Leng and Minister for Immigration and Multicultural Affairs

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

Migration Act 1958 – Ss 5, 200, 201, 499

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 19 AAR 266; (1994) 33 ALD 13; (1994) 50 FCR 189
Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349; (1999) 91 FCR 234

DECISION AND REASONS FOR DECISION [2000] AATA 705

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          Q2000/34
GENERAL ADMINISTRATIVE DIVISION      )

Re FABIAN LENG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS

Respondent

DECISION

Tribunal Miss S A Forgie

Date 17 August, 2000

Place Brisbane

DecisionThe Tribunal affirms the decision of the respondent dated 2 November, 1998.
S A FORGIE
Deputy President

REASONS FOR DECISION

On 10 December, 1999 the applicant, Mr Fabian Kenneth Leng, applied for review of a decision made by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister") dated 2 November, 1998. The decision was reviewed by a differently constituted Tribunal and, on 22 April, 1999, was affirmed. An appeal against that decision was allowed by Kiefel J on 10 December, 1999 and remitted to the Tribunal for redetermination according to law.

At the re-hearing, Mr Leng was represented by Mr Byrne of counsel and the Minister by Mr Belcher, a legal practitioner. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a group of awards, writings and art work, statements by Mrs Rurimoana Hall, Ms Shirley Leng, and Mr Mark Gerrard Hall, sentencing remarks by Judge Healy, a facsimile message dated 22 March, 1999 from Detective Inspector Reid, the New Zealand Police Liaison Officer based in Sydney, to the Department of Immigration and Multicultural Affairs ("the Department"), a letter dated 23 March, 1999 from the Department of Justice and Attorney-General, Magistrates Court, Holland Park to Mr B Cuppaidge, Hawthorn, Cuppaidge & Badgery and a transcript of the proceedings at the first hearing.

THE ISSUES

A preliminary issue in this case was whether the consideration of the seriousness of the offences was limited to those offences referred to on the deportation order. The primary issue was whether Mr Leng should be deported from Australia pursuant to ss. 200 and 201 of the Migration Act 1958 ("the Act").

BACKGROUND

There was no dispute between the parties as to a number of the factual matters forming the background to this case. In view of that and on the basis of the evidence, I will set those matters out in the following paragraphs.

Arrival and life in Australia

I find that Mr Leng was born on 14 April, 1978 at Matamata in New Zealand. He was 12 years, 9 months and 16 days of age when he arrived in Australia on 30 January, 1991 with his mother, sister and a brother. Since then, he has not left Australia. His mother has since remarried and has another daughter. One of his sisters has 2 children; one is 2 years of age and the other 7. His sister and her children live near to Mr Leng. His younger sister lives at home with his mother and stepfather. His younger brother lives alone.

When he left school in Grade 8, Mr Leng worked for two days in an abattoir. He also had unpaid work experience in a small goods company.

At the time that he committed his first deportable offence on 27 August, 1995, he was 17 years and 4 months of age. By then, he had been in Australia for 4 years, 6 months and 28 days.

Convictions

Mr Leng has been convicted of a number of offences over the years. A document prepared by Mr Belcher set out those offences in chronological order of their commission:
"1. 17.03.95 Two charges of serious assault on a police officer: Conviction recorded on each charge and sentenced to community service of 120 hours: Brisbane District Court on 01.11.95
22.06.95 Insulting words: No conviction recorded. Fined $30: Brisbane District Court on 23.06.95
27.08.95 Receiving: Probation for 3 years, then subsequently 18 months: Brisbane District on 06.06.97 and again on 13.03.98
30.10.95 Two charges of breaching Bail Act: 1st charge convicted and fined $500. 2nd charge convicted and discharged: Brisbane Magistrates Court on 04.11.95
16.01.96 Break, enter & steal, Wilful and unlawful destruction of property during night-time: Probation for 3 years, then subsequently 18 months: Brisbane District on 06.06.97 and again on 13.03.98
04.04.96 Breach of bail conditions: Convicted and sentenced to 1 mnth imprisonment: Brisbane Magistrates Court on 09.04.96
09.05.96 Time extended to 28.10.96 to perform community service imposed on 01.11.95: Brisbane District Court on 09.05.96
24.06.96 Obstructing Police, Two charges of assaulting police, Possession of 2 pipes and cones: Failed to attend Brisbane Magistrates Court on 31.10.96; warrant issues. Failed to attend Brisbane Magistrates Court again on 19.12.96; warrant issues. Convicted and fined (respectively) $150 (default 5 days), $150 (default 5 days), $100 (default 4 days) and $150 (default 5 days): Brisbane Magistrates Court on 24.01.97
31.10.96 Breach of Bail Act (re above): No conviction recorded, fined $250 (default 10 days): Brisbane Magistrates Court on 22.11.96
22.11.96 Break & enter dwelling house with intent in the night-time, Obstructing Police: Failed to attend Brisbane Magistrates Court on 11.02.97; warrant issues. Convicted and sentenced to 2 days and 6 months imprisonment respectively: Brisbane Magistrates Court on 10.06.97 Found in an enclosed yard without lawful excuse: Convicted and sentenced to 1 week imprisonment: Brisbane Magistrates Court on 10.06.97
09.12.96 Breach bail undertaking: Convicted and discharged: Brisbane Magistrates Court on 24.01.97
17.12.96 Two charges of break & enter dwelling house with intent, Two charges of stealing: Sentenced to 6 months imprisonment: Brisbane District Court on 13.03.98 (see No. 5)
23.01.97 Two charges of aggravated assault on a female: Convicted and sentenced to 4 mnths imprisonment: Brisbane Magistrates Court on 10.06.97 (see above no. 10)
11.02.97 Breach Bail Act: Convicted and sentenced to 28 days imprisonment: Brisbane Magistrates Court on 28.02.97
27.02.97 Two charges of entering dwelling house in the night-time with intent, Two charges of stealing, Assault occasioning bodily harm: Probation for 3 years, then subsequently 18 months: Brisbane District on 06.06.97 and again on 13.03.98 (see no.s 5 and 12)
27.12.97 Stealing, Breach of Bail Act: Convicted and sentenced to 4 mnths and 2 mnths imprisonment respectively: Brisbane Magistrates Court on 23.01.98
13.01.98 Stealing, Attempted fraud: Sentenced to 6 mnths imprisonment: Brisbane District Court on 13.03.98 (see no. s 5, 12 & 15)
17.01.98 Break & enter dwelling with intent to commit an indictable offence, Convicted and sentenced to 3 mnths imprisonment: Inala Magistrates Court on 03.07.98
03.07.98 Breach of Bail Act: Cause shown, no further action taken: Inala Magistrates Court on 03.07.98"

On 15 June, 1998, an officer of the Department wrote to Mr Leng and advised him that he was liable to be considered for deportation as he had been a permanent resident of Australia or a special category visa holder for less than 10 years within the meaning of the Act (T documents, page 27). A brochure outlining Australia's deportation policy was enclosed and Mr Leng was advised that he would be interviewed in the near future by an officer of the Department. Mr Leng was subsequently interviewed on 28 July, 1998.

On 2 November, 1998, a delegate of the Minister ordered Mr Leng to be deported. In doing so, he referred to the convictions in the District Court of Queensland on 6 June, 1997 for the offences of receiving on 27 August, 1995, break, enter and steal and wilful damage on 16 January, 1996 (i.e. offences in items 3 and 5 in paragraph 8 above).

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

In a certificate of conviction dated 24 August, 1998, Mr Leng was recorded as having been convicted of the following offences in relation to which he had pleaded guilty:

"Count 1 – Receiving/27th day of August, 1995 at Brisbane.
Highway One Hotel Ltd
Count 2 – Break, enter and steal/16th day of January, 1996 at Cannon Hill.
Cannon Hill Bowls Club Incorporated
Count 3 – Wilful damage in the night time/16th day of January, 1996 at Cannon Hill.
Cannon Hills Bowls Club Incorporated" (T documents, page 50)

He had been sentenced on 6 June, 1997 to probation for a period of 3 years on the usual conditions and 240 hours of community service on the usual conditions. On 13 March, 1998, he was found to be in breach of the probation and community service orders. Healy J vacated those orders and substituted an order that he be imprisoned for 18 months.

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

Also on 6 June, 1997, Mr Leng had been convicted of a further five offences, in relation to which he had pleaded guilty and which were:

"Count 1 Section 418, 420, Form 251                      That on the Twenty-seventh day of February, 1997 at Brisbane in the State of Queensland, FABIAN KENNETH LENG entered the dwelling house of MICHAEL JOHN HARDIE in the night-time with intent to commit an indictable offence therein
Count 2 Section 391, 398, Form 231 That on the Twenty-seventh day of February, 1997 at Brisbane in the State of Queensland, FABIAN KENNETH LENG stole one watch, one set of keys, one mobile telephone and one mobile telephone battery charger the property of MICHAEL JOHN HARDIE
Count 3 Section 418, 420, Form 251            That on the Twenty-seventh day of February, 1997 at Brisbane in the State of Queensland, FABIAN KENNETH LENG entered the dwelling house of GREGORY DAVID MCGILVERY in the night-time with intent to commit an indictable offence therein
Count 4 Section 391, 398 Form 231   That on the Twenty-seventh day of February, 1997 at Brisbane in the State of Queensland, FABIAN KENNETH LENG stole one hand bag and a sum of money namely $20.00 the property of RONITA ESTELLE NEAL
Count 5 Section 245, 339 Form 211   That on or about the Twenty-seventh day of February, 1997 at Brisbane in the State of Queensland, FABIAN KENNETH LENG unlawfully assaulted GREGORY DAVID MCGILVERY and thereby did him bodily harm" (T documents, page 52)

These offences are detailed in item 15 in paragraph 8 above. In relation to those offences, convictions were recorded and Mr Leng was placed on probation for a period of 3 years. He was also required to perform 240 hours of unpaid community service on the usual conditions. On 13 March, 1998, he was found to be in breach of his probation and community service orders. Consequently, the orders of 6 June, 1997 were vacated and Mr Leng was imprisoned for a period of 18 months (T documents, page 51).

THE LEGISLATIVE AND POLICY FRAMEWORK

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

Mr Leng is a non-citizen in that he is not an Australian citizen (s. 5(1)). At the time he committed the offence relied upon by the Minister, he had been in Australia since 30 January, 1991 and so for a period less than 10 years.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(f)terrorist activity;

(g)kidnapping;

(h)blackmail;

(i)extortion;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The second primary aspect identified in the Direction relates to the best interests of the child. It is the Government's view that the decision maker must determine the best interests of any child aged less than 18 years who is in a parent-child relationship or other close relationship with the deportee. In so far as it is relevant to the circumstances of this case, the Direction states:

"19. It is the Government's view that when considering what are the best interests of the child or children, regard should be had to:
(a)the nature of the relationship to potential deportee;

(b)whether the child is an Australian citizen or permanent resident;

(c)the likely effect that any separation from the potential deportee would have on the child or children;

(d)…

(e)the impact of the potential deportee's prior conduct on the child.

…
20.It is the Government's view that considerations which aid in assessing the above factors include:

(a)the age of the child;

(b)the time that the child has spent in Australia;.

(c)…

(d)…

(e)…

(f)the child's degree of emotional and psychological dependence on the potential deportee; and

(g)the amount of time that the potential deportee has actually spent with the child.

…"

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

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

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

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

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

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

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

…"

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

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

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

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

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

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

…"

THE EVIDENCE

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

Receiving – offence listed in item 3 in paragraph 8 above

Mr Leng's evidence at the hearing

In cross examination, Mr Leng said that he was convicted of receiving rum belonging to the Highway One Hotel. He said that he was sleeping at a friend's place when his friends told him that they had smashed a window to get it. The police came around to the house when he and his friends were all in the same room. He pleaded guilty to the offence as the rum was clearly in his possession.

Mr Leng's evidence at the previous hearing

At the first hearing, Mr Leng said in relation to his conviction for receiving that he did not know what he had received. He had not "… received nothing off no one." (Exhibit 4, page 48) He knew that he had pleaded guilty but that was "Because there was other charges with it." (Exhibit 4, page 48)

Cannon Hills Bowls Club offences – offences listed in item 5 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng said in giving his evidence that he had taken a cask of wine from the Cannon Hills Bowls Club. He had damaged a window. In cross examination, Mr Leng was asked whether he had damaged the window by throwing a cash register through it. He asked at first how he could have done that when he was outside and the cash register was inside. He then agreed that he had been found inside the Club and had thrown the cash register through the window to evade capture. Further, he agreed with the report of conviction prepared by the Queensland Police that he had forced entry to the Club through a glass sliding door (T documents, page 22). He also said that it was possibly correct that he had refused to be interviewed formally and agreed that he had been totally uncooperative with the police. He had been uncooperative by walking out of the interview. Mr Leng also agreed that he had said that he was at a party where people were drinking when he decided to break and enter the Club.

Queensland Police report

In a report dated 24 July, 1998, the Queensland Police stated:

"Offender was located by uniform police inside the premises, aftering (sic) forcing entry through a glass sliding door. When confronted the offender took hold of a cash register & threw the register through the window attempting to strike police with the register. Offender then decamped and was later detained by police. Offender was restrained, refused formal interviews & was totally un-co operative with police. Offender stole a quantity of property resulting from this offence." (T documents, page 22)

Mr Leng's evidence at the previous hearing

Mr Leng said of this matter in cross examination at the earlier hearing:

"Okay. Now, do you remember, in one of your offences – and I think this was one of the ones in 1996 – you were found in the Bowling Club? – Yes. No, actually, I wasn't.
You weren't in the bowling club?---No, I wasn't in the bowling club.
Where were you?---I was on, like – I got charged for that crime, but I didn't get charged for that crime … Bowling Club.
So it wasn't you who was in the bowling Club and threw a cash register at the police?---No, it wasn't me.
So when did the police find you?---They found me – they found me – like, there was like, sort of, there was a party – like a little oval sort of thing down the Bowling Club. There was a party there, someone's birthday party, and there was a lot of people there, and then they just picked me out and said, 'Yes, that's him.' Everyone was there drinking and celebrating someone's birthday.
Were you the only one they picked up?---Just me and my brother. Me and my brother.
So your brother was there and was picked out by the police as well?---Later, later, because he was with some of his mates. I didn't really know nobody there, and he was with his mates, and he came up – because they all seen the cop cars coming and, like, surrounding the place, and they come up – he came up by himself – he came up by himself, and they grabbed him, too. I swear – I swear they would've seen the other people in the park, but they reckoned they didn't see no one but him and me." (Exhibit 4, pages 81-82)

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

Two charges of entering a dwelling house in the night time with intent, two charges of stealing and assault occasioning bodily harm – offences listed in item 15 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng said that he recalled the offences. He agreed that he had broken into a house and had a fight with the occupier on the backstairs of the house. He pleaded guilty to the charge, he said, because it was his intention to do that. At the previous hearing, he recalled, he had said that he and the occupier had fallen down the stairs and that was how there came to be bodily harm.

Mr Leng said in giving his evidence that he could not recall the offence of having unlawfully assaulted Mr McGilvery on 27 February, 1997. When further questioned by his counsel, he recalled his being on the property and recalled that Mr McGilvery grabbed him from the front. Mr McGilvery was beating him up and Mr Leng said that he wanted to get away. Mr Leng said that he then tried to bite him.

Mr Leng said in giving his evidence that he could not recall the stealing charges dealt with at the same time.

Mr Leng's evidence at the previous hearing

At the previous hearing, Mr Leng gave the following evidence:

"Now, did you assault someone? --- Yes.
Now, you referred to a little scuffle? --- Yes.
All right. Now, just tell me about that little scuffle? --- That's – when I said I was on the stairs – back stairs.
Yes?---And my leg got caught into the – in between the stairs and he had me in a headlock there. That.
All right. Was the man hurt?---Yes. Because he fell down the stairs with me, see, because he tackled me on the stairs. He was down the bottom, I was up at the top, jumped up and my leg got caught in the thing there. And he held my neck. Yes.
And so did you plead guilty to assault occasioning bodily harm on that occasion? --- Yes." (Exhibit 4, page 51)

Sentencing Judge's remarks

Mr Leng was originally sentenced to probation for 3 years but, upon breaching his probation, he was sentenced to 18 months' imprisonment. Judge Healy said in sentencing Mr Leng initially:

"The offences of entering a dwelling house in the night time are extremely serious. The fact that you committed such an offence and then grappled with the occupier of the house on the whole makes that offence even more serious. When the facts were outlined to me my immediate feeling was that you should go to prison. However, you have spent 95 days in custody apparently in relation to other matters and perhaps in relation to some of these matters.
You have had a good taste of prison. You were 17 when these offences were committed and your criminal history is a relatively minor one. For these reasons I intend to place you on probation if you consent. … Now, I am giving you a chance and this will be your last chance. If you commit other offences while you are on probation or if you fail to comply with the requirements of the probation service you will come back before me to be dealt with for these offences. If that happens I will certainly seriously consider a lengthy term of imprisonment for you. … (T documents, page 18)

At the previous hearing, Mr Leng agreed that Judge Healy had asked him whether he understood how important it was to be given an extra chance. If he could behave for 3 years, then all the past would be put behind him. (Exhibit 4, page 77).

In sentencing Mr Leng after he had breached the probation order in relation to the offences detailed in items 3, 5 and 15, Judge Healy said:

"You have to go to prison. You have breached the probation order I imposed last year and the offences for which I gave you probation were very serious offences.
I find both the breach of probation order and the breach of the community service order proved. With respect to the offences for which I gave you probation on 6 June 1997 I sentence you to 18 months imprisonment on each of those offences.
With respect to the offences you have pleaded guilty to this morning I sentence you to six months imprisonment to be served concurrently with the 18 months.
For breaching probation I sentence you to two months imprisonment to be served concurrently." (Exhibit 2)

A selection of other offences of which Mr Leng has been convicted

Spitting – offence listed in item 1 in paragraph 8 above

Mr Leng's evidence at the hearing

In giving his evidence, Mr Leng said that he did not remember spitting on a policeman but he was convicted for it. He did not cause any injury to the police officer. In cross examination, he agreed that he had pleaded guilty to doing so. He had done so, he said, as there were photographs of the spit mark. The spit mark was on the policeman's right shoulder. It was not his spit, he said. He agreed that he was drunk at the time but said that it was: "… not like me, mate. I don't spit." Mr Leng denied that he had applied for additional time to complete the 120 hours of community service which he was sentenced on 1 November, 1995 to complete. He did not agree that the criminal history correctly recorded such an application on 9 May, 1996 when the time to perform was increased to 28 October, 1996 (T documents, page 65).

Mr Leng's evidence at the previous hearing

Mr Leng also denied that he spat on a policeman but said that he pleaded guilty as "… they had photos and everything…" and he had then said "Oh, well. Well, you've got me then." (Exhibit 4, page 62)

Insulting words – offence listed in item 2 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng said that he did not use insulting words to a police officer but agreed that he pleaded guilty to the charge. He said that the policeman grabbed him by the arm and threw him into a car.

Mr Leng's evidence at the previous hearing

Mr Leng said that the course of events was:

"Well, I was walking down Wynnum Road – that's out Cannon Hill way – and the cops were coming this way and I was walking that way, and they come around, like that, and he jumped out – oh, he must have jumped out, because he goes, 'Oy, I want to talk to you.' And I didn't take no notice. And he goes, 'Hey, mate, I want to talk to you' and I looked back and said, 'What do you want?' And he goes – and he goes, 'Don't use insulting words with me'. And grabbed me and put me in the car.
All right. And did you plead guilty to the – did you use insulting words?--- No, I didn't use insulting words, but I did plead guilty to it." (Exhibit 4, page 62)

Obstructing police, two charges of assaulting police and possession of 2 pipes and cones – offence listed in item 8 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng said that he found the pipe at the Buranda Railway Station and would not know what it was used for. He was with a friend and they each had half of the pipe. They were playing with it while they were walking. As they walked, they saw a man smashing a fence and they called the police. When the police came, Mr Leng said that he still had the pipe in his hand but he had forgotten about it. He said that there was no assault of the police. When asked why he pleaded guilty to the offences if that was the case, he replied that he did not know that they were there. He only knew about the pipe and the cone. He was the one who rang the police.

Breach of the Bail Act – offence listed in item 9 in paragraph 8 above

These offences related to Mr Leng's failure to attend the Brisbane Magistrates Court on 31 October, 1996 and 19 December, 1996 in relation to the charges of obstructing police, two charges of assaulting police and the possession of 2 pipes and cones on 24 June, 1996.

Mr Leng's evidence at the hearing

Mr Leng said that he did not attend the court as he had rung every court in Brisbane and had been told that he did not need to go. When it was put to him that it was his fault that he had not attended, he replied "Suppose it was, hey."

Break and enter dwelling house with intent in the night time, obstructing police and found in an enclosed yard without lawful excuse – offences listed in item 10 in paragraph 8 above

Mr Leng's evidence at the hearing

He had not attended the magistrates court when required to face the charges on 11 February, 1997 and could not remember why he had not done so. Mr Leng said that he recalled the house at Morningside. He recalled saying at the last hearing that he could not remember the house as he was possibly drunk. At this hearing, he said that he did not know whether he was drunk or not. He did not have a good memory when he was drunk.

Mr Leng said that the aggravated assault of a girl had occurred when he went into the yard for "a leak". The girl had jumped on his back. That had occurred on 22 November, 1996. He disagreed that the assault had occurred later on 23 January, 1997 (item 13 in paragraph 8 above) and said that it had occurred when two ladies, or possibly a lady and a man, jumped on his back. He just wanted him or her off him. He denied that he was just making up excuses.

Mr Leng's evidence at the previous hearing

Mr Leng said that the charges:

"All right. Now, do you remember when you were in an enclosed yard? --- That has to be the flats.
All right. Were you in someone's – the yard of someone's flat? --- Yes.
All right. And what were you doing there?---Oh, well, like – like, you've got a shed here, you've got a shed there, you've got the building, and there's the front yard here. I was like around – around the back of the shed, like, taking a leak, and then – and I could hear this noise, and when I came back out, that's the aggrav assault there, about the aggrav assault.
All right. Now, there's aggravated assault on a female. Just put your finger – can you see that one?---Yes.
Now, do you remember what happened there?---Yes. She jumped on my back. Like, I didn't even know – I didn't know it was a girl. She jumped on my back, and I felt someone, like, trying to strangle me, and trying to get me onto the ground, and I was – went like that there and I looked back and it spun me out it was a girl. And then police were just – just came up – just came up the driveway.
And did you then plead guilty to aggravated assault on a female? --- Yes, because I threw her off my back, see?" (Exhibit 4, pages 60-61)

Two charges of break and enter dwelling house with intent and two charges of stealing - offences listed in item 12 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng recalled that he had been convicted in relation to stealing a VCR, remote control, cords, stereo, bag, clothing and beer.

Queensland Police brief

The Queensland Police brief was reported in the report by the Acting Senior Community Correctional Officer, the Programs Manager and the Manager, Assessment Unit, Metropolitan Unit at the Moreton A Correctional Centre in the following terms:

"… Leng on 17/12/1996 broke and entered a house and stole one video cassette recorder, remote control and cables, one portable stereo and remote control, two sports bags, a quantity of food, one stubbie of beer and one plastic bag containing a sum of $18.00. On the same day he broke and entered into another house and stole one bag, one carton of beer and a quantity of clothing and person effects." (T documents, page 42)

Stealing and breach of Bail Act – offences listed in item 16 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng agreed that he had been convicted of stealing a back pack after he had been placed on probation for 3 years some 6 months earlier. He agreed that he did so despite Judge Healy's having explained the nature of a probation order to him and having explained that he would face prison for the same offence if he breached the order.

Queensland Police brief

The Queensland Police brief recorded the offence:

"…On 27/12/1997 he stole one black back pack containing personal property from a female at the Dutton Park Railway station." (T documents, page 42)

Mr Leng's evidence at the previous hearing

Mr Leng said that he was intoxicated at the time of the offence (Exhibit 4, page 79).

Stealing and attempted fraud – offences listed in item 17 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng agreed that this offence related to the theft of a CD Rom and a wristwatch. He agreed that he had said at the previous hearing that he had found the CD Rom at the railway station. At the current hearing, he said that he found the wristwatch too. He agreed that he had pleaded guilty to the charges. Mr Leng said that he had been kicked off the train and agreed with the proposition that he had taken the goods to a pawn shop.

Queensland Police brief

The Queensland Police brief stated:

"… On 13/01/1998 he failed to appear in court as directed and a Bail Act warrant was issued. He explained to the arresting police officers that he had no way to get to the Court at Manly. On 13/01/98 he stole a CD rom disk and a Quicksilver watch belonging to an unknown person." (T documents, page 42)

Mr Leng's evidence at the previous hearing

As to why he was charged with the offence, Mr Leng said:

"Well, like, that – that was the purse snatching off the train and that, wasn't it, that – what I got charged with after – after I got given that? And that's – that's why I got charged, because I was found picking up stuff off the ground – the bloke – bloke took off with."

Break and enter dwelling with intent to commit an indictable offence – offence listed in item 18 in paragraph 8 above

Mr Leng's evidence at the hearing

Mr Leng said that he could not recall the offence.

Queensland Police brief

The Queensland Police brief stated:

"On 13/01/1998 he failed to appear in court as directed and a Bail Act warrant was issued. He explained to the arresting police officers that he had no way to get to the Court at Manly. On 13/01/1998 he entered a dwelling with intent to commit an indictable offence and he entered by breaking the dwelling." (T documents, page 42)

Three breaches in prison

Mr Leng's evidence at the hearing

Mr Leng agreed with Mr Belcher that he had committed 3 breaches while in prison. The first, behaving in a offensive and threatening manner, had occurred in the medical centre. A woman had put a needle in his arm when he had told her that he did not like needles. He held her arm.

Mr Leng also agreed that he committed a minor breach of nuisance against good order but could not remember how it came about. His third breach, which was a major breach, was acting in a threatening manner. He had entered a senior officer's room seeking a telephone call for a friend. He told the friend that he would ask Mr Palmer about the call but when he went to do so, one of the officers started to abuse him.

Drugs and alcohol in Mr Leng's life and his reasons for pleading guilty to certain charges

Mr Leng's evidence at the hearing

Mr Leng agreed with Mr Belcher that he had a problem with alcohol as well as with marijuana. His problem with marijuana dated from when he was 15 years of age. During his time in prison and less than 6 months after he had arrived, he had returned a positive test for marijuana. He said that marijuana takes 6 months to get out of the system and he did not smoke it in prison.

Mr Leng said that he started to get into trouble when he went to the Gold Coast after leaving school. His drinking had started in Brisbane but it became worse down there. Alcohol led to his experiencing blackouts; one at the Gold Coast and another at Southbank.

Mr Leng said that he had attended 4 or 5 meetings with Alcoholics Anonymous but had never enrolled in any courses in relation to alcohol as he did not know of any. Later, he said that he did attend a drug and alcohol course but did not go through all of it. He attended 3 or 4 times while at Wacol and twice at Woodforde. During his 18 month term, he was in 3 prisons. When he went to a new prison, he said, he was not interviewed but came to know about courses by looking on pinboards. He was, however, more interested in attending Toastmasters as it was more fun. It was on at the same time as the courses. He hated getting up and saying "My name is Fabian and I'm an alcoholic" and became depressed.

When he had a problem with alcohol, he said, he was drinking every day. His "body felt scattered" at that time but today he feels better. He has a place of his own. His girlfriend has made him feel good. She has given him a schedule and someone to whom he has to listen. He needs her help. If he got really drunk, he said, he knows that it would be a crime.

In response to Mr Byrne's question as to why he had pleaded guilty when he had not committed an offence, Mr Leng said that it was scary. He was the criminal and everyone was judging him. He did not know what to do. He was not aware of his rights with the police. When asked whether the police told him at the beginning of each interview that he did not have to speak to them, he said that they would have locked him up straight away. They do say to him that he does not have to speak but they do not give him a choice.

Mr Leng's evidence at the previous hearing

At the previous hearing, Mr Leng said that he would "… just turn up to meetings" of Alcoholics Anonymous and "… listen to people's problems, what happened to them, their family. Just all that sort of stuff." (Exhibit 4, page 80) At the time of the hearing, 23 March, 1999, Mr Leng had been to 4 or 5 meetings.

He said that he had talked to his mother and stepfather about why he was offending and the following exchange took place between him and Ms Carrington in cross examination:

"Yes, what did they say? --- They said, 'Why do you keep doing it?' And I said, 'Mum, I don't mean to do them.' I've already explained to her I get picked up on the streets, and then get blamed, and then not even plead guilty, because they've got evidence for it.
But sometimes you said you did do it, though, didn't you?---Yes, sometimes I do break and enters.
Okay. So they said to you that it was important that you didn't do it again?---They said to me, 'You'd better stop.' And I said, 'Mum, I'm trying hard to stop.' It's just – I'd don't know why these things come directly my way. Because when I drank and that - it comes when I drink, too, see. When I'm around the street, walking the street, they say, yes, we're taking …. It's like they're saying that, you know. Let's go and see him, he's drunk, and we'll go and take – it was just like that. I don't mean to go and do crime, and that.
But sometimes, when they take you in, you'd done things?---Yes, sometimes.
So they might have reason to think you would be a person who has done things?---Yes, they might have reason, wouldn't they.
Because they know you've done things before? --- Yes, they know I do things before." (Exhibit 4, page 81)

Mr Leng's life since being released from prison

Since being released from prison on 10 December, 1999, Mr Leng said, he had first lived at his mother's house and then, in February, 2000, had moved to a unit. He lives with his girlfriend, Miss Katrina Herron, in the unit. Miss Herron, whom he met in 1995 or 1996 when she was 14 years of age, has been his girlfriend for the past 4 years but there have been breaks in their relationship in that time. Those breaks had occurred when he had been in prison. He had not been visited by her while he was in prison as he had not wanted her to see him there. They had contact through letters which were written between them about twice each week. Once he left prison, their relationship was recommenced.

Mr Leng said that he and Miss Herron have established a home together and have bought furniture and household items for it. He paid for some of those items at garage sales and others he obtained from St Vincent de Paul or from his family. He was not receiving a social security pension. They paid rent of $95.00 per week and their food bill was $50-60 per week. From their income, they were able to put some money aside for savings or to purchase other items.

Mr Leng said that his relationship with his family is good. He sees his sister and her children regularly and has continued to do so even though he has started working. He thinks that his stepfather is a "good bloke".

In giving evidence, Mr Leng said that he accepted that he had problems with drugs and alcohol before he went to prison and that his getting into trouble had often been connected with them. Since his release, he has drunk alcohol but the most he has consumed at any one time is 3 glasses. The last time he had done so was on the night before the hearing when there had been a barbecue for his mother's birthday.

Mr Leng said that another factor in his getting into trouble had been his old friends. He had not met with them since his release from prison and did not intend to do so.

Mr Leng said that he had tried to get into a course at TAFE to study contemporary music but had been unsuccessful. He had tried to find work by going from door to door and offering to do odd jobs. Approximately two weeks before the hearing, he had obtained a job to collect donations for a charity. He earns $200 per week from that job and he has an opportunity to earn another $100 in bonuses. His hours of work are from 10.00 am until 7.00 pm and he said that he does not have to work hard but can go at his own pace. Mr Leng said that he had earlier said that he would get a job with his stepfather's brother, Uncle Steve, but that had not come about. He had not made any attempt to contact Uncle Steve but, he said, his stepfather and mother would have.

Mr Leng said that he had not seen his natural father, who lives in New Zealand, since he was 3 or 4 years of age. He has aunts in New Zealand but he did not know where they lived and had not had contact with them for years. Mr Leng knows nothing about New Zealand and knows no-one there, he said, and has not returned since he arrived in Australia. He felt that he had no job prospects in New Zealand. Should he be deported to New Zealand, Miss Herron would go with him.

Mr Leng said that he had participated in a Clean Up Australia Day on 2 occasions and had done "heaps of stuff like that". If he sees a disabled person he will push the pedestrian button for him or her to cross the road. If, while he is jogging, he sees a person pulling their garbage bins, he will help him or her with it. He has played sport. As a member of a team that were runners up in a soccer competition, he won a trophy. He has also played Red Sox baseball and, while at school, played in the school's football team as well as being involved in running and water sports.

Mrs Rurimoana Hall

Mrs Hall is Mr Leng's mother. She works as a quality control food processor. Between 1976 and 1983, she lived in a de facto relationship with his natural father. His father was, she said, a violent alcoholic who regularly abused their children as well as her. When she could take no more and for the sake of the children, she left him. She last saw her children's father in 1989.

In 1991, she migrated to Australia in search of a better life for herself and her children. Her parents died many years ago and she has not seen her two sisters, who still live in New Zealand, since 1993 when she attended her brother's funeral. Her sisters and their families are strangers to her son as the families have lost all of their close ties over the years. The last time she spoke to her sisters was a couple of years ago when they spoke about their father's land. In 1996, she married her husband, Mark.

When her son was released from prison, she said in giving evidence, he lived with her and her husband for a period of 2 months. He was not working at the time and did things around the house. Each day, she went with him to Centrelink to look for jobs. He went for landscaping jobs but there was little hope for him when it became known that he had just been released from prison. They tried for 6 jobs in one day. Her son's hopes for a job with her husband's uncle, Steven, have not been fulfilled as she has been unable to contact him.

Of her son's behaviour, she said in her statement:

"7. I am fully aware of the crimes committed by Fabian and deeply saddened that my son could do such things but I believe the by being my eldest son Fabian was most exposed to his father's violence towards the children and me, which in his youth effected his behaviour.
8.I believe that Fabian's past resentment for authority can in part be attributed to a period of one month's imprisonment he served for a crime he was subsequently found not to have committed.

9.Fabian and I speak regularly on the telephone and I have visited Fabian many times while he has been in prison. I would have visited more frequently but Fabian has asked me not to, as every visit then requires him to submit to the indignity of a strip search.

10.From my many conversations with Fabian I believe he has matured and come to accept responsibility for the crimes he committed. Although he is reluctant to show his feelings to other than family members, I believe he genuinely regrets the pain and suffering he has caused to both his victims and his family and that he is keen to make amends for his past wrongdoing.

11.Fabian has said to me that he was stupid at the age he committed the offences which led to him being imprisoned and that drugs and alcohol had effected his behaviour. He says he now feels he is more mature, no longer using drugs or alcohol and that he would not offend again – he simply wants a chance to 'Get on with life'." (Exhibit B)

Mrs Hall stated that her son's problems are due in part to his being shy, stuttering and being unable to express his feelings. He has expressed his remorse to his family about his behaviour but, because of his shyness and inability to express himself, he has not been interpreted by others as doing so. When he was released from prison, he told her that he would do the right thing by his girlfriend and by everyone else. Since he has begun to work, she has noticed that he has quietened down. He is associating with people he likes. She speaks with him every night on the telephone and sees him three times each week. He is very close to his brother and sisters. There had never been any problems amongst them apart from brotherly arguments about who was wearing whose clothes and the like. The night before the hearing, he had drunk a couple of bottles of beer but she has not seen any symptoms of drug use since his release.

Mrs Hall said in cross examination that she had talked to him about his offences. She had thought that he was "going through peer pressure". At the time, he was living at home. She had not been aware that he was smoking marijuana. He had come home looking sleepy and, when she asked him, he did not say anything. Twice a month, he would come home tipsy. He did not talk to her about his problems with alcohol. She did not talk to him about his problems with drugs and alcohol as she did not know that he had a problem.

As to her son's being deported, Mrs Hall said:

"17. I honestly believe that from his recent period of incarceration Fabian has learnt his lesson, that he is genuine in his wish to stay out of trouble and to 'get with life'. To deport him to New Zealand would destroy our family unit and would be consigning my son, who is only twenty (20) years of age and who knows no other country but Australia as his home, into a world where he has no friends or family to support him and no immediate entitlement to support from New Zealand authorities – indeed, I believe he would have to wait for more than 12 months to receive unemployment benefits. Almost certainly, Fabian would have to resort to a life of crime just to survive." (Exhibit B)

In giving evidence, Mrs Hall said that she suffers from rheumatic fever and her son's deportation would be very stressful for her and other family members. Were he to be deported, she would not get in touch with her sisters to look out for him.

Mr Mark Gerrard Hall

88. Mr Hall is Mr Leng's stepfather and has known him for more than 10 years. He regards each of his wife's children as his own. He stated that he is fully aware of the circumstances of his wife's previous marriage and of the violence that she and her children suffered during it.

In his statement, Mr Hall said:

"6. I am fully aware of the crimes committed by Fabian and know that my wife is deeply distressed that our son could do such things but we believe that Fabian's behaviour can in part be attributed to such factors as the violence he suffered as a child [at] the hands of his natural father and the violence he was witness to. Drugs and alcohol have also played their part." (Exhibit D)

Mr Hall went on to say that he and his stepson had spoken of the past on many occasions and continued:

"8. From my many conversations with Fabian I believe he has matured and now accepts responsibility for the crimes he committed. Fabian is a shy lad and is acutely embarrassed by and regrets what he has done. He has on many occasions expressed to me, his remorse for the pain and suffering his actions have caused others.
9.Because of his shyness and reluctance to show his feelings to persons other than family members, I fear that his inability to express himself may be interpreted wrongly by some people. I believe he genuinely regrets the (sic) what he has done. He has said on a number of occasions that he is keen to make amends for his past wrongdoing.

10.Fabian says he now feels he is more mature and this is an impression I also get whenever I speak with him.

11.I have noted reports on Fabian referring to the 'Risk of recidivism' and comments relating Fabian's past alcohol and drug abuse, alleged family relationship problems, negative peer influence and an inability to get income and look for jobs. I believe these problems, where they exist, have been addressed by Fabian and us.

12.As for attendance at courses to address the immediate risk of his offending behaviour, we believe that the records will show that Fabian did in fact attend such a course but through illness failed to attend the final day and as a consequence did not receive recognition for his attendance.

13.I dispute the alleged 'family relationship problems' and am of the view that the writer of the report concerned has overstated what are minor family disputes, which are common in every family." (Exhibit D)

Mr Hall said that he undertook to do whatever he could to get his stepson to settle down and to stay out of trouble with the authorities. His stepson knew, he said, that he had the love and support of all family members. Their lives would be shattered were he to be deported. Were he to be deported, he would have no family and friends to support him and, he understood, he would not be entitled to any unemployment benefit for a lengthy period of time.

In his oral evidence, Mr Hall said that he was aware that his stepson had been involved with drink and drugs. He had not known that drink and drugs were a problem and had never seen him drunk. Usually, Mr Hall said, he was in bed when his stepson came home as it was "pretty late". Mr Hall had talked to him and his behaviour would be good for a while and then he would lapse back into his old routines. The sort of boy his stepson was, he said, was not a bad boy; just influenced by others. Since his release from prison, his stepson had not been the same boy. He has seen him a couple of times each week since his release. There is a difference in his attitude, how he speaks and how he reacts. His stepson is not as careless and not as aggressive. At the same time, he is more caring and has a calmer outlook. He has become very helpful in that, for example, he will come and mow the lawn. His stepson also helps Mr Hall's neighbours. Whereas he would previously say "yeah, yeah, yeah" if Mr Hall tried to talk to him, he now listens to what he has to say and hears things through. Since his release, he just wants to go straight. Mr Hall felt that his stepson's girlfriend has had a good influence upon him.

Of his efforts to find a job, Mr Hall said that he knew his wife had taken her son to Centrelink to look for work. He had a hard time finding work. Mr Hall tried to find work for him at his place of employment but his stepson needed heavy machinery qualifications even to work as an offsider. In his earlier years, Mr Hall said, his stepson did not know what work was. He now knows that he has to work for things to come.

Ms Shirley Leng

Ms Leng confirmed that the family in Australia has lost close ties with their relatives in New Zealand. Of her younger brother's offences, she wrote:

"8. I am aware of the crimes committed by Fabian. Fabian and I are very close and I have visited him in prison on a number of occasions. He also telephones home several times every week. From my conversations with him it appears that most of the offences he committed were done at times when he was affected by drugs or alcohol. I believe some of his behaviour can also be attributed to the violence and physical abuse we all witnessed and suffered as small children at the hands of our natural father." (Exhibit C)

In her statement, Ms Leng also addressed the issue of her brother's manner:

"9. Fabian is shy and doesn't like to show his feelings to people other than family members but from what he has said to me, I believe he has matured and that he now accepts responsibility for the crimes he committed and knows how wrong it was to do what he did.
10.Fabian has had admitted to us that he was stupid at the age he committed the offences which led to him being imprisoned and admits that drugs and alcohol had effected his behaviour. He says he is no longer using drugs or alcohol and now desperately wants a chance to 'Get on with life'." (Exhibit C)

In giving oral evidence, Ms Leng said that, since his release, her brother has been sorry about what has happened, he has acknowledged that he was wrong and wants to change himself. She knows that he is sorry because it is so much harder to find work now that he has been in prison. Before his imprisonment, her brother was disturbed and fairly troubled. He was not himself and would do things that were not him. She no longer sees those qualities in him. He is trying to make a contribution to his family and has, for example, offered to look after her children and to mow his mother's lawn. Until he got his job, she said, he visited Centrelink each week to look for work. She knew that he did as she visited it herself. Her brother helped the family before he went to prison but he does it much better now. He has woken up to himself, she said, and is much happier as well as proud of himself. In addition, he has some ambition about his life. He wants to do a course at the South Brisbane TAFE.
Of her family's relationships, she wrote:

"11. I noticed that in one of the reports on Fabian it was suggested that Fabian has 'family relationship problems'. As one of the children in the family I can say that at various times we all had arguments with each other. Fabian and Jayde might have argued more often but usually it was over things like wearing each other's clothes. I don't believe that there was many more 'family relationship problems' with our family than any other family – in fact I believe we are closer than most and fortunate to have parents who care as much as ours do.
12.Fabian is my brother and I know he has the love and support of the whole family. If Fabian were deported I believe it would have a serious adverse effect on our family – a family that Mum in particular has worked so hard to raise." (Exhibit C)

Ms Leng said that her brother enjoyed a good relationship with his mother and stepfather. In the past, he would have arguments with his other brother about clothes but, apart from that, they were a very tight family and all was "great". She said that the effect on her would not be good were her brother to be deported. He is very close to her as well as a close uncle to her children. Once a month, he looks after the children and he visits them all the time to play with them. Ms Leng believes that Miss Herron is very good for her brother. She has helped him a lot, she said.

Ms Leng said that she was aware in the past that her brother had a problem with drink and drugs. They had talked about it before he went to prison. At that time, he had told her that he could not help himself. She believed that he did all the bad things under their influence. Since his release, she had not seen him drink except for one social occasion at their mother's house. She said that she is aware of the signs when a person is under the influence of alcohol or drugs and she has not seen those signs in her brother since his release.

Ms Leng said that it would break her mother's heart were her brother to be deported. For years, she has tried so hard to keep her family together. Her mother has been crying over her son's situation.

Miss Katrina Herron

Miss Katrina Herron, who is 19 years of age, lives with Mr Leng. They first met in 1995 through mutual friends. They did not start going out straight away, Miss Herron said in giving evidence. That only happened a few months after they met. Since then, they have had a couple of breaks of a month or two each as well as a break while Mr Leng was in prison. During his time in prison, Miss Herron said, she wrote to him. She did not visit him in prison as he did not want her to.

Miss Herron said that she spent a lot of time with Mr Leng before he went to prison. She said that they never went drinking and was not aware that he was committing any crimes. In relation to alcohol and marijuana, she said that she was not aware that he had any problems with them. After he went to prison in March, 1998, she became aware that he had been going to court on a regular basis. He had not wanted her to know, she said, as he was trying to protect her.

After his release in December, 1999, she and Mr Leng started to go out again on 26 December, 1999. At that time, she was aware that he was facing deportation. When asked whether she noticed any difference in him after his release, Miss Herron said that he had always been the same with her. What she knows is what he is. He has not changed from the person she knows him for. He always helps people both emotionally and, with friends and family, with money.

Miss Herron said that she works as a casual housekeeper and office assistant at a hotel and has done so since the beginning of 1999. She earns approximately $60.00 per week as an office assistant and it rises to $130.00 if she has work as a housekeeper. She and Mr Leng share the cost of the rent of $95.00 each week as well as electricity, food and the like. They are trying to save some money to set themselves up. Miss Herron said that she and Mr Leng looked for work together; he for a job and she for a second job. They would make telephone calls together. His job with the charity has made him very happy and given him a bit more confidence in himself. He talks about his day now whereas he would not before he went to prison.

Miss Herron said that she and Mr Leng usually go out together. On very rare occasions, he will visit his married sister. His old friends do not come to the house. Miss Herron said that she sees her own family almost daily. She works very close to her parents' house. If Mr Leng were deported, she would go with him. For her, there are no contacts in New Zealand.

Social Security payments in New Zealand

A letter from Detective Inspector Larry Reid, the New Zealand Police Liaison Officer in Sydney, who had been approached by an officer of the Minister's Department, deals with Mr Leng's eligibility for social security payments in New Zealand. He wrote:

"I have made inquiries with Income Support in New Zealand the Government agency responsible for unemployment benefit payment. I am advised that a New Zealand citizen is eligible as of right for a u/e benefit as long as he has lived in New Zealand at some time for a continuous period of two years. Where subject has been in paid employment then the level of payment is assessed on his previous 26 weeks income. The stand down period that would apply in the LENG matter would be one week from when he made application in New Zealand for a benefit." (Exhibit 3)

CONSIDERATION

I will consider first the seriousness of the convictions upon which the order for deportation was made. Mr Byrne submitted that I was limited in my consideration of seriousness to those convictions and that any other convictions were relevant only in relation to a consideration of recidivism. In the context of this case, I do not need to consider the point and will limit my consideration of this aspect to those offences identified in the deportation order.

In general terms, those offences were receiving, break, enter and steal and wilful and unlawful destruction of property during the night time. Mr Byrne submitted that a "serious offence" must be one that not only renders a person liable to deportation within the terms of the Act but must be one that comes within the categories identified in the Direction.

In considering Mr Byrne's submission, I have had regard to the approach adopted by the Full Court of the Federal Court in relation to the earlier policy statements issued by former Ministers in relation to deportation under the Act. In Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 19 AAR 266 (French and Drummond JJ, Neaves J dissenting), the majority said:

"… Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. …" (page 285)

Although now called a Direction, with which the Tribunal and any decision maker must comply, it is apparent from a reading of the document as a whole that it is not intended to make provision for every eventuality. Rather, it sets out guidelines. In so far as the seriousness of an offence is concerned, it states at the beginning of paragraph 11 that it is setting out "… examples of offences which are considered by the Government to be very serious" (emphasis added). Paragraph 11 does not purport to set out an exhaustive list of those offences which decision makers are to consider as very serious. It should also be noted that the Direction does not direct decision makers to have regard only to very serious offences. Among other matters, it directs them to have regard to "the seriousness and nature of the crime" (clause 10(a)) and to assess the "seriousness of the offender's conduct against the community" (clause 12). Although giving examples of very serious crimes, it does not limit a decision maker to considering only those which fall within that category.

The offences of which Mr Leng has been convicted and which are referred to in the deportation order are not specifically listed among those set out in paragraph 11 of the Direction. In more general terms, that of wilful and unlawful destruction of property during the night time comes within the description of "any other crimes involving violence or the threat of violence". That is so because, on Mr Leng's own evidence at the hearing as well as that in the Queensland Police report, he threw a cash register through a window to evade capture by the police. That is an offence involving violence even if the act of violence were directed to inanimate objects. The evidence leads me to find that there was such an act but it is not sufficient to make any finding as to whether it was directed also at any other person. Having regard to the Direction, therefore, that conviction was for a very serious offence.

Even if I am incorrect in this conclusion, I consider that I may consider whether the offences for which Mr Leng has been convicted and in relation to which the deportation order was made are serious. As I have said, the offences detailed in paragraph 11 are only examples of what is regarded as serious offences. They are offences which might commonly be thought to be serious but, in identifying them, the Direction is not purporting to exclude from consideration offences which might also be commonly thought of as serious or which might not be commonly thought of but which are no less serious for all their being out of the ordinary. To interpret the Direction otherwise would also lead to the situation in which an administrative decision maker were required to overlook offences which are thought by the community to be serious. It would lead also to the situation in which no weight would be given to those offences which are identified by Judges as serious but which are not specified in the Direction. That would not pay proper regard to the role of the criminal courts in trying offences and sentencing those who have been convicted of offences. In relation to their role, the Full Court of the Federal Court said in Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349 at 359 per Branson, Lindgren and Emmett JJ:

"45. To impugn the sentencing process … is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
46. While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practice questions would arise if the position were otherwise. The tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be sent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above at FLR 445-446 per Fox J.
…
48 In so far as the tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under s 200, the tribunal erred in law."

In this case, Mr Leng pleaded guilty to each of the three offences specified in the deportation order. When initially sentenced for these offences, he was also sentenced in relation to the five offences detailed in item 15 in paragraph 8 above. Those five further offences were not specified in the deportation order and were committed over a year later than the earlier offences. In giving his initial sentences, Judge Healey did not make specific reference to the circumstances of each of the offences. He made specific reference only to that of entering a dwelling house in the night time and described that as "extremely serious". Its seriousness was exacerbated, he said, by the fact that Mr Leng had grappled with the occupier of the house. This was not an offence specified in the deportation order. In sentencing Mr Leng after he had breached the probation order he had imposed in relation to each of the eight offences, Judge Healy did not differentiate among the offences. Instead, he described them all as "very serious offences". Limiting Judge Healy's remarks only to the offences specified in the deportation order, it follows that he considered that they were very serious. Judge Healy's remarks were reflected in the 18 month terms of imprisonment he imposed in relation to each of the offences.

Apart from a finding of seriousness, it is not apparent what facts were found by Judge Healy in imposing the sentence. For those, I must look to the nature of the offences themselves and to the facts I find on the evidence of Mr Leng and in the papers. Taking that evidence into account, I find that he broke into the Cannon Hills Bowls Club on 16 January, 1996 by forcing entry through a sliding glass door and took a cask of wine. On the same day and at the same place, he tried to evade capture by the police, who found him inside the Club, by throwing a cash register through a window. The offence of receiving involved bottles of rum which had been stolen by his friends. He was not present when they were stolen but, knowing they were stolen, he accepted them when they gave them to him. There is no evidence that he was an instigator of the theft. He was, rather, in the position of an opportunist who took advantage of his friends' unexpected "generosity" in sharing what they had taken.

On its face, the receiving offence might not be thought to be very serious. Judge Healy's remarks, however, did not differentiate it from the other offences and nor did his sentence of 18 months' imprisonment. It was given for each of the offences. His sentence reflects a degree of seriousness which would not seem to be apparent from the facts as they were revealed at the hearing but which might have been known to him. Taking all of these matters into account and relying particularly upon the length of the sentence and Judge Healy's remarks, I am satisfied that the offence is serious.

The offences of break, enter and steal and wilful and unlawful destruction of property during the night time are in a different category. Again, they were not differentiated from the rest by Judge Healy. There was greater evidence about these at the hearing and I have set out my findings above. They are serious offences, as indicated by the sentencing remarks and length of sentence imposed, for they show a wanton disregard for the property of others. That wanton disregard was shown in Mr Leng's destroying property in order to steal other property and in destroying property in order to evade apprehension.

I will turn next to Mr Leng's likely risk of recidivism. At the hearing, there was evidence both from Mr Leng and his family that he has changed since his release from prison. He is very sorry for what he has done and is now anxious not to re-offend. I accept that his family are very genuine in their assessment of his behaviour. They are upset by his actions in the past and are willing to help him. Miss Herron, Mr Leng's girlfriend, is of the same mind. She was an impressive witness and displayed maturity well beyond her years. It is clear that Mr Leng is dependent upon her and wants to make a new life for himself with her. With her help and that of his mother, he has managed to get through the period when he was unable to find employment and, as at the date of the hearing, was clearly satisfied with the direction that his new life was taking. These are all matters that militate against Mr Leng's committing further offences.

There are, however, other matters which need to be taken into account. One of these is the pattern of his previous offences. Since March, 1995 and until his imprisonment in March, 1998, there has been a steady pattern of offences. I find that the only substantial break in the pattern occurred for a 10 month period in 1997 between February and December. Ninety five days of that period prior to 6 June, 1997 is explicable by his being in custody in relation to other matters. After he was given probation on 6 June, 1997, he did not commit another offence until December, 1997 but that was followed by three others over two separate days in January, 1998. I find that neither the 95 days he had already spent in prison during 1997 nor the 3 year bond were sufficient to deter him from committing further offences in 1997/1998. He simply continued his previous pattern.

There is no detailed evidence of those subsequent offences. On the basis of Mr Leng's own evidence, I am satisfied that two of them are concerned with the theft of certain property: a backpack, CD rom and a wristwatch. No more is known about the breaking and entering of a dwelling with intent to commit an indictable offence. Mr Leng said that he does not remember it. He pleaded guilty to each offence and I accept that he committed each. I am also satisfied that he committed each offence being fully aware of the warning given to him by Judge Healy in placing him on probation that he would seriously consider giving him a lengthy term of imprisonment. I make that finding based not only on the evidence he gave to that effect at the hearing but his acknowledgment to Judge Healy that he understood what he was saying. Furthermore, he committed those offences having already spent 95 days in a prison. That time was spent in respect of another matter but that is not to the point. The significant point is that his experience in prison, combined with the warning from Judge Healy did not deter him from committing those further offences.

The other factor which did not deter him was the presence of his girlfriend. Certainly, they were not living together at the time but they were in a close relationship at the relevant time. I am satisfied on the basis of her evidence that Mr Leng has never shown her the side of him that leads him to commit the offences. She is certainly a good influence on him but it is questionable whether her fine qualities will be sufficient to deter him. That is so even though I accept that she is now some 2 years older than when he committed his last offences and they are now living together. Responsibility for continuing to provide a good influence that is sufficient for his continuing good behaviour is a lot to place upon her shoulders. That is not because she is not strong enough to provide it, or that his parents will not do all that they can to assist, but because his history is such that he has shown little willingness to take any responsibility for his own actions or to remedy his behaviour. Even in the positive actions he has taken since his release from prison, he has needed either his mother or his girlfriend at his side and he has not taken his own steps unaided. I refer particularly to his efforts to find employment when I find that both have either accompanied him in his quest or assisted him on the telephone. He has not made any effort of his own to find his stepfather's Uncle Steve but, as he said, his stepfather and mother would have done so.

I do not come to that conclusion lightly but upon an examination of his attitude in relation to the offences he has committed, his attitude to his problems with alcohol and drugs and his attitudes to his family. In relation to some of the offences of which he has been convicted, I find that Mr Leng continued to deny responsibility for them. This is despite having pleaded guilty to them. Those offences include the charges of assault on a police officer and the use of insulting words. In relation to the charges of aggravated assault on a female, I am not able to make a finding as to what actually happened. I do find, however, that Mr Leng considered that a girl jumped on his back. That is inconsistent with his pleading guilty to the charges. In relation to the offences at the Cannon Hills Bowls Club, Mr Leng at first refused to accept in giving his evidence that he was inside the bowls club or that he had thrown the cash register. He later admitted that he had done so.

I accept his mother considers her son to be shy and to have difficulty in expressing himself. That view is supported by Mr Leng's elder sister. Even making allowances for any such difficulties and shyness as well as for the fact that I accept that he does not remember some of the offences, I find myself unable to come to a conclusion other than that Mr Leng continues to fail to take responsibility for all of his past actions. Frequently, he either evades responsibility or directs it to another. He does so also in his explanation that he was committing offences because of the friends with whom he was associating.

I accept Mr Leng's evidence that he was frequently intoxicated when he committed the offences and that he has also used marijuana. Despite his acknowledgment that this was so, I find that Mr Leng has done very little to overcome it. Certainly, he attended some Alcoholics Anonymous meetings while he was in prison. I accept that he preferred to attend meetings of Toastmasters as they were more fun. He might well have benefited from the Toastmasters meetings and I accept that he disliked the format of the Alcoholics Anonymous meetings. Even so, I find that he showed very little insight into his immediate problems in choosing Toastmasters over Alcoholics Anonymous. Since his release from prison, I find that he has been able to avoid excessive alcohol but I also find that he has not taken any steps to arm himself against taking drugs or consuming excessive alcohol as he had done in the past. His mother, stepfather and girlfriend are not well placed to assist him in that regard for I find that they were not aware of his use, or excessive use, of them in the past. That might well have been through no fault of their own. His sister was aware but, although she sees him each week, she cannot be expected to ensure that he does not use drugs or drink alcohol excessively. The matter rests with Mr Leng himself and, given his past history, and his lack of insight into his problems, the risk of his reverting to them is high. That is so even though I find that he had been able to find a job in the two weeks prior to the hearing and he was, at the time, content with the course his life was taking.

Taking all of these matters into account, I am satisfied that there is a very real risk that Mr Leng will re-offend. Given the pattern of his previous offences, there is a very real risk that he will do so by committing crimes against the person or against property. There is, therefore, a very real risk to members of the Australian community and their property should he be permitted to remain. There is no evidence whether his deportation would be likely to prevent or to discourage similar offences by other persons but that does not alter the risk that I have found exists for the Australian community.

Deportation would mean that Mr Leng would have to make a home in a land which he has not lived in since he was 12 years of age. In view of Detective Inspector Reid's letter regarding the payment of unemployment benefits in New Zealand, I do not accept that he would be left without financial support were he to be deported. I am not satisfied, therefore, that he would be forced to a life of crime in order to support himself in that country.

I accept that he would be thrown upon his own resources and he does have resources. That is apparent in his artwork which was admitted in evidence at the hearing as well as his interest in music. He also has kind qualities which are shown by his wish to help others. All of those resources would have to be called upon for he would not be able to call upon any relatives in New Zealand as the family no longer has any close contact with them. He would not be able to call upon his mother, stepfather and sister for their assistance other than over the telephone or in letters. That would be hard for him but I accept Miss Herron's statement that she would go with him. He would not be totally alone and any hardship to him would be substantially diminished. Miss Herron, on the other hand, would be alone in caring for him. She is clearly very close to her parents whom she sees each day and she would be without that daily close contact. The burden upon her would be very great and is of considerable concern. According to the Direction, however, that concern must be given less weight for the nature of the relationship between Miss Herron and Mr Leng changed to one of cohabitation and a marriage like relationship after Mr Leng was aware that he was liable to be deported (clause 24(c)).

I also accept that Mr Leng's mother, Mrs Hall, would be extremely upset were her son to be deported. She has overcome great difficulties to keep her family together until now. His stepfather and sister would also be extremely upset and his niece and nephew would not have their uncle to play with. Although I accept that Mrs Hall suffers from rheumatic fever, there is no evidence that her condition would prevent her from travelling to New Zealand to visit him or that her condition would be exacerbated by his deportation.

Mr Leng's sister has two children and Mr Leng has a younger sister. The evidence is not clear as to the age of his younger sister but I have considered this matter on the basis that she is under the age of 18 years. On the basis of both Mr Leng's evidence and that of Ms Leng, I find that he is close to his elder sister's children. He sees them regularly and likes to play with them. I find that he also sees his younger sister when he visits his mother and stepfather. He is in a close relationship with each of the children but not in a relationship that mirrors that of parent and child. The presence in a child's life of an older brother or of members of his or her wider family, such as aunts, uncles and grandparents, can be an important one. They can provide a loving and warm environment as well as providing guidance and wisdom to a child and can do so in a way that complements that provided by his or her parents. On the evidence I have, I am satisfied that Mr Leng is a loving brother and uncle who plays with the children and brings them a lot of joy. He helps his elder sister from time to time by babysitting her children. I am satisfied that the children would miss Mr Leng were he to be deported. The absence of his caring nature to them needs, however, to be balanced against other features of his character such as his lack of insight into his own behaviour. On balance, while I consider that the children will always miss Mr Leng, the impact of his absence would be greatest in the short term but will ease over the ensuing months. That is particularly so in relation to his elder sister's children as they are quite young. In the longer term, I do not consider that their interests will be affected one way or the other. They will continue to have their parents in Australia. While lacking the presence of Mr Leng, they will continue to have the company of other members of their families.

The Direction requires that I balance the primary considerations against the other considerations. When I do that, I consider that the risk of Mr Leng's re-offending by committing crimes against the person and property of members of the Australian community outweighs the hardship which would flow either to him or to members of his family who remain in Australia.

For the reasons I have given, I affirm the decision of the respondent dated 2 November, 1998.

I certify that the one hundred and thirty preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President)
Signed:          ...........................................
  M Martinez     Associate
Dates of Hearing   15 and 16 May, 2000
Date of Decision   17 August, 2000
Counsel for Applicant                   Mr Byrne
Solicitor for Applicant                 Hawthorn Cuppaidge & Badgery
Representative for Respondent     Mr M Belcher
Solicitor for Respondent               Australian Government Solicitor

[2000] AATA 705

17 August 2000