Edwards and Minister for Immigraiton and Multicultural Affairs

CATCHWORDS – IMMIGRATION – criminal deportation – whether offences serious – whether risk of recidivism outweighs other considerations – decision affirmed.

Migration Act 1958 ss. 5, 200, 201, 499,

Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349

DECISION AND REASONS FOR DECISION [2001] AATA 1023

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          S2001/45
GENERAL ADMINISTRATIVE DIVISION     )

ReNICKY ANTHONY EDWARDS
Applicant

AndMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

DECISION

Tribunal:                   Miss S A Forgie (Deputy President)
Date:  18 December, 2001
Place:  Adelaide

Decision:The Tribunal affirms the decision of the respondent dated 4 January, 2001.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 31 January, 2001, the applicant, Mr Nicky Anthony Edwards, applied for review of a decision of the respondent, the Minister of Immigration and Multicultural Affairs ("Minister") dated 4 January, 2001 to deport him from Australia. Mr Edwards was represented by a law student, Mr Douglas-Stewart and the Minister by his solicitor, Ms Reed. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with the documents from the South Australian Department of Correctional Services, supplementary comments from the Port Augusta Prison, ("Port Augusta") references from Mr Darren Cairns and Ms Angela Cairns, an Anger Management Certificate and a Victim Awareness Certificate. Mr Edwards gave oral evidence on his own behalf together with his parents, Mr William and Mrs Alison Edwards and his brother, Mr Michael Edwards, his sister Ms Jordana Edwards and a family friend Mr Gary Booth. No evidence was lead on behalf of the Minister.

THE ISSUE

The issue in this case is whether Mr Edwards should be deported under s. 200 of the Migration Act 1958 ("the Act").

BACKGROUND

There were a number of factual matters on which there was no dispute between the parties. In view of that, I have made a number of findings of fact which I will set out below.

Arrival and life in Australia

Mr Edwards was born in Edinburgh in Scotland on 19 February, 1978. He has a sister, Jordana Edwards and a brother, Michael Edwards. He was 11 years and 3 months old when he arrived in Australia on 11 May, 1989.

The offences for which Mr Edwards was imprisoned for a period of not less than one year and which were referred to in the deportation order

Mr Edwards was convicted in the District Court of South Australia on 10 February, 1998 of attempted Armed Robbery after trial by jury. That offence had been committed on 7 May, 1997 when, armed with a knife, he attempted to rob George Villios. He was sentenced to five years for that offence. At the same time, he was sentenced to serve the unexpired balance of a previous period of imprisonment in respect of which he was committed. That period was one year, nine months and nine days from which were deducted seven months and nine days spent in custody and in home detention. The result was that the head sentence became six years and two months imprisonment with a non parole period of two years imprisonment. At the time Mr Edwards committed that offence, he had been in Australia almost eight years. This was the offence upon which the deportation order dated 11 July, 2000 was based.

Other convictions prior to conviction for attempted Armed Robbery

Mr Edwards has also been convicted of a number of other offences. All but one of them was committed prior to his committing attempted Armed Robbery.

Between 1 July, 1992 and 9 September, 1996, Mr Edwards had nine appearances in the Children's Courts in Perth and in Adelaide. The dates on which the offences were committed were from some time before July, 1992 and 7 March, 1996. The offences were:

Date     Offence Result
01/07/92 Stealing a motor vehicle (8) Stealing a motor vehicle No motor drivers licence (3) Break and enter dwelling (2) Break and enter dwelling (3) Break enter and steal (3) Burglary (4) Burglary Criminal damage Stealing (3)        12 months probation Drivers licence disqualified for 3 months concurrent on each 12 months probation Drivers licence disqualified for 3 months 12 months probation Drivers licence disqualified for 3 months concurrent 12 months probation 12 months probation 12 months probation 12 months probation 12 months probation 12 months probation 12 months probation
25/10/92 Breach of probation         12 months Community Release Order Drivers licence disqualified for 6 months
            Robbery whilst armed violent offence         12 months Community Release Order
            Stealing             12 months Community Release Order
            Reckless driving   12 months Community Release order Drivers licence disqualified for 6 months
            Stealing a motor vehicle     12 months Community Release Order Drivers licence disqualified for 3 months concurrent
            No motor drivers licence    12 months Community Release Order Drivers licence disqualified for 3 months concurrent
25/10/92 Failing to stop when called upon     12 months Community Release Order concurrent
28/10/93 Stealing a motor vehicle     50 hours Community Service Order Drivers licence disqualified for 3 months
            Burglary 50 hours Community Service Order
19/01/94 Damage (2)        12 weeks Community Release Order
            Damage railway property 12 weeks Community Release Order
            Violent offensive behaviour           12 weeks Community Release Order
            No motor drivers licence – under suspension 12 weeks Community Release Order Drivers licence disqualified for 12 months cumulative
            Driving under the influence           12 weeks Community Release Order Drivers licence disqualified for 6 months concurrent
            Stealing a motor vehicle     12 weeks Community Release Order Drivers licence disqualified for 3 months cumulative
            Stealing a motor vehicle     131 days Community Release Order Drivers licence disqualified for 3 months concurrent
10/02/94 No motor drivers licence – under suspension 131 days Community Release Order Drivers licence disqualified for 9 months cumulative
08/6/94 No motor drivers licence – under suspension Stealing a motor vehicle    Drivers licence disqualified for 9 months cumulative Drivers licence disqualified for 3 months concurrent
            Excess 0.05        Drivers licence disqualified for 9 months concurrent
01/02/96 Illegal use (2) Fail to comply with request to stop vehicle   Drive dangerous Drive unlicensed Drive under the influence Possess Cannabis 3 months detention suspended sentence obligation Community Service Order 100 hours Drivers licence disqualified for 12 months Count 1: Drivers licence disqualified for 18 months Count 2: Drivers licence disqualified for 12 months Compensation $310
16/08/96 Break enter building and commit offence (07/03/96) 4 weeks imprisonment
09/09/96 Breach BOND (01/02/96) Drive or use motor vehicle without consent (07/11/95) Drive or use motor vehicle without consent (08/11/95) Fail to comply with request to stop vehicle (07/11/95) Drive in reckless or dangerous manner (08/11/95) No licence (07/11/95) Drive under the influence (07/11/95) Possess a controlled substance (08/11/95) Found proved suspension revoked and carried into effect ) 3 months detention ) HEAD SENTENCE ) ) ) ) ) ) ) ) ) ) )
  (T documents, pages 31-33)

Between 5 November, 1996 and 9 December, 1997, Mr Edwards made six appearances in either the District Court, Magistrates' Court at Holden Hill or the Parole Board of South Australia ("Parole Board"):

Court     Date     Offence Result
District Court of SA         05/11/96 Attempted armed robbery 3 years imprisonment with a non parole period of 9 months
Holden Hill MC   13/01/97 Interfere with motor vehicle without consent Unlawfully on premises )Community service order )for 80 hours within 12 )months and to comply with )conditions
Parole Board SA 07/05/97 Breach of parole Parole cancelled 1 year, 9 months and 9 days Imprisonment start 10/02/98 Head Sentence 6 years and 2 months Imprisonment Non parole period 2 years Imprisonment
Holden Hill MC   11/07/97 Offensive language Hinder police    )Fined $250 )
Holden Hill MC   22/07/97 No safety helmet on pedal cycle     Convicted and fined $40
Holden Hill MC   09/12/97 Fail to comply with bail agreement Convicted
  (T documents, page 34)

There then followed Mr Edwards' conviction for attempted Armed Robbery in the District Court.

Breaches of regulations from 10 February, 1998 until release on parole on 9 February, 2000

Date     Breach Penalty
21/05/98 Interfering with the count by placing a dummy in his bed and entering another prisoner's cell        Modification of management regime by permitting no evening activities between 21 May, 1998 and 31 May, 1998. (T documents, page 124)
06/06/98 Inappropriate behaviour relating to items found in cell.           Modification of management regime by permitting no evening activities between 9 June, 1998 and 15 June, 1998. (T documents, pages 85 and 97)
23/06/98 Positive urine on 22 June, 1998.    No contact for 30 days. (T documents, page 84)
27/07/98 Regime II           3 nights ELD (Exhibit 2, page 163)
25/08/98 Assault another prisoner     G/Bush/REG II (Exhibit 2, page 163)
07/10/98 Smoking in B/B gym       3 nights ELD (Exhibit 2, page 163)
8/10/98 Suspected GVM in oval toilet        7 days loss of OVAL (Exhibit 2, page 163)
05/08/99 Knowingly going out of bounds.    Three nights early lock up at 1800 hours between 6 and 8 August, 1999. (T documents, page 83)
07/10/99 Take and ride a four wheel motor bike without permission.     Five nights early lock up between 8 and 12 October, 1999. (T documents, page 80)
29/01/2000        In shower at morning count. Became argumentative when informed of importance of count.       Five nights early lock up (Exhibit 2, page 16)

There were a number of occasions upon which Mr Edwards was warned for such matters as remaining in bed at unlock, smoking in the dining area and being in the shower during parade. On 9 August, 1999 while he was at the Cadell Training Centre, the notes of the prison officers state that Mr Edwards had indicated that he would talk to the appropriate person about starting an Anger Management Course. This was a follow-up from an earlier conversation in July, 1999 when such a course, together with a Victim Awareness Programme, were suggested to him (Exhibit 2, page 28). He completed an Anger Management Programme on 23 September, 1999 and a Victim Awareness Programme on 5 October, 1999. He also continued to engage in breaches of behaviour of the sort to which I have referred. The comments upon Mr Edwards' release from Mobilong on 9 February, 2000 were:

"… Nicky has had some minor breaches of behaviour at Mobilong (see previous case notes), overall though his behaviour has improved through his sentence. He is able to communicate effectively with staff and others quite effectively and is liked by his peers. He appears to be impressionable and evidence from the number and type of incidents he has been involved supports this.
I have the opinion that Nicky would be well suited to undertaking the Cognitive Skills Program." (Exhibit 2, page 26)

While imprisoned, Mr Edwards was also convicted in the Port Augusta Magistrates' Court on 24 August, 1998 of common assault on a person other than a family member. That arose from an incident in prison and he was sentenced to an additional three months in prison.

Notification of possible liability for deportation

On 6 December, 1999, an officer of the Department of Immigration and Multicultural Affairs ("the Department") wrote to Mr Edwards to advise him that he might be liable for deportation. Copies of extracts from the Act and of the Government's deportation policy were enclosed. Mr Edwards was advised that he might wish to provide material to demonstrate why he should not be deported. He was also advised that he would be interviewed before a decision to deport him was made. (T documents, page 53)

Other convictions after release on parole for attempted Armed Robbery

Following his release on parole on 9 February, 2000, Mr Edwards was convicted of the offences which he committed on the date shown in brackets:

Adelaide MC      01/11/2000        Receiving (21/06/2000)     Fine $475
Adelaide MC      01/11/2000        Larceny (22/10/2000) Carry offensive weapon (22/10/2000) Convicted, discharged without penalty Convicted, fine $156
Adelaide MC      07/12/2000        Estreatment of bail           Estreatment $533
Adelaide MC      26/02/01 Interfere with motor vehicle without consent (10/11/2000) Unlawful possession (05/11/2000) False pretences (05/11/2000)    ) 9 months' imprisonment ) cumulative upon remainder of ) outstanding sentence ) (total 4 years, 5 months, 18 ) days NPP 21 months) ) driver's licence disqualification ) 12 months
Adelaide MC      26/02/01 Unlawful possession (05/11/2000) False pretences (05/11/2000)

Mr Edwards was returned to the Yatala Labour Prison ("Yatala") on 23 October, 2000 and released on 1 November, 2000. He was then imprisoned again at Port Augusta on 22 November, 2000. If served in full, that sentence is completed on 8 May, 2005 (Exhibit 2, page 38).

Behaviour in prison after return in October, 2000

Before being served with the deportation order, the notes from Yatala refer to telephone calls to his girlfriend made for the purpose of enquiring about her health and, later, a death in the family. Initially, the calls were regarded as genuine but, on 24 December, 2000 after little mention was made to the subject of the call, the notes stated that the reasons for telephone calls should be viewed with some scepticism (Exhibit 2, page 25). Mr Edwards was warned about not being in his cell at lock up and, on 17 December, 2000, it was noted that:

"Edwards behaves in a surly and argumentative manner. He is very reluctant to take direction and is on a final warning not to go into the servery during dishup." (Exhibit 2, page 25)

The prison notes from both Yatala and Mobilong Prison ("Mobilong") reflect Mr Edwards' concerns regarding his possible deportation. He is noted as having become quite anxious and his behaviour to the officers as reflecting his anxiety. A note from Mobilong upon his transfer to Yatala summarised his behaviour at that time:

"… Nicky's behaviour at Mobilong has been fair. Due to his Deportation issue, he has been under a stress, and his partner miscarried their child recently. His compliance with Prison rules and routine is generally satisfactory, but responds poorly to direct supervision/direction from staff." (Exhibit 2, page 23)

Initially, on his transfer to Yatala, Mr Edwards was noted on 28 January, 2001 as a person who "… poses no problem in the unit and interacts well with both his peers and staff" (Exhibit 2, page 23). On 31 January, 2001, he was noted as being a "Rather desperate young man trying to fight deportation" (Exhibit 2, page 23). On 2 February, 2001, he was locked in his cell for abusive language. On 23 March, 2001, the following behaviour was noted:

"Today during movement to the yard prisoner Edwards 108639 failed to follow a request. The prisoner was then ordered to comply, he became verbally aggressive and threatening. The prisoner was escorted back to his cell were he was secured. For the well being of the unit I have terminated this prisoner from his employment as unit worker. His actions did not reflect the attitude needed to continue with this job. Edwards was advised these actions will not be tolerated in this unit." (Exhibit 2, page 22)

On 5 April, 2001, the following was noted:

"Prisoner Edwards was not happy when directed to pack up his cell prior to movement to the middle floor. Demanded to see the Manager. Was informed that this move was as a result of a direction given by the CMC, Mr G. Justice. This prisoner constantly questions the reasons for anything that occurs in BLW. He would do well to simply concentrate on 'doing his own jail time' and not worrying about other prisoners." (Exhibit 2, page 22)

On 6 April, 2001, Mr Edwards' name was put on the waiting list to undertake Anger Management, Alcohol and Drug Awareness and Violence Awareness courses (Exhibit 2, page 22). He was transferred to Port Augusta on 10 April, 2001. On 18 April, 2001, Mr Edwards advised that he wanted to change his behaviour and that he would like to enrol in any courses that he could. He also requested counselling to help him to make the changes (Exhibit 2, page 21). On 22 May, 2001, it was recorded that Mr Edwards had calmed down a lot, just wanted to do his time and was polite and generally quiet.

THE LEGISLATIVE AND POLICY FRAMEWORK

Mr Edwards' deportation order was made under s. 200 of the Act. In so far as it is relevant to this case, s. 201 provides that the Minister may deport a non-citizen who has been convicted in Australia of an offence while he or she was not an Australian citizen, who has been sentenced to a period of imprisonment of not less than one year and who, at the time the offence was committed, had been in Australia as a permanent resident for a period of less than 10 years.

Mr Edwards is a non-citizen in that he is not an Australian citizen (s. 5(1)). At the time he committed the offence relied upon by the Minister, he was a permanent resident and had been since 11 May, 1989 when he arrived in Australia. At that time, he was a dependent of an independent migrant. Since arriving, he has not left Australia.

Section 201 of the Act does not impose any limitation upon the Minister's discretion to exercise, or not to exercise, his power. In the past, the Minister responsible for the Act's administration issued a statement on Australia's deportation policy where a person has been convicted of an offence. At the time the deportation order was made, that statement had been set out by the then Minister, on 24 December, 1992.

Pursuant to s. 499, however, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it.

On 21 December, 1998 and so shortly after the original deportation order was made, the Minister issued directions pursuant to s. 499(1). They are known as General Direction – Criminal Deportation - No. 9 ("the Direction"). The Direction states that the Government is very mindful of the need to balance a number of important factors in reaching a decision whether or not to deport a person. A decision maker is directed to have regard to two primary considerations and to a number of other considerations. While having due regard to the importance placed by the Government on the two primary considerations, a decision maker should also adopt a balancing process which takes into account all other relevant considerations.

The two primary considerations identified by the Minister are the expectations of the Australian community and, in all cases involving a parental relationship between a person and a child or children, the best interests of the child or children (clause 6). Other considerations are also acknowledged by the Direction to be relevant but they are to be given less weight than the primary considerations (clause 21). It identifies two of the most common to be:

"(a) the degree of hardship which may reasonably be expected to be suffered by the potential deportee; and
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation." (clause 7)

The Direction goes on to expand upon what is meant by "community expectations". Two aspects of community expectation are identified:

"(a) the expectation that the community will be protected and not put at risk; and
(b)the expectation that non-citizens who commit/are convicted of crimes that are abhorrent to the Australian community will be removed from Australia." (clause 8)

The Direction then deals separately with each aspect. In relation to the protection of the Australian community, it further divides that into three aspects, which it identifies as relevant to an assessment of the level of risk to the community and the need for its protection:

"(a) the seriousness and nature of the crime;
(b)the risk of recidivism; and

(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons." (clause 10)

Under the heading "The seriousness and nature of the offence", the Direction states:

"11. It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.

.          Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia's young people.
.          The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
.          Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
(b)organised criminal activity resulting in a conviction in Australia;

(c)sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;

(d)armed robbery (including robbery involving the use of imitation weapons);

(e)murder, manslaughter, assault or any other form of violence against persons;

(f)terrorist activity;

(g)kidnapping;

(h)blackmail;

(i)extortion;

(j)serious theft (including 'white collar' crimes);

. Such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.
(k)crimes against children;

. Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.
(l)any other crimes involving violence or threat of violence;

. Such crimes are of special concern to the welfare and safety of the Australian community.
(m)ancillary offences in respect to any of the above offences, including:

.          convictions for attempting to commit any of the above offences;
.          convictions for conspiracy to commit any of the above offences;
.          convictions for being an accessory before or after the fact in any of the above offences.
Decision makers should have due regard to the Government's view in this respect."

A more general statement is found in clause 12 of the Direction:

"It is the Government's view that the sentence imposed for a crime is an indication also of the seriousness of the offender's conduct against the community. Decision makers should have due regard to the Government's view in this respect."

The risk of recidivism is the second aspect identified in the Direction as relevant to an assessment of the level of risk to the community and the need for its protection. It states that:

"13. It is the Government's view that the person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government's view in this respect. In particular the following factors will be relevant to the assessment:
(a)the person commits a further offence after having warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;

(b)a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;

(c)the extension of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make."

The third aspect identified in the Direction as relevant to an assessment of the level of risk to the community and the need for its protection is the likelihood that others will be prevented from, or inhibited in, committing like offences. Clause 14 of the Direction is concerned with this aspect and it states:

" It is the Government's view that this factor may be relevant to protecting the Australian community in various ways:
(a)the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and

(b) the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences. …"

With regard to crimes abhorrent to the community, the Direction states:

"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. …"

The second primary aspect identified in the Direction relates to the best interests of the child. It is the Government's view that the decision maker must determine the best interests of any child aged less than 18 years who is in a parent-child relationship or other close relationship with the deportee. There are no such children in this case and I will not consider this aspect further.

Turning to considerations other than primary considerations, the Direction expands upon the two most common it had identified earlier in paragraph 7. With regard to the degree of hardship which a person might suffer if deported, clause 22 of the Direction states:

"It is the Government's view that factors to be considered here include:
(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;

(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government's intention that such people will never be deported.

(c)the degree and extent of the potential deportee's ties with the likely country of return;

(d)the strength of other family, social or business ties in Australia;

(e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and

(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.

…"

With regard to the degree of hardship to Australian citizens or permanent residents, including the person's family, the Direction states:

"23. The best interests of any relevant children are a primary consideration and are not considered under this heading.
24.It is the Government's view that factors to be considered here include:

(a)the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australia with the deportee and whether this would impose undue hardship on the non-deportee partner;

(b)the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;

(c)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and

(d)the views (if any) of the victim or victims of the crimes committed by the potential deportee.

…"

THE EVIDENCE

Sentencing remarks

In his sentencing remarks, Judge Lee of the District Court set out the circumstances in which Mr Edwards attempted Armed Robbery:

" The offence occurred shortly after midnight. You and Troy Nelson had been drinking with two others at a house at Golden Grove. You and Nelson left the house in a taxi driven by the victim. Nelson got out at a BP Service Station, and you got into the front passenger seat. You gave directions to the victim to drive you to Para Vista where you lived with your parents. At a location close to your home, you told the victim to stop, said you felt sick, and got out of the taxi. You then leant into the taxi through the open front passenger side door, menaced the victim with a knife, and made a demand for money. The victim was able to push you away and make his escape by driving off. Some five days later you were apprehended and charged." (T documents, pages 35-36)
"Notwithstanding the submissions of your counsel about the level of your intoxication at the time of the offence before me, the evidence of the victim at the trial, which I accept, shows that there was a degree of purposefulness and planning on your part in the commission of the offence." (T documents, page 38)

After referring to his history, Judge Lee referred to Mr Edward's behaviour that contributed to that history and to the opportunity to assist him in modifying that behaviour:

"I accept that most of your offending behaviour over the years has been drug and alcohol related. I am prepared to accept that you are remorseful and willing to participate in any rehabilitation program which may be offered to you. Unfortunately, your opportunity for rehabilitation whilst in custody will be limited. In reports of 25 January and 4 February 1998, Mr Balfour, psychologist, proposes a structured rehabilitation program supervised by a case manager, when you are eventually released from custody. He also proposes that strict conditions should be imposed with respect to your place of residence, the persons with whom you associate and the taking of urine screens for drugs. Mr Balfour considers that it would be desirable for you to be immediately admitted into a residential drug and alcohol program upon your release. I draw Mr Balfour's reports to the attention of the Department for Correctional Services and the Parole Board." (T documents, page 37)

His Honour then gave the following reasons for imposing a sentence of five years:

"The seriousness of the offence of attempted armed robbery, especially when viewed against your criminal record, calls for a significant deterrent sentence of imprisonment. Taxi drivers, no less than any other member of the public, are entitled to expect that courts will do what they can to protect them from conduct of this kind.
As for the non-parole period, it should be noted that, on the occasion of your sentence for the last attempted armed robbery, the sentencing judge said that the hope which he held for your rehabilitation would be reflected in the non-parole period. Although there remains a hope given your young age, you cannot expect that courts will continue to be lenient for very much longer." (T documents, page 38)

Circumstances of the offence of attempted Armed Robbery

In the Individual Development Plan ("the Plan"), which was dated 10 March, 1998 and which Mr Edwards signed as having participated in its development, he is reported as stating that:

"… he actioned the subject offence because he did not have sufficient funds to pay the Taxi-driver. He denied making any attempt to rob the driver and alleged that he merely 'ran off'. … He committed the subject offences whilst serving Parole for an attempted armed robbery and thus is in breach of that Parole. He stated that he commenced his offending activity at age 12 or 13 years, whilst resident in Perth and allegedly as a result of his susceptibility to negative peer pressure. ('in with the wrong crowd') He said that his offences comprised primarily illegal use and building breaks and culminated in armed robbery. He acknowledged that his prior response to community supervision has not always been satisfactory." (T documents, page 70)

In his interview with an officer of the Department on 21 December, 1999, Mr Edwards described the circumstances of the offence as follows:

"I was charged for armed robbery. What actually happened was that I was in a taxi on the way home from a party. We got into a conversation. I had some wet pot in a bag which he smelt. He made a comment to me that he had been ripped off a few weeks before hand. He made some threats to me and I pulled a knife on him." (T documents, pages 44 and 52)

In his oral evidence, Mr Edwards said that what he was said to have done and what actually happened were quite different. He had no intention of robbing the driver when he jumped in the taxi from a party. They had a bit of an argument and he did pull a knife and threaten him but only after the driver had threatened him. The taxi driver was bigger than he was and he felt threatened, he said. Mr Edwards admitted verbally assaulting him and threatening him but, he said, he had a "bit too much testosterone in the carburettor". The driver had threatened to take him to a place and drop him there. There never was a robbery. That was a fable, Mr Edwards said.

Mr Edwards said that the driver contradicted himself twice in giving his version of the story. The driver rang his console and said that Mr Edwards never left the taxi but pulled out a knife and asked for money. Later, he told the police that Mr Edwards got out of the taxi, pretended to be sick and then got back and pulled a knife. Although he admitted pulling the knife, Mr Edwards said that he did not want to admit to police that he had a knife. Therefore, he said, he told them that he jumped the driver without paying him. He had, however, got in the taxi where he had been at a party. If he were going to rob the driver why, he asked, would he get in at that house where everyone had seen him. He said that he had done a runner without paying but only lied after the driver had lied about what had happened.

In cross-examination, Mr Edwards said that the driver had most definitely lied.
In his report dated 25 November, 1998, Mr Richard Balfour, who is a forensic psychologist, prepared a psychological assessment of Mr Edwards. In that report, he set out Mr Edwards' account to him of the offence"

"Mr. Edwards said the offence occurred at midnight on a Tuesday, a couple of days following him receiving his Social Security payment. On the day of the offence he had approximately $30.00 left from his Social Security payment. He had gone to a friend's house at 7.30pm where he played pool and began abusing alcohol. He consumed a copious quantity of alcohol and became severely intoxicated. He said that he experienced a poor recollection of the events of that night due to his high level of alcohol intoxication. He said that it was not until the following day that he learned from some associates that the police were looking for him. He said 'I'm in the predicament I don't know if I've done it' due to his high level of alcohol intoxication." (Exhibit 2, page 72)

Later in his report, Mr Balfour said that:

"Mr Edwards could appreciate the fear and distress his offence would have caused the victim. He said 'I'm remorseful for the bloke. He is only driving a taxi to make a fare. He doesn't deserve shit like that. I apologise to him. He is going to be very wary, apprehensive. Who knows he could have nightmares about this shit. He'd be wondering if a passenger in his taxi will rob him again. It must have been scary.' " (Exhibit 2, page 74)

Factors behind Mr Edwards' offending

Mr Edwards acknowledged in preparing the Plan that he had been suspended on numerous occasions while at school. He attributed those to his "less than amicable, relationships with teaching staff" (T documents, page 71).

In the Plan, Mr Edwards is reported as admitting to:

"… experimentation with a diverse range of illicit compounds, but said his primary substance of abuse has been alcohol. He alleged that his consumption of heroin was 'occasional' and he denied habit formation to that substance and said that he has never accessed Methadone treatment. He said that he received 6 weeks of residential counselling at the Woolshed, in 1996, which focussed on his then usage of methylamphetamine ('speed'). He stated that he is willing to receive further substance abuse counselling assistance, for both drugs and alcohol, during his present period of incarceration, but said that he does not wish to attend a residential counselling centre, eg Woolshed, upon his release." (T documents, page 70)

Mr Edwards said in cross-examination that he had had as many problems in school as any child of his age.

Psychological assessment of Mr Edwards after conviction for attempted Armed Robbery

In his report, Mr Balfour set out a detailed history of Mr Edwards' family, employment, drug and alcohol use, schooling, criminal offences and social activities and behaviour. He concluded that Mr Edwards'

"… psychological profile is that of a 19 year old man of low-average intelligence (ie, the bottom twenty percent of the general population for his age group) who has adequate literacy skills (ie, a reading equivalent to a child aged 12 years). He suffers from a personality disorder, characterised by antisocial traits , and has an extensive history of alcohol and polysubstance abuse problems." (Exhibit 2, page 73)

The progression of an Antisocial Personality Disorder was discussed by Mr Balfour:

"… The disorder is usually chronic, but begins to wane by the fourth decade of life. The waning of the flagrant aspects of the disorder with increasing age appear to be due to a combination of an ongoing maturational process and antisocial 'burn out'. That is, after years of self-abuse and engaging in hazardous behaviours the sufferers experiences a type of 'mid-life' crisis during which they become more insightful and disillusioned with their cycle of crime and imprisonment. Due to this 'burn out' and increased insight they frequently become seriously depressed.

The treatment of an individual suffering from an antisocial personality disorder is labour intensive and frequently only produces equivocal results. The effectiveness of treatment is strongly influenced by the timing. The best times to treat an individual suffering from an antisocial personality disorder is during the conduct phase (in adolescence) or when they begin to mature and/or experience antisocial 'burn out'." (Exhibit 2, page 73)

Mr Edwards had exhibited a conduct disorder in his youth, he found. That is the developmental precursor to an Antisocial Personality Disorder in an adult, he said. His personality disorder did not arise from being exposed to a traumatic family life, for he had not, but from being raised in his early years in a socio-economically deprived area in Scotland. Mr Edwards told him that area was Niddrie and Mr Balfour recorded Mr Edwards' description of his life there in the following way:

"… He told me that, during his childhood, he was frequently exposed to street violence which was common due to the numerous youth gangs that roamed the areas. He grew-up exposed to negative role models in the form of young gangsters. He began to emulate their behaviour and socially gravitated to these groups. His membership of these negative peer groups provided him with acceptance, social status, and the freedom to indulge himself in a reckless manner. He became indoctrinated into the street cultures values associated with being a member of a negative peer group. He said that due to the nature of Nidria (sic), he grew up with the attitude 'I grew up with crime – it is quick money. Why go work for it when you can steal it in 10 minutes' and this was socially reinforced by his environment.
Mr Edwards' parents' feared that Mr Edwards disorderly behaviour would escalate due to his exposure to the negative influence of the street culture in Nidria (sic), and immigrated to Australia. The move to Australia appeared to have come too late for Mr Edwards who was already exhibiting the developmental precursor of an antisocial personality disorder prior to immigrating to Australia.
Upon arriving in Western Australia, Mr Edwards' disorderly behaviour began to escalate. Initially, his offending behaviour appeared to be motivated by reckless sensation/thrill seeking behaviour and was anti-authoritarian (eg. high speed chases with police in stolen vehicles). He also offended to obtain materialistic goods which were beyond his financial means, and as an act of solidarity with his negative peer group.
With hindsight, Mr Edwards believes that he took the 'wrong turn' in his life at the age of 13 when he began to associate with an older negative peer group and to abuse drugs. He said that he believes he went from being a youth who was involved in illegal activities for sensation and thrill seeking to offending to finance his drug addiction. He believes that 90% of his offending behaviour is drug related. He said that his offending occurs either in response to the acute distressing effects of drug withdrawal or being disinhibited due to the effects of intoxication." (Exhibit 2, pages 73-74)

In cross-examination, Mr Edwards denied having any involvement with street gangs and denied living in a poor suburb where he was exposed to crime. He said that he only started to get into trouble in Australia. He had not told Mr Balfour any of these matters.

Mr Balfour referred to Mr Edwards' attitude to his offence and to his future after his conviction for attempted Armed Robbery:
"Mr Edwards expressed remorse and regret regarding his offending behaviour. He said 'I'm very remorseful for what I've done. I have a serious drinking problem that I want to deal with. I want to get my life together. I'm celled up [remanded] with a 37 year old man who has been in and out of jail all of his life. I don't want to be there. I want to change my life now. I need help.'" (Exhibit 2, page 74)
Without treatment for his alcohol and polysubstance abuse and for his psychological problems associated with his antisocial personality traits, Mr Balfour considered that Mr Edwards' prognosis not to re-offend would be poor in the short-term. The future, however, could be different for Mr Edwards for Mr Balfour went on to say:

"Nevertheless, Mr Edwards is exhibiting some positive attitude changes which have motivated him to participate in rehabilitation. This is evident by the fact that he attempted to address his amphetamine addiction by participating in the Woolshed Programme. He appears to be developing a (sic) attitude and motivations to optimise his participation in a rehabilitation programme. He knows that he must overcome his alcoholism because 'Drinking is a hobby – it takes over everything, I sort of got to the point it controls my life – it controls me". He realises that he is at the 'cross roads' in his life and unless he takes action to address his problems he will become institutionalised in the criminal-justice system and waste his youth. He further realises that if this happens he will be denied the opportunity to pursue the goals most members of the public aspire to such as a stable relationship, family, employment, and stable accommodation.
Mr Edwards appeared confident in his ability to prevent himself re-offending in a similar manner. He said 'There is no chance because I'm going to get help and I'm going to change my ways – I'm going to get help. I'm sick of wasting away. I'm playing a mugs game – I'm the mug. I'm hurting my family which is hurting me. I'm missing out on the prime years of my life.
I believe that it would be premature to give a reliable long-term prognosis regarding Mr Edwards' propensity to re-offend until he has had the opportunity to consistently participate in a supervised structured rehabilitation programme for at least two years. I believe that, if he could achieve this goal without re-offending or experiencing any major relapses of his alcohol and polysubstance abuse problems, his long-term prognosis would improve to fair to good.
Without treatment, I believe that Mr Edwards is at significant risk of re-offending and committing further acts of violence in the community." (Exhibit 2, pages 74-75)

On his release, Mr Balfour recommended, Mr Edwards should be immediately admitted into a residential drug and alcohol programme. There should be strict controls on where he lives and with whom he associates. A structured rehabilitation programme would address the issues of stable accommodation, appropriate recreational pursuits, living skills, training and employment, social skills, conflict resolution training and alcohol and polysubstance drug problems.

Mr Edwards' behaviour in prison

Date     Behaviour
09/03/98 "Generally no problems but is showing little respect regards unit rules and regime." (Exhibit 2, page 175)
07/05/98 "No problem good interacts well" (Exhibit 2, page 167)
17/02/99 "Nicky has no unit disipline (sic), can be polite when he wants to be, mixes with some, cell and personal hygiene good." (Exhibit 2, page 154)
17/02/99 "Nicky has shown a high level of willingness to participate in his required programs. He currently has a positive attitude towards imprisonment." "Nicky has improved his general attitude & behaviour in the unit. He interacts well with peers & staff." (Exhibit 2, page 156)
22/11/00 taken "heroin ½ gm" in previous 24 hours (Exhibit 2, page 195) Answered "yes" to whether he had used drugs in the previous month to block out problems.
approx 17/04/01 Mobilong Prison    "Stated he shouldnt (sic) be here; (PTA), and he would be a bigger arsehole this time (case noted)." (Exhibit 2, page 220)

In Mr Balfour's report, he recorded Mr Edwards as saying that:

"… in general he does not like authority figures and being told what to do. He said he is endeavouring to overcome his attitudinal problem. He said the reason he has such a high disregard for authority figures was that he attributed the death of his 13 year old school friend in a vehicle accident as being caused by the police running them off the road. Furthermore, he said that he had been subjected to several beatings by police who had been trying to obtain a confession from him regarding a particular offence." (Exhibit 2, page 69)

In cross-examination, Mr Edwards agreed that this is so. He is trying to overcome his problem and is not getting into as much trouble as he has done in the past. He keeps out of prison politics and has come a long way, he said. When asked whether he had ever been told to improve his attitude or his behaviour, he replied that he could not say that he had. He was asked to comment on the following note from the records of Yatala dated 20 March, 2001:

"Today during movement to the yard prisoner Edwards 108639 failed to follow a request. The prisoner was then ordered to comply, he became verbally aggressive and threatening. The prisoner was escorted back to his cell where he was secured. For the well being of the unit I have terminated this prisoner from his employment as unit worker. His actions did not reflect the attitude needed to continue with this job. Edwards was advised these actions will not be tolerated in this unit." (Exhibit 2, page 22)

Mr Edwards said that he had a few complaints with the officer who wrote that report. His complaints arose from the manner in which the officer spoke to Mr Edwards and other prisoners. On that day, matters had come to a head and an argument followed. The note set out the officer's version of events but was not the whole picture. He has tried to improve his behaviour and that can be seen in the records, Mr Edwards said. When shown the following note summarising his recent behaviour at Mobilong, Mr Edwards said that it was the first time that he had been told that:

"… Nicky's behaviour at Mobilong has been fair. Due to his Deportation issue, he has been under a stress, and his partner miscarried their child recently. His compliance with Prison rules and routine is generally satisfactory, but responds poorly to direct supervision/direction from staff." (Exhibit 2, page 23)

Behaviour on release from imprisonment for attempted Armed Robbery

In cross-examination, Mr Edwards was asked why he had re-offended when he was released from gaol after previously being convicted of attempted armed robbery. He said that he had obtained employment but had not known how to cope. In addition, he and his girlfriend had lost their baby (see also paragraph 94 below). They had lost their baby approximately five months after his release. That was the catalyst for his starting to take heroin. Mr Edwards said that his girlfriend lost a second baby in December, 2000. He said in cross-examination that his mother had told him that his girlfriend was pregnant.

Mr Edwards agreed with Ms Reed that, before the deportation order was served on him, his behaviour in gaol had not been good. He had been convicted of assault on a prisoner and had committed a number of misdemeanours in prison. When it was suggested to him that he had not attempted to do a drug and alcohol course until he had received that order, Mr Edwards replied that he had tried to do a course from day one. He was moved from one prison to another in his early days and the course was not available to him. Mr Edwards denied the suggestion that he only wanted to do the course for the purposes of his case. He had taken every step but did not deny, he said, that he had fallen back and returned to gaol.

As to his behaviour when he was released from gaol and when he knew that he was liable to deportation, Mr Edwards said that his behaviour was not as the result of rational thought. He became addicted to heroin when his girlfriend was addicted. That happened a little after his release. Friends supported his habit but a couple of the things he did were caused by his heroin habit. Mr Edwards said that he had been interviewed for a drug and alcohol course a week or two after he had been released from gaol in 2000. His parole officer had not thought it wise to do it at that stage and there were still another five years in which to do it, he said.

In relation to the offence of unlawful possession of which he was convicted on 26 February, 2001 and which he committed on 5 November, 2000, Mr Edwards said that he did not know that the video camera was stolen. His earlier conviction for receiving goods on 21 June, 2000, he said, related to "chicks' clothes". It arose from his stupidity in not checking through clothes which he helped a friend move. He thought that the clothes belonged to her when in fact they were stolen clothes worth a few thousand dollars. His girlfriend had told him to do the gentlemanly thing and help the friend. His conviction for carrying an offensive weapon on 22 October, 2001 arose because he carried the weapon for protection.

Occupational history

In his report, Mr Balfour summarised Mr Edwards' occupations:

"Mr. Edwards said that he has been unemployed most of his life. He said that six months was the longest that he had ever worked.
At the age of 14 1/2, Mr. Edwards worked as a service station attendant at a Gull Station in Perth. He said this job came to an end after 6 months because he was caught stealing from his employer money to support his drug addiction.
At the age of 15 1/2, Mr . Edwards obtained employment as an 'odd jobs man' for Bellevue Meat Processing, but left after 3 months because he became 'bored' and he disliked doing shift work.
At the age of 17, Mr. Edwards was employed as a process worker by Advance Plastics, but left after three months because he disliked being exposed to insulation material which irritated his skin and made it itch.
At the age of 17 1/2, Mr. Edwards obtained full-time casual employment as a rust proofer/car detailer which ended after 6 months due to a lack of work.
At the age of 18, Mr. Edwards commenced a TAFE course butchering.
Mr. Edwards said that it is his long-term ambition to become a qualified tradesman." (Exhibit 2, page 67)

Mr Edwards said that he had not completed his butchery course as he had been in gaol at the time of the final examinations. He had been in a stolen car. Mr Edwards said that he was then signed into a rehabilitation programme for three months. He said that he only stayed for 2 or 2½ months of it as he felt that he had received the full benefit of it.

Mrs Allison Edwards

Mr Edwards' mother, Mrs Allison Edwards, said that her relationship with her son had always been very good but is getting better as they talk a lot more than they used to. When they lived in Scotland, they had not had any problems with their son. His only problem at school was that he could be easily distracted. He was not in trouble either with gangs or the police. The family did not move to Australia because their son was getting into trouble but to have a new start after the family had nursed Mrs Edwards' father for two years. The family could not have endured those two years had her son been playing up, Mrs Edwards said. She had not noticed any signs of aggression in him, she said. They did not live in a poor socio-economic area in Scotland.

Mrs Edwards could not answer how she would feel were a son to be deported as she has not allowed herself to think about that. Since the family came to Australia, they have never been able to save to return to Scotland for a holiday. She could not see how they would be able to save now but they would have to. The family has not kept in touch with any members of the family remaining in Scotland. Both her parents and her husband's parents had died.

When asked why she had not noticed her son's problems, she replied that it is easy to look back now and see the tell tale signs. She had not, however, seen any signs of violence in her son. She had never seen him drink much. When the family came to Australia, her son asked her if he could sleep over with a friend. She was told that it was a way of life in Australia. When she telephoned, he was not with the friend he had said. One day, her son told her that he had been involved in a police chase but had got away. She took him to the police station as she thought that grounding was not good enough. Although they knew nothing about him, she said, there then followed a string of charges. She said that she was totally confused by everything. She resented being dragged into court and the thought that he had to be sentenced. Mrs Edwards said that counselling services were used but they did not help. She tried to keep her son under a tight rein with no sleep overs but that did not keep him out of trouble. Nothing helped because her son did not want to stay out of trouble.

If her son were to return home to live, she said, there would be a lot of different things because the family had changed. In the past, it had concentrated on alcohol but that did not help with drugs. Drugs had only come up recently. The family has had to find out all that it could regarding drugs. The members of the family now know what to look out for as they have been reading up on it. They would also seek outside professional help. If her son was to live with the family again, he would have to live its way. When asked how she would keep him at home, she replied that he has to grow up as he is very immature in some of the things that he does.

In cross-examination, Mrs Edwards said that she had known that her son took drugs because he had told her but had thought that it was mainly alcohol. After his release on parole in February, 2000, he lived at home for approximately a week and then moved into a unit with his girlfriend. He was in the unit about three months or so and then rang her in tears and begged her to help him as he was on heroin. She told him to give up the unit and return home with his girlfriend. Her son, Mrs Edwards said, is not the most mature 23 year old and needs to do a lot of growing up. In the 2 or 2½ months that he lived with his girlfriend, they did not look after themselves. They were still being looked after by their parents and would eat with them and be given money for bills and bus fares. In her view, her son is not yet ready to leave home.

Mrs Edwards agreed with Ms Reed's suggestion that her son had said that he was sorry a number of times. She did not agree that he had said that to pacify her. He is not going to break the law to have a go at the family, she said. It took her a long time to realise that he was not acting as he does because of them but because of the drugs and lifestyle. When her son says that he wants to change, he means it. Mrs Edwards agreed that her son has said that a number of times but, until now, he has not had the right help. The family's move from Perth to Adelaide did not solve the problem as he did not manage to stop his drug habit. She does not take what her son does personally as he does what he does because of his drug habit. Mrs Edwards said that she can do more for her son herself.

Mr William Edwards

Mr William Edwards, who is a pest control expert, is Mr Edwards' father. He described his relationship with his son as being a typical father/son relationship but said that there has not been much time for it to develop when his son is in and out of prison. He would like to be proud of his son but he cannot say that because of his son's past. When they found out that their son was seriously into heroin, there was a feeling of total devastation. His wife had what could be called a total nervous breakdown.

Mr William Edwards said that everything has to change in the family in the future. His son's outlook on life has to change. He has to treat his son like a kid because he is immature and so has to sit on top of him and direct him. When asked what efforts he would take to help his son, Mr William Edwards said that he would do whatever it takes to get his son back on a straight road. His son would have to do what he is told and live by what they say. They cannot lock their son up in a cupboard and say not to get into trouble. Their son has to change his whole life. The family needs to change its whole routine entirely. They have to put a lot of trust in Nicky and he has to have both a job and be placed in compulsory rehabilitation.

When it was suggested to him that his son had a problem with authority figures and this could impact upon his reaction to the proposed changes in the family, Mr William Edwards said that his son might have that problem. He did not know. The family only sees the good side of Nicky but he acknowledged that there is a bad side. Nicky is not entirely horrible, he said. He has to take notice of the family in the future as his actions are affecting it as well, Mr William Edwards said. His son will modify his behaviour because he is now older, has the benefit of hindsight and we all learn by our mistakes.

Should his son be deported to Edinburgh, Mr William Edwards said, his son would definitely be worse off. Edinburgh is the AIDS and drug capital of the world. There would be no-one to tell him what to do and his son would be like a five year old sent out on the street. He has been advised that no social security is available to his son in Scotland. His son's life has been in Australia and he will not be able to fend for himself. His son's problem is a drug problem and now he is being told that, if you have a problem, you are to be thrown out of the country. From a family of five, Mr William Edwards said, only one has got into trouble. He himself has worked since a fortnight after he arrived. Should his son be deported, the family will not be able to afford to fly to Scotland to see him. They are only just getting by on what they earn at the moment.

Mr Michael Edwards

Mr Michael Edwards, who is a Site Services Officer, is four years older than Mr Edwards. He said that he and his brother got along pretty well and were like friends rather than older and younger brother. Mr Michael Edwards does not see his brother very often but, if he does, they go into the city, do a bit of shopping or see friends. As to how he could help his brother in the future, Mr Michael Edwards said that his parents are not as naïve as they once were. They would all be more aware of what Mr Edwards was doing. In the past, they had not had anything to do with drugs and had not known what to look for but do now. If his brother were able to stay in Australia, he would be with his family. All of his family is working and they can encourage him to get a job and there is always a bed, he said, at his place for his brother. Mr Michael Edwards said that he could help his brother with the interview process and go to factories to help him to find work.

If his brother were surrounded by good people, it would be good for him. In Scotland, he would be surrounded by negative people. If he were to go to Scotland, Mr Michael Edwards would not fly to see him and it would be as if he had died. He said that he had experienced a few bad flights and he did not see why he should get on a plane. In addition, he is not in a financial position to fly to Scotland.

His family was close, Mr Michael Edwards said. They all get together and talk about what they can do. His parents have helped him and they have given him good advice most of the time. He has given his brother money to purchase an old car or if he has needed it for things other than heroin. Mr Michael Edwards said that he had visited him in each prison he has been in. When he is in Yatala, he visits his brother each weekend.

It was suggested to Mr Michael Edwards in cross-examination that his help had made no difference to his brother over the last year. He replied that he did not know that his brother had a drug problem and if he did not know, he could not help. His brother is very strong-willed, he said, and, if he wants to stop taking drugs, he will. What is different about this time, Mr Michael Edwards said, is that his brother wants help. Last time, he did not. He can help his brother now that he has admitted that he has a drug problem. A person does not need drugs to have a good time, he added, and his brother knows that he has a family.

Ms Jordana Edwards

Ms Edwards is studying psychology at university and works part-time. She said that she and her brother, Nicky, have become a lot closer in more recent years as she has grown up and they have common interests. She would like to get to know him more. Her brother needs to be with the family and with close friends before he can branch out. His closest friend, Brandon, is a good role model. Her life, she said, is a little more flexible and she will be able to take him to places. If he were to travel on a bus alone, he might meet people and get into trouble. If the family has to be in control of him, then that is what has to happen.

Ms Edwards said that her studies have included the criminal justice system. She understands better what is expected of people and why her brother acts as he does. As a consequence, she can give more informed advice to her brother and her parents. Her parents are always so supportive of everyone that it is very hard for them to see the bad side of anyone. The whole family needs to change. Her brother needs help and she will do anything she can to help him.

As to the effect on the family if her brother were deported, Ms Edwards said that the past few years have been hard and have had a huge impact on the family. They have been a fairly close family and can relate to him more. The impact of his deportation would be huge and would be like losing someone. Given the right support, she believes that her brother will be rehabilitated. If he is in Scotland, the family will not be able to give him that support and cannot be there to pick up the pieces.

Mr Garry Booth

Mr Booth is a self-employed maintenance contractor. He has known Mr Edwards and his family for 12 or 13 years. Mrs Edwards had baby sat his first child for two years and he is indebted to her. He credits half of what his daughter is to her efforts. The Edwards family is so soft hearted, he is amazed that Mr Edwards is part of them.

Mr Booth said that he could definitely assist Mr Edwards in looking for casual work and, from time to time, would be able to offer work himself. Before Mr Edwards was imprisoned again, he had employed him as a casual labourer up to three days each fortnight. He had done so from February, 2000 for a two month period. Due to a down turn in the building industry, he was not able to offer Mr Edwards work on a longer term basis. Mr Edwards was also employed by one of Mr Booth's partners who had a contract as an on-site cleaner. With his character reference, Mr Booth said, Mr Edward's opportunities were golden. His opinion of Mr Edwards was based on his being hard working and showing initiative. Mr Edwards had tried to impress him and he did not mind sweating and did not mind working. He was prepared to help him as everyone needs a second chance or, perhaps in Mr Edwards' case, a third or fourth chance. Mr Edwards has made a few mistakes but his potential is the same as that of any other member of the community.

In cross-examination, Mr Booth said that Mr Edwards ceased to do the cleaning work because of transport problems. Mr Booth would pick him up but then told him that he had to get to jobs on his own. Mr Edwards' brother gave him a car but it caught fire and was later stolen. Mr Edwards needed a reliable car. His father would then take him to the addresses Mr Booth told him about over the telephone.

Mr Booth said that he had no idea that Mr Edwards had become addicted to heroin last year. He said that he had not picked it up. Mr Booth said that he was disappointed to learn that and even more disappointed to think that he had paid him money which was used for drugs. His parents have the best of intentions and he still wants to help regarding Mr Edwards' future direction.

Plans for the future

On his release, Mr Edwards said, he hoped to obtain an apprenticeship in the electrical field and to pay back his family for the hardship that he has caused them over the last 10 years. He did not see his past life as a way of life but just as causing a lot of hurt. At the moment, he is doing all that he can to prepare himself for that life. He is seeing a psychologist and doing a drug and alcohol course. He is on a methadone course and is willing to continue that programme. He feels that he is benefiting from the courses. This is the first time that he has wanted help and the first time that he has been able to ask for help. In the past, he has done things because he wanted to look good, he said, but now he is at the stage of his life where he wants to change. The biggest factor in that change has been the deportation order that has meant that he will lose his family.

Of his past life, Mr Edwards said that he had hurt a lot of people who never asked to be hurt. He had been selfish and had wanted everything and had wanted it now. He could not see then that he had his family. Since he was 13 years of age, he has used alcohol and speed and has been "off … [his] face" while he has been using them. He felt that he did not fit in with his family and he fell in with criminals. To some extent, he said, he was led astray but, after a while, he became the cause of his own actions. He was the problem, he said. Mr Edwards added that he is now sick of his lifestyle and sick of hurting people who do not ask to be hurt. He should not be hurting people because he wants money to score, he said. His parents, he realises, he has really hurt and his mother is aging more than she should be.

Mr Edwards said that he had done a course on methadone since Mr Balfour had written a report on him. He has also beaten his alcohol addiction and that is a big thing. Mr Edwards said that he has taken a lot of steps to improve himself for the better. He had come from speed, pot and drink to a bit of heroin. He had come a long way over the years, Mr Edwards said. That is so, he said, even though all are addictions.

When it was put to him in cross-examination that a caring and supportive family had not made any difference to his offending, Mr Edwards replied that it is only in the last couple of years that he has wanted to start trying to make changes. It has nothing to do with his parents. He chose his lifestyle and he liked it. It is only because he wants to make changes that he is changing now. When it was suggested to him that he had told people before that he wanted to change, he said that he had only told people what they wanted to hear in certain situations. He did not want to change. As to why he wanted to change now, Mr Edwards asked, "Why not take the risk?" He will be on parole for five years and it will be possible to see if he is lying then. When he was told that he had made similar statements in 1999 to an officer of the Department and earlier in 1998 to Mr Balfour, Mr Edwards said that he did change in 2000. He obtained an apprenticeship, which he had never done before. He was not using drugs and he had never done that before. He did not go back on the bottle and he had never done that before.

Mr Edwards later said that he had given up the electrical apprenticeship that was a traineeship he had set up. He did a "bit of work" for a couple of months but then started getting back to the heroin again. Before this period of his life, he said that he had used heroin 6 or 7 times since he was 13 years of age. He had never experienced a problem with it until this time. It was the first time he developed an addiction for it. When asked why he turned to heroin on this occasion and not speed, he replied that he was more alert on speed and more out of it on heroin. Heroin controlled his life and he had no plans apart from heroin.

Mr Edwards denied that he uses drugs when matters get stressful. There are drugs in gaol and he is not using them, he said. He admitted in cross-examination that he had had a couple of smokes of marijuana last year. "Pot is not a bad thing", he said.

Of his employment prospects, Mr Edwards said that they were better now that he wanted to work. He wants to change and has never wanted to work before as he has been too busy doing drugs and "stupid things". It is obviously harder to get a job if he has not finished Year 10 at school, he said, but added that this was a fact and not his fault.

As to the guarantees that he could give as to his future intentions, Mr Edwards said that he could only give his word. He had not touched alcohol in years. It had been a big problem for him. The statistics say that he will not succeed, he said, but he wants to change now and he never did want that before. In the past, he has only told people what they want to hear but now he genuinely wants to change. Mr Edwards said that he sees himself as having matured. He has had a lot of time to think while he has been in gaol. He has been off drugs. That is not bad for him as it has opened his eyes.

When asked in cross-examination what he had done to make amends for the past, he said that he has been in gaol for ten or eleven months and he has been limited in what he can do. He has been using the facilities that are available to him but those facilities are limited. As to those he has hurt, he does not know what he can do and does not even know who half of them are.

As to the possibility of his being deported, Mr Edwards said that his biggest chance is in Australia. He has none in Scotland where no benefits are available to him and he would revert back to what he knows. Except when he has been in gaol and for two months with a girlfriend, he has always lived at home and does not know how to live independently. He has a few relatives in Scotland but he has not been in contact with them for years, he said. In any event, he could not "rock up on their doorstep" as it is up to him to get on with his life. He said that he is not responsible and mature enough to do that in Australia let alone Scotland. Being deported is not the reason for his wanting to change, he said. It has, however, been a big wake up call. He has always wanted to change but has just not been able to get it together.

Last time, he was released from gaol, he went back on drugs, his girlfriend miscarried her baby, her sister was raped, there was not a lot of money, he did not cope and he got back into crime. In his view, he would cope better with that situation were it to happen today. That is so because he is more mature. He has friends in gaol who are in their 40s and 50s and he does not want to end up like them. Last time, he was not independent as he and his girlfriend were supported by their parents. Her mother brought food. They had no food or refrigerator and used all the money allocated for food and rent for drugs instead.

As to his plans when he is released from gaol, Mr Edwards said that he was not ready to make those plans. He would move back to his parents until he "really got … [his] head together" and found a job. In the first instance, he has to get off drugs. Mr Edwards said that he needed to listen to his parents. In the past, he has not listened to them but every piece of advice they have given him has come true. Mr Edwards said that he is institutionalised. It is both a bad and a sad thing for a person of his age. He had to become institutionalised or otherwise he would not have been able to serve his time.

When he was younger, his relationship with his family was a lot better. He has not had a Christmas at home for a long time and he has been away from home for a long time on and off, he said. His relationship with his mother is his best relationship in the family, he said. There is no particular reason for that other than that they talk more easily. He felt that he had a good relationship with his father and has an excellent relationship with his brother and sister even though their lifestyles are quite different from his.

CONSIDERATION

I will first consider the seriousness of the conviction upon which the order for deportation was made. The offence was that of attempted Armed Robbery. It is by its very nature an offence that involves a threat of violence, even if implicit rather than explicit, as the offender is armed. In deciding whether the particular offence committed by Mr Edwards is a serious offence, I need to consider the particular circumstances of the offence. Those are to be found in the sentencing remarks of the sentencing judge, Judge Lee. Except in so far as it may be consistent with those remarks, I am unable to have regard to any evidence that Mr Edwards gave at the hearing regarding those circumstances or the comments he has made to others on earlier occasions. In relation to the role of the courts, the Full Court of the Federal Court said in Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349 at 359 per Branson, Lindgren and Emmett JJ:

"45. To impugn the sentencing process … is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
46. 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 practice 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 sent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above at FLR 445-446 per Fox J.
…
48 In so far as the tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under s 200, the tribunal erred in law."

On the basis of Judge Lee's remarks, I find that Mr Edwards was armed with a knife when he attempted to rob George Villios, a taxi driver. The offence involved a "degree of purposefulness and planning". At the time, Mr Edwards was intoxicated. The version of events recorded in the Plan in 1998 do not alter my view of the circumstance of the offence for acceptance of that version would require me to find that Mr Edwards had not attempted Armed Robbery at all and simply ran away without paying his fare. For the reasons I have given, I am unable to do that and the same must be said of the version of events he gave to the Department's officer in 1999 and at the hearing. That version also denies any attempt to rob the driver of the taxi although it would acknowledge that he had threatened the driver. The mitigating circumstance that this would require me to have regard to would be that the driver threatened him in the first instance. That is not consistent with the facts upon which Judge Lee imposed his sentence.

Judge Lee has not made any specific reference to the seriousness or otherwise of the offence but some indication of his view can be gleaned from the not insubstantial sentence of five years that he imposed on Mr Edwards. In the context of a deportation case, seriousness is determined in part by reference to the sentencing Judge's view of the offence but in part by reference to the types of offences that the Minister considers are serious. As an offence in which Mr Edwards actually drew a knife, the threat of violence was no longer implicit but explicit. It was an offence in which there was a threat of violence and so was an offence specifically identified in paragraph 11(l) of the Direction.

Having regard both to the circumstances of the offence and the terms of the Direction, it seems to me that I must conclude that it was a serious offence. A threat of violence was used against a taxi driver who is involved in a service industry but who often performs that service in circumstances in which he or she must necessarily be alone with the person for whom he or she is performing that service and in circumstances in which he or she is unable to obtain immediate assistance. A threat of violence against such a person exploits the very vulnerability of that person's situation and is a serious breach of faith between the driver and his or her passenger. It is also a serious breach of the community's expectations that its members will not be threatened with violence and that those in vulnerable circumstances will not have their vulnerability exploited.

That brings me to the risk of recidivism i.e. the risk that Mr Edwards will re-offend if permitted to stay in Australia. On the evidence I have been given, I find that Mr Edwards has a very long history of offending. He was convicted for his first offence when he was 14 years of age. They were offences of dishonesty in that he was convicted of stealing motor vehicles. He was also convicted of driving without a licence. His history of offending as a juvenile, I find, mainly involved the misuse of motor vehicles but there was an appearance of an alcohol related offence and the possession of a controlled substance when he was 17 years of age. As an adult he moved to offences in which he was armed although he continued to commit offences concerned with the misuse of motor vehicles. That pattern has continued to the date of the offence of attempted Armed Robbery in relation to which the deportation order has been made and beyond.

Mr Edwards and his family have all emphasised his wish to change his ways and to stop re-offending. He points to his efforts in gaol to obtain help. I find that he has completed an Anger Management Program course and a Victim Awareness course. Both were completed in September and October, 1999. I also find that Mr Edwards has expressed his wish to change to the prison authorities some time after he was served with the deportation order on 31 January, 2001. The first reference to his asking to go on Drug and Alcohol courses is recorded as being in April, 2001. Although his name was put down for them, he was transferred from Yatala to Port Augusta before he could attend them. There is no record of his having asked to go on such a course before that time although I find, on the basis of his evidence that Mr Edwards had attended two months of a three month drug an alcohol rehabilitation course at some time in the past.

As part of his efforts to change, Mr Edwards' family all point to their need to change also. His mother, father, brother and sister have all taken steps to find out about drugs. His mother, father and sister, who all live in the family home, are anxious to have him return home at the completion of his sentence. They are anxious to provide him with support, guidance and direction. Each attributes Mr Edwards' offending to his drug and alcohol habits and, in some instances, his lifestyle. All have similar hopes for the future but I find that each has a slightly different focus. His mother's focus is upon providing him with support and guidance but being aware of any sign of his taking drugs and engaging professional help. His father's focus is upon their ensuring that he lives a lifestyle that accords with the family's rules. His sister's is upon being with her brother as much as possible so that she can help and guide him but also keep him away from negative influences. Each of them recognises that the main effort must come from Mr Edwards.

Is Mr Edwards likely to maintain his wish and efforts to change his ways of the past? The answer to that lies partly in him and in the support that he has around him in the future, partly in his actions in the past and partly in the strength of his stated intentions and maturity. As to the future, Mr Edwards' family want only the best for him. In view of the evidence that he does not like authority figures and being told what to do, there must be a very real question as to whether he will tolerate living by his family's rules and according to their expectations. The answer to that lies in the depth of his desire to change and his maturity.

As to his future intentions, Mr Edwards states that the deportation order has been a real wake-up call for him and has been the catalyst for his wanting to take positive steps in the future. That would seem to be so when regard is had to the steps he has taken since that order was made to complete two courses. He has, however, received an earlier wake-up call when he received a letter dated 6 December, 1999 and was interviewed by an officer of the Department. That letter clearly stated that he might be deported. At that time, he took no obvious action to change his ways. His behaviour in prison did not change and he continued to be involved in breaches, albeit minor, of prison regulations. More importantly, on his release from prison, he re-offended within approximately six months of his release despite his having received the notice regarding the possibility of his being deported. Mr Edwards attributed these offences to his inability to live independently away from home and his turning to heroin. His turning to heroin was, on his evidence, something that he had not tried before that period of his life and so was an extension of his previous drug taking activities rather than any indication of a desire to curtail them.

Mr Edwards and his family all attribute his offending to his immaturity. I accept that this is a factor but I must also have regard to the report of Mr Balfour as to whether it is the only factor. On the basis of his report, I find that Mr Edwards does not suffer from any psychiatric condition. He does, however, have a personality disorder characterised by antisocial traits. I also find that the likelihood of treatment of his condition resulting in its modification is low. That finding is based in part on Mr Balfour's evidence that the disorder is usually chronic and begins to wane in the fourth decade of life, treatment only leads to equivocal results and treatment is best carried out during adolescence or when he begins to mature. It is also based in part on the evidence Mr Edwards is no longer an adolescent and is not yet approaching the fourth decade of his life. He is, therefore, outside the periods of his life when treatment is likely to have effect.

On the basis of Mr Balfour's report, I find that a person's maturity is also relevant in assessing whether treatment is likely to be successful. Mr Edwards has said that he is beginning to mature and to show insight into his behaviour. But has he begun to mature or, as he admits he has done in the past, is he simply saying that he has begun to do so and to change his way of life because that is what he thinks people want to hear him say? He said at the hearing that this time he means what he says. He does not want to end up like those people in their 40s and 50s whom he sees in prison and has expressed his wish to change. He stated a similar wish to Mr Balfour in November, 1998 and yet continued to commit minor breaches while in prison and to re-offend after his release. He had earlier had an opportunity to address his drug and alcohol problems but showed his immaturity by discharging himself before the completion of the programme. The prison records indicate his enquiring about an Anger Management course before he was given notice of that he could be liable for deportation and I find that he completed an Anger Management Programme and a Victim Awareness Programme in September and October, 1999. Despite that, I find on the basis of the prison notes that there was no modification of his behaviour. He continued to engage in his previous pattern of regular misconduct, albeit minor, until the deportation order was made. On the basis of the prison notes, I find that his behaviour did improve after the deportation order was made until 23 May, 2001 when the records end in Exhibit 2. In the last month, he had calmed himself a lot.

These matters could be regarded as evidence of his wishing to change in the long-term. Equally, they could be regarded as evidence of his wishing to change for a short term gain in the sense of having the deportation order set aside but not of evidence of his growing maturity and of his wishing to sustain change in the long term. I have decided that the latter is, on the balance of probabilities, the more likely reason for his wishing to change. While he has sustained change for a short period, this is outweighed by the considerably longer period in which he has not been able to sustain change and also by his lack of maturity in dealing with his past. At the hearing, he continued to display lack of maturity by not taking responsibility for his past offences. Instead, he sought to blame others, as in the case of the taxi driver, or other factors, as in the case of his lack of maturity or drugs and alcohol. At no time did he take responsibility.

Taking all of these matters into account, I find that the likelihood of Mr Edwards' recidivism, or likelihood of reoffending, is high. Given his previous pattern of offending, there is a very real risk that his offences will be against persons and their property. He is, therefore, a very real risk to members of the Australian community and their property should he be permitted to remain. There is no evidence whether his deportation would be likely to prevent or to discourage similar offences by other persons but that does not alter the risk that I have found exists for the Australian community.

Deportation would mean that he would have to make a home in a country that he has not seen since he was 11 years of age. It is a country in which, on the limited evidence available to me, I find that he would not be able to receive benefits in the nature of social security benefits payable in Australia. Both Mr Edwards and his family state that he would be forced to return to a life of crime if he were deported. I do not accept that this would necessarily be the case. I am satisfied on the basis of the evidence of Mr Booth that Mr Edwards is a good worker when he is not distracted by drugs and alcohol. He impressed Mr Booth. The work Mr Edwards undertook was labouring and unskilled work but I find that he applied himself to his work and showed initiative. There is no reason why he cannot apply himself equally to that work in Scotland. It could be said that he has still to conquer his alcohol and drug problems as well as his antisocial behaviour. He has time to address some of those issues while he is in the prison system.

If deported, I find that Mr Edwards would be left without the support of his family. This would be extremely difficult for his family. Each family member feels that deportation would be as if Mr Edwards had died. I find that his leaving would be a particularly heavy burden for his mother. She and the other members of the family want so much to keep their family together and to do anything to help Mr Edwards.

The Direction requires that I balance the primary considerations against other considerations. The Australian community's expectations and its expectation that it will be protected and not put at risk is a primary consideration. Hardship to Mr Edwards and his family are not primary considerations and, as I have said earlier, are not given the same weight as primary considerations. When I weigh all of the considerations, I consider that the risk of Mr Edwards' re-offending by committing crimes against the person and property of members of the Australian community outweighs the hardship that would flow either to him or to those members of his family who remain in Australia.

For the reasons I have given, I affirm the decision of the respondent dated 4 January, 2001.

I certify that the one hundred and thirteen preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President),
Signed:          .....................................…….........
  Clancy Riddiford       Associate
Dates of Hearing  18 September, 2001
Date of Decision  18 December, 2001
For the Applicant  Mr Douglas-Stewart, law student
Counsel for the Respondent        Ms Reed
Solicitor for the Respondent        Sparke Helmore

[2001] AATA 1023

18 December 2001