nor other considerations compel the view that Mr Baskin’s visa should be cancelled. Therefore, I set aside the delegate's decision to cancel Mr Baskin’s visa under s 501(2) of the Act. The consequence is that Mr Baskin’s visa is not cancelled.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Egon Fice, Member
Signed: .............[Sanjiv Shah]....................................
AssociateDates of Hearing 15 and 16 May 2008
Date of Decision 22 May 2008
Counsel for the Applicant Ms D Manova
Solicitor for the Applicant Michael Rafter SolicitorSolicitor for the Respondent Mr D Brown
4
0