Bax and Minister for Immigration and Multicultural Affairs - [2001] AATA 898

DECISION AND REASONS FOR DECISION [2001] AATA 898

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2000/416

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID JOHN BAX
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date29 October 2001
PlacePerth

Decision      The decision under review is affirmed.
  [Signed Hon C R Wright QC]
  Deputy President
CATCHWORDS
Migration - Deportation of New Zealand non-citizen resident in Australia for less than 10 years - history of violence in New Zealand - convictions for violence in Australia - risk of recidivism - seriousness of deportable offences.
Migration Act 1958 ss200 and 201

REASONS FOR DECISION

29 October 2001 The Hon C R Wright QC., (Deputy President)

The 43 year old male applicant was born in New Zealand on 26 October 1958. He first came to Australia on 25 September 1994 and has remained here continuously since then.
On 28 March 1998 he committed 2 deportable offences of assault occasioning bodily harm for which he was convicted on 19 August 1999 in the Perth District Court. At the same time he was charged with aggravated burglary, it being alleged that he unlawfully entered a dwelling house for the purpose of committing the assaults. He pleaded guilty to the 2 assault charges and not guilty to the aggravated burglary charge. The crown declined to proceed further with the latter charge and the applicant was sentenced to 18 months imprisonment (concurrent) in respect of the two assaults.
On 12 October 2000, pursuant to s200 of the Migration Act 1958 ("the Act") the Minister made an order that the applicant be deported from Australia. The applicant applied to review the Minister's decision on 13 November 2000. The application came before the Tribunal for hearing in Perth on 18 October 2001. The applicant did not dispute that as a permanent resident, or an exempt New Zealand non-citizen of less than 10 years in Australia, who had been convicted of offences for which he was sentenced to imprisonment for a period of not less than one year, he was liable to deportation.
It was contended however that, serious as the offences were, there was little risk of his re-offending and that a proper exercise of discretion guided by the principles set forth in the Minister's General Direction (Criminal Deportation) No. 9 issued under s499 of the Act should have resulted in his being warned rather than being deported. The respondent contended that taking account of the seriousness and nature of the offences, the risk of recidivism, community expectation and the absence of significant hardship for the applicant or dependants, the decision under review should be sustained.
The applicant gave evidence under affirmation and called 4 witnesses who gave oral and written evidence.
The two assault convictions already mentioned were the first convictions against the applicant following his arrival in Australia. He has since been convicted of refusing a breath test, driving without a licence, and giving a false name and address on 1 February 1999. Of themselves these last mentioned offences may not be particularly serious, although he was disqualified for 6 months and fined $1,000.00, but viewed against his record of offences in New Zealand they have a certain significance.
The applicant's history of convictions in New Zealand is as follows:-
No: Date of offence Location of offence Offence Sentence/ Outcome
09.10.76 Wellington New Zealand Driving in a dangerous manner $120 fine; disqualified from driving for 9 months
06.01.77 Lower Hutt, New Zealand Driving in a dangerous manner $125 fine; disqualified from driving for 1 year
08.02.77 Lower Hutt, New Zealand Disorderly behaviour – likely to cause violence 64 hours community work; probation for 1 year and 6 months
27.11.85 Greymouth, New Zealand Cultivate cannabis Fine $750
24.06.88 Christchurch New Zealand Licensed person with excess blood alcohol level (0163) $350 fine, disqualified from driving 1 year
25.09.90 Nelson, New Zealand Social welfare fraud Reparation of $4,615.45; non resident PD 3 months
12.07.93 Nelson, New Zealand Driving with excess blood alcohol content (0147) $750 fine; disqualified from driving for 7 months
08.10.93 Nelson, New Zealand Male assaults female (manually) 4 months imprisonment
08.10.93 Nelson, NewZealand Possess offensive weapon (other) 2 months imprisonment
22.07.94 Nelson, New Zealand Common assault (manually) Sentence if call 1 year (ie, suspended sentence)

The applicant admitted all these offences and gave evidence in which he attempted to explain most of the convictions. His description of the facts and circumstances leading up to most of the convictions was often at variance with the legal ingredients of the offence, and, in many instances, the explanations he gave suggested that the penalties imposed were adversely disproportionate to the nature and extent of his involvement. Exceptions to these generalisations are to be found in his evidence as to convictions 4, 5 and 7 in the above table.
The applicant presented as a well groomed, softly spoken individual quite unlike the person conjured up by the New Zealand offence record and the detailed description of the 2 Australian assault charges given by the sentencing judge, Muller DCJ when sentencing the applicant on 19 August 1999.   His Honour said:
"David John Bax, you have been convicted on your own plea of two counts of unlawful assault occasioning bodily harm. The facts have been outlined by the crown prosecutor.   You had apparently lived for approximately 4 years with Linda Mary Ford who is the complainant in the second count in the indictment.   The relationship came to an end in November 1998 – or 1997.
On 27 March 1998, after the relationship had come to an end, Linda Ford went out in the evening and returned to her unit in Ord Street, Fremantle at about 11.30 pm.   she watched television while her friend Christopher Sanson who is the complainant in the second count in the indictment slept on the floor of the lounge room in her unit. At about 3.45 am you came to the unit and entered.   You immediately began assaulting Linda Ford, as a consequence of which she fell to the ground.
In her statement she has alleged that you both kicked and punched her.   During the course of this assault she managed to get up and run into the bathroom where she tried to close the door.   According to her deposition, you forced the door open and again attacked her, kicking and punching her.   She screamed continually and you left her in the bathroom and left the unit.   As a consequence of the assault, she suffered the injuries described in the medical report dated 21 May 1998.
These injuries included bruising to the left side of the temple, bruising to the left side of her head, a small haematoma over the cartilage of the right ear, a small abrasion to the left elbow, a large bruise to the left forearm and a further bruise to the medial aspect of the left leg over the tibia.   Finally, there was bruising found over the anterior medial aspect of the right ankle.   The photographs tendered by the crown illustrate the extent of the bruising she suffered as a consequence of the assault upon her.
While in the unit, you also assaulted Christopher Sanson.   That assault forms the subject of the third count in the indictment.   The complainant Sanson was asleep in the floor of the unit when he felt a blow in his face.   He saw you standing over him and you raised your foot and brought it down in the area of his left eye and cheek.   The force of the blow caused him to bleed from his mouth and nose.   It was at this point, as I understand the depositions, that you forced your way into the bathroom and continued your assault upon the complainant named in the first count in the indictment."
It would also be correct to say, that the mental picture I had of the applicant after reading the transcript of his interview with a Migration officer on 14 January 2000 was of a much rougher, arrogant and unrepentant individual than the one I saw in the witness box. Based upon the applicant's presentation at the hearing and the supportive evidence of his four witnesses (which I shall review shortly), it would be easy to conclude that since his imprisonment in August 1999 he has become a changed man. However I am hesitant in reaching such a conclusion because I think that the applicant's credibility is highly suspect.
He pleaded guilty to each and every offence with which he has been charged, with the exception only of number 8 in the above table. On that charge (male assaults female) his sworn evidence was plainly disbelieved by the presiding magistrate because the applicant's version of the relevant events is quite inconsistent with the verdict of guilty. As to the other charges I cannot accept that he just tamely accepted the prosecution's case against him for what, on his account, in most instances, were unjust or inappropriate charges. It is plain that there has been a history of violent behaviour which I have little doubt has been fuelled by excessive consumption of liquor and it is also clear to me that the sanitised version of his offending history given by the applicant cannot be accepted. On the basis of these considerations he is, prima facie, a clear candidate for deportation.
It is argued however that he is now a reformed character who has undertaken an anger management program in prison and has voluntarily sought counselling since his release. It is claimed also that he has cut down on alcohol consumption and now drinks only in moderation and mainly within his own home. These claims were substantially supported by the evidence of his witnesses. The applicant claims that he has taken the time to review his life and says he is remorseful for his past misconduct. Claims of this kind by offenders are commonplace, but there are certain aspects of the applicant's behaviour since his conviction in August 1999 which suggests that he has achieved a new level of maturity and that his claims may be genuine.
The applicant has spent a large part of his working life in the fishing industry and as a consequence has spent lengthy periods of time at sea. The history of his early life in New Zealand and later in Australia suggests a hard drinking knockabout individual. He has had several relationships with members of the opposite sex, none of which has been enduring, although some have been fairly long term in a comparative sense. He is now living in Perth, Western Australia as a single man without ties or dependants.
A history of his early life is set out in the Chronology and Proof of David John Bax which became Exhibit A4. This is a useful document and is accepted as a reasonably accurate chronology of his life except to the extent indicated in my earlier remarks. There is no need to reproduce the relevant material in these reasons.
The first witness for the applicant was John Williams, a retired community corrections officer. Mr Williams was a corrections or prison officer for about 33 years. He was the applicant's parole officer following his release from gaol. He had regular meetings with the applicant from January to July 2000. The applicant met all of the goals devised by Mr Williams in his management plan. Mr Williams expressed the view that the applicant suffered from depression but, although he recommended counselling, the applicant did not act upon his advice. This may be a significant factor in making an accurate assessment of the applicant whose presentation at the hearing was certainly consistent with the flat affect which is one of the hallmarks of chronic depression.
Mr Williams also expressed the opinion that, based upon what he knew of the applicant's record (which didn't include details of his New Zealand history of offending) and his personal acquaintance with the applicant, the applicant is unlikely to re-offend. However he added "He appeared to have a short temper and if provoked would react rather than back down". He suggested that violence may well be the result if the applicant were the victim of theft or were abused in a hotel. Mr Williams is not a behavioural expert, but has a wealth of practical experience which requires that his opinion be considered with respect.
Mr Allan Shuttleworth an Immigration Detention Supervisor at the Perth Immigration Detention Centre gave evidence of his knowledge of the applicant as a detainee for deportation in November 2000. He had many discussions with the applicant in relation to various problems which he experienced during his time in detention. He found him to be a likeable person who would sometimes become agitated, but never aggressive. The applicant was experiencing emotional difficulties with his then current defacto relationship. By virtue of his experience, Mr Shuttleworth views also command respect.
Mr Robert Harrison a senior prison officer had direct supervision of the applicant during nearly the whole of the time he was at Canningvale serving his sentence on the two assault convictions. The applicant never came to adverse notice - he was polite and a model prisoner. His trustworthiness was such that he was appointed a cook, in which job he required little supervision as he was "self starting". On Mr Harrison's recommendation the applicant was sent to the East-Perth lockup towards the end of his sentence as a "trusty". The witness expressed the opinion that the applicant would not re-offend. As an experienced prison officer with duties involving the assessment of prisoners for parole and other purposes Mr Harrison's views must also be considered carefully.
The final witness for the applicant was Mr Mark Finnigan. He met the applicant in Fremantle in 1994 and since then they have formed a close friendship. The applicant lived at Mr Finnigan's home for 2 months (from May to July this year). He said "David is a trustworthy person and during the time he stayed with me, he was mostly concerned with finding work and paying his lawyers. He treated my home with respect and was always willing to help around the house. I was always comfortable with him staying with me and at no time did I ever feel unsafe". The witness also said that he believed the applicant would not re-offend, but as he has no relevant experience and as his views are obviously coloured by friendship they carry little weight.
The evidence persuades me that despite the applicant's past history he has developed some insight and maturity largely as a result of his imprisonment and his consequent self-examination. Whether he will commit further violent offences will depend very much upon the nature of the relationship he is in or the aggression or provocation with which he may be confronted. I think he has materially benefited from the anger management course and I think he genuinely wishes to avoid further trouble. I think his compliant demeanour in the witness box was in part the product of chronic depression rather than a basic character transformation. Although the risk of recidivism may not be high, it is by no means non-existent.
There are other considerations to be taken into account and they are enunciated in the Minister's General Direction - Criminal Deportation No. 9. Primary considerations include the expectation of the Australian community. There are no children with whom the applicant is in a parental relationship.
Community expectations include the expectation that personal safety of citizens will not be put at risk and that offenders who commit abhorrent crimes will be removed from Australia. In assessing the level of risk posed by any individual, it is appropriate to consider the seriousness of his crime, the likelihood of recidivism and the value of his deportation as deterrence or discouragement for potential offenders of a similar kind.
The applicant does not contest the proposition that the two assault offences committed in March 1998 were very serious.
In passing sentence Muller DCJ said:
"In considering the appropriate disposition I am required by the Sentencing Act to assess the seriousness of the offences you committed.   In assessing the seriousness I am required to take into account the statutory penalty for those offences and any aggravating or mitigating circumstances that might exist.   A sentence of imprisonment, as Mr Hofmann has emphasised, cannot be imposed unless the offences are so serious that only imprisonment can be justified.
The offences of which you have been convicted carry a maximum term of 5 years' imprisonment upon indictment.   The circumstances in which the offences were committed carry your level of culpability to the upper end of the scale.   While you have not been convicted of being in the complainant's residence without her consent, I cannot overlook the fact that these offences were committed in the early hours of the morning in the complainant's unit.
Like any other citizen she was entitled to assume that her privacy would be respected and her security assured.   By intruding into her unit as you did you invaded her privacy and breached the security to which she was entitled.   You have said through counsel that you felt a sense of betrayal over the way she had treated you.   You have said that being the sort of person you are you decided that she deserved to be punished for having behaved in the manner she did.
Whatever motives you had for doing what you did cannot excuse your actions. As the crown prosecutor has pointed out however aggrieved you might have been at the complainant's behaviour the law cannot condone this type of flagrant violation of the right of an individual to privacy and security.   The attack you made upon both complainants was quite vicious.   The complainant Linda Ford was a female and unable to resist or right back effectively.
I am satisfied from the injuries she suffered, together with the terms of her deposition, that you did punch and kick her several times and even pursued her into the toilet when she tried to escape.   It is not difficult to imagine the enormous shock and terror she must have felt during the course of this assault.   The assault upon the complainant Christopher Sanson was equally as bad, if not worse.
He was an innocent victim who had not done anything to harm you.   You suspected he was having an affair with the complainant.   Whether he was or was not of no concern to you.   You have absolutely no right to assault him.   He was asleep on the floor at the time and you cowardly and viciously attacked him by striking him in the face.   At the time of the assault he posed absolutely no threat to you.   He was, in effect, helpless.   You then stamped on his face with your foot, cutting his nose and lips and causing him to bleed profusely.
It is perhaps fortunate that he was not more seriously injured.   I have come to the conclusion that terms of imprisonment are unavoidable in this case.   Although a term of imprisonment should on be imposed as a sentence of last resort, the Court of Criminal Appeal has recognised there are some offences of such seriousness that, however favourable an offender's antecedents might be, a custodial sentence must, save in exceptional circumstances, be imposed.
I refer, for example, to the decision of Gutteridge, an unreported decision of the Court of Criminal Appeal, library number 940410, where this principle was expressed.   I recognise that your antecedents in WA are favourable.   As against that you have a record for offences of violence in New Zealand.   I recognise that you are a hard working person and that you acted out of a sense of grievance.   These factors must be balanced against the seriousness of the offence which, as I have already indicated, lies at the upper end of the scale.
You assaulted two innocent and helpless victims after having intruded into an area where they were entitled consider themselves safe and secure.   Your assault upon each victim was serious, particularly your act in stamping upon the prostrate complainant n count 3.   While neither victim was apparently seriously injured, both suffered bodily injuries and are likely to have been psychologically scarred as a consequence of your unlawful assaults upon them.
In my view there are no exceptional circumstances justifying a departure from the principle I have already expressed; namely, that the offences are so serious that only imprisonment can be justified.   Given your record for violence, there is in my view a need for both specific and general deterrence.   Both you and others like you must be taught that you will suffer the full force of the law if you enter a person's unit and assault that person in the privacy of his or her unit."

I respectfully agree with His Honour's assessment of the gravity of these crimes.

The Minister's Direction No. 9 paragraph 15 says:
"15. It is the Government's view that the Australian community trusts non-citizen residents to obey Australian laws. Where a potential deportee has betrayed this trust and been convicted of offences in Australia, it may be appropriate to deport such a person even if there is no serious likelihood that the person is a continuing threat, or will be a future threat, to the community. Deportation will be appropriate simply because the nature of the offence or offences is such that the Australian community would expect that the person would be deported. Weight should be given to this factor in proportion to the decision maker's understanding of the community's attitude to the potential deportee's offences. Decision makers should have due regard to the Government's view in this respect."

In the context of this case these are important issues to consider and upon reflection I have concluded that despite the applicant's apparent reformation, members of the Australian community would expect that the perpetrator of the 2 assaults occasioning bodily harm now in question would be deported.

I find it impossible to conclude that, if deported, the applicant would suffer material hardship. He has no ongoing marital or de facto relationship with an Australian citizen or resident. He has a number of social ties in Australia. He has no continuing ties in New Zealand, but he did not spend his formative years in Australia, and if he returns to his native land he will not have to adapt to a strange or foreign culture. I do not regard the potential hardship factor as having any substantial weight in the overall assessment. There is no reason to anticipate that the applicant will have difficulty making new friends back in his country of origin. Nor is there any reason to believe that such skills as he has in joinery, floor finishing and the like will be less in demand in New Zealand than they are in Australia.
There are no relevant international obligations to be considered.
In my opinion the decision under review should be affirmed. I so order.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  18 October 2001
Date of Decision  29 October 2001
Counsel for the Applicant        Mr Mervyn Rothstein
Solicitor for the Applicant         M Rothstein and Co
Counsel for the Respondent    Ms Ria Vavakis
Solicitor for the Respondent    Australian Government Solicitors