Kuruppu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Kuruppu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 53 (27 January 2023)
Division:GENERAL DIVISION
File Number:2022/9300
Re:Sampath Kuruppu
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member J Rau SC
Date:27 January 2023
Place:Adelaide

The decision under review is affirmed.
............................[sgnd].........................................
Senior Member J Rau SC
Catchwords
MIGRATION – mandatory cancellation of Class - BB Subclass 155 Five Year Resident Return visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
27 January 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 7 November 2022, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the Visa”). The visa was cancelled on 1 March 2019 under section 501 (3A) on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being sentenced by the NSW District Court to a term of imprisonment of 5 years on 13 April 2018.[1]
[1] Exhibit 3, G2, Attachment B1, pp 45-65.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 17 January 2023. The Applicant was represented by Mr Parth Brahmbhatt of BTT Lawyers, and the Respondent was represented by Ms Kate Ervin of Clayton Utz.
The Applicant gave evidence by MS Teams. The Applicant presented as an intelligent man. He appeared to have either a vivid, detailed recall of past events, or to be relating a detailed story, that he had constructed to show himself in a favourable light.
He often gave very lengthy and largely irrelevant answers to quite simple and direct questions. Some of these answers went along argumentative lines. For example, when asked the simple question whether he was found by police to have had duct tape in his pocket, when they found him after he had broken into his wife’s home, on 23 February 2016, he said “no”.
He then proceeded to give a rambling account, stretching back many years, about how he had obtained a voice activated recorder, which he had secreted in his wife’s car, so as to record her private conversations with her mother. This recording was left in a box for some years. This recording apparently evidenced an attempt, on the part of his mother-in-law to undermine him and to destroy his marriage. There was some tape in this box also, and so on. This strange, rambling answer concluded with a demonstration, using a toilet roll which he had to hand, of how it would not have been possible to have fitted duct tape in his pocket.
He did, when pressed by the Tribunal, concede that there was duct tape present, but said that it was not in his pocket and that the police had made this up and photographed the evidence at the scene in such a way as to misrepresent the truth. This was quite contrary to a specific finding of fact by the sentencing Judge. It also demonstrates a transition from a starting point of there being no duct tape, to an end point where there was duct tape incidentally there, but that it was never in his pocket because it could not have fitted, and he had no intention of using it.
He tended to blame others for his convictions. This included his ex-wife’s family and Judges who had misunderstood the evidence before them. He acknowledged some of his offending but denied other elements. This included him denying the accuracy of many specific findings of fact contained in sentencing remarks. He told the Tribunal, “I am not a criminal, I am not a violent person”. Somewhat paradoxically, he expressed remorse for the violent things that he did admit to doing. He claimed that he was a” different person now”.
Overall, his evidence needs to be treated with great caution. It was self-serving and demonstrated strange thought processes, at times suggesting that he has been the victim of a conspiracy of some sort. This even extended to alleging the complicity of a senior police officer, who he says was having an inappropriate relationship with his former wife.
That said, I do accept that he does not wish to re-offend. He has a strong motivation not to. Remaining in Australia is probably his best chance, (though by no means a guarantee) of him seeing his sons again, which is a priority for him.
I note that the Tribunal is not entitled to go behind the essential facts on which the Applicant’s convictions or sentences were based. This is particularly so in respect of the offending that triggered the cancellation of his visa.[2]
[2] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
The Applicant called no other witnesses
Background Facts
The Applicant was born in Sri Lanka. He is a citizen of that country. He is the youngest of 4 children. His eldest sister immigrated to Australia in 1989, he followed her.[3]
[3] Exhibit 3, G2, Attachment J1, pp 336-337; G2, Attachment H9, pp 254-256.
In 1989, the Applicant left Sri Lanka and went to the US where he undertook studies in accounting and computer programming.[4]
[4] Ibid, G2, Attachment H1, p 155.
He first came to Australia, aged nearly 33 years, on 12 January 1999.[5]
[5] Ibid, G2, Attachment Y, p 547.
Before coming to Australia, the Applicant had already developed a serious alcohol problem. This became worse after he came here.[6] He has recorded convictions for drink driving offences beginning in 2000.
[6] Ibid, G2, Attachment B1, p 52.
The Applicant initially had a good employment record following his arrival here in 1999. He worked in various jobs continuously up until 2016. He has obtained a Certificate I-III in IT Business Studies and a Certificate I-III in Business Management. He has been active in the Sri Lankan Community.[7]
[7] Ibid, G2, Attachment G, pp 143-144.
On 26 June 2000, the Applicant was convicted in the Parramatta Local Court of driving with a middle range PCA. He was fined $600 and he was disqualified from holding a driver’s license until 11 November 2000.[8]
[8] Ibid, G2, Attachment A, p 44.
In 2001 the Applicant married DK. She has a Sri Lankan background but most of her family live in New Zealand.[9] They became acquainted by way of a website. She had previously been married and in fact was, unbeknown to him, still married when they first met.[10]
[9] Ibid, G2, Attachment B1, p 52.
[10] Ibid, G2, Attachment H2, p 161.
On 24 October 2004, the Applicant’s son DSSK was born. He is now 18 years of age. He is an Australian citizen, but he now resides with his mother in New Zealand.[11]
[11] Ibid, G2, Attachment G, p 137.
The Applicant reports that his wife left the family home twice in 2005. On one occasion she stayed in a women’s refuge. No detail was given about why this may have happened.[12] It is consistent with some discord in the marriage.
[12] Ibid, G2, Attachment H2, p 164.
On 13 September 2006, the Applicant was again convicted in the Parramatta Local Court of driving with a middle range PCA. He was fined $600 and he was disqualified from holding a driver’s license for 6 months. He was also convicted of negligent driving and fined $300.[13] The Applicant told the Tribunal this was an attempted suicide.
[13] Ibid, G2, Attachment A, p 44.
On 11 April 2007, the Applicant’s son (“Child A”) was born. Child A is now aged 15. He is an Australian citizen, but he also resides with his mother in New Zealand.[14]
[14] Ibid, G2, Attachment G, p 137.
At some point in 2008, the Applicant says that his wife took an overdose of medication. There is no independent evidence of this. The Applicant speculates that this was due to her mental health issues.[15] There is also no independent evidence that the Applicant’s ex-wife has had any mental health issues. This is, he conceded, just his view, based on his readings on the topic of mental illnesses.
[15] Ibid, G2, Attachment H2, p 164.
Between 18 August 2008 and 25 September 2008, the Applicant travelled overseas to Sri Lanka to visit his family.[16] At the time, his mother, a brother and a sister lived there. His mother has since died. On his Incoming Passenger Card dated 25 September 2008, the Applicant declared that he had no criminal convictions.[17] He told the Tribunal that at the time he did not think that a “traffic infringement” was a “criminal conviction”.
[16] Ibid, G2, Attachment Y, p 547.
[17] Ibid, G2, Attachment X, p 546.
In about 2009, the Applicant committed the first recorded acts of family violence against his wife.[18]
[18] Ibid, G2, Attachment B3, p 72.
On 15 May 2012, the Applicant convicted in the Parramatta Local Court of Affray. He was fined $1500 and placed on an 18-month bond.[19]
[19] Ibid, G2, Attachment A, p 44.
On 18 September 2012, the conviction for Affray was quashed in the Paramatta District Court.[20]
[20] Ibid.
On 25 September 2012, the Applicant was convicted in the Blacktown Local Court of driving with a middle range PCA and proceeding through a red light. He was fined a total of $450 and he was disqualified from holding a driver’s license for 8 months.[21]
[21] Ibid.
On 30 October 2012, the Paramatta District Court confirmed the 25 September 2012 convictions on appeal.[22]
[22] Ibid.
Between 13 December 2014 and 21 December 2014, the Applicant and his family travelled to New Zealand.[23] On his Incoming Passenger Card dated 21 December 2014, the Applicant declared that he had no criminal convictions.[24] Again, he told the Tribunal that at the time he did not think that a “traffic infringement” was a “criminal conviction”.
[23] Ibid, G2, Attachment Y, p 547.
[24] Ibid, G2, Attachment X, p 545.
His wife and children, who were staying with her relatives, did not return until late January 2015.[25]
[25] Ibid, G2, Attachment B1, p 54.
On 6 April 2015, there was a family violence incident between the Applicant and his wife. An AVO was taken out. This was the subject of charges and ultimately, a conviction on 26 August 2015. The particulars of this offending are set out in a NSW Police fact sheet:
“The accused in this matter is [the Applicant]. The victim is [DK]. The two are husband and wife and live with their two children.
The victim is the sole owner of a white Samsung Galaxy S2 mobile phone and a silver Mitsubishi Lancer registration number [ ].
Offence 1 – Common Assault
About 9pm on the 6^th of April 2015 the victim and her two children were seated in the lounge room of their home address eating dinner. The accused entered the room and yelled at the two children “go to sleep”.
The two children left the lounge room the victim and accused began arguing about a divorce and their children. The accused then spat on the victim’s food that she was eating for dinner. The victim walked to the kitchen followed by the accused. there the two had a glass of water and the accused threw the water from his glass on the victim. The victim walked to her bedroom followed by the accused.
The victim picked up her purse, car keys and phone and began walking toward the garage to which then the accused grabbed the victim on her shoulders with both hands and pulled her back into the house. At this stage the victim was crying and yelling “let me go, let me go”. The victim struggled to get away from the accused but the accused pulled her back into the hallway of the house. This made the victim extremely scared and caused her to fear for her safety. As a result of the accused actions the victim felt pain to her shoulders and her shirt ripped.
The accused dragged the victim into the bedroom and said “calm down, settle down” to which the victim replied “just go away, don't touch me, leave me alone.”
The accused then pushed the victim onto the bed and held her down with both of his hands on the victim shoulders. This made the victim very scared and caused her to again fear for her safety. A short time later the accused released his grip on the victim and the victim remained seated on the bed. The two had a short conversation about a divorce and the victim then walked toward the wardrobe to change her shirt.
The victim made multiple attempts to exit the bedroom but were stopped by the accused. This caused the victim at to be afraid of the accused and made her feel like she was trapped.
Offence 2 – Destroy or damage property
The victim eventually walked into the hallway and said to the accused “I'm going to call the police” to which the accused replied “yeah go call them”.
At this stage the victim had her white Samsung Galaxy S2 mobile phone in her hand. As she has went to call police the accused grabbed her phone and threw it to the ground. The accused then picked up the phone and again threw it to the ground. This caused the victim’s phone to smash and break.
The victim then ran along the hallway toward the garage and the accused grabbed her on the shoulders with both of his hands and began to pull the victim back inside. The victim yelled “let me go, get away from me”. This caused immediate pain the victims’ shoulder areas. The accused pulled the victim back toward the lounge room area and the two fell onto the couch. The victim attempted to get free from the accused’s grip but this was prevented by the accused maintaining his grip on the victim. As the accused held the victim he said “calm down, calm down”. At this stage the victim was again at very scared for her safety.
A short time later the victim and accused were broken in the lounge room talking. The victim was awaiting an opportunity to get away from the accused. The victim walked toward the bathroom and was followed by the accused.
The accused returned to the lounge room to retrieve a laptop and the victim ran toward the garage. There the victim exited the garage to the driveway and got into her car where she locked the doors immediately in an attempt to prevent the accused from getting to her.
The accused approached the drover’s door of the victim’s car and said “open the door to which the victim replied “no”.
Offence 3 and 4 – Destroy or damage property and Intimidation
The accused lay down near the rear wheel of the victim’s car. The victim believed that this was to prevent her from leaving the location. A short time later the accused stood up and the victim reversed from the driveway and drove straight to Quakers Hills Police station where she parked directly across from the Police Station.
A short time later the accused parked his vehicle in front of the victim’s vehicle. At this stage the victim was still seated in the driver seat of her vehicle. The accused approached the victim and requested she put the window down to which the victim declined. The accused returned to his vehicle.
A short time later the accused returned to the victim with their eldest child. The victim put the driver's side window down about 15cm and the accused reached into the vehicle where the victim was seated. This scared the victim.
The victim attempted to put the window back up to get the accused’s arm away from her. During this time the victim was very scared for her safety. The accused then said “I'm going to break the window”. The victim then put his left hand on the driver’s side window and pulled it. This caused the window to shatter. The victim pressed the horn on her vehicle and the accused then left the scene in his vehicle.
A short time later the victim attended the front counter of Quakers Hill Police Station and spoke to police.
Police obtained a signed 5 page statement from the victim regarding the incident.
At about 8:45 on the 7th of April 2015 police attended [ ] and spoke with the occupants of the premises. The occupant advised that the accused was within the premises.
The accused was placed under arrest and cautioned. The accused was conveyed to Quakers Hill Police Station and introduced to the custody manager. The accused was read his rights under Part 9 of Law Enforcement (Powers and Responsibilities) Act 2002.
The accused was electronically interviewed. The accused was asked a number of questions during this interview and replied ‘no comment’ to these questions.
The victim isn’t seeking compensation regarding the malicious damage of the phone and her vehicle.
The matter is now before the court.”[26]
[26] Ibid, G2, Attachment C, pp 92-95.
These allegations were put to the Applicant. He said that many of them were not true, notwithstanding the subsequent court findings upon which he was sentenced. For example, he denied following his then wife to the Police Station. He said that he was just looking for her and eventually found her there. He had a strange explanation for breaking the car window, which was that he “just reached in to get the phone”.
The Applicant said that at the time the incident occurred, he was “not himself” and that he was “walking on eggshells”. He said that, of his own volition, he sought treatment from a doctor, attended AA meetings, had counselling and attended Blacktown Hospital’s alcohol counselling service.
Between 11 April 2015 and 29 April 2015, the Applicant travelled overseas to Sri Lanka with his sons.[27] His wife remained at home because there was an AVO against him. He stayed with his mother and saw his brother and sister. On his Incoming Passenger Card dated 30 April 2015, the Applicant did not complete the section regarding criminal convictions.[28] He told the Tribunal that he did not complete that section because he was “thinking about his AVO”. He said that he decided to “leave it open” because he did not want to confirm a conviction. He did not ask for assistance in completing the form.
[27] Ibid, G2, Attachment Y, p 547.
[28] Ibid, G2, Attachment X, p 544.
On 26 August 2015, the Applicant was convicted in the Blacktown Local Court of destroying or damaging property (DV) and common assault. He was fined $450 and placed on a bond for 12 months. He was directed to undertake counselling for anger management and to attend a DV perpetrator’s programme.[29] The Applicant told the Tribunal that he did not recall being directed to undertake such a programme. He did not comply with this direction.
[29] Ibid, G2, Attachment A, pp 43-44.
On 15 September 2015, the Applicant breached both a bond condition and an AVO by assaulting his wife.[30]
[30] Ibid, G2, Attachment B3, pp 76-77.
On 21 September 2015, the Paramatta District Court confirmed the 26 August 2015 convictions on appeal.[31]
[31] Ibid, G2, Attachment A, p 43.
At the end of December 2015, the Applicant’s wife travelled to New Zealand. She returned to Sydney accompanied by her brother. She told the Applicant that she wanted to end their marriage. The Applicant consistently blames his marriage breakup entirely on the meddling behaviour of his ex-wife’s family. He has trouble accepting any personal responsibility for his marriage breakdown.

On 3 January 2016, the Applicant again breached both a bond condition and an AVO by assaulting his wife.[32]
[32] Ibid, G2, Attachment B3, pp 78-79.
The Applicant told the Tribunal that “this never happened”. He gave a very confusing and lengthy explanation to the Tribunal. This was contrary to the findings of the sentencing Judge. The Applicant made a lot about the alleged fact that it took his then wife, two weeks to report the incident. He advanced this as evidence of fabrication. The Court found that it was reported on the next day, not two weeks later.
On 6 January 2016, the Applicant separated from his wife and left the matrimonial home.[33]
[33] Ibid, G2, Attachment B1, p 54.
The Applicant told the Tribunal that he was given one year’s paid leave in early 2016. This seems unlikely.
On 14 January 2016, an AVO was obtained by the Applicant’s wife.[34]
[34] Ibid.
On 19 February, the Applicant started to live with his sister and brother-in-law.
On 22 February 2016, the Applicant breached the AVO by making phone contact with his wife.[35]
[35] Ibid, G2, Attachment B1, p 54 and Attachment B3, p 79.
On 23 February 2016, the Applicant breached his bond conditions, bail conditions and an AVO. He broke into the house in which his wife and children were living. He seriously assaulted her.[36]
[36] Ibid, G2, Attachment B3, pp 79-83.
The Applicant again gave a lengthy and confusing explanation for this conduct, much of it at odds with the findings of the sentencing Judge. His explanation was in summary, as follows.
The Applicant received a phone message from his son, asking him to come over and read the boy a bedtime story.
The Applicant quietly left his sister’s house, taking care not to wake anyone. He pushed his car down the street in neutral before starting it.
He parked some distance from his wife’s residence, in front of his doctor’s surgery, and walked from there to the house, so as to not make any noise.
All of the house lights were on and he noticed a half empty champagne bottle and two glasses were visible through a window. His wife was observed to be wearing silk lingerie. The door locks had been changed.
He formed a view that a senior police officer, to whom his wife had previously taken lingerie, and who had given his mobile phone number to his wife, was in the house with his wife. This same police officer had been aggressive towards him in the past.
The Applicant denied any premeditation and said that he acted “on impulse”. He broke a window to secure entry to the house. He denied making death threats or having duct tape in his pocket. Police on the scene, were accepted by the sentencing Judge as having found duct tape in his pocket. The Judge referred to that fact as a “sinister discovery”. All of his account is inconsistent with the findings of the sentencing Judge.
I reject the Applicant’s explanation as an implausible, retrospective, exculpatory reconstruction.
The Applicant was taken into custody and refused bail. He lost his job with Westpac.
On 28 April 2016, the Applicant assaulted another inmate at the John Morony Correctional Centre by pouring boiling water over him. He was charged with causing grievous bodily harm and subsequently convicted on 13 April 2018.[37] This conviction, for this offence, was the basis for his visa cancellation.
[37] Ibid, G2, Attachment E, p 100.
The Applicant’s explanation for this, as set out in his response to the Notice of Intention to Cancel his visa, dated 18 March 2019 is somewhat bizarre. It relevantly states:
1a) GBH with intent: on the 28^th April 2016, I had a cell where another inmate who was shearing the ceil with me who was 33 years of age with an Afghan nationality.
As this is my first time in prison he was standing over me asking for transfer money in to his jail account to buy food, l tried to explain that! Did not have money. I was assaulted by this person once before. On the 28^th April he was aggressive towards me and he wanted money transferred to his account Since I could not do anything he assaulted me from the back and tried to chock me. I put my hands up and refused to fight back. As I was seated on the top of the bunk bed, he wanted to go through my legal documents. Since my home address was on my paper work I did not want to show him, as my wife and the two little boys were living at home during this time. At this time he was getting more agitated as he was waiting to have a go at me with his T-shirt wrapped around on his wrist During this time he took his own kettle and filled it up, then put it to boil threatening me saying that he was going to pour hot water on me. Since the kettle was boiled he approached the kettle to pour the hot water on me. However as a quick reaction, (self-defend) I managed to grab the kettle before him and poured on him to calm him down. Then I managed to come down and called for help and advised the officers what has happened.
However this inmate went to the police and made an official complaint of me pouring hot water on him. Since then I was charged with Grievous bodily harm. Because of the Concord hospital burns unit professor’s evidence was misconstrued, I was found guilty by the jury. Judge has given me two years and six months non parole period of imprisonment.
However l had to do two months in segregation in Silverwater jail and two more months in the Willington Correctional Centre. However he used this towards his advantage and got out. Then he came back to court to give evidence. Since the water has been poured on him, he told the court that the water has been flicked or thrown at him. I have given in writhing to the judge and during submission he believed what I said. However during the sentencing his honour took in to consideration only part of the letter and his honour did not run my sentence concurrent.”[38]
[38] Ibid, G2, Attachment H1, pp 147-148.
I do not accept that this was an impulsive act. The notion that throwing boiling water into a person’s face would have the effect of calming them, down is bizarre. I am bound to accept the findings of the sentencing Judge, (with which I independently agree), to the effect that:
“The throwing of boiling water into the face of a person is manifestly demonstrative of an intention to cause really serious harm. Such a finding is inevitable in light of the jury’s verdict.”[39]
[39] Ibid, G2, Attachment B1, p 51.
A psychological report concerning the Applicant dated 26 September 2016 was prepared by [AC]. This relevantly states:
“[The Applicant] is a 50 year old man. He detailed three previous drink driving offences, indicative of longstanding alcohol misuse. His lack of insight into what constitutes domestic violence, decline in mental health in the preceding six to eight months (as supported by his reported leave of absence from work, access to various health professionals and services as well as suicide attempts), coupled with his delusional beliefs and alcohol misuse has undoubtedly contributed to his offending behaviours. It is also probable that his unstable mental health and alcohol misuse perpetuated his suicidal behaviours, as evidenced by the reduction in attempts since his incarceration and associated abstinence.
Collateral and holistic assessment of [the Applicant], therefore, reveals that at the time of the assessment, he met the DSM-5 diagnosis criteria for;
- 303.90 (F10.20) Severe Alcohol Use Disorder In early Remission
- 300.4 (F34.1) Moderate Persistent Depressive Disorder With Intermittent major depressive episodes,
without current episode, and Anxious Distress
- 297.1 (F22) Delusional Disorder Mixed Type, First episode In Partial Remission.
While [the Applicant’s] current incarceration renders him unable to consume alcohol, concerns are held for his drinking being resumed in the event that he does not address his psychopathology. Fortunately [the Applicant] has previously sought professional psychological/psychiatric help and as such is likely to engage with such services again. The current risk to himself and his wife is deemed to be unacceptable in the absence of intense psychological/psychiatric support to address his delusions, depression, anxiety and alcohol misuse. While [the Applicant] reports that he has accepted there is no realistic possibility of reconciliation with his wife and he has Identified some social supports, both of which are favourable to [the Applicant’s] prognosis, several destabilisers remain present (i.e. homelessness, lack of vocational prospects, nil contact-with children). As such [the Applicant] would benefit from re-engaging with his previous mental health professionals to address the abovementioned. It is further recommended that measures be put in place to prevent [the Applicant] from resuming alcohol (i.e. Disulfiram as aversion therapy for a period of 12 months).”[40]
[40] Ibid, G2, Attachment J1, pp 334-342.
On 14 November 2016, the Family Court made an order giving sole custody of the Applicant’s children to his wife and authorising her to relocate to New Zealand.[41]
[41] Ibid, G2, Attachment P1, pp 417-425.
On 8 January 2017, the Applicant’s wife and children moved to New Zealand. He has not had contact with them since then.[42] He is prohibited by Family Court Orders from attempting to make contact, other than in very limited circumstances.
[42] Ibid, G2, Attachment H1, p 154 and Attachment H2, p 162.
On 17 March 2017, the Applicant was convicted of multiple DV related offences and sentenced to 7 years imprisonment.[43] The Judge’s sentencing remarks state:
[43] Ibid, G2, Attachment A, pp 39-43 and Attachment B3, pp 71-90.
“HIS HONOUR: [the Applicant] appeared before the Court for sentence on 24 February 2017 principally in relation to two offences which he committed on 23 February 2016.
First, the offence of intentional choking with recklessness. This involves a contravention of s 37(1) of the Crimes Act.
The maximum penalty for this offence is ten years in prison. There is no standard non-parole period.
Secondly, the offence of aggravated break and enter with intent to commit a serious indictable offence. This involves a contravention of s 113(2) of the Crimes Act.
The maximum penalty for this offence is 14 years’ imprisonment. There is no standard non-parole period.
In addition, two other offences are to be dealt with. Ordinarily they would be dealt with in the Local Court. However, the offender has consented to this Court dealing with them.
The first of those two additional offences is a matter on a Section 166 Certificate being a contravention of an apprehended violence order.
The maximum penalty for that offence in the Local Court is two years’ imprisonment.
The second of those additional offences involves a breach of a s 9 bond for the offence of common assault.
The maximum penalty for that offence in the Local Court is also two years’ imprisonment.
On 24 February 2017, I revoked that bond.
At the conclusion of the sentence hearing, the matters were adjourned to today for the imposition of sentence.
The facts surrounding the offending conduct are, with one qualification to which I shall return, agreed. They may be stated as follows.
In 2009, the first domestic violence issue between the offender and his wife occurred. However, no details are contained in the relevant material before the Court.
As at 6 April 2015, the offender was living with his wife and two young children at residential premises in the Sydney suburb . At about 9pm the offender’s wife and their children were in the lounge room eating dinner. The offender entered the room and yelled at the children to go to bed.
After the children left the room, the offender and his wife began to argue about a divorce and the children.
During the course of this argument, the offender spat on the food that his wife had been eating. She then went into the kitchen. She was followed by the offender. Whilst in the kitchen, the offender threw water on his wife. She then walked to their bedroom. Again, she was followed by the offender.
The offender’s wife collected her purse, car keys and mobile phone and began to walk towards the garage. The offender, with both of his hands, grabbed her by her shoulders and pulled her back into the house.
At this stage the offender’s wife was crying and yelling to be released. She struggled to get away from the offender, but he pulled her back into the hallway of the house.
The offender’s wife was extremely scared and was in fear for her safety.
As a result of the offender’s actions, his wife felt pain to her shoulders and her shirt had been ripped.
The offender then dragged his wife into their bedroom and said, “Calm down, settle down.”
The offender’s wife responded by telling him to go away and not to touch her. The offender then pushed his wife onto the bed and held her down with both of his hands. He was holding her by the shoulders. She was again very scared and in fear for her safety.
A short time later the offender released his grip on his wife and she remained seated on the bed. They had a short conversation about a divorce. She then made numerous attempts to leave the bedroom, but she was stopped on each occasion by the offender. And again she felt afraid.
It is these facts which constituted the offence of common assault for which the offender initially received a s 9 bond for 12 months.
The offender appealed against that sentence - which in my respectful opinion was a lenient one. His appeal was dismissed by another judge of this Court.
In order to understand the full criminality surrounding that offence which, amongst things, is relevant in assessing his prospects of rehabilitation, it is necessary to have regard to the offender’s conduct immediately following the facts to which I have just referred.
Eventually the offender’s wife left the bedroom and walked into the hallway
and told the offender that she was going to call the police.
At that stage she had a mobile phone in her hand. As she proceeded to call the police, the offender grabbed her phone and threw it to the ground. He then picked up the phone and again threw it to the ground causing it to smash and break.
The offender’s wife then ran along the hallway towards the garage. The offender again grabbed her on the shoulders with both of his hands and began to pull her back inside. The offender’s wife was calling out to him to let her go.
The manner in which he grabbed her by the shoulders caused her immediate pain.
The offender pulled his wife back towards the lounge room and the two fell onto the sofa. The offender’s wife attempted to get free from his grip, but was prevented from doing so because of the strength of his grip on her. The offender’s wife was again very scared for her safety.
After a short time, the offender’s wife went to the bathroom. She was followed by the offender.
The offender then went to the lounge room to retrieve a laptop. His wife took the opportunity of running towards the garage. She got into her car and immediately locked the doors.
The offender then approached the car and demanded that his wife open the doors. She refused to do so.
Bizarrely, the offender then lay down near the rear wheel of his wife’s motor vehicle. After a short time, he stood up and she reversed her motor vehicle down the driveway and drove to the Quakers Hill Police Station. She parked her car directly across the road from the police station.
A short time later, the offender drove up in his vehicle and parked in front of his wife’s motor vehicle. He got out of his car and approached his wife and demanded that she lower the window of the car - which she refused to do.
The offender then left the scene, but returned a short time later with the eldest of their two children. What his purpose was is not clear, but it is unlikely to have been benign. The offender’s wife lowered her window a small portion. The offender used that opportunity to reach into the vehicle where his wife was seated. This scared his wife yet again. The offender then threatened to break the window and, indeed, he put his left hand on the window and pulled it causing it to shatter.
The offender’s wife then pressed the horn in her vehicle and the offender left the scene. Police were soon involved.
I pause to observe that a substantially different (and exculpatory) version of the events of this evening was given to the psychologist by the offender who prepared the report to which I shall refer later in these remarks. This is but one example of at least a lack of insight by the offender as to his offending conduct in general - a topic I shall also return to later in these remarks.
Returning to the offence of common assault, in terms of its objective seriousness for an offence of its kind, it hovers somewhere equidistant between the middle and the bottom of the range.
The offence was aggravated by the fact that it occurred in the victim’s premises.
Following that incident, amongst other things, an apprehended domestic violence order was made.
The offender came before the Local Court on 26 August 2015 when the s 9 bond for 12 months was imposed for that offence of common assault.
Accordingly, as at 15 September 2015, the offender was subject to both a current apprehended domestic violence order and that s 9 bond.
On that date at 7.15pm the offender arrived home from work and began drinking a significant amount of whisky. He made derogatory remarks about his wife and the state of the house.
Sometime later the offender and his wife had an argument in their bedroom.
During the argument, the offender threw at least some of her clothes into the hallway.
Shortly after she replaced her clothes in the wardrobe, the offender’s wife went to the kitchen. Whilst there, the offender grabbed her by the neck and hair. He gripped her forcefully and pushed her into the lounge room and onto the lounge where he beat her to the left side of her face and head. The force of the punches caused immediate pain to the offender’s wife.
After this incident the offender brought his wife some ice and some frozen peas to use on her battered face.
As a result of this assault, the offender’s wife’s face was bruised and there was swelling under the left eye and on her left cheek. She also sustained bruise marks to her neck and left shoulder.
Three days later, when she reported this incident to police, she was still
complaining of pain.
……
As at 3 January 2016, the offender was still subject to the apprehended domestic violence order and the s 9 bond.
Three weeks before that date, the offender’s wife travelled to New Zealand to visit her family. When she returned to Australia, she was accompanied by her brother who was concerned at some of the things he had been told about his sister’s domestic situation.
Late in the evening of 3 January 2016, the offender and his wife were going to bed and a verbal argument broke out between them. It initially concerned whether the offender’s wife would move permanently to New Zealand.
The offender escalated the argument from a verbal one to a physical one. He reached across towards his wife, grabbed hold of her hair on either side of her head and then, with his two hands, pulled her up towards him. This caused the offender’s wife immediate pain to both sides of her head.
The offender’s wife then used both of her hands to push him away. She left the bedroom and ran to the room where her brother was sleeping and sought his assistance.
The offender, his wife and her brother then had a conversation for about 45 minutes, after which the offender’s wife said she was going to sleep in the children’s bedroom.
This prompted the offender to approach his wife, grab her by her left hand and pull her in an attempt to take her into their bedroom.
The offender’s wife resisted but she was pulled towards the bedroom by the offender. The offender’s brother-in-law intervened and the offender released his grip.
The next day, the offender’s wife and her brother reported this incident to police. The offender was subsequently charged with assault and contravening a domestic violence order.
The offender is to appear for sentence in the Local Court for these offences on 21 March 2017.
As at 23 February 2016, the offender was therefore: subject to an apprehended domestic violence order; a s 9 bond; and on bail for the offences he committed on 3 January 2016. By 23 February 2016, he and his wife had separated and he had left the former matrimonial home.
On 22 February 2016, the offender contacted his former wife on her mobile phone sending both text messages and direct voicemail.
At 4am on that day he again called her saying that he loved her and wanted her back.
At 9am more phone calls were made and text messages sent by the offender. His former wife told him to stop sending her messages.
At 8.30pm, the offender’s former wife contacted the police who came to her home and took a statement from her. They left about 11.30pm. The offender’s former wife then sent a text message to her sister: “Am relaxed on the sofa watching television.” Early the next morning, at around 1.30am on 23 February 2016, the offender’s former wife finished watching television and began to turn the lights off in the house in preparation for going to bed.
As she was doing so, she looked through a gap in a curtain towards the back of the house and she thought she saw something moving in the backyard. She looked outside and saw the outline of a male figure crouching low and running across the backyard. She lost sight of that figure. She immediately knew who it was - this offender.
She then ran into the bedroom of one of her children, which was located at the back of the house. That child was asleep in bed.
The offender’s former wife then put her mobile phone on silent mode and put the phone under the bedcover in an effort to prevent the light from the phone being seen through the window. She sent a text message to her sister alerting her to the fact that the offender was outside and that she was scared. The offender’s former wife then sent a further text message to her sister indicating that she was in one of the children’s bedroom.
About five minutes after these text messages had been sent, the offender’s wife heard a huge bang and a crashing sound. This caused the child to wake up. The noise had been caused by the offender throwing a paver through the window of another bedroom. He then entered the house climbing through that broken window. In doing so, he cut himself.
The offender’s former wife was scared and called triple 0.
Whilst that lady was on that phone, the offender ran into the bedroom where she was with the child. The triple 0 operator could hear screaming in the background on the phone. The offender grabbed his former wife with both hands, putting one hand over her mouth and the other one around her neck.
These are the facts constituting the aggravated break and enter with intent to commit indictable offence (the indictable offence being intimidation) and the contravention of the apprehended domestic violence order on the s 166 certificate.
The offender then began to twist her head from side to side. The offender’s former wife began to struggle and scream but could not get any air. She found it harder and harder to breathe.
The offender then pushed her onto the bed.
The offender put his fingers into her mouth and down her throat pushing them all the way down.
The offender’s former wife was struggling to breathe and began to pass out. However, she managed to grab the offender’s hand and attempted to pull his fingers out of her throat so that she could breathe. The victim continued to fight against the offender. However, he continued to squeeze her throat tighter and tighter.
Ultimately, the victim fell of the bed and the offender let go of her.
These are the facts constituting the offence of intentional choking with recklessness. There was then a brief conversation between the offender and the victim concerning who it was that she had been calling on the mobile phone. The offender grabbed both her personal and mobile phones and began scrolling through them to see whom, if anyone, she had been calling.
At about this point, the offender told the child (who had been present during all of this) to go into his brother’s room.
The offender then directed the victim to go to the kitchen. He followed her there.
The offender directed the victim to sit on the kitchen floor, which she did. She sat with her back against the wall and the offender crouched down in front of her so that they were at the same level.
There was then a discussion about the failed marriage.
During that conversation, the offender told the victim “I’m going to kill you, and then the kids, and then kill myself”. There is no reason to think that there was not at least an element of truth in that statement.
About this time, the police arrived at the premises. Under pressure from the offender, the victim sought to deceive them that nothing was amiss. Fortunately, however, the police were not fooled. They demanded, and obtained, access to the house.
They found the offender hiding under a bed. He had a cut on his leg. He initially lied to the police and told them that the victim had done it to him whereas, in fact, he had cut himself entering the house through the window. When asked by the police how he got to the premises he told more lies by telling the police that the victim had driven him there.
The offender was searched by the police. Significantly, in his trouser pocket, they found a roll of duct tape. I shall return to the significance of that sinister discovery later in these remarks.
The offender’s former wife was taken to hospital where the following injuries were noted: abrasions to the top lip and the back of the throat; tenderness to the facial cheeks; swelling to the right cheek; abrasions and scratches; abrasions to the neck; bruising to each side of the neck; a three centimetre bruise on the front of her left upper arm; a 1.5 centimetre bruise on the back of her left hand; an 8 x 7 centimetre bruise on her inner upper left arm; a 10 x 6 centimetre bruise on the front of her lower right thigh; swelling to her left knee; and difficulties breathing and speaking.
In terms of their objective seriousness for offences of their kind each of these principal offences is above the midrange.
Each offence is aggravated by the fact that the offences were committed in the victim’s home, the prior history of offending against the same victim, the presence of at least one child, and the fact that that offender was on bail on a s 9 bond and subject to an apprehended domestic violence order.
There is no victim impact statement from the offender’s former wife. However, it would undoubtedly have been terrifying for her - fearing not only for her own safety and life but also those of her two sons.
The offender did not give evidence in the sentence hearing.
Rather the offender relied upon the contents of a psychologist’s report prepared by Ms [AC] dated 12 December 2016, supplemented to an extent by a letter from the offender to the Court.
A number of things might be said of that psychologist’s report.
First, it is in part based upon reports prepared by three other medical experts. Only part of those reports are referred to in Ms [AC’s] report. Those three reports however were not more fully placed in evidence. It would be surprising if the Crown had not examined them - as it was entitled to do. As neither party placed those reports into evidence, I shall assume that they are not inconsistent with the substance of Ms [AC’s] report. The health professionals who prepared those reports became engaged after the offender’s offending conduct began in 2015 - with, it would seem, little positive effect. There was also some reference in the psychologist’s report to the offender commencing a reoffenders program concerning domestic violence since he was taken into custody. I put to one side the fact that it would be inconsistent with the Court’s understanding that offenders on remand are not usually provided with access to courses. Assuming he has been on such a course, no evidence of what, if any, progress has been made was before the Court.
Secondly, in Ms [AC’s] report, amongst other things, the offender also sought to give an exculpatory version of the events of 23 February 2016. At p 7 Ms [AC] recorded the following:
“[The Applicant] advised that he then attended the family home where he peered through the back windows. He explained that he saw his wife “wearing silk” and he also saw “scotch and wine glasses.” He then explained that “I thought she was sleeping with a police officer [and] that’s why she’s called them so many times.” as he discovered when he went through her phone bills. [The Applicant] became distressed at this point in the interview, exclaiming “I thought she was with another man… I obviously just panicked.” And subsequently smashed the back door to gain access into the home.”
Ms [AC] relied upon that history in part to conclude that [the Applicant] suffered from delusional beliefs, including in the carrying out of the principal offences.
However, Ms [AC’s] report does not expressly address the existence, or the significance, of the duct tape found on the offender. This omission is important and undermines any opinion that in carrying out the principal offences the offender was suffering from any delusional belief.
The presence of duct tape is indicative of a more sinister intent. It is inconsistent with the exculpatory version offered by the offender. It is consistent with the death threats to which I have earlier referred. In the absence of any evidence from him, I am not satisfied on the balance of probabilities that the offender was suffering from any delusional beliefs at the time he carried out the principal offences. In fact, I am satisfied beyond reasonable doubt that the events of that night were premeditated - it is the only rational inference on the material before the Court.
The offender is now 50 years of age.
……
Ms [AC] has diagnosed the offender as suffering from severe alcohol use
disorder, moderate persistent depressive disorder, and delusional disorder. Whilst the first two diagnoses may be accepted, I have some doubt about the third for the reasons already expressed. There is a history (not independently corroborated) of numerous attempts at suicide, including since he has been taken into custody.
It is significant to note that in her diagnosis, amongst other things, Ms [AC] noted his persistent lack of insight into what constitutes domestic violence - together with a decline in mental health in the months preceding the events underlying the principal offences. Because of that lack of insight (and, to a lesser extent, the failure of the offender to give sworn evidence at the sentence hearing) I give little weight to the expressions of remorse contained in the letter from him to the Court.
Furthermore, it is significant to note that Ms [AC] also wrote:
“The current risk to himself and his wife is deemed to be unacceptable in the absence of intense psychological/psychiatric support to address his delusions, depression, anxiety and alcohol misuse.”
I pause to observe that I cannot see, on the available material, where any such intense psychological or psychiatric support is now available to the offender or likely to be available to him in the immediate future.
Ms [AC] noted that the offender has accepted that there is “no realistic possibility of reconciliation with his wife” and that, as she and the children are moving to New Zealand, the risk of future harm is reduced. I do not agree. In my opinion, and unless and until he receives that intense psychological/psychiatric report, he continues to remain a real risk to his wife. The fact that he has lost his employment, that he has lost access to his children, that he has little family or community support, and that he is effectively homeless all mean, in my opinion, that the likelihood of improved psychiatric condition is remote.
Regrettably, his prospects for rehabilitation therefore are poor (and, notwithstanding the apparent support of his brother-in-law - support which curiously is not forthcoming from his own sister. There is no other support for him either in his family or in the wider community in this country).
Whilst there may well be underlying psychiatric issues impacting upon the offender which would reduce his moral culpability, nevertheless other competing principles of sentencing, namely specific deterrence, denunciation and especially in this case the protection of the community in general, and his former wife in particular, remain significant considerations.
For each of the four matters before me, no sentence other than a period of fulltime imprisonment is appropriate.
There were pleas of guilty at the earliest opportunities and accordingly there will be discounts of 25% for the utilitarian value only of those pleas.
……
I sentence you to a term of imprisonment of seven years.
I fix a non-parole period of four years and three months, commencing 23 February 2016 and which will expire on 22 May 2020.
I fix a balance of two years and nine months, commencing 23 May 2020 and which will expire on 22 February 2023.”[44]
[44] Ibid, G2, Attachment B3, pp 71-90.

On 21 March 2017, the Applicant was convicted in the Paramatta Local Court of common assault and contravention of an AVO. He was sentenced to 3 months imprisonment.[45]
[45] Ibid, G2, Attachment A, p 39 and Attachment B2, pp 66-70.
On 13 April 2018, the Applicant was convicted in the Downing Centre District Court causing grievous bodily harm and sentenced to 5 years imprisonment commencing on 22 May 2020.[46]
[46] Ibid, G2, Attachment A, pp 38-39.
In his sentencing remarks Sutherland SC DCJ said:
“[The Applicant] appears for sentence in respect of one count of inflicting grievous bodily harm with the intention of causing grievous bodily harm contrary to the provisions of s 33(1)(b) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment and Parliament has specified a standard non-parole period of seven years imprisonment.
The offender was convicted following a trial before a jury at Penrith District Court. The trial commenced on 23 October 2017 and the jury returned a verdict of guilty on 26 October 2017.
The offender pleaded not guilty and there is accordingly no applicable discount with respect to the entry of a plea or any utilitarian value in such a plea.
The offence occurred on 28 April 2016 when the offender and the victim [SJ] were both in custody at the John Marony Correctional Centre in Berkshire Park, New South Wales.
In proceeding to determine an appropriate sentence it is necessary that I set out the factual basis upon which such sentence will be predicated. My findings in relation to facts are required in order to assess the objective seriousness of the offending. I am obliged to determine the facts relevant to sentencing for myself. I am not to attempt to define the facts which may have been found by the jury as the basis of their verdict however the facts that I find must be consistent with the jury’s verdict and I am obliged to be satisfied of the existence of those facts beyond reasonable doubt - see R v Kanaan [2005] NSWCCA 385 at [185] and Cheung v R [2001] 209 CLR 1.
The offence occurred when the offender and Mr [SJ] were locked in the cell that they shared sometime after 3pm on the afternoon of 28 April 2016. [The Applicant] was on remand at the time with respect to a number of offences with which he had been charged relating to incidents of domestic violence between himself and his then wife. [The Applicant] and [SJ] had been sharing a cell for some two weeks at the time of the commission of the present offence. The cell which the two remand inmates were sharing had a top and a bottom bunk, and a number of basic items which were permitted to be in the cell with respect to ordinary daily activities, notwithstanding their incarceration. These items included a single television set, tea and coffee making facility, including a kettle which could be boiled and a separate shower recess and a toilet.
In the course of the trial [SJ] gave evidence regarding the purchase of various comestibles by inmates described as ‘buy-ups’ using credit from their individual accounts. These ‘buy-ups’ including anything from foodstuffs such as milk and tuna to items of stationery, including envelopes. According to [SJ] there was a dispute that arose out of a conversation between the offender and [SJ] with respect to an envelope that had been purchased by [SJ] and which had apparently gone missing. Whatever the precise commencement of the disagreement between the two cellmates, I am satisfied that they ended up having heated words about an envelope and that in the course of such argument the offender took offence at in effect of being accused of having taken an envelope belonging to [SJ]. Following the verbal argument the offender picked up the kettle which had been boiled and poured or threw boiling water over the face and shoulders of the victim [SJ].
[SJ] gave evidence, which I accept, that the offender said words to the effect of “here’s your envelope” at the time the water was either poured or thrown onto [SJ]. In the course of giving evidence in the trial [SJ] demonstrated the water being thrown at him from the kettle which had been boiled. He demonstrated, effectively, an underarm throwing motion with the water being projected onto his face, chest and shoulders. He said that he felt instant pain and ran towards the shower recess intending to put cold water onto the area which had been burned. As he did so he said that he felt more hot water being thrown onto his back by the offender.
A deal of the trial was taken up on the question of whether or not the water was ‘poured’ or ‘thrown’. In my view little turns on this distinction.
I am satisfied beyond reasonable doubt that the accused intentionally caused water to be projected from the kettle in which it had but recently been boiled and that the water was intended to, and in fact did, come into contact with the skin of his cellmate [SJ]. The act was intentional and in my view nothing turns on the distinction sought to be drawn from the manner of its being projected from the kettle.
The victim’s application of cold running water from the shower to the areas of his body that has been burned ultimately played a significant part in the lessening of the long-term injury which he sustained from the application of the scalding water. Immediately following the assault with the water the offender pressed the emergency alarm button in the cell to summons Correctional officers. The comparatively prompt response by the Correctional officers also facilitated a lessening of the long-term injuries sustained by the victim as a consequence of the subsequent early obtaining of medical assistance.
With respect to the objective seriousness of the offending a number of factors are required to be considered, these include:
a) The extent and nature of the injury sustained.
b) The circumstances of the commission of the offence, and
c) The degree of harm intended or foreseen by the offender.
As I have already described the scalding water which was thrown on the victim caused immediate burn to his face, his anterior neck, both shoulders, his upper chest and also his upper back. Photographs of the burns were tendered and the victim described the intense pain which he felt at the time. He gave evidence of that both during the trial and subsequently in a victim impact statement which was tendered.
After taking the remedial step of putting himself under a cold water shower the victim was attended by Corrective officers until an ambulance arrived. The attending ambulance officers administered 25 milligrams of morphine which was described as “quite a significant dose” which was needed because of the extreme pain that the patient was in. Evidence called from one of the paramedics indicated a rough calculation that 15% to 18% of the body appeared to have sustained burns or scalding.
The medical director of the Burns Unit of Concord Hospital to which the victim was transported also gave evidence with regard to the injuries which he had sustained. Professor [M] described the burns which were sustained were or outer layer of the skin was lost and the dermal layer, that is the deeper layer underneath the external skin, had been damaged to some extent but not entirely. The extent of the burns sustained were classified as severe because they involved the entire face as well as the back of his neck. Professor [M] estimated that approximately 10% of the total body surface had been burned which, if it had remained untreated, was potentially life-threatening. The burn wounds were typical of scald injuries and showed some rough marks on his shoulder, upper chest and back. The deepest wounds were located on the shoulders. In the opinion of Professor [M] it was suggested that hot liquid, that is the boiling water, had run down the victim’s body losing heat, as the wounds were less deep and less severe as the water ran down. Various areas were debrided and had dressings applied.
The evidence at trial was that at the time the injury occurred it was properly characterised as ‘life-threatening’ but due to the victim taking the remedial step of putting the injuries under cold water and subsequently receiving proper treatment at the specialist Burns Unit there was a good outcome in relation to his long-term prognosis. Indeed, Professor [M] was of the view that as judged by the American guidelines of “permanent impairment” he would expect the victim to have no long-term impairment.
……
The throwing of boiling water into the face of a person is manifestly demonstrative of an intention to cause really serious harm. Such a finding is inevitable in light of the jury’s verdict.
……
Although the offender has made passing reference to the circumstances derived from the Family Law Courts I have been provided with no detail of the final orders which are said to have been made on 26 October 2016. It would however appear that the offender has limited family support in Australia. He has lost his employment and most likely any prospect of re-employment in the same industry or profession, and has lost, most likely, direct contact with his children.
The report from the psychologist Ms [AR] dated 8 December 2017 noted that the offender avoided direct questions about his criminal history and in the opinion of the author of that report minimised his culpability and offered rationalised alternative explanations for past incidents. He denied problems in discussion with the psychologist with managing his anger. He asserted that he had continued to live with his wife “until he was arrested and imprisoned on unrelated offences”.
As has previously been observed he gave evidence in the trial before me in which he sought to blame the victim Mr [SJ] for having inflicted the injuries on himself. Following the verdict of guilty by the jury and his subsequent conviction for the offence, the offender would appear to have belatedly moved to a position where he does now accept responsibility for causing the burn injuries. In the letter of apology dated 7 November 2017 which was tendered at the sentence hearing in December 2017, the offender expressed his extreme sorrow and described himself as “remorseful” and “embarrassed”. He asked the Court to accept his sincere apology of, as he termed it, his ‘poor judgement’. He humbly asks in that letter for mercy and to be given a lenient sentence or a long parole.
In the report of the psychologist [AR], she observed “he was adamant that anger was not a factor in the commission of the index offence, rather he was scared and acted spontaneously when he poured boiling water over the victim and he was trying to calm him down”. It is not insignificant that the psychologist came to the view that “until he undergoes treatment his potential for self and other directed aggression must be assume to remain unchanged”. The reference to self-directed aggression relates to incidents claimed by the offender of having made a number of suicide attempts since his incarceration. Those attempts were also described in a psychologist’s report which was tendered before Judge Colefax which I have not seen but Judge Colefax referred to. As Judge Colefax SC noted, “The asserted suicide attempts were not otherwise the subject of any evidence”. Do note, however, that they were referred to in instructions given to Ms [F] and she made reference to a number of apparent attempts at taking his own life in her written submissions to the Court. I also note an asserted history of self-harm noted in the Department of Corrective Services’ custody record.
In giving consideration to the evinced change of attitude and a belated expression of remorse I should note that in the eight-page letter forwarded to the Court dated 24 January 2018 the offender, in his own handwriting, has purported to express his changed attitude. That letter commenced by endeavouring to explain why he had given, on oath during his trial, false evidence. The first paragraph of that letter is as follows, ignoring spelling errors in the original, “Firstly, I would like to apologise to you for taking your Honour’s time from your busy schedule. As you understand very little about myself I thought this is the only way to address my guilt and my life story in a nutshell. Your Honour, I am not sure what it is in you but since the time I looked into your eyes and swear I wanted to do the right thing. Since I was on oath I wanted to change my initial statement which I given” - I think that should be ‘which I had given’ – “22 months ago. I did talk to my legal team in a roundabout way however I was scared to change as I was not sure what could have happened. Since I had gone ahead with the initial statement I feel guilty about it as I could picture myself in front of you.”
The offender went on later in that long correspondence to describe in precise detail his assertions with respect to the sequence of events including the proposition that Mr [SJ] had lied in the trial about the lead-up to the water throwing incident. The offender again asserts in that correspondence that Mr [SJ] had put the kettle on and that that was why the offender wanted fingerprints taken from the kettle.
Whilst I have received the communication from the offender, and as I have earlier indicated, I have received it as tendered and I am prepared to accept some parts of the sequential narrative relating to his life history, I am not prepared to accept his account which effectively amounts to the proposition that he was in fear that Mr [SJ] was going to throw the water on him. The offender maintained in his letter to the Court that Professor [M] was wrong in expressing an opinion that the water was thrown rather than poured. He explained why he came to that particular conclusion. He also claimed that Mr [SJ] had been speaking with the offender subsequently about the proposition that injuries such as [SJ] sustained would help [SJ] to get bail and also to claim compensation.
The offender went on to maintain in his correspondence that in addition to general remorse and contrition he is a changed person. He said, “Your Honour, this is the absolute truth I have written on this letter. More than the outcome of my sentence I wanted to be honest to you for me to get rid of my sins. I do not want to live with any guilt.”
With regard to finding facts relating to the commission of the offence I cannot
place any significant weight on the account set out in the offender’s letter. It is contrary to his expressed evidence on oath at the trial. It is contrary to the sworn evidence of the victim Mr [SJ]. It seeks to take issue with one of the foremost experts on burns in Australia whose expertise is recognised internationally. The jury clearly accepted the expert evidence of Professor [M], as do I. Whatever effect was felt by the offender by looking into my eyes, he thereafter proceeded to give what he now says was false testimony. Despite these observations and a lingering concern that the correspondence might properly be objectively characterised as manipulative, it is not inconsistent with a degree of self-reflection which might yet provide a glimmer of hope for some future appropriate rehabilitation.
The offender does express in his own handwriting a desire to get ongoing professional help for his personal issues such as alcohol use, anger and depression. He says there is no help in that regard in gaol and that he has done his best to do any programs which are available. He has done a course in English and also meditation. He has a job in the library. He says that he has been reading the Bible and that he now takes full responsibility for his actions. He continues to express a strong desire to be reunited with his aging mother, and as he describes them, his “darling boys”.
In addition to the material to which I have already referred, a letter from a doctor of the Colombo South Teaching Hospital in Sri Lanka dated 24 March 2017 was tendered to provide some evidence regarding the medical state of the offender’s mother who is now aged 79. The letter indicates that [the Applicant’s mother] has obstructive pulmonary disease, pulmonary hypertension and aortic mitral valve disease. She apparently needs 24-hour care.
I also received a letter of completion with regard to a program conducted by Prison Fellowship International indicating [the Applicant], successful completion of a program called The Prisoner’s Journey. That document would tend to support his having turned to aspects of teachings in the Bible. I should also note that a work program report from the manager of Industries at the Metropolitan Remand and Reception Centre dated 27 October 2016 corroborates that [the Applicant] was on a work program at the MRRC at Silverwater and that he had applied for work on a number of occasions in 2016. The glimmer of hope that one might entertain as a consequence of the offender now acknowledging the need for professional help leads me to a view that he will benefit from ongoing supervision. Accordingly, I propose to make, and do make, a finding of special circumstances.
The offender presents as a man now in his middle age who other than the drink driving offences, whether they in fact be two or three, up until 2012, would otherwise appear to have been a hardworking and industrious member of the community with the only blemishes upon his character being the PCA offences, albeit that there is the incident that I do not have any detail of in 2009. Whilst I have not been provided with any particular details, he appears to have held down a responsible professional position within a large banking institution; to have been in a marriage with a person from the same culture; and to have two sons who by all assertions he adored; and to have, together with his wife, built not one but also a second family home with a view to bringing up his boys in a family environment. He would not be Robinson Crusoe in the community to have been working long and stressful hours and to have over-indulged in alcohol.
Beyond that gloss I have been provided with very little to reach firm conclusions regarding his otherwise apparent good character and the nature of his marriage. As I have indicated an apparent incident of domestic violence in 2009 would appear to have been the first hint of a potentially serious difficulty with anger management. Ultimately problems in that regard, almost undoubtedly fuelled by alcohol, have culminated in the firm sentence of imprisonment which has been imposed by another judge of this Court.
Against the above background and as I have indicated, whilst on remand in respect of those matters, his temper would appear to have again taken the better of him and to have led to the commission of the offence against Mr Jafari. It is to be noted that of course, being in custody, unless there was some illicit concoction that had been consumed I act on the basis that he was not under the influence of alcohol at the time of losing his temper in the events with Mr [SJ].
The occurrence of acts which are described in prison parlance as ‘jugging’ or ‘kettling’ is, it would appear, an all too frequent occurrence in disputes between inmates. The infliction of grievous bodily harm with the requisite intention to cause that harm is a serious offence of personal injury and is reflected as such in the maximum penalty of 25 years. The specification of a standard non-parole period of seven years further reflects the seriousness with which Parliament, acting on behalf of the community, views such an offence - see R v Zhang [2004] NSWCCA 358. Both the maximum penalty and the standard non-parole period operate as guideposts in the consideration of an appropriate sentence. In light of the finding that the objective seriousness of the instant offence falls to the lower end of a range below the midrange the standard non-parole period, whilst to be acknowledged, does not impose a straightjacket on the proper exercise of a sentencing discretion. However, a particular consideration in an offence committed between inmates arises pursuant to s 56 of the Crimes (Sentencing Procedure) Act. That is in the following terms:
56 Sentences for offences involving assault by convicted inmate
(1) This section applies to:
(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or
(b) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the
person, against a juvenile justice officer committed by the offender while a person subject to control.
(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender:
(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or
(b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.
(3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.
……
He was not serving a sentence. He was in custody bail refused as a remand prisoner.
……
[The Applicant], you are sentenced to a term of imprisonment of five years which will comprise a non-parole period of two years six months, and an additional term of two years six months. That sentence will commence on the expiration of the current non-parole period on 22 May 2020.
The non-parole period will accordingly expire on 21 November 2022.
The additional term of two years six months will expire on 21 May 2025.”[47]
[47] Ibid, G2 Attachment B1, pp 45-65.

On 1 March 2019, the Applicant’s visa was cancelled.[48]
[48] Ibid, G2, Attachment Z, pp 548-553.
On 25 March 2019, the Applicant requested his visa cancellation to be revoked.[49]
[49] Ibid, G2, Attachment F, pp 124-131.
Correspondence from GEO Australia dated 8 September 2020, contains various references to the Applicant’s conduct in prison. This relevantly includes:
“……
[The Applicant] rarely engaged, unless called on by others to share his ideas and thoughts. When the applicant did share, his perspective was regularly in conflict with the course content. [The Applicant] did not demonstrate an awareness of himself, his actions, behaviours or beliefs as that of a perpetrator. Instead, [the Applicant] referred to himself - implicitly and explicitly - as the victim within his marriage. When encouraged to share, [the Applicant] simply repeated the same phrases across the five week programme. These phrases included ‘communicating’, ‘compromising’, ‘same goals’. When pushed for further qualification to his phrases, [the Applicant] was rarely able to discuss at length. Instead [the Applicant] would refer his experiences with his children and to himself as a father, rather than his position as a partner, and a husband. [The Applicant] maintained this position across each session and module with facilitator [ ] offering [the Applicant] complete another OM as his original map was vastly removed from the agreed police facts. [The Applicant] did complete a second OM. This OM is similarly different from the agreed facts.
[The Applicant’s] SMP’s primarily included the phrases and statements shared by the collective group. [The Applicant’s] SMP’s do not appear to be an accurate reference to his participation across the program. Throughout the program, [the Applicant] routinely spoke about himself as a victim to his ex-wife’s sexual advances and managed to refer to this concept almost each program session. [The Applicant] statements were generally sexist, ground in black and white stereotypical and unhelpful thoughts. Facilitators as well as other group members, reminded [the Applicant] of the group agreements, the purpose of the program being targeted to perpetrators of DV, and at other times directly challenged his beliefs regarding this issue. [The Applicant] did not appear to accept these boundaries and continued to posit himself as increased due to his ex-wife’s sexual desires and secret plans to move abroad.
It is a recommendation that [the Applicant] complete further psycho-educational programmes including EQUIPS DAP, Foundation, Addiction and Aggression. While [the Applicant] did towards the end of the program, speak about problematic drinking there was minimal discussion of this as a factor that led to his offences throughout most of the program.
Ostensibly, [the Applicant] has presented as a generally compliant inmate throughout his incarceration. However, he is the subject of numerous reports that reflect a very manipulative and demeaning nature. He has demonstrated a propensity for violence, having been convicted of a serious assault upon another inmate who was hospitalised and treated for significant burns; resultant of [the Applicant’s] pouring boiling water over him. [The Applicant] also exhibited a tendency to become abusive and aggressive towards, particularly female staff members, when the subject reports or when his requests are denied.
Whilst housed at Mannus Correctional Centre, [the Applicant] appears to have attempted to compromise a staff member; attempted to coerce the introduction of unauthorised items into the Centre for his personal gain. He was also identified attempting to intimidate female staff members. Whilst housed at various centres, [the Applicant] has consistently harassed custodial and non-custodial staff to disseminate legal documents, on his behalf.
[The Applicant] is the subject of alerts signifying a mental health disorder, for which, he has undergone intervention at various correctional centres. Additionally, he has demonstrated a propensity to raise complaints with various, external agencies, without first consulting correctional staff. He presents with a victim mentality and appears reluctant to accept responsibility for his actions instead attempting to cast blame upon others for his current circumstances.”[50]
[50] Ibid, G2, Attachment E, pp 100-103.
On 4 November 2022, a delegate of the Minister decided not to revoke the visa cancellation.[51]
[51] Ibid, G2, p 7.
The Applicant said of his ties to Australia:
“I have my elder’s sister, my brother in law and their daughter in Sydney, Then I have my brother in law’s sister and the three children and their families who are closest to me In Sydney and couple of their in law’s in Melbourne who are close to me as well. These children are nieces and nephews to me and they have three little kids. According to our relationship my two boys are the uncles and I am a grandfather to these kids. Then I have few family friends who are in Melbourne and Sydney as well where we closely associate with each other and talk to each other often. We always have BBQ’s at my place and we have gone on few trips together.
As my two boys are Australian bourn, I am positive that they both will be returning to Australia by the time they are able to make their own decisions. Since [DK] and I been married for over seventeen years she may return with the boys as she will have no one in her life in New Zealand, It’s only matter of time that as soon as I am released to the community, if I am able to stay in the country I will be making plans to meet my children. At the moment I am in the process of communicating to the family court as she is breaching the family court final orders made on the 15th November 2016. Family court has advised me that there is nothing they can do because of the jurisdictions between the two countries. I have been advised to contact the Christchurch family court. However legal aid New Zealand has advised me to do a Contravention application choosing a lawyer in Christchurch. Unfortunately l have not been able to make a phone call to find a lawyer at this stage.[52]
……
In 2014 August 30th in Sri Lanka, and September 4th in Sydney when my two brother in laws passed away, my sister’s husband Mr [TY] (BIL) had to go to Sri Lanka for his brother’s funeral. Four days after the other BIL died in Sydney at the Royal North Show Hospital, I had to fulfil [TY’s] shows. Since, I have been communicating with the specialist doctor's they advised me that, he will not make it through overnight. Fourteen hours before he passed away, I organised friends and family to attend the hospital to pay last respect. At the same time, I picked up four Buddhist Monks from the temple and took them to the bed side in the hospital to do a prayer before he passed away.
During the funeral ceremony in the last minute, I spoke to the-funeral director and got the immediately family to spend the last minute with -the deceased. This my actions were appreciated by the Sri Lankan people as this was videoed. After the funeral, I Invited family and friends to attend his home for a wake, I catered Sri Lankan hoppers with fish curry for dinner, which was deceased' favourite food. He used to make them at times and always invite us. Then, I managed to get-his eldest son a job and today he is in a management position, married with two children. My two children are uncles to these two kids, As a close family all these people loved to come to my home for BBQ’s. We all supported each other in renovating their home, fixing cars and fixing/cleaning around [TY’s] home as he has a foot drop due to lower back disk operation. They also helped us doing heavy work around my new home during building / landscaping.
[TY] and my sister has-been in Australia since 1989 and all the other family have been in Australia since 1999-2000. They all got their dual citizenships. I could not get it due to building our first home in 2001 and' then the second in 2011. During 2007 to 2010 Sri Lankan government stopped the dual citizenship program due to the civil war in the country. They started back again – at the same time we were building/, I did question at the time and I was told for family of four, it’ll cost about fifteen thousand dollars, which I could not afford it at the time. Therefore, we postponed it as we had plenty of time until my children are 16 years of age.
I have been in Australia since January 1999,1 got my first job in March 1999 in a Caltex gas station in Thornleigh NSW to do the grave yard shift. Then by end of the year, 1 started with Tandy Electronics in Seven Hills, as a sales person. I bought my first car 1970 Mini and progressed to a store manager. By 2000, l bought my second car a BMW 320i moved to my own villa in the Baulkham Hills NSW. Then, I met my former wife from New Zealand and, moved to Australia. Same year we bought a land in Kellyville NSW, started building by 2001 and got married. 2004 my son [DSSK] was born and 2007 [Child A] was born. I finished my studies in 2008 and started working for Westpac Banking cooperation. We sold our home and moved to West Pennant Hills close to one of the best school Murray Farm public school to enrol the two children.
We did well during this time until 2014. We even did talk about having another child and another property. My former wife said “she could not put her body through another pregnancy after 7 years and also she suffers from Epilepsy". Since she arrived from, New Zealand in January 2015, she had changed and our family issues started. However, in 2004 when her mother came to look after [DSSK], I noticed that her mother whispered to her ears in the words to effort “sell the house and to take her share and bring [DSSK] to New Zealand that she will help to raise him”. This conversation was recorded by me, and I confronted them. My former wife and I communicated to each other and decided that it would be the best if her mother go back to New Zealand. Then during a visit back to New Zealand in December 2015, she came back with her brother to talk-about the upcoming separation, and I took it as a surprised. On the New Year's eve, we all went to. watch the fireworks. At midnight my former wife, children and I kissed and hugged each other. Her brother did not have the common decency to wish. On the 1st we all went to Katoomba temple and her brother did not even come inside the temple. He left his family in Christchurch and stayed nine nights in our home to brake our family. On the 6th January 2016, he took my family back to New Zealand, whilst I was at work. As I may have, mentioned before, they never try to help to reconcile our marriage or differences. During court proceedings her younger sister came from Malaysia for one day for moral support, Therefore, I strongly believe that her family was behind for our family brake up. My former wife may have experienced the same from her family during her previous, marriage broke up. Her parents may have had a motive of greed and to look after them as other siblings did not got along with the mother. However, I do not dispute my wrongdoing and I am positive that, I contributed to her mother’s actions.
Her father was a good man, who was paralysed for over twelve years. He suffered during that time and told me that how he wanted to die. He enjoyed having a drink with me. He used to tell me that he could not taste the drink. Her father suffered due to bad karma of the children. Now her mother is suffering for her bad karma for things the children and she had done, I do not want my children to suffer and contribute to their wrongdoing. It is not a healthy environment for growing innocent children.
My first AVO charge was in April 2015, except for the DUI charge, However, I have been sober since 2016 and planning to stay sober in the future.
My positive contribution to Australian community. I also have contributed to the Australian Sri Lankan' community and Katoomba Buddhist Forest Monastery, Schofield NSW Temple during Vesak festival to celebrating the life, enlightenment and the death of Buddha. I have taken part in fund raising, food fares and during Singhalese new year celebrations.”[53]
[52] Ibid, G2, Attachment H1, p 156.
[53] Ibid, G2, Attachment H9, pp 254-256.
Various letters of support are in evidence.[54]
[54] Ibid, G2, Attachment M1, pp 384-385, Attachment M2, pp 386-388, Attachment M3, p 389, Attachment M4, p 390, Attachment N1, p 391, Attachment N2, p 392 and Attachment N3, p 393.
He says of his ties to Sri Lanka:
“Since my mother’s death I do not have any one in Sri Lanka. I may have some relatives in there that I have not communicated to them in a long time or I have no contact with anyone. Since it has been over thirty years I do not know what to do or upon my arrival in Sri Lanka. I have spent more than half of my life (over 30 years) outside of Sri Lanka. Therefore without any help I will not be able to survive over there, I will be too old to find work; therefore financially I will be poor and they do not have social security and senior’s pension or health system over there. I do not have any friends or any school mates as I had not much to do over there. I have no investments or money over in Sri Lanka as I thought that my children are Australian bourn and they will not have any intrust in Sri Lanka. My sister and the brother who are depending on me as I always have been the family man who looked after people of mine.”[55]
[55] Ibid, G2, Attachment H1, pp 156-157.
The highlighted passage above is not what emerged from cross-examination of the Applicant. His brother, sister and their families are in Sri Lanka. He has had ongoing contact with them by phone since his incarceration, right up to the present time. His sister and his niece have written letters of support. He says that he would not approach them for help because they live in small houses, and he does not want to be a “burden” on them.
He says of his health:
“At the moment as far as my health concern I am doing fine apart from me been having diagnosed with high level of Anxiety distress, mixed type Delusional disorder, Major Depressive disorder and Alcohol use disorder which could not be separated. I have no any other health conditions. If I were getting deported from Australia will obviously have an impact on my psychological condition and high blood pressure as I will not have the access to the medications and professional help/treatment for Depression and Anxiety. I also have lost 19Kgs since my arrest and gain about 10Kgs, I feel my body has been restored, If I were to live in Sri Lanka I will not have a motivation as I will not have anything to look forward to. If that happened I fear that I will fall behind and get sick. Also l will start drinking since there is no one in my life and I will feel that my life is a failure. Since I have no one in Sri Lanka I will go crazy and will end up in a mantle institute.”[56]
[56] Ibid, G2, Attachment H1, pp 156.
He says of the impediments if he were removed:
“I am a 55-year-old man. I have been treated by the Dr [P] (ENT Specialist) in Baulkham Hills Private hospital in Norwest NSW for ear infections and nose issues since 2010. He had done two surgeries due to sines issues. Each time he was paid at least twenty-five thousand dollars by my private insurance. Due to numerous punches to my head and the face, I suffered with a broken nose and an eye socket. I suffer ongoing issues on my nose, ear and headaches.. I have been treated by the prison doctor with Wax sol, Kenacomb, Amoxicillin Trihydrate 875mg and Clavulanic acid 125mg other medications. I have been put on a waiting list in 2018 r 2019 whilst I was in Goulburn to see an ENT specialist. I was told that is a four year waiting period.
Currently, I am on Meloxicam 15 mg for my arm due to a pinching nerve on my neck, Duloxetine 60mg antidepressant, Perindopril 5mg for high blood pressure, Cholecalciferol 1000 for lack vitamin D, Fen fibrate 145 mg for cholesterol/blood pressure, Simvastatin 40 mg for cholesterol and Loratadine 10 mg for allergies.
If I go back to Sri Lanka, I will not be able to afford to see specialist and will have no support. I was told by Dr [C] that; I have Arthritis due to pain in my joints. I also suffer from haemorrhoid, where I need a surgery. Whilst in prison, I cannot get these done and if I were to be send back, due to COVID and Delta virus in Sri Lanka, I may not be able to ger anything done for a long time. Therefore, it is vitally important that I remain in the country to try and live longer for my children. I strongly believe that they do not want to see me dying in the young age, just like what happened to my life due to my father’s death at the ag of 49.
Sri Lanka is a third world country. They do not have social security, welfare, Medicare, and other facilities that Australia can provide. As I have lost all that contacts and left Sri Lanka over 30 years ago, taking my age in to consideration. It’ll be har for me to readopt to a country where I only have been three times over the thirty-year period.
Current situation in Sri Lanka with COVID-19, Dango ever and Delta various, the country’s economy crisis has been worsening. Due this unemployment rate had gone up. I was told by my BIL that the people are losing their jobs and some of them getting paid only half of the salary. People are losing their properties due to missing payments and the banks are repossessing property such as cars. They do not have welfare payments. If I were to go back, I will be homeless and will not be able to find work due to my age and country’s economy crisis. I will be heart broken, financially / psychologically and physically crippled. I also been advised that if I were to withdraw my superannuation early that the Australian Tax Office can taxed be up to 32%. I believe it’ll be very unfair and utterly wrong. Due to stress and depression, I may go back to my old ways due to not having no future hopes. I will have missed my dear loving children and my life will slip through my fingers. All my hard work and productiveness will be wasted. I will never be able to recover myself and I never be able to show and prove to my children that how I have changed to be a better man. I have nothing left in Sri Lanka after my mother’s death. Since, I could not attend my mother’s funeral, I cannot be a burden to people as they are all aware about what happened in Australia between my former wife and me. I will not be able to earn my respect from our people in Sri Lanka. I will have to struggle for the rest of my life.”[57]
[57] Ibid, G2, Attachment H9, pp 253-254.
If the Applicant were to be released into the community, he plans initially to live with a friend and get a job. He said that he would need to find a doctor and to find out what treatment is available. He has no concrete plans in this regard. He also said that he would like to buy a property and purchase an expensive car like a BMW or an Audi. He explained that is the sort of person he is.
The Applicant ‘s criminal history,[58] is annexed hereto and marked “B”.
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
The Applicant was sentenced on 13 April 2018 to a term of imprisonment of 5 years commencing on 22 May 2022 as set out above.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
Is there another reason why the original decision should be revoked under section 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[59]
[59] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

At a telephone directions hearing held on 11 January 2023, I directed the Applicant’s lawyer to file and serve a statement setting out the details of any/all minor children in Australia, whose interests he says would be affected by this decision. In particular, I pointed out a passing reference to nephews and nieces, in the Applicant’s request for revocation of a mandatory visa cancellation.[63]
[63] Exhibit 3, G2 Attachment G, p 141 and Attachment H1, p 156.
The further submissions filed by the Applicant’s lawyer on his behalf on 12 January 2023, contained no further evidence on the topic of minor children it simply states:
“One of the Applicant’s children is under 18, an Australian citizen”[64]
[64] Exhibit 5.1 at [12].
This response was unhelpful and uninformative.
Both of the Applicant’s sons reside in New Zealand with their mother. The Applicant has had no contact with them since 2016.
The Applicant stated in his request for revocation of a mandatory visa cancellation materials, variously dated 14 and 18 March 2019 that:
“I have my elder’s sister, my brother in law and their daughter in Sydney, Then I have my brother in law’s sister and the three children and their families who are closest to me In Sydney and couple of their in law’s in Melbourne who are close to me as well. These children are nieces and nephews to me and they have three little kids. According to our relationship my two boys are the uncles and I am a grandfather to these kids. Then I have few family friends who are in Melbourne and Sydney as well where we closely associate with each other and talk to each other often. We always have BBQ’s at my place and we have gone on few trips together”.[65]
[65] Exhibit 3, G2 Attachment G, p 141 and Attachment H1, p 156; Exhibit 4.1.
It was necessary for the Tribunal to extract details regarding these children from the Applicant during the hearing.
These are the only minor children identified by the Applicant who reside in Australia. These children have not been otherwise mentioned. They were not referred to in his affidavit of 13 December 2022, or his final submissions filed on 12 January 2023.
It is important to note that the Applicant has been incarcerated since 2016. He has had no contact with these children since then. In some cases, he has had no contact at all.
Child B is a grandchild of the Applicant’s sister. She is aged about 3 years. The Applicant has never met her and could not recall her name. He has had no contact with Child B. The Applicant has never been a carer of financial supporter of Child B.
Child C is another grandchild of the Applicant’s sister. She is about 4 months old. The Applicant has never met her and could not recall her name. He has had no contact with Child C. The Applicant has never been a carer of financial supporter of Child C.
The Applicant’s brother-in-law has a sister, who is the mother of three adult sons. One of these sons has two children of his own (Child D and Child E). These children are therefore great nieces and nephews, by marriage, to his sister.
Child D is aged about 14. The Applicant could not recall her name. He last saw her in 2016. She occasionally would visit and play with his children. He has had no contact with her since 2016. The Applicant has never been a carer of financial supporter of Child D.
Child E is aged about 9. The Applicant could not recall his name. He last saw him in 2016. Child E occasionally would visit and play with the Applicant’s children. He has had no contact with him since 2016. The Applicant has never been a carer of financial supporter of Child E.
The Applicant told the Tribunal that there may be other minor children, but he could not recall any details.
If the Applicant were returned to Sri Lanka, he could make contact by electronic means with any of these children.
Having regard to all of the above, the best interests of minor children in Australia would at most be slightly affected by the Applicant being removed from Australia. If he were to re-offend, to the extent that his presence had any impact at all, it may be negative.
This primary Consideration, taking it at its very best from the Applicant’s perspective, slightly favours revocation of the visa cancellation.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[66]
[66] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)the Applicant’s criminal record as set out in Annexure B.
(b)The other matters set out above, in particular his two lengthy prison sentences and the crimes of which he has been convicted.
(c)His breaches of court orders as set out above.
Conclusion: Primary Consideration 4
Primary consideration 4 weighs extremely heavily against revocation of the cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The further submissions filed by the Applicant’s lawyer on his behalf on 12 January 2023 state:
“A non-refoulment obligation is an obligation to not forcibly send a person back to a country where the applicant will be at risk of harm. Australia has signed the ‘Refugees Convention’; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights and its Second Optional Protocol. The non-refoulment obligations are a factor that can weigh in favour of the applicant. Essentially, this factor recognises that someone that has been granted protection in Australia because of a well-founded fear of persecution in their home country should not be permanently removed from Australia and returned to that country.”[67]
[67] Exhibit 5.1 at [12].
This is the first time that this other consideration has been referred to.[68] This statement seems to be a general articulation of the principles of non-refoulment. In my view it does not meet the threshold required to advance such a claim and there is no supporting evidence before the Tribunal.
[68] Exhibit 3, G2 Attachment G, p 145.
I specifically asked the Applicant’s counsel during the hearing, if he was raising the issue of non-refoulment. He said that it was not being raised.[69]
[69] In the event that I am wrong about this, I note that the Applicant is still able to make such a claim, should he wish to, in the context of an application for a protection visa. See Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
This consideration is neutral.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The further submissions filed by the Applicant’s lawyer on his behalf on 12 January 2023 states:
“If the applicant is sent back to Sri Lanka, he will not be able to contact his two teenage children for the rest of his life who are citizens of Australia. The applicant will have to start his life again from scratch at the age of 57 years, which is very difficult, as currently, Sri Lanka's economical condition is not favourable to starting a new life for senior person like him.
He will be homeless in Sri Lanka where he lost touch with that country, as he left the Sri Lanka 30 years back, with no parents, income, and place to live.
The Applicant might have to suffer a lonely, stressful and excruciating life in his old age if he is to send to Sri Lanka. After recovering from his severe mental health condition and emotional distress, if his visa is cancelled, he will not be able to handle this trauma. Leaving his children behind with no contact in future is what the Applicant will be left with.”[70]
[70] Exhibit 5.1 at [7]-[9].
And:
“Basic living standards are to be assessed according to the context of what is generally available to those living in that other country – not Australian standards. Many countries in the world do not enjoy the high quality of health care, social services, food and water quality, economic opportunities, political freedoms and so on, as we enjoy in Australia. That isn’t relevant. The assessment considers whether the non-citizen will be able to have the basic living standards applicable in that other country. Moreover, Sri Lanka’s economy and current political environment is not favourable for any individual starting a new life.
The social, medical, and/or economic support available applicant country of origin is the final factor that is specifically identified in the ‘impediments if removed’ category. We request the decision-maker take cognisant of the non-citizen’s impediments in establishing themselves and their ability to maintain basic living standards that are commonplace if he sent back to Sri Lanka due lack skills and are unemployable, and they are not eligible for income support, other benefits, request the decision-maker to consider that reality. Australian government’s ‘Country Information Reports’ published by DFAT can help the delegate to understand the economic condition of Sri Lanka. The applicant will suffer because of a dearth of social, medical, and/or economic support not available to him in Sri Lanka.
In summary, regarding the ‘Impediments to Removal’ factor: We request the delegate to consider the age and health of the applicant. Relevant substantial cultural and linguistic assimilation in Australia by the applicant since he has lived for 24 years in Australia. The decision-maker to consider the extent of impediments the applicant may face in establishing himself and maintaining basic living standards, assessed against what the believes to be 4 generally available in Sri Lanka compared to his country of settlement - Australia. The assessment of this factor has been considerable for our applicant.
Refusal or cancellation by the Minister under subsection 501(3) is in the national interest, as the applicant was a Resident return visa holder, currently living as a divorcee in Australia for the last 24 years with two Australian children. The Applicant has worked in Australia for a significant period of time and has contributed to the Australian economy by paying his taxes. The client is from Sri Lanka, where there is nobody for him. As a permanent resident of Australia, he has several rights except voting in federal, state, or local elections. Before landing in Australia, he never has any criminal nor had bad general conduct record.”[71]
[71] Ibid at [12]-[13].
The Applicant is 57 Years of age.
The Applicant has some health issues. According to medical records produced by IHMS, the Applicant is currently taking medication for hypertension and depression/anxiety. He has high cholesterol, and he suffers from asthma. He told the Tribunal that he has arthritis and a “disc narrowing at C1-3 and T 1” He reported having PTSD as a result of having been assaulted in prison and having made several suicide attempts between 2005 and 2016.[72] He has an untreated problem with alcohol abuse. This is in remission presently due to his incarceration. He agreed in his evidence that all of his health issues are being adequately managed with medication.
[72] Exhibit 4.1.
The Applicant left Sri Lanka as a young adult and would not therefore suffer any significant language or cultural barriers if he were to return there.
The Applicant has skills that would be of use in Sri Lanka although, there is no doubt however that there would be emotional and financial difficulties involved in him re-establishing himself there. Employment may be difficult to obtain.
The Applicant says that since his mother’s death in 2019, he has no support, loved ones, or friends in Sri Lanka. I note that according to the personal circumstances form submitted by him on 14 March 2019, he had 3 uncles/aunts and 5 nieces/ nephews in Sri Lanka. The Applicant says that he has had no contact with his family there for years.
This is not true. It emerged in cross-examination that he has ongoing contact with his sister and brother in Sri Lanka. He says that he would not wish to burden them if he returned, but there is nothing to suggest that they would not help him in some way.
I note in this context also that he has at least one niece in Sri Lanka, who has written about her support for him as recently as 4 April 2019.[73] Likewise, an older sibling living in Sri Lanka wrote a letter of support on 2 April 2019.[74]
[73] Exhibit 3, G2 Attachment M2, pp 386-387.
[74] Ibid, G2, Attachment M1, pp 384-385.
The Applicant would undoubtedly face significant hardship re-integrating into life in Sri Lanka, after so many years spent abroad. Given his mental health problems, this may well exacerbate his anxiety and depression. His reported history of suicide attempts is a matter of some concern in this context.
This consideration is weighs in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no direct evidence on this point.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The further submissions filed by the Applicant’s lawyer on his behalf on 12 January 2023 state:
“The applicant is responsible family man with two teenage children, has built two houses in Australia, is living, working productive and peaceful life in Australia for last 24 years, which is substantial part of his life, and the impact upon applicant to Australian born children will be relevant with regard this applicant.”[75]
[75] Exhibit 5.1 at [12].
There are some letters of support for the Applicant in evidence, in particular I note the offer by Mr [PS] to act as a sponsor for the Applicant if he were to regain his visa.[76]
[76] Exhibit 4.4.
Given how long the Applicant has lived here, there is relatively little evidence of engagement with community networks, or having a range of close friends. He says that he is close to his brother-in-law, but not his sister. He was living with her prior to his incarceration in 2016, but she kicked him out.[77] His brother-in-law has written references in support of the Applicant.[78]
[77] Exhibit 3, G2, Attachment H1, p 156 and Attachment J1, p 337.
[78] Ibid, G2, Attachment M2, p 388 and Attachment M3, p 389.
He claims to have a relationship with various minor children as discussed above.
The Applicant has been resident in Australia since 1999. He came here as an adult aged almost 33 years.
His record of family violence, set out above, began in about 2009.
The Applicant was gainfully employed and paying taxes, until he lost his job at Westpac in 2016. He has been incarcerated since then and has not worked.
The Applicant’s most immediate family members, being his ex-wife and two sons, live in New Zealand. His other family connections here are limited as set out above.

The Applicant does have some connections with the Sri Lankan community in Sydney and other social contacts
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs moderately in favour of revocation.
Impact on Australian business interests
There was no evidence on this topic so this consideration is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral
(b)extent of impediments if removed: weighs in favour of revocation.
(c)impact on victims: neutral.
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs moderately in favour of revocation; and
(e)the impact on Australian business interests: neutral
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs extremely heavily against revocation.
Primary consideration 2 weighs extremely heavily against revocation.
Primary consideration 3 taking it at its best from the Applicant’s perspective, weighs slightly in favour of revocation of the visa cancellation.
Primary consideration 4 weighs extremely heavily against revocation.
Other considerations, (a), (c) and (e) are neutral.
Other consideration (d) weighs moderately in favour of revocation.
Other consideration (b) weighs in favour of revocation.
In this case, primary considerations 1, 2 and 4 weighs very heavily against revocation of the visa cancellation. There are factors that weigh in favour of revocation as discussed above, but in my view, the proper application of Direction 90 favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
Decision
The decision under review is affirmed.

I certify that the preceding one hundred and ninety-three (193) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

..........................[sgnd].....................................
Legal Associate

Dated: 27 January 2023

Date of hearing: 17 January 2023

Advocate for the Applicant:

Mr Parth Brahmbhatt
BTT Lawyers

Advocate for the Respondent:
Ms Kate Ervin
Clayton Utz

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Respondent

Statement of Facts, Issues and Contentions dated 19 December 2023

2

Applicant

Statement of Facts, Issues and Contentions dated 4 January 2023

3

Respondent

G-Documents dated 25 November 2022

4

Applicant

Bundle of Documents dated 5 January 2023:

4.1 Applicant’s Clinical Records (various dates)

4.2 Letter (unsigned) from Psychologist Mr [JP] (28.12.2022)

4.3 Applicant’s Affidavit (13.12.2022)

4.4 Applicant’s Mental Health Care Plan prepared by Dr [DF] (20.12.2022)

4.5 Sponsorship Reference from Mr [PS] (10.12.2022)

5

Applicant

Bundle of Documents dated 12 January 2023:

5.1 Further submissions re compassionate grounds/character test (undated)

5.2 Copy of draft email from Applicant to ex-wife’s solicitor (09.01.2023)

6

Respondent

Submissions re Pearson Decision dated 4 January 2023

7

Respondent

Bundle of Documents dated 16 January 2023:

7.1 Copy of Applicant’s visa grant notice (19.09.2014)

7.2 Information published by New Zealand immigration (24.06.2021)

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Parramatta Local Court

26/06/2000

Drive with middle range PCA

Fine: $600

Parramatta Local Court

13/09/2006

Negligent driving (not occasioning death/gbh)

Fine: $300

Parramatta Local Court

13/09/2006

Drive with middle range PCA

Parramatta Local Court

17/05/2012

Affray – T1

Fine: $1,500, Bond S9

Parramatta District Court

18/09/2012

Affray – T1

Conviction quashed

Blacktown Local Court

25/09/2012

Drive with middle range PCA

Fine: $350, Bond S9

Blacktown Local Court

25/09/2012

Proceed through red traffic light (not toll booth)

Fine: $100

Parramatta District Court

30/10/2012

Proceed through red traffic light (not toll booth)

Conviction confirmed

Parramatta District Court

30/10/2012

Drive with middle range PCA

Conviction confirmed

Blacktown Local Court

26/08/2015

Common Assault (DV) – T2

Bond S9

Blacktown Local Court

26/08/2015

Destroy or damage property (DV)

Fine: $450

Parramatta District Court

21/09/2015

Destroy or damage property (DV)

Order Confirmed: Fine: $450

Parramatta District Court

21/09/2015

Common Assault (DV) – T2

Order Confirmed: Bond S9

Parramatta District Court

17/03/2017

Intentionally choke etc person with recklessness (DV) – T1

Imprisonment (Aggregate): 7 Years

Parramatta District Court

17/03/2017

Contravene prohibition/restriction in AVO (Domestic)

Imprisonment (Aggregate): 7 Years

Parramatta District Court

17/03/2017

Aggravated break and enter w/I – inflict ABH-SI

Imprisonment (Aggregate): 7 Years

Parramatta District Court

21/03/2017

Common assault (DV) – T2

Imprisonment: 3 months

Parramatta District Court

21/03/2017

Contravene prohibition/restriction in AVO (Domestic)

Imprisonment: 3 months

Downing Centre District Court

13/04/2018

Cause grievous bodily harm to person with intent – SI

Imprisonment: 5 years

[2023] AATA 53

27 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date of hearing:	17 January 2023
Advocate for the Applicant:	Mr Parth Brahmbhatt BTT Lawyers
Advocate for the Respondent:	Ms Kate Ervin Clayton Utz

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions dated 19 December 2023
2	Applicant	Statement of Facts, Issues and Contentions dated 4 January 2023
3	Respondent	G-Documents dated 25 November 2022
4	Applicant	Bundle of Documents dated 5 January 2023: 4.1 Applicant’s Clinical Records (various dates) 4.2 Letter (unsigned) from Psychologist Mr [JP] (28.12.2022) 4.3 Applicant’s Affidavit (13.12.2022) 4.4 Applicant’s Mental Health Care Plan prepared by Dr [DF] (20.12.2022) 4.5 Sponsorship Reference from Mr [PS] (10.12.2022)
5	Applicant	Bundle of Documents dated 12 January 2023: 5.1 Further submissions re compassionate grounds/character test (undated) 5.2 Copy of draft email from Applicant to ex-wife’s solicitor (09.01.2023)
6	Respondent	Submissions re Pearson Decision dated 4 January 2023
7	Respondent	Bundle of Documents dated 16 January 2023: 7.1 Copy of Applicant’s visa grant notice (19.09.2014) 7.2 Information published by New Zealand immigration (24.06.2021)

Court	Court Date	Offence	Court Result
Parramatta Local Court	26/06/2000	Drive with middle range PCA	Fine: $600
Parramatta Local Court	13/09/2006	Negligent driving (not occasioning death/gbh)	Fine: $300
Parramatta Local Court	13/09/2006	Drive with middle range PCA
Parramatta Local Court	17/05/2012	Affray – T1	Fine: $1,500, Bond S9
Parramatta District Court	18/09/2012	Affray – T1	Conviction quashed
Blacktown Local Court	25/09/2012	Drive with middle range PCA	Fine: $350, Bond S9
Blacktown Local Court	25/09/2012	Proceed through red traffic light (not toll booth)	Fine: $100
Parramatta District Court	30/10/2012	Proceed through red traffic light (not toll booth)	Conviction confirmed
Parramatta District Court	30/10/2012	Drive with middle range PCA	Conviction confirmed
Blacktown Local Court	26/08/2015	Common Assault (DV) – T2	Bond S9
Blacktown Local Court	26/08/2015	Destroy or damage property (DV)	Fine: $450
Parramatta District Court	21/09/2015	Destroy or damage property (DV)	Order Confirmed: Fine: $450
Parramatta District Court	21/09/2015	Common Assault (DV) – T2	Order Confirmed: Bond S9
Parramatta District Court	17/03/2017	Intentionally choke etc person with recklessness (DV) – T1	Imprisonment (Aggregate): 7 Years
Parramatta District Court	17/03/2017	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment (Aggregate): 7 Years
Parramatta District Court	17/03/2017	Aggravated break and enter w/I – inflict ABH-SI	Imprisonment (Aggregate): 7 Years
Parramatta District Court	21/03/2017	Common assault (DV) – T2	Imprisonment: 3 months
Parramatta District Court	21/03/2017	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment: 3 months
Downing Centre District Court	13/04/2018	Cause grievous bodily harm to person with intent – SI	Imprisonment: 5 years