Pupungatoa and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 1160
•23 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1160
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1162
GENERAL ADMINISTRATIVE DIVISION ) LAUAITU PUPUNGATOA Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Julian Block, Deputy President Date 23 November 2005
Place Sydney
Decision The decision under review is affirmed.
[Sgd] Mr Julian Block, Deputy President
CATCHWORDS
IMMIGRATION – spouse visa application – whether Visa Applicant is of good character – application for spouse visa rejected on the basis of not of good character – overview of evidence – consideration of Applicant’s evidence – discretion not exercised – decision under review affirmed.
Migration Act 1958 – sections 234, 235, 500 and 501
Ministerial Direction 21
Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148
Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714
Re Ayaad and Minister for Immigration and Multicultural [2000] AATA 935
Vaitaiki and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1209
REASONS FOR DECISION
23 November 2005 Mr Julian Block, Deputy President,
PART A – INTRODUCTION AND GENERAL
1. The decision under review is the refusal by a delegate of the Respondent of an application by the Applicant dated 19 December 2001 for a sub-class 820 (spouse) visa.
2. The Applicant was originally self-represented; this was so in respect of the first and second hearing days (2 and 3 November 2005); he was represented by Mr O Sikahele, a migration agent, on 14 November 2005, which was the third hearing day. The Respondent was represented by Ms S. Burnett of Clayton Utz, solicitors.
3. The Tribunal had before it the G-documents lodged pursuant to section 501G of the Migration Act1958 (“the Act”). The Tribunal also had before it exhibits as follows:
(a) Exhibit A1: a reference by Justin Masima, who is a Bishop of the Church of Jesus Christ of Latter-day Saints and who is referred to in these reasons as “the Bishop”. The church in turn is referred to in brief by the name by which it is commonly known (the “‘Mormon Church’”);
(b) Exhibit R1: a copy of the conditions of bond imposed on the Applicant by the Campbelltown Court on 6 December 2000;
(c) Exhibit R2: a bench copy in respect of an offence described as “charged by virtue of first instance warrant number 32844243”; and
(d) Exhibit R3: a record of an interview of the Applicant held on 7 December 2000.
4. This matter was heard in accordance with the expedited visa regime. This being so, this decision must be issued by no later than 24 November 2005. Moreover and pursuant to section 500(6H) of the Act, the Tribunal cannot have regard to any evidence of which written notice was not given by the Applicant at least two clear business days prior to the commencement of the hearing. At a telephone directions hearing held on 5 October 2005, the Applicant was warned in clear terms that this was so; that information was confirmed in a letter dated 27 October 2005 addressed to the Applicant by Clayton Utz, the second and third paragraphs of which read as follows:
“We note that in accordance with the Direction of the Tribunal made on 5 October 2005, you must serve and file any written statements of all witnesses upon whom you intend to rely together with your Statement of Facts and Contentions, should you choose to file a Statement, at least two clear business days prior to the date of the hearing and thus by not later than the close of business 28 October 2005.
We also draw to [sic] your attention to section 501(6H) of the Migration Act 1958 (Cth). That section states that the Tribunal cannot have regard to any information presented orally in support of your case unless the information is set out in a written statement and given to the respondent at least 2 business days before the hearing. This means that if you wish to give oral evidence at the hearing in favour of your application for review you must provide the respondent with a written statement setting out the evidence you intend to give by not later than the close of business 28 October 2005.”
5. At the telephone directions hearing referred to in the preceding clause, the Applicant was advised that it would be highly desirable that he be legally represented; the Applicant said that he was endeavouring to make the necessary arrangements. In the result and on the first and second hearing days he was not represented. Moreover, he said that he wished to call as witnesses his mother and older daughter. The Tribunal could not allow them to give evidence because no statements in respect of their evidence had been filed by the Applicant; the Tribunal has no discretion under section 500(6H) of the Act to allow evidence to be given notwithstanding that the provisions of that section have not been complied with. Indeed, the Bishop’s reference in respect of the Applicant dated 17 October 2005 (Exhibit A1) is not, in reality, a statement; however the Tribunal allowed him to give evidence and sought, not always successfully, to confine his evidence in such manner that it fell within the terms of the Exhibit A1. Exhibit A1 reads as follows:
“To whom it may concern,
As the Bishop of Loganlea Ward in the Logan Stake in Queensland for the Church of Jesus Christ of Latter-day Saints, as the Community Liaison Officer for the Logan-Beaudesert District Employed by the Department of Education, also working with the Tongan Community and a Marriage Celebrant.
Lauaitu Pupungatoa has play an active role’s in church community and made excellent progress. He has developed a very co-operative attitude and honest in his dealing with his fellowmen. He has been a member of the church of Jesus Christ of Latter-day Saints since the 11th December 1983 and made an Elder on 26th March 1995.
He has participated in the Church community activities with enthusiasm and positiveness include serving voluntary for the church of Jesus Christ of Latter –Day Saints as a full-time missionary for two years in Australia and Tonga, teaching people about the gospel of Jesus Christ and Gods plans for his children, and a home teacher. During his service he had many companions which he display leadership skills.
He is found to be trustworthy, reliable and caring. He is happy in disposition and eager to please. Lauaitu achieved good attendance in our Church community meeting.
For further information in regard to Lauaitu Pupungatoa standard in the Community please contact me.
Yours Sincerely”
6. The Respondent’s Statement of Fact and Contentions dated 27 October 2005, contains under the head of “Facts” the usual helpful chronological survey. The Tribunal includes in these reasons that content together with some of its content under the head of “Contentions” but confined to clauses 18 to 37 inclusive, and as follows:
“Facts
15.11.75 Mr Pupungatoa born in Tonga. 10.04.95 Mr Pupungatoa was granted a Subclass 428 (Religious Worker) visa. (G4) 19.04.95 Mr Pupungatoa entered Australia on Subclass 428 (Religious Worker) visa to serve as a missionary of the Church of Christ of Latter Day Saints. (G4) 26.03.96 Mr Pupungatoa departed Australia. 08.12.97 Mr Pupungatoa granted a Subclass 676 (Tourist (Short Stay)) visa. (G4) 19.12.97 Mr Pupungatoa entered Australia on Subclass 676 (Tourist (Short Stay)) visa. (G4) 18.03.98 Mr Pupungatoa convicted by Liverpool Local Court of travel or attempt to travel on train without paying fare, failing to comply with direction under subclause 41(1) - fined $100 on each count. (G6, p48) 13.03.98 Mr Pupungatoa's Subclass 676 (Tourist (Short Stay)) visa ceased to be in effect. Same day granted Subclass 686 (Tourist (Long Stay)) visa subject to "no work" condition (Condition 8101). (G4) 12.05.98 Mr Pupungatoa convicted by Campbelltown Local Court of Common Assault. (G6, p48) 13.06.98 Mr Pupungatoa's Subclass 686 (Tourist (Long Stay)) visa ceased to be in effect. (G4) 22.08.98 Mr Pupungatoa married Ms Joanna Roseann Russo. (G14, p129) 22.12.98 Evelyn Aroma Pupungatoa, daughter of Mr Pupungatoa and Ms Russo born at Campbelltown Hospital. (G14, p125) 07.09.99 Mr Pupungatoa arrested and charged with Affray. (G6, p49) 23.03.00 Sarha Lepolo Pupungatoa, daughter of Mr Pupungatoa and Ms Russo born at Campbelltown Hospital. (G14, p126) 25.07.00 Mr Pupungatoa convicted by Campbelltown Local Court of Affray. Fined $2,000 and court costs $56. (G6, p49) 14.08.00 Mr Pupungatoa charged with 3 counts of Assault occasioning actual bodily harm and affray. (G6, p50) 03.10.00 Mr Pupungatoa convicted by Campbelltown Local Court of 3 counts of assault occasioning actual bodily harm and affray. (G6, p50) 06.12.00 Mr Pupungatoa sentenced by Campbelltown Local Court for convictions on 3.10.00 to three years good behaviour bond and fined for failing to appear for assault matter on 12.05.98. (G6, p50)
Mr Pupungatoa detained at Villawood Immigration Detention Centre. (Attached bundle: DIMIA Request for ACM Services dated 6 December 2000)
21.12.00 Mr Pupungatoa granted Subclass 050 (Bridging E) visa, subject to "no work" condition (condition 8101). To cease on 12.01.01. (G4)
Mr Pupungatoa released from Villawood Immigration Detention Centre. (Attached bundle: DIMIA Request for ACM Services dated 21 December 2000)
12.01.01 Mr Pupungatoa granted Subclass 050 (Bridging E) visa, subject to "no work" condition (condition 8101). To cease on 19.12.01. (G4)
Mr Pupungatoa made valid application for a Subclass 820 (Spouse) visa.(G5)
26.10.01 Mr Pupungatoa charged with Sexual intercourse without consent. (G6, p51) 19.12.01 Mr Pupungatoa granted Subclass 050 (Bridging E) visa, with permission to work attached. (G4) 25.02.02 Mr Pupungatoa committed by Liverpool Local Court for trial of Sexual intercourse without consent (2 counts) and assault with act of indecency. (G6, p51) 27.05.02 Mr Pupungatoa taken into custody (pre-sentence custody). (G12, p94) 12.06.02 Mr Pupungatoa pleaded guilty to attempted sexual intercourse without consent, pleaded not-guilty to charge of sexual intercourse without consent. (G12, p94) 14.06.02 Mr Pupungatoa found not guilty of sexual intercourse without consent. (G12, p95) 04.10.02 Mr Pupungatoa convicted by Campbelltown District Court of attempted sexual intercourse without consent. Sentenced to 5y and 9m imprisonment, non-parole period of 3y and 3m. (G12, p94) 05.02.03 Notice of Intention to Consider Refusing visa under s 501(1) sent to Mr Pupungatoa. (G7) 08.01.04 Subsequent Notice of Intention to Consider Refusing visa under s 501(1) hand delivered to Mr Pupungatoa. (G8) Undated Letter from Pupungatoa responding to Subsequent Notice. (G9) 11.08.04 Provisional Order for Restitution made against Mr Pupungatoa in favour of victim for $19,250.00. (G11, p82) 19.08.04 Objection to Provisional Order for Restitution. (G11, p83) 30.12.04 Further Provisional Order for Restitution made against Mr Pupungatoa in favour of victim for $19,250.00. (G11, pp78-79) Undated Objection to Provisional Order for Restitution. (G11, p81) April 2005 Contact visit between Mr Pupungatoa and his children at Parramatta Correctional centre. (G14, p127) 24.05.05 Subsequent Notice of Intention to Consider Refusing visa under s 501(1) hand delivered to Mr Pupungatoa. (G10) 30.05.05 Mr Pupungatoa responded to Notice of Intention to consider refusing visa. (G11, pp92-93) 23.08.05 Minister's delegate decided to refuse the grant of Subclass 820 (Spouse) visa. 01.09.05 Decision hand delivered to Mr Pupungatoa. 09.09.05 Mr Pupungatoa applied for review of the decision by the Administrative Appeals Tribunal. Contentions
…
Protection of the Australian community
…
Seriousness and nature of conduct
…
18.Paragraph 2.7 of the Direction also states that it is the Government's view that the sentence imposed for a crime is an indication of the seriousness of the offender's conduct against the community. As discussed Mr Pupungatoa was sentenced to 5 years and 9 months imprisonment for the offence of attempted sexual intercourse without consent.
19.Paragraph 2.6(n) of the Direction states that the Government considers any other crimes involving violence or the threat of violence to be very serious. Mr Pupungatoa has a history of violence related offences. In 1998 he was convicted of common assault, in 2000 he was convicted of affray, and later that same year of assault occasioning actual bodily harm and affray.
20.Paragraph 2.6(c) of the Direction states that the Government considers to be very serious the making of a false or misleading statement in connection with entry or stay in Australia. On 12.01.01, Mr Pupungatoa in his Subclass 820 (Spouse) visa application made a false and misleading statement. In response to the question "Have you, or any other person included in this application, ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?" he answered "No" (G5, p40).
21.Further, Mr Pupungatoa has shown disregard for Australia's migration laws on more than one occasion. From 13 June 1998 until 21 December 2000, Mr Pupungatoa was unlawfully in Australia having overstayed his Tourist visa. There is also evidence to show that whilst unlawful Mr Pupungatoa engaged in work in Australia (G12, p110, attached bundle: Undated facsimile from Joanna Rose Russo - sent whilst Mr Pupungatoa detained at Villawood in 2000). Section 235(3) of the Act provides that it is an offence for an unlawful non-citizen who performs work in Australia whether for reward or otherwise. The Minister contends that this indicates the Parliament considers such conduct to be of a very serious nature.
Likelihood that the conduct may be repeated
22.The Minister contends that the Tribunal should find that there is a high likelihood that Mr Pupungatoa may re-offend in the future. The Direction at paragraph 2.10 states that a non-citizen with several previous convictions in Australia should be considered as having an increased risk of recidivism in light of that past behaviour. Further, the Minister contends that the fact that Mr Pupungatoa committed the offence of attempted sexual intercourse without consent whilst subject to a good behaviour bond imposed on him by the Campbelltown Local Court on 6 December 2000 for violence-related offences, indicates that the risk of re-offending is a serious and real one (G6, p55).
23.The Minister also contends that there is evidence to show that Mr Pupungatoa has not taken responsibility for his actions and this indicates that there is a high likelihood that he will re-offend. In his response the Notice of Intention to consider refusing the grant of the visa (24 May 2005), Mr Pupungatoa wrote on 20 May 2005 (G11, pp92-93):
"...my record is not as bad as some people.
...I did not rape anybody. The reason for the attempt has a lot to do with alcohol abuse.
As for the assault occasioning actual bodily harm which I received a 3 year good behaviour bond, I did not commit this crime and was not able to defend myself because I was taken to Villawood Detention Centre and was sentenced in my absence.
...the reason I ticked no about being convicted of a crime or offence is because I misunderstood the question because my English is poor.
I am very remorseful of my crime and I am sorry for the victim. I wish it did not happen and have decided not to drink alcohol again." (emphasis added)
24.The Minister notes that Mr Pupungatoa was convicted of 3 counts of assault occasioning actual bodily harm and affray on 3 October 2000 and he was detained in Villawood Immigration Detention Centre on 6 December 2000. Mr Pupungatoa was available to defend himself, but did not appear at Court (G6, p49). This is also clear from the fact that he was available to sign the 3 year good behaviour bond which was executed at his sentencing on 6 December 2000, before he was detained at Vilawood [sic] Immigration Detention Centre (Attached bundle: Bond to comply with Conditions dated 6 December 2000).
25.In response to an earlier Notice of intention to consider refusing the grant of a visa (8 January 2004), Mr Pupungatoa wrote (undated) (G9, p57):
"I know I have not a bad criminal record but I know the Police twist thing can I have a bad record in this country. I know I fail with not pass the character test but I know everyone it not perfect according to the human nature.
I have a criminal record but it is not real bad the Police hate me and twist thing on me." (emphasis added)
26.In response to a provisional order for restitution made in favour of the victim on 11 August 2004, Mr Pupungatoa wrote on 19 August 2004 (G11, p83):
"..I will attend this Tribunal to put across my case as to why this victim has been payed for injuries of sexual assault that did not occ[ur]." (emphasis added)
27.In response to a further provisional order for restitution made in favour of the victim on 30 December 2004, Mr Pupungatoa wrote (undated) (G11, p81):
"I pleaded guilty to attempted sexual intercourse which didn't involve any act of violence, I did not threaten her in any way. I disagree that the amount of $19,250.00 be paid as this claim was based on her lies that I committed sexual intercourse which I did not Commit, I therefore don’t agree to pay this amount for attempted sexual intercourse would for less signif..." (emphasis added)
28.The Minister contends that these documents clearly show that Mr Pupungatoa has not taken responsibility for his actions and that therefore there is a high likelihood that he will re-offend in the future.
General deterrence
29.The Minister contends that the Tribunal should find that if it were to affirm the decision to refuse to grant Mr Pupungatoa a visa, its decision may prevent or discourage similar conduct by like-minded persons (see paragraph 2.11 of the Direction).
30.The Minister contends that the Tribunal, having considered the seriousness and nature of Mr Pupungatoa's criminal conduct, the high likelihood of Mr Pupungatoa re-offending and the general deterrence effect that refusing to grant Mr Pupungatoa a visa may have in preventing similar conduct by other people in Australia, should find that the protection of the Australian community requires that the decision be affirmed and it should place significant weight on this consideration.
Expectations of the Australian community
31.Mr Pupungatoa has by his criminal conduct demonstrated that he is not a person of good character. Further, his conduct has demonstrated disrespect for Australian migration laws on multiple occasions. Apart from the very serious and repugnant nature of Mr Pupungatoa's criminal conduct which is relevant to considering what the expectations of the Australian community would be in this case, the Tribunal should also note the effect upon Mr Pupungatoa's victim. In particular the Minister refers to the comments of Judge Noorish[sic] where after noting the circumstances of aggravation involved in the offence (entering into a private home to commit the offence and the attempt to take sexual advantage of a person who was unable to resist his advances), his Honour said (G6, p55):
"The fact that [the victim] did not become aware of what [Mr Pupungatoa] was doing until the very last moment is no consolation to her. It must in fact be a matter of some horror for her up until the present time. Considerable horror for her I think would be a better way to express it, that a man would enter her bedroom while she was asleep and attempt to rape her as the prisoner did."
32.The Minister contends that this behaviour and effect on his victim, together with the fact that Mr Pupungatoa has a history of violence-related offences places ordinary Australians at risk.
33.The Minister contends that the Tribunal should find that the Australian community expects that residents respect and abide by Australian laws and that expectation was broken when Mr Pupungatoa engaged in very serious criminal conduct. The Minister contends that the Tribunal should find that given the serious nature of Mr Pupungatoa's criminal conduct, the likely adverse effect it has had on his victim, and the fact that there is a high likelihood that he will re-offend given his failure to take responsibility for his actions, the Australian community would expect that he not be entitled to the grant of a visa. The Minister contends that this consideration should be given significant weight.
The Best Interests of the Child
34.Mr Pupungatoa has two children with Ms Joanna Roseann Russo: Evelyn Aroma Pupungatoa born on 22 December 1998 (now aged 6) and Sarha Lepolo Pupungatoa, born on 23 March 2000 (now aged 5). Paragraph 2.15 of the Direction states that it is the Government's view that, generally speaking, the child's best interest will be served if the child remains with its parents.
35.However, the paragraph goes on to note that countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to, any evidence of abuse or neglect or any evidence that the child has suffered or experienced physical or emotional trauma arising from the non-citizen's conduct. On 6 May 2005, the NSW Department of Community Services ("DOCS") advised DIMIA that it would not be placing the children with Mr Pupungatoa upon his release from prison (G14, p128). The Minister contends that this indicates that Mr Pupungatoa is not fit to serve a primary caring role. This, the Minister contends, is a strong countervailing consideration which indicates that it may not be in the best interest of the children for them to remain with Mr Pupungatoa. This, the Minister contends, is supported by the record of the contact visit between Mr Pupungatoa and his children in April 2005. There it is recorded that the visit lasted 25 minutes. Sarah was "okay" with the visit but Evelyn was "uneasy". Further, the DOCS officer advised DIMIA that there had been "huge neglect" from both parents and the children had, on several occasions, witnessed Mr Pupungatoa's domestic violence towards his wife (G14, p127). The Minister contends that the report of the visit together with Mr Pupungatoa's behaviour towards his wife in the presence of his children indicates that it may not be in the best interest of the children for them to remain with Mr Pupungatoa. The Minister contends, therefore, that no weight can be given to the consideration of best interests of the children.
36.Alternatively, the Minister contends that the nature of Mr Pupungatoa's relationship with his children is such that very little weight can be given to this consideration. Paragraph 2.16 of the Direction states that when considering the best interests of the child, decision-makers should have regard to, among other matters, the nature of the relationship between the child and the non-citizen, the duration of the relationship (number and length of separations), the age of the child, and the likely effect of separation. The Minister contends that the contact visit recorded above indicates that Mr Pupungatoa has a relatively poor relationship with his children. Further, the Minister notes that Mr Pupungatoa has been in custody since May 2002 and his children are currently aged 5 and 6. The Minister also contends that it is relevant that upon his release the children will not be placed with Mr Pupungatoa. Therefore, the Minister contends that very little weight can be given to the consideration of best interests of the children.
37.The Minister also notes that Mr Pupungatoa has a poor attitude generally to children as evidenced by the fact that the offence of attempted sexual intercourse without consent was committed in the presence of the victim's child (G12, p98).”
7. Because the Applicant was originally self-represented, the Tribunal (after obtaining the Applicant’s consent) asked Ms Burnett to commence with a short opening summary as to the issues, in the hope that that summary would be of assistance to the Applicant.
8. On the first hearing day, the hearing started late (at about 11.30 am) because there was a delay in bringing the Applicant from prison to the hearing. There was (despite undertakings to the contrary) a delay (but not as long) also on the second hearing day. By midday on the second hearing day, the Applicant was being cross-examined. His denials of much that was in fact undeniable led me to consider that natural justice required me, despite the urgency factors involved, to again suggest to the Applicant that he needed legal representation. He asked for an adjournment for this purpose and Ms Burnett, after taking instructions, advised the Tribunal that the Respondent neither opposed nor consented in respect of that application. It was in these circumstances that the hearing was adjourned to 14 November 2005. The Applicant was warned that he might be cross-examined as to his evidence already given and moreover, that the effect of section 501(6H) of the Act was that the Tribunal would be under the same constraints as to evidence.
PART B – MS BURNETT’S OPENING ADDRESS
9. Ms Burnett commenced by noting that the Applicant could not pass the character test; this must be so having regard to the sentence of five years and nine months imposed on him in October 2002. The consequence is that this matter falls to be decided in accordance with the discretion contained in Part 2 of Direction 21.
10. Ms Burnett said that the Applicant made false and misleading statements in his application for a spouse visa in that he answered “No” to the question of whether he had any convictions (G, p 40).
11. The Applicant first came to Australia in 1995 on a religious worker’s visa. He departed Australia in March 1996. In December 1997, he applied for a tourist visa and returned to Australia. His tourist visa expired in March 1998 and he remained unlawfully in Australia until December 2001 and when on the basis of his spouse visa application, he received a bridging visa.
12. The Applicant was convicted of a number of offences culminating in the offence which resulted in the sentence imposed in October 2002. A notice of intention to consider refusal of his application for a spouse visa was sent to the Applicant in February 2003; Ms Burnett said that it elicited no response. A subsequent notice dated 8 January 2004 brought a response (referred to later in these reasons). In August 2004, the Applicant was ordered to make restitution to the victim in the amount of $19,250; he objected to that order and he also objected to a further restitution order granted in December 2004. Notice of intention to refuse his application was served on the Applicant while in prison in May 2005. Subsequently, a notice of refusal was served and the Applicant applied, under this application for the review of that decision; he did so notwithstanding that he does not have the support of his wife assuming that she is still his wife, which appears to be doubtful.
13. Ms Burnett advised the Tribunal that the two children were in the care of the Department of Community Services in consequence of the neglect by both parties. G, p 127 is a file note by Adam Kosack, dated 10 May 2005 reading as follows:
“Telephone conversation with an officer of Department of Community Services on 02 MAY 2005
On 02 MAY 2005 I rang 4629 9500 and then had a conversation with Debbie, a case worker with Department of Community Services (DOCS).
I introduced myself and explained my interest in Mr Pupungatoa and his children’s circumstances.
There was no evidence in DOCS’ papers to show that Mr Pupungatoa had been physically abusive towards either child.
On or about 10 February 2005, Evelyn Pupungatoa and Sarah Pupungatoa came into the custody of DOCS. There had been “huge neglect” from both parents and the children had, on several occasions, witnesses Mr Pupungatoa’s domestic violence towards his wife.
A contact visit between Mr Pupungatoa and his children was arranged at Parramatta Correctional Centre in April 2005. It lasted 25 minutes. Sarah was okay with the visit but Evelyn was uneasy.
DOCS is now considering placing the children with Mr Pupungatoa’s parents and await an assessment regarding the parents’ suitability.
Adam Kosack
Parramatta
10 MAY 2005”
14. However, the Applicant will not, when he is released, be regarded as a placement option; G, p 128, a letter dated 6 May 2005 to Mr Kosack, Department of Immigration, Parramatta from NSW Department of Community Services (“DOCS”) reads as follows:
“Dear Mr Kosack
As you are aware, this department is currently working with Mr Laviatu [sic] Pupungatoa’s two children, Evelyn and Sarah. Both children are currently in the care of the Minister of the Department of Community Services.
The Department will not be assessing Mr Pupungatoa as a placement option for his children upon his release from Goal. The reasons for this is the nature of the offence that he has been incarcerated for.
Should you have any further queries, please do not hesitate to contact me on the above number.
Yours Sincerely
(signed)
Debbie Cumpstone / Gail Chandler
Child Protection Caseworker / Manager Casework
Campbelltown West CSC / 09/05/05”
PART C – THE APPLICANT’S EVIDENCE: Evidence-in-Chief
15. The Applicant gave evidence with the aid of an interpreter in the Tongan language. However, his years in New Zealand and Australia have, as might be expected, had the effect that he is reasonably fluent in English and he often answered questions in English without waiting for the interpreter. It must also be said that he all too often furnished answers which were not answers to the questions asked. The Tribunal sought to lead him through his evidence-in-chief.
16. The Applicant was born is Tonga on 15 November 19975. He went to Liahona High School in Tonga and left in 1994 at the end of Year 11. By that time, his parents had moved to New Zealand and the Applicant and his younger brother Oscar were left in the care of their grandparents. The Applicant said that his father went to New Zealand in 1987 and that his mother followed in 1998. It was pointed out to him that this latter statement could not be correct and he altered his evidence so as to state that she went to New Zealand in 1988.
17. Having left school (but without ever working in Tonga), the Applicant in February 1994 went to New Zealand where he joined his parents. He went to school (Mount Albert School) in Auckland for one year. However, he apparently did not write any exams at that school nor apparently did he do so in Tonga and he does not have any certificate of completion of any equivalent of the HSC or any lesser scholastic qualification.
18. The Applicant said that his father had a plan for him to be a missionary for the Mormon Church in Australia. Accordingly and while in New Zealand, he had three weeks religious training in Hamilton before coming to Australia in February 1995.
19. On arriving in Australia, the Applicant stayed in Campbelltown. The Mormon Church had arranged accommodation for him and a companion. They (the Applicant and his companion) went preaching from door to door and also in shopping centres in Campbelltown and Liverpool. (The Tribunal notes that his English, even at this time, is not completely fluent or grammatical and is sometimes difficult to comprehend. Assuming that it was not as good in 1995, it is hard to understand how a youth with only three weeks religious training and imperfect English could be a missionary in Sydney. The Bishop in his evidence said that the Applicant had had religious training at his school in Tonga; the Applicant, when talking of his schooling in Tonga noted that he took English, mathematics, science and music at that school, but made no mention whatsoever of any religious education of any kind).
20. In 1996, the Applicant returned to Tonga to, so he said, preach the gospel. From Tonga and in March 1997, he went to New Zealand. In New Zealand he obtained occasional removal work.
21. In December 1997, the whole family (the Applicant, his father, his mother and his brother) came to Australia for a holiday of three months. (As to where the money for a holiday of this kind was found was never explained, more particularly having regard to the fact that the Applicant said that his failure to obtain legal representation was caused by the fact that the family had no money).
22. Once back in Australia, the Applicant did not resume missionary work. He and his family stayed initially with an uncle (and the uncle’s girlfriend) in Campbelltown.
23. Shortly after Christmas in 1997, the Applicant met his wife, Joanna Russo, by chance at the Minto train station. His evidence was that immediately after he met her casually, she asked him to come home with her, that he did so, that he slept with her, and that he immediately moved in with her.
24. The Applicant’s wife, who was born in 1977, was not then working; she was drawing social security and also a disability pension; moreover, she was living in housing commission accommodation.
25. The Applicant’s wife became pregnant very soon thereafter. The Applicant did not initially accept that the child was his and required her to obtain proof of his paternity and she did so; Evelyn was born in December 1998.
26. Although the Applicant did not have permission to work in Australia, he took casual removal jobs. He said that his wife ordered him to do so, more particularly because she was pregnant and that he was thus required “to do something”.
27. The Applicant admitted the train offences in March 1998, but he denied that he was convicted of assault on his wife or that he failed to appear in court. He said that he did appear in court together with his wife and the judge dismissed the case. He said that Joanna and he had had an altercation, which was reported to the police by neighbours.
28. The Applicant and Joanna were married in August 1998; at that time he was earning (illegally) about $100 to $200 per week and Joanna was drawing social security.
29. Although the Applicant’s criminal record indicates a number of assault convictions of varying degrees of seriousness, he admitted one only. He said that he was involved in a fight in 1999; he said that “a fellow came and stole my guitar while I was asleep with my wife. I don’t know how he got in”. When asked how he knew who had taken the guitar, he said “I found the guitar with him. He is my best friend. His name is Eric. He is from Samoa”. This resulted in a fight, which in turn resulted in his being obliged to report to the police twice a week.
30. In leading the Applicant through his evidence, I put to him that in October 2000, according to the G-documents, he was convicted of three counts of assault occasioning bodily harm. The Applicant said that there was only one occasion involving bodily harm and that was his fight with Eric, which resulted in his being obliged, as I have said, to report to the police twice a week (TS 38).
31. The Applicant then said (at TS 39) that he could not have committed the three assault offences because he was then in Villawood. The Applicant said (TS 38) that the chronology prepared by the Respondent “was all lies”.
32. This is a convenient time at which to include two documents of considerable importance in respect of this Application. In the first instance, the Applicant’s criminal record is set out at G, p48 to G, p52 and appears (formatted for these purposes) on the following five pages:
INTENTIONALLY LEFT BLANK
NEW SOUTH WALES POLICE
CRIMINAL HISTORY – BAIL REPORT
THE PARTICULARS CONTAINED IN THIS PRINTOUT ARE THE RESULT OF A NAME
CHECK, AND NOT VERIFIED BY FINGERPRINTS. THEREFORE THERE IS NO
GUARANTEE THAT THE RECORD REFERS TO THE PERSON OF INTEREST.***************************************************************************
* STATUS LEGEND *
* RV - REMAND VERIFIED C ~ CRS UPDATED ELECTRONIC OUTCOME *
* CO - CRS UPDATED V - CRS VERIPIEP ELECTRONIC OUTCOM *
* EU – ELECTRONICALLY UPDATED CV - CMS CREATED AND VERIFIED *
* EV - ELECTRONICALLY VERIFIED *
***************************************************************************CNI NUMBER : 685845857
NAME : PUPUNGATOA, LAVAITU DOB : 15/11/1975
ALIAS NAMES : MAKASINI, BENJAMIN DOB : 11/07/1975MAKASINI, BEN 11/07/1975
MAHASINI, BENJAMIN 11/07/1975
PUPUNGATOA, LAVAITO 15/11/1975
AITU 15/11/1975
PUPUNGATOA, LAUAITO 15/11/1975
PUPUNGATOA, OSCAR 14/04/1978
PUPUNGATOA, LAUAITU 15/11/1975
PUPUNGATOA, LAVAITA 15/11/1975
CHARGE COURT NAME COURT DATE
DATE CHARGE STATION CHARGE NO
STATUS OFFENCE SENTENCE
------------------------------------------------------------------------
02/03/1998 LIVERPOOL LOCAL COURT 18/03/1998LIVERPOOL H 4314772
** FINGERPRINTED **
CV 002 TRAVEL OR ATTEMPT TO TRAVEL ON FINE : $100 COSTS – COURT
TRAIN WITHOUT PAYING FARE : $51
CV 001 FAIL TO COMPLY WITH DIRECTION FINE : $100 COSTS – COURT
UNDER SUBCLAUSE 41(1) : $51
28/04/1998 CAMPBELLTOWN LOCAL COURT 12/05/1998
MACQUARIE FIELDS H 4582372
** FINGERPRINTED **
CV 001 COMMON ASSAULT-T2 WARRANT TO ISSUE : (LC
22994)
PAGE 1 obtained by WATTON on 28.07.04 at 16:09
NEW SOUTH WALES POLICE
CRIMINAL HISTORY – BAIL REPORT CONT’D
CNI NUMBER : 685845857
NAME : PUPUNGATOA, LAVAITU DOB : 15/11/1975
CHARGE COURT NAME COURT DATE
DATE CHARGE STATION CHARGE NO
STATUS OFFENCE SENTENCE
------------------------------------------------------------------------07/09/1999 CAMPBELLTOWN LOCAL COURT 25/07/2000
MACQUARIE FIELDS H 7289137
** FINGERPRINTED **
CV
CV 001 AFFRAY-T1 FINE : $2,000 COSTS –
COURT : $56
07/09/1999 CAMPBELLTOWN LOCAL COURT 26/07/2000
MACQUARIE FIELDS H 7289137
** FINGERPRINTED **
CV 004 COMMON ASSAULT DISMISSED $10 : (SDC
35392)
07/09/1999 CAMPBELLTOWN LOCAL COURT 03/10/2000
MACQUARIE FIELDS H 7289137
** FINGERPRINTED **
CV 003 FAIL TO APPEAR (CAMPBELLTOWN CONVICTED S25(2) WARRANT
120598) (FIRST INSTANCE WARRANT TO ISSUE : (LC 32837)
- 32844243)
12/11/1999 CAMPBELLTOWN LOCAL COURT 03/12/1999
MACQUARIE FIELDS H 10067596
** FINGERPRINTED **
CV 001 SEXUAL INTERCOURSE WITHOUT NOT BEFORE COURT :
CONSENT-S1 (RELISTED) (SDC 35392)
12/11/1999 CAMPBELLTOWN LOCAL COURT 03/09/2000
MACQUARIE FIELDS H 10067596
** FINGERPRINTED **
CV
PAGE 2 obtained by WATTON on 28.07.04 at 16:09
NEW SOUTH WALES POLICE
CRIMINAL HISTORY – BAIL REPORT CONT’D
CNI NUMBER : 685845857
NAME : PUPUNGATOA, LAVAITU DOB : 15/11/1975
CHARGE COURT NAME COURT DATE
DATE CHARGE STATION CHARGE NO
STATUS OFFENCE SENTENCE
------------------------------------------------------------------------14/08/2000 CAMPBELLTOWN LOCAL COURT 03/10/2000
MACQUARIE FIELDS H 9536960
** FINGERPRINTED **
CV 001 AOABH (FIRST INSTANCE WARRANT - CONVICTED S25(2) WARRANT
33985328) TO ISSUE : (LC 30779)
CV 002 AOABH (FIRST INSTANCE WARRANT - CONVICTED S25(2) WARRANT
33985336) TO ISSUE : (LC 30779)
CV 003 AOABH (FIRST INSTANCE WARRANT - CONVICTED S25(2) WARRANT
33985344) TO ISSUE : (LC 30779)
CV 004 AFFRAY (FIRST INSTANCE WARRANT - CONVICTED S25(2) WARRANT
33985310) TO ISSUE : (LC 30779)
11/11/2000 CAMPBELLTOWN LOCAL COURT 06/12/2000
MACQUARIE FIELDS H 12327888
** FINGERPRINTED **
CV 002 ASSAULT OCASSIONING ACTUAL BOND S9 : 3 YEARS (LC
BODILY HARM (FIRST INSTANCE 30779)
WARRANT – 34149840)
CV 003 ASSAULT OCASSIONING ACTUAL BOND S9 : 3 YEARS (LC
BODILY HARM (FIRST INSTANCE 30779)
WARRANT – 34149858)
CV 004 ASSAULT OCASSIONING ACTUAL BOND S9 : 3 YEARS (LC
BODILY HARM (FIRST INSTANCE 30779)
WARRANT – 34149866)
CV 001 FAIL TO APPEAR (CAMPBELLTOWN FINE : $500 COSTS - COURT
120598) (FIRST INSTANCE WARRANT : $56
– 34149831)
CV 005 AFFRAY (FIRST INSTANCE WARRANT - FINE : $500 COSTS - COURT
34149874) : $56
PAGE 3 obtained by WATTON on 28.07.04 at 16:09
NEW SOUTH WALES POLICE
CRIMINAL HISTORY – BAIL REPORT CONT’D
CNI NUMBER : 685845857
NAME : PUPUNGATOA, LAVAITU DOB : 15/11/1975
CHARGE COURT NAME COURT DATE
DATE CHARGE STATION CHARGE NO
STATUS OFFENCE SENTENCE
------------------------------------------------------------------------26/10/2001 LIVERPOOL LOCAL COURT 25/02/2002
MACQUARIE FIELDS H 12737972
** FINGERPRINTED **
CV SEXUAL INTERCOURSE WITHOUT CONSENT- COMMITTED FOR TRIAL :
SI (2 COUNTS)
EV 002 ASSAULT WITH ACT OF INDECENCY-T2 COMMITTED FOR TRIAL :
26/10/2001 CAMPBELLTOWN DISTRICT COURT 04/10/2002
MACQUARIE FIELDS H 12737972
** FINGERPRINTED **
CV 001 SEXUAL INTERCOURSE WITHOUT ALTERNATIVE IMPRISONMENT
CONSENT-SI : 5 YEARS & 9 MONTHS
COMMENCING 270502
CONCLUDING 260208 NON
PAROLE PERIOD : 3 YEARS &
3 MONTHS CONCLUDING 26
0805 (DC 365531) COURT
CASE REFERENCE NUMBER
02/21/3080
CV 003 SEXUAL INTERCOURSE WITHOUT INDICTED FOR: NOT GUILTY
CONSENT-SI BY VERDICT : ALT OFFENCE
(0014) ATTEMPT SEXUAL
INTERCOURSE WITHOUT
CONSENT (DC 365531) COURT
CASE REFERENCE NUM
BER 02/21/3080
*** END OF REPORT ***
PAGE 4 obtained by WATTON on 28.07.04 at 16:09
NEW SOUTH WALES POLICE
CRIMINAL HISTORY – BAIL REPORT
THE PARTICULARS CONTAINED IN THIS PRINTOUT ARE THE RESULT OF A NAME
CHECK, AND NOT VERIFIED BY FINGERPRINTS. THEREFORE THERE IS NO
GUARANTEE THAT THE RECORD REFERS TO THE PERSON OF INTEREST.CNI NUMBER : 685845857
NAME : PUPUNGATOA , LAVAITU DOB : 15/11/1975
*** NO CRIMINAL INFRINGEMENT NOTICE RECORDS FOUND ***
*** END OF REPORT ***
PAGE 1 28.07.04 at 16:09
33. The sentencing remarks of His Honour Judge Norrish on 4 October 2002 proved to be of such importance and were referred to, more particularly in closing submissions on the third hearing day, in such manner and so often that it is desirable that they be included in these reasons in full. The sentencing remarks appear at G, p94 to G, p115 and they read as follows:
“HIS HONOUR: Mr Pupungatoa, I will tell you now what sentence I am to impose but I have to give my reasons, on other words I have got to give a judgment so when I tell you what the sentence is going to be, I will ask you to sit down so I can give my reasons.
I propose to sentence you to five years nine months imprisonment and I propose to fix a non parole period of three years three months, do you understand that to date from the date you came into your pre-sentence custody from 27 May 2002. In my view the appropriate sentence for this offence was one of seven years but I have given you a discount of twenty per cent in accordance with the guideline judgment of Thompson and Houlton. That is a discount for your plea of guilty.
The prisoner, Lauaito Pupungatoa, appears for sentence before me in relation to a charge alleging that he on 26 October 2001 at Minto in the State of New South Wales did attempt to have sexual intercourse with Natasha Nicholas without the consent of Natasha Nicholas knowing she was not consenting. To that charge he pleaded guilty before me when he was arraigned on 12 June 2002.
The prisoner pleaded not guilty to another charge in the indictment to which the charge he pleaded guilty was an alternative. That other charge alleged that he on 26 October 2001 at Minto in the State of New South Wales did have sexual intercourse with Natasha Nicholas without the consent of Natasha Nicholas knowing she was not consenting.
The trial was conducted by judge alone and in a judgment delivered by me on 14 June 2002 I found the accused not guilty of the principal charge. The maximum penalty for the charge to which the prisoner pleaded guilty is one of fourteen years.
In my judgment on the verdict, I set out extensively the facts in relation to the allegation to which the prisoner had pleaded not guilty. Those facts bear a direct relationship to the circumstances of the offence to which he pleaded guilty. It would be clear from an analysis of those facts as to the basis upon which the prisoner was guilty of the alternative charge of attempt.
I do not propose to repeat the facts that I have detailed in my earlier judgment, so far as the matter is concerned from the perspective of the complainant and evidence of those involved in the investigation of the matter including various accounts the complainant gave after the relevant events. One need only go to pages 8 to 15 of my earlier judgment. So far as the accused's accounts to the police were concerned, including his accounts to police when an electronic interview was conducted, I refer to pages 22 to 24 of the judgment I previously gave when entering a verdict of not guilty in relation to the principal charge.
There are some aspects however of the facts that need to be repeated for the purposes of explaining the basis upon which I sentence the prisoner as I have foreshadowed.
The prisoner and the victim were known to one another but they did not have a close friendship. My finding on the facts is that the prisoner was more familiar with the partner of the victim over the period of some weeks that they had known one another. The prisoner and the victim lived not far apart in Minto. The victim lived with her child and her partner. However, on the night before and during the morning before the commission of this offence which occurred some time between 8 and 9am on the morning of 26 October 2001, the prisoner and the victim met one another at various clubs in the Campbelltown area.
As I explained in my earlier statement of facts, the victim drank a considerable amount of alcohol and the prisoner drank some alcohol himself. They danced together and there may well have been some, albeit non sexual, connection during the course of the evening and the morning. Be that as it may, however, the victim and the prisoner separated some time before 7am. The victim returned to her home quite intoxicated, perhaps heavily intoxicated, although she described herself as being "quite tipsy" and collapsed into her bed in the clothes she had been wearing that night~ The prisoner apparently returned to his home from the licensed establishment where he had last seen the victim and claims to have taken his children to pre-school that morning before returning to the neighbourhood where he lived, in which circumstances he entered the house of the victim.
A critical issue in this matter is determining whether the prisoner represents a danger to the community. He has no prior convictions for assaults of a sexual nature although he has convictions for assault to which I will refer shortly. If the evidence in this case was that the prisoner had entered the premises of a stranger to commit the crime that he has admitted, I would have no doubt concluding that the prisoner was a danger to the community and the element of personal deterrence should be given greater weight than I propose to give it in this case, although there is an element of personal deterrence required in the sentence to be imposed.
As it transpired, the prisoner had been to the victim's home on prior occasions, although for brief periods of time, to see the victim's partner. I am satisfied on the evidence available to me that the prisoner entered the premises not having, if I could use the expression, stalked or "cased" the premises to ensure the victim was alone.
As to whether the prisoner was aware when he entered the premises that the victim was alone or not, I cannot say but certainly I do not conclude on the facts available to me that his attendance on the premises was for the purpose of sexually assaulting the victim in circumstances where he understood she would be vulnerable. It is quite clear on the evidence available to me that when he entered the premises he would have had no knowledge of where the victim was, if indeed she was in the house.
What had happened of course, as I earlier explained in my previous judgment, was that the victim's partner had left the house for some domestic purpose. The victim was alone in her bedroom asleep. Her child was in the room presumably asleep or at least restrained in her cot and the prisoner on entering the premises made his way to the bedroom. There he found the victim lying on the bed and as I detailed in my earlier summary of the facts committed the offence of attempting to have sexual intercourse without consent.
I see this crime, notwithstanding some sinister connotations, as being a crime, if I might use the expression without denigrating its seriousness, of opportunism rather than design or deliberation. I believe it is important to point out, as his counsel has pointed out to me in his skilful submissions on behalf of the prisoner, that when the victim was stirred by the weight of the prisoner upon her body, he desisted from any further attempt to sexually assault her.
It seems to me, given the fact that she was alone in the house, if the prisoner had planned this matter or was a person who would ordinarily be regarded as a sexual predator, then her awakening would not have been sufficient to deter him from completing the act he was attempting at the relevant time. In fact when the victim awoke, the prisoner expressed regret for his conduct in various ways which I have outlined in my earlier judgment. Although that regret may have been simply that he was interrupted in the course of doing what he wished to do, it seems to me that his statements reported by the victim are some immediate expression of contrition which must be taken into account in sentencing him.
On the other hand, this crime involved the entry of a private home to commit it and that is a matter of significant aggravation. Further, a matter of significant aggravation is that he attempted to take sexual advantage of a person who was unable to resist his advances. The extent to which she was intoxicated at that time may not have been fully appreciated by the prisoner, but he would have seen her lying on the bed effectively unconscious from the alcohol fully clothed when he went into the bedroom.
The fact that she did not become aware of what he was doing until the very last moment is no consolation for her. It must in fact be a matter of some horror for her up until the present time. Considerable horror for her I think would be a better way to express it, that a man would enter her bedroom while she was asleep and attempt to rape her as the prisoner did.
The Crown points to a further matter of aggravation that this offence was committed in the presence of a young child of infant years. This is a matter that, on one view of it, represents the disregard of the prisoner for the victim, on the other hand the extent to which the prisoner was fully aware of the child's presence is not abundantly clear.
I take into account that there is some possibility that the prisoner was to some extent disinhibited by alcohol. I take into account that the prisoner may have, arising out of the activities he and the victim got up to during the morning earlier and the night before, harboured some feelings for the victim. But that is not a matter that could seriously be advanced as a mitigating feature of this case. There is absolutely no suggestion in my view on the evidence that the victim was indicating to the prisoner, notwithstanding their prior relationship, any degree of consent or approval of his conduct. This is something I hasten to say that the prisoner sought to suggest in his interview with police and on my judgment on verdict I rejected. I reject that suggestion by the prisoner when I sentence him today.
A matter of some importance arises out of the material presented in the defence case of the prisoner. This material is to be found in the reports of Dr Thomas Oldtree-Clarke, a consultant psychiatrist, and in the report of a psychologist who has assessed the prisoner, Mr Peter Clark-Saunders.
Dr Clarke describes the prisoner as being a person, to use Dr Clarke's words, who has a "great naivety of character which reflects his cultural and lack of formal education”. He opines that the prisoner is functioning at a "mentally retarded level" being a person who is "illiterate and received little formal schooling”.
Dr Clarke says that "the prisoner is operating at the lower end of intelligence and is certainly educationally deprived. There is nothing to suggest this is of recent organic cause and it is probably that he has been like this for many years". Dr Clarke points to the seeming incongruous behaviour of the prisoner whilst in custody. He makes the observation that the prisoner seems "curiously happy and unaffected by gaol".
This may be a reflection of the prisoner's naivety, bearing in mind he has never had any extensive period of custody before being arrested in relation to this matter, or it may be a reflection of the fact that he is a person of simple intellectual achievement and capacity.
The psychologist in like terms describes the prisoner as being a person operating at the lower end of intelligence and is certainly educationally deprived. His various tests reflect a very low verbal and performance IQ scores although his full scale IQ is somewhat higher than matters that reflect educational and cultural attainment. He describes the prisoner as being "in the extremely low range of intellectual ability”.
Other aspects of their opinions I will refer to shortly, but in the context of assessing the objective facts of the matter, I am required to consider the issue of whether the prisoner harbours a mental condition that may operate to mitigate the otherwise objectively appropriate sentence.
I note the evidence of the prisoner's mother, that the prisoner suffered a severe head injury when he was a young boy in Tonga requiring hospitalisation for a month. She was informed by a doctor that in the future the prisoner will have memory loss and will have damage to his thinking. She said that she was also told that it was possible that he may be quick to anger, and that afterwards he was very poor at school.
Notwithstanding the prisoner's claims of some intellectual or education achievement, I am prepared to accept that his educational level is very low. However, I must note that in respect of the facts of this case, there is no suggestion by the prisoner at any stage of any lack of memory of relevant events. There is no suggestion, save for the fact that a sexual assault is a crime of violence, that the prisoner acted in an angry fashion towards the victim or was motivated in any way by some anger which was entirely misplaced towards the victim. Of course in assessing the prisoner's presentation during the video interview with police, I saw no inability on the part of the prisoner to understand the nature of the allegations against him or any limitation, apart from the obvious language limitations, of articulating a response to those allegations and giving explanations to the police. In fact, on a number of occasions, the prisoner gave quite complicated or intricate or detailed exculpatory accounts. Although he suffered a disability by reason of English being his second language, and I took that into account on the last occasion to some extent, he was not so disadvantaged in my view by reason of his intellectual presentation as to have done himself a disservice significantly in the course of the interview.
This is a matter of considerable concern to me, because firstly Mr Clark-Saunders suggested in his reference to the history of head injury that there should be further neuropsychological testing. Also I take into account that evidence has been produced before me that Mr McNamara, who has skilfully represented the prisoner, through his instructing solicitors has sought Legal Aid Commission approval for further examinations to be undertaken. A letter advising that the cost of such further inquiries would be $4,000 including the cost of preparing the report and travel for the appointed neurologist highlights the work undertaken in this regard by the prisoner's solicitors. A letter from the Legal Aid Commission dated 18 September 2002 confirms that a request for a neurologist to see the prisoner has been refused.
If there was greater material available to me to demonstrate some connection between the prisoner's mental state and the circumstances of this offence, I would not have moved to sentence today. I am mindful that there is a possibility I have been deprived of important material but having regard to the opinions expressed by Dr Clarke, Mr Clark-Saunders, the evidence of the mother and the evidence available to me as to the circumstances of this offence, with some reservations I have determined that I should conclude the matter today. I trust that this course has not caused an injustice to the prisoner or to the community.
I should hasten to say that no application for an adjournment has been made by Mr McNamara. His submissions to me are simply that the intellectual limitations of the prisoner mitigate his culpability because compared to a person of average intelligence or above average intelligence, the prisoner would not have had a full appreciation of his actions and thus his culpability is diminished to a degree.
To my mind, the prisoner had a full appreciation of his actions towards the victim. But it is possible that the prisoner did not have a full appreciation of the consequences of his actions. Whether this is a cultural matter, a religious matter, bearing in mind the prisoner claims to be a deeply religious person or whether it is a result of his intellectual functioning, it is impossible for me, in the absence of any further evidence from the prisoner, to make a decision about. I am satisfied that the prisoner is not a danger to the community because of his mental condition. This opinion is expressed by Mr Clark-Saunders and in my view, notwithstanding the seriousness of this allegation, it is consistent with all the circumstances in which this 'offence was committed.
To my mind, this matter does fall within the ambit of the view of the Court of Criminal Appeal in the decision of R v Stephen Edward Bus and AS unreported, 3 November 1995. In that matter, Justice Hunt then the Chief Judge at Common Law, addressed an issue that had been raised on behalf of the applicant, Bus, who had produced evidence that he was a person with a general IQ of 73 with an intellectual functioning which was described as “the lower end of the border line retarded scale".
Justice Hunt, by reference to cases such as Scoglomiglio confirmed by the subsequent judgment, if I remember correctly, of Engert, stated that,
"It was an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality, because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation but such a condition is not a necessary condition for the principle to be applied".
He went on to say, however,
"That considerations of general or even personal deterrence are not rendered completely irrelevant and the significance of an offender's mental incapacity is to be weighed and evaluated in light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and the requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the Courts give effect to that principle as an instrument of social administration is to moderate the consideration-of general deterrence to the circumstances of the particular case."
His Honour went on to say however, if the offender,
"acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great".
In my view, this prisoner acted with knowledge of what he was doing and with knowledge of the gravity of his actions. His own, if I could use the expression, self confessed, and certainly clearly demonstrated by the complainant, reaction of invoking God's name after he was discovered highlights the appreciation the prisoner had of, what at best on his behalf, - could be characterised as an error or slip of judgment.
Be that as it may, there should be some slight mitigation provided to the prisoner, if only in consideration of the difficulties the prisoner would have in custody by reason of his intellectual functioning. I am mindful that it is said that he seems "happy" in custody. To my mind, bearing in mind he is in the Remand Centre, the full significance of the custodial situation may not have been brought home to him at this particular point of time. His inappropriate reaction to his surroundings suggests to me that as his sentence wears on, when the full significance of the deprivation of liberty imposed on him take hold, when the true circumstances of gaol custody are brought to his attention, he is a person who eventually will be exploited in custody by other inmates that are smarter or tougher or bigger than he. I can envisage many hardships that he will suffer, notwithstanding what appears to be at this point "his sunny disposition".
The circumstances of a person's custody, particularly the circumstances of a person with low intellectual functioning in that environment, are relevant matters to the assessment of an appropriate sentence. In this regard, I point out that section 21A of the Crimes (Sentencinq [sic] Procedure) Act sets out the various matters that need to be taken into account in sentencing offenders arraigned pursuant to 15 April 2002. This statutory scheme, I will not call it a code because I do not believe it is necessarily a code, sets out what would have been understood as relevant by experienced judges, courts generally and practitioners for that matter before it became law. Each of the provisions if I may say so with respect are propositions of considerable common sense. I must impose a sentence that reflects the severity of the crime and which is appropriate in all the circumstances of the case. I am required pursuant to sub section 2 to have regard to a range of matters including the various personal circumstances of the victim, the nature and circumstances of the case, the injury to the victim, the contrition of the prisoner, the need to deter the prisoner and other persons from committing offences of the same or similar character, the need to protect the community from the offender, the need to ensure that the offender is adequately punished for the offence and also having regard to the prisoner's antecedents, his cultural background, his age and mental condition as well as his prospects of rehabilitation.
I trust that in my remarks on sentence all the matters set out in section 21A relevant to this case have been specifically addressed.
In so far as the prisoner's antecedents are concerned, I note that the prisoner's criminal history confirms that he has previously appeared in courts to be punished in relation to criminal offences. The most significant entry in his criminal history is his conviction in relation to offences of assault occasioning actual bodily harm in respect of which he was placed on a good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act on 6 December 2000. He was thus at the time of the commission of this offence subject to bonds in relation to those offences, being three counts of assault occasioning actual bodily harm, not simply one.
The Probation and Parole Service report refers to the fact that he was to be supervised with specific attention to matters relating to anger management. It would seem, without having the details of the facts of those matters, that bearing in mind the leniency expressed by the Magistrate, the conduct of the prisoner was to be understood in the context of the special circumstances in which the prisoner found himself at that particular time. Be that as it may, the facts are that he was subject to the restraint of a good behaviour bond when this crime was committed and to commit a crime of this magnitude while subject .to a bond to be of good behaviour in relation to a crime of violence is a matter of significant aggravation.
It had been suggested by his counsel that I could impose a sentence of imprisonment by way of periodic detention. Such an order would have been a complete affront to the victim and to the community for the reasons . that are clear in my analysis of the objective facts, and considering any favourable subjective matters.
The prisoner was born in Tonga and appears before me for sentence and now at the age of twenty six years. He will turn twenty seven years of age in November this year, being born on 15 November 1975. As is common from people from the South Pacific it would seem that his parents moved to New Zealand to pursue a better economic opportunity. The children of their marriage, including the prisoner, were left behind in Tonga with grandparents whilst the parents established themselves and eventually the parents made their way to Australia. The prisoner himself, as I indicated earlier, had a head injury which required some, period of hospitalisation but there is no evidence before me of any continuing treatment after release from hospital.
The prisoner travelled to New Zealand for education and also travelled to Australia to serve as a Missionary of the Church of Christ of Latter Day Saints of which he is a member. He lived in Australia as a Missionary for twelve months and then returned to Tonga for cultural reasons, eventually returning to New Zealand in about 1997. In 1997, the entire family came to Australia to visit relatives in this country and eventually the prisoner settled in Australia where he met his current wife and married her in August 1998.
The prisoner has not been involved in any significant employment since being in Australia, as I understand the evidence. He has had casual employment from time to time but one job that he had for seven months as a factory hand ended after some dispute with his employers in the year 2000. He has two children aged four and two who live with his wife. He apparently is now estranged from his wife, although that evidence from his mother is slightly at odds with other history available to me.
The prisoner has been in custody, as I understand the situation,' from the time of his arrest in relation to this matter for an ensuing period of approximately fifteen or sixteen days at which time he was released on bail. He was committed back into custody when I refused him bail on 13 June 2002. As I have earlier indicated, I will date the sentence in this matter from 27 May 2002 which will give full recognition to the pre-sentence custody that he has served in relation to this offence.
In the pre-sentence report~ he has expressed some regret for his conduct. This report also highlights his incongruous behaviour whilst in custody which may reflect upon his intellectual capacity. Although he appeared open and forthright to the officer from the service, the officer also reflected upon his lack of insight into his offending behaviour. There is a comment which I quote,
"It is also a concern that he uses his religious beliefs to his advantage and that his interpretation of his religion is in opposition with the laws of society".
I have no idea what that means because nothing has been put to me in evidence or in submission to suggest that his religious beliefs or his cultural beliefs may explain his behaviour on this occasion. There are some unusual things he said in his ERISP about his perception of the complainant's invitation to him to have sexual intercourse but I took those matters simply to be fabrications on his part rather than to be explained by some cultural imperative.
Since being in custody, he has undertaken an anger management program. However, even though that may be of some significance to his prior convictions, anger does not seem to be a particular feature of his conduct before me. I accept the certificate from the Tonga Police Force that he has no security or criminal record in that country.
I accept that his mother will provide him with support when he is released from custody. I accept that the prisoner regrets being separated from his children for whom he has great affection.
His counsel also tendered a reference from Bishop Ai'i who is Bishop of the Church of Jesus Christ of Latter Day Saints. He has known the prisoner for four and a half years and knows the prisoner's wife. He confirms they have lived in the same home throughout the period of their marriage and do the best they can, given the circumstances in which they live. He describes the prisoner as being a dedicated, self motivated attender at Church who demonstrates genuine friendliness towards others. His manner in Court has been, if I can use the expression, to some extent and I do not mean this as a criticism, a happy go lucky attitude which may be a reflection of his cultural background. But his cultural background, to my mind, provides no explanation or mitigation for the offence that he is to be sentenced for.
Finally, I note the statistics that have been produced by Mr McNamara. I am mindful of what the learned Chief Justice said in R v Bloomfield as to the inadequacy of statistics produced by the Judicial Commission in so far as there are various features, many self evident, that deprive them of other than persuasive effect. One of the critical matters, of course, to be taken into account in relation to the statistical material from the Judicial Commission is the size of the sample of sentences upon which the figures are based. The relevant sample concerning people who have been sent to prison for the offence of attempted sexual intercourse without consent is seven cases, which to my mind is hardly adequate to provide any real guidance. In any event, there is a range of activity that may be covered by attempted sexual intercourse and the reality is that the conduct in which the prisoner was involved, that is the attempted rape to use the old Crimes Act expression, is as serious an attempt at sexual intercourse without consent as the Court could deal with absent, I hasten to say, circumstances of aggravation that may be pleaded in the appropriate case.
Thus, in the context of the maximum penalty available for this matter, giving due weight to the objective circumstances and the subjective circumstances of the prisoner, particularly noting that this was an offence committed in the private home of the victim in circumstances where she could expect to be safe, in circumstances where she was unable to resist the prisoner or raise the alarm until it was effectively too late, notwithstanding the relationship with the prisoner with the victim and her husband, it is my view that the appropriate sentence for this matter is one of seven years. I have accorded, however, a twenty per cent discount to the sentence as I earlier indicated. I calculate that to be approximately fifteen months, thus the sentence I will impose in relation to this matter is a sentence of five years and nine months to date from 27 May 2002. It will expire therefore on 26 August 2007. I have found special circumstances in this matter. Those special circumstances are that the prisoner, because of his intellectual accomplishments or lack of them, is a person in my view who requires .close supervision on his release from prison, primarily to assist him to adjust to community life and also to assist him to obtain employment or .pursue further educational opportunity. I also take into account in determining there are special circumstances the fact that the prisoner's circumstances of custody are possibly to be more onerous than he now contemplates. That he has not been previously gaoled nor has he been previously subjected to parole supervision.
The non parole period I fix having determined that there are special circumstances pursuant to section 44 of the Crimes (Sentencing Procedure) Act is one of three years and three months to date from 27 May 2002. I should correct something. I will do it in a moment. That means that the non parole period will expire on 26 August 2005.
I should just correct the head sentence. The expiry date of the heads sentence is not in August 2007 but it should be rather 26 February 2008.
I direct or recommend that custodial officers give serious consideration to the protection of the prisoner whilst in their custody.
HIS HONOUR: Do you understand the sentence imposed upon you sir?
OFFENDER: No not quite your Honour. I expect to hear from my barrister details.
HIS HONOUR: You will have to spend at least three years and three months in custody and you cannot be released from custody until 26 August 2005. And you will have to demonstrate to the Parole authorities that you are entitled to be released to parole when your non parole period finishes. You will have to be of good behaviour whilst in custody.
34. G, pp57-58 contain the text of an undated, handwritten letter from the Applicant to the Minister in answer to a notice of intention to cancel his visa and reads (in the author’s exact terms) as follows:
“On behalf of myself Lauaitu Pupungatoa I write this letter to answer. Refer to my application that I lodged on 12 January 2001 to remain permanently in Australia following the crime that I did convicted at the Campbelltown District Court for five years and nine month with non parole of three years and three months. I know I am not pass the character test according to the Minister under section 501 of the Migration Act 1958 refuse to grant such a visa. But the letter I receive from the Department of Immigration I will provide with an opportunity to comment to take into account include to this matter and the decision whether to refuse [illegible] visa [illegible] grant. I preparing to comment according to No 21 titled Direction under Section 499 Section 501 Migration Act 1958 on section 501(6) character test on (a) for the purposes of this section a person does not pass the character test if (a) I know I have not a bad criminal record but I know the police twist thing can I have a bad record in this country. I know [I] fail with not pass the character test but I know everyone it [sic] not perfect according to the human nature. I wish I control my human nature every hard time and easy time in life.
a) “comment” the truth is I have a criminal record but it is not real bad the police hate me and twist thing on me.
b) I have a lot of friend but I am not involve in a group or a criminal conduct I believe in being subject to kings president rules and magistrates in obeying honoring [sic] and sustaining the law even I know I not pass the character test.
c) comment, (1) I am not involve to the criminal (2) conduct and the general conduct [altered handwritten format]
d) (1) Comment, I am not involve 2) I get along with people I make people who hate me to know me and trust me and happy of me 3) I don’t but I must to sustaining the law and obey honouring for it 4) I do not. because I don’t like cause trouble in community or older people life to hurt their feeling I rather the community happy on me. Rather they hate me and upset on me. 5) The police think I am dangerous to the community but I am not I involve many activities but I know I [must] control my human nature
35. G, pp92-93 contain the text of another letter, dated May 30, 2005, from the Applicant to the Department of Immigration and Multicultural and Indigenous Affairs in answer to a notice of intention to cancel his visa; that letter was written with the aid of a fellow prison inmate, named Walsh, and it reads as follows:
“I am writing with regards to the above and the letter received by hand from yourself on the 24th May 2005. I wish to reply to your intention to refuse my visa application which I lodged on the 12th January 2001 under section 501 of the migration act 1958. the letter quotes the subparagraphs 501(6)(a), 501(6)(c)(i), 501(6)(c)(ii).
If I may I would like to discuss my side of the story about the refusal of my visa application :-
1) Subparagraph 501(6)(a) Substantial Criminal Record : As you can see in my criminal history report that my record is not as bad as some people, but I know that this is no excuse, I have learnt from my past and have reformed myself and look forward to leading a new life with my family.
2) Subparagraph 501(6)(c)(i) Past and Present Criminal Conduct : The main charge is Attempted Sexual Assault without consent. I did not rape anybody. The reason for the attempt has a lot to do with alcohol abuse, I have completed a lot of drug courses and intense counselling to deal with my problems and offending behaviour while being incarcerated, and I am also waiting to do the Cubit program for sexual offenders. As for the assault occasioning actual bodily harm which I received a 3 year good behaviour bond, I did not commit this crime and was not able to defend myself because I was taken to Villawood Detention Centre and was sentenced in my absence. Subparagraph (501(6)(ii) Past and Present General Conduct (false or misleading declaration on an approved form), the reason I ticked no about being convicted of a crime or offence is because I misunderstood the question because my English is poor. I thought the question was regarding overseas.
I am very remorseful of my crime and I am sorry for the victim. I wish it did not happen and have decided not to drink alcohol again. Because of my behaviour a lot of problems were caused for not only myself, but also for the community and my children. I am very upset that I have lost my children and I wasn’t to help raise them and be there for them for the years I have missed being with them because of being in Jail.
My children are being considered to be placed with my parents and I am awaiting a court decision at the moment. As you can see in my jail report I have no Jail charges, I have behaved myself whilst being in Jail, and have done everything that was asked of me. I love Australia and love being an Australian if you give me a chance I will obey the law and do the right thing and make the community happy.
All I would like to do is get a job and look after my children to make them happy. I have a lot of family support in Australia to achieve this. I please hope that you will consider all I have said in my letter and will be awaiting you decision.
Yours Sincerely
Lauaitu Pupungatoa”
37. After lunch on the first hearing day, the Applicant’s evidence-in-chief continued, but briefly only. He said that he remembered the telephone directions hearing and the advice that he should obtain the services of a lawyer, but said that neither he nor his family could afford legal representation.
38. It was at this stage that the evidence of the Bishop was, with the consent of the Applicant, interposed. The Bishop said that he wished to be interposed to enable him to catch a plane back to Queensland that afternoon. In fact, the Bishop was present at the hearing on the following day (the second hearing day).
PART D – THE EVIDENCE OF THE BISHOP
39. The Bishop is currently a Bishop of the Mormon Church. He said that this was one of the “hats he wore” and that he also worked for the Department of Education in Queensland as a community liaison officer. In addition, he is vice president of the Australian Tongan Association.
40. The Bishop said that the Applicant had been a member of the Mormon Church since 1986. The Bishop moved to Queensland from Sydney in 2002, but before that he worked in Sydney.
41. The Bishop’s evidence was that he visited the Applicant and his wife from time to time usually about twice per month. In 1999 or 2000 and before he became a Bishop, he was president of an elder’s quorum of the Mormon Church.
42. The Bishop said (TS 46) “What he was doing, quite often I would see him with his wife. They both tried to maintain things, to maintain a happy relationship and it seemed to me they were quite happy. It wasn’t uncommon that what I saw was all families like my family every now and then we have some sort of an argument or disagreement with things. To me it seems that they had a really good relationship”.
43. It was at this time that the Bishop’s evidence appeared to be going beyond the terms of Exhibit A1. He was referred to the third paragraph of his reference (cited earlier in these reasons).
44. It was put to the Bishop that the Applicant had not said that he had served as a missionary for two years. The Bishop said that the two-year period included service outside Australia.
45. It was also put to the Bishop that the Applicant had said that he had only three weeks religious training as a missionary. The Bishop answered at TS 48 as follows:
“Let me just clarify what he was talking about. As a young man, as you grow up in the Church of Jesus Christ of Latter Day Saints, we have what we call a seminary. A seminary is an early morning study of the scriptures which starts from year 9 to year 12. During this study of seminary you are able to learn the new testament, the old testament and what we call: Gook of Mormon and Doctrine and Covenants. These studies will enable all young men and young women enough knowledge to converse with people about our faith. Now, this 3 weeks that he is referring to is what we call MTC, Mission Training Campus. Now, this training ---“
46. The Bishop repeated that he saw the Applicant twice per month at least until he, the Bishop, moved to Queensland in 2002. Thereafter, he saw the Applicant every now and then and “sometimes in the shops”.
47. The Bishop said in his evidence that the Applicant is trustworthy, reliable and caring. He also said that he knew why the Applicant is in prison but that this did not change his opinion of the Applicant.
48. The Bishop was asked about the Applicant’s alcohol problems and given that there are references to alcohol in the sentencing remarks. The Bishop said that Mormon’s neither smoked nor drank. He also said that the Applicant never took a drink in his presence.
49. The Bishop said at TS 54:
“Fine, your Honour. I just want to say, your Honour, that I’ve seen and I have also become a victim of people that comes from a broken up family, doesn’t have a father or mother in our society. I just want to plead with you, your Honour, to take into consideration he is a father, after all, and children deserve to have a mother and a father. I don’t need to tell you this, your Honour, but I feel strongly. There’s these two children that he’s got are wonderful children. They do come to church every Sunday. They participate in what we call primary activities and that is their age group and they do things together and they learn together. We are trying to uphold those values, your Honour, and see if we can change and help them in some way so they may have a good future. But not going without a parent, that’s to me, my point of view, it’s very difficult to get through life with that. I think it is all I wanted to mention at this time, your Honour.”
50. The remainder of this Part D relates to the cross-examination of the Bishop.
51. The Bishop said that he was not aware of the fact that the Applicant was in Australia unlawfully; he was similarly unaware of the fact that the Applicant worked unlawfully. When he was asked whether he was aware of the Applicant’s convictions, he answered (TS 56) “I spoke with him and he told me all about it”.
52. When asked whether he knew about the Applicant’s sentence of five years and nine months, the Bishop again answered that he knew of it.
53. When Ms Burnett put it to the Bishop that he knew very little of the Applicant, he said that he wanted it known that he is related to the Applicant. When asked what the relationship was, he answered that the Applicant’s mother is his (the Bishop’s) father’s second cousin.
54. It is unnecessary for me to deal in further detail with the Bishop’s evidence in cross-examination. He plainly knew very little of the Applicant. His statement that the Applicant is trustworthy, reliable and caring was not made on any properly founded basis. The Bishop said at TS 58:
“In all honesty I can’t say that I knew exactly what happened between him and the accuser, or him and the – I don’t know what happened there. I only can speak from my point of view that I have found no fault with him, being associated with him, as far as I know, and as well as a family, as a friend to him. What he has shared with me was that he did get into some fights – he said to me in everyday conversation – that somebody took his guitar. He went to get it back and they had a fight about the guitar and police was involved and I said, he shouldn’t do that, he shouldn’t fight, although it was your guitar there is a better way of doing it. He said: well, you know, I wanted to get my guitar back.”
55. I find with some reluctance that the Bishop’s evidence was of little value. It is hard to believe that the person of whom the Bishop spoke and the Applicant are one and the same person.
PART E – THE EXAMINATION-IN-CHIEF OF THE APPLICANT [Resumed]
56. The Applicant said that the Australian police picked on him because they knew he was illegal. When asked how they knew, he answered simply that they knew. This was an allegation which was repeated by him; there is an inherent flaw in it in that if it was known that he was illegally in Australia, the authorities would presumably have detained him.
57. The Applicant went on to say that (TS 68) “some of the criminalities were not true”.
58. He said that his wife left him while he was in prison and that she filed divorce papers in 2003. However, the divorce has not been granted because (TS 63) “I have to pay for the divorce but I haven’t got the money to do it”.
59. The Applicant said that his wife visited him in prison (Silverwater) with his children in 2002 but not thereafter. He said that he has no idea where she is. When asked whether his daughters visited him in prison, he said “I have been banned from looking at my daughters in jail, I don’t know why” (TS 64). He said furthermore, that his parents visit him when in Sydney, but that they now live in Brisbane where his father is a planter growing crops.
60. Further as to his family, the Applicant said that he did not know whether his mother was working but “she is probably looking after my children”. When asked what his brother did, he said that he had no idea.
61. The Applicant said (TS 66) that his younger daughter had been abused by his wife’s uncle. He said that the children were currently being looked after by his parents.
62. The Applicant was asked whether he ever received letters from his daughters and his answer at TS 66 was: “only recently that I made contact with them through my parents and they went back to my parents”.
63. The Applicant then became upset resulting in an adjournment of about 20 minutes.
64. When the Applicant’s evidence resumed, the Applicant agreed that he was seeking the review of the refusal of a spouse visa. He agreed that this was so despite the fact that he no longer has a spouse. The Applicant said at TS 68 and TS 69: “Yes, deputy, I understand all of them, but I still see myself as a husband. I haven’t divorced yet. While I’m in the prison at the moment I haven’t filed and I haven’t really liked my family with all the charges blamed on me before”.
65. The Applicant again said that he would have liked to obtain a lawyer, but financial considerations prevented it. He said that his application for legal aid did not succeed. It transpired that his reference to “legal aid” was in reality a reference to Mr Christopher Levingston who acts as duty solicitor at the Tribunal. He said that Mr Levingston refused to represent him.
66. The Applicant said that he was in court in Liverpool or Campbelltown in December 2000 and that the police transferred him to Villawood.
67. The Applicant was asked about references in the sentencing remarks of His Honour Judge Norrish to a liquor problem and in particular, whether the Judge’s remarks were correct. The Applicant said that he did drink once and once only and at the time of commission of the sec offence.
68. The Applicant was asked whether his daughters were entitled to Tongan citizenship. His answer was that they are Australian. When asked again whether they could obtain Tongan citizenship, he said “No, because their mother is Australian and they are my kids, they are Australian. I’m the only one Tongan citizen”. He eventually agreed that he did not know the answer to the question.
PART F – THE APPLICANT’S EVIDENCE: Cross-Examination
69. It was put to the Applicant that he came to Australia on a tourist visa in December 1997 valid for three months and that he stayed illegally for a lengthy period thereafter without making any attempt to rectify his situation. He said (TS 76): “No, well that time, I had the relationship with my wife and that’s why I stay. She was pregnant to me”.
70. The Applicant was asked whether he knew that he couldn’t support his wife and child. He answered “my wife agrees for me to stay”. It was then put to him that it was not until 2001 that a spouse visa was applied for and that some three years had passed since 1998. The Applicant said (TS 76): “That’s right. My wife delayed too long. I understand that she was not faithful to me for some time. I kept myself or our relationship because of her pregnancy, but I didn’t know that it will delay quite too long”.
PART G - THE APPLICANT’S CROSS-EXAMINATION (Continued on the Second Hearing Day)
71. The Applicant did not dispute the train convictions referable to his failure to pay train fares.
72. The next conviction was in respect of common assault. Ms Burnett put it to the Applicant that he didn’t dispute the charge, but that he hadn’t attended at court. The Applicant said that he attended with his wife.
73. Ms Burnett put it to the Applicant that he couldn’t have attended because a warrant was issued. He insisted that he did attend.
74. The Applicant was next referred to an affray charge in September 1999. The Applicant said (TS 84): “I remember I didn’t have any charges on affray”.
75. Thereafter Ms Burnett put various aspects of his criminal record to the Applicant who simply denied them. By way of one example only, it was put to him that he was convicted of three affray charges in October 2000. He said that this was not possible because he was then in Villawood.
76. Ms Burnett then put it to the Applicant that it was on 6 December 2000 that he was detained and taken to Villawood. His answer at TS 88 was:
“My offence is only one actual occasion bodily harm. In a report from that State to the captain of Macquarie Field Police Station from 1999 to 2000. How all that’s written against me is – I know for myself – is not in my name. why you – why the system against for something I know what I do and I know what I did.”
77. The following exchange is contained at TS 88:
“MS BURNETT: Correct. And Mr ‘aitu, in respect of those convictions because you weren’t present a warrant was issued, you were brought to the court on 6 December 2000. On that occasion you were sentenced to a bond, a bond Mr ‘aitu which you signed on 6 December 2000 and I refer to the document I have handed up to you, exhibit 1. If you se: Offender, there’s your signature.
THE WITNESS: Why do you not got – why do you not got a record I report to the … in Macquarie Fields twice a week for all that thing? Why do you not – why do you put all in here. I report my whole family here, they know I report twice – my parents. And we see proof your system now lie, puts in against myself. This is your paper here to cove up, your system tried to make thing – shoot yourself. This is what I understand. The law make themselves shoot themselves. I know what I did and I stick on it, I don’t stick for something I know I didn’t need it. I know what is belong to me and I know what is not belong to me.”
78. From then on, the Applicant’s evidence became increasingly difficult because he simply denied what was in fact undeniable.
79. The Applicant was asked about his use of other names; his criminal record indicates that he used a considerable number of aliases. The Applicant admitted some but not others. He denied specifically that he ever used his brother’s name.
80. Ms Burnett then put to the Applicant some of the Judge’s sentencing remarks. The Applicant answered simply that the Judge told him that he could appeal.
81. It was at this stage that I formed the view that natural justice required me to give the Applicant a final opportunity to obtain legal representation. The matter was accordingly adjourned until 14 November 2005.
PART H - THE APPLICANT’S CROSS-EXAMINATION ON 14 NOVEMBER 2005 (THE THIRD HEARING DAY)
82. On the third hearing day, Mr Sikahele who is a migration agent, appeared and informed the Tribunal that he was there to represent the Applicant. He told the Tribunal that on the preceding Friday, he had lodged an application by the Applicant for a protection visa. He said that the application was founded on the subjectively held fear that if the Applicant went back to Tonga with his two daughters, they (the two daughters) would be victimised as persons who were only half Tongan. It was pointed out to Mr Sikahele that the authorities had determined (G, p128) that the Applicant would not be a placement option for his daughters upon his release from jail. Mr Sikahele said the Applicant was instituting proceedings in the Family Court, which would be heard shortly.
83. Ms Burnett commenced by again referring the Applicant to his criminal record. He acknowledged the train offences (and including failing to comply with a direction), however, when it was put to him that a warrant was issued on 12 May 1998 because of his failure to appear on an assault charge, he insisted that he did appear in Court.
84. Ms Burnett then showed him Exhibit R1, which makes it clear that he failed to appear at Campbelltown Court after entering into a bail agreement and he was asked whether he was still disputing the fact that a warrant was issued. He said that he did not receive any warrant.
85. The Applicant was then asked as to a fine of $2,000 for affray imposed on 25 July 2000. He said that he did not remember “anything like that”.
86. However, the Applicant did remember the dismissal a day later on 26 July 2000 of a common assault charge.
87. The Applicant was next referred to his conviction on three charges of assault and an affray charge, and where warrants were issued. The Applicant said that he never received any warrants and had only to report to the police. The Applicant did remember that on 6 December 2000, he was sentenced to a three-year bond on three charges of occasioning bodily harm. However, he said that he did not remember any fine for any failure to appear and he also denied that he was fined for an affray.
88. The Applicant acknowledged that he was sentenced to five years and nine months for attempted sexual intercourse.
89. The Applicant was next referred to G, p40 and where he ticked the “No” box (in his spouse visa application). The relevant question was “Have you ever been convicted of a crime in any country?”. The Applicant was also referred to G, p44, which contains a similar question and where both the “No” and the “Yes” boxes were ticked, but both markings were then scratched through. The Applicant said that he did not understand the questions, but that he acknowledged that he did sign the application.
90. The Applicant was next referred to an interview on 6 December 2000. in question 14, he answered “No” to a question as to whether he had ever worked in Australia. He also answered question 16, as to whether he had any criminal convictions, by checking “No”. The Applicant said that although he signed each page, he didn’t complete the actual answers in his own handwriting. He agreed that he had no right to work in Australia, but he denied that he had no respect, when this was put to him by Ms Burnett, for the laws of Australia. The Applicant was next referred to G, p92, being his letter dated 30 May 2005. He agreed that it was his view that his criminal history was not bad. He agreed that he had and in previous evidence that he drank alcohol once only. He said that that occurred on the occasion of the sex crime. He was then asked whether he equated alcohol abuse with his having taken liquor on one occasion only and his answer was “that’s right”.
91. The Applicant was next referred to G, p57 in which he said that the police “twisted things”. He answered that that was what he meant and he said much the same as to his claim in G, p58 that the police hated him.
92. It was then put to the Applicant that the authorities would not release the children to him when he came out of jail. He said that he was making application for them to come under his control. As to G, p127, which refers to “huge neglect by both parents”, he said that he hit his wife on one occasion only.
93. The Applicant agreed that he had had very little contact with the children since his incarceration. He said that although he and Joanna were not divorced, they would never get together again.
94. The Applicant said he had no family in Tonga. He said as to land, that his father has land in Tonga and when asked whether he could use the land, he answered “No”. He then agreed that he has extended family in Tonga who might assist.
95. The Applicant was referred to his notices of objection against compensation orders. He agreed that he had objected. He agreed also that he had no idea where his children are except that they are with his parents.
PART I - THE APPLICANT’S EVIDENCE: Re-examination
96. The Applicant was asked about the assault in July 2000. He said that there was an assault and that his wife called the police. When it was pointed out to him that he had previously said that the neighbours called the police, he said that it was correct that the police were called by his neighbours.
97. The Applicant then gave evidence as to the fact that the three bodily harm charges all related to one incident and being the fight with Eric. This was so because Eric suffered one obvious injury and two other (not obvious) injuries. He claimed that all of the assault and affray charges boiled down to one assault on his wife and the fight with Eric. (Although his criminal record does not reflect the victims of the affray charges, the Tribunal doubts whether it is conceivable that the Applicant was charged with three separate offences for one fight with Eric).
98. Mr Sikahele asked the Applicant why he married his wife Joanna when his parents wanted him not to marry her. He said that he believed her when she said she was pregnant by him. He also said “that she may have made a story about this”.
99. It then emerged, for the first time, that Joanna already had a child, Dianne, when the Applicant met her (Joanna). He said that Dianne is now with Joanna’s uncle who, he had said previously, abused his younger daughter.
100. The Applicant was then asked a number of very leading questions about the victim of the sex charge and in resect of which he received the sentence of five years and nine months. He was asked whether he felt remorse and he agreed that he did. When it was put to him that he objected to the compensation awards, he said “I didn’t have money. In reality I did know harm to her”.
101. When asked whether he had learned anything in prison he answered that “I see myself taking the whole burden of my family”.
102. The Applicant was asked as to the untruthful statements in the spouse visa application and in the interview report, and asked in particular whether he had sought assistance. He said that he did seek assistance and that he trusted the person who helped him.
PART J - AN OVERVIEW OF THE EVIDENCE AND THE CHARACTER TEST
103. Mr Sikahele commenced with a discourse as to the character test. It was pointed out to him that the character test is not in issue because the Applicant failed it by operation of statute and because of his sentence.
104. It was in this context that the sentencing remarks were referred to by Mr Sikahele at some length. He referred to Judge Norrish as the primary decision maker, which of course he was not.
105. Mr Sikahele referred at length to the fact that the Judge had said that he would have given the Applicant a sentence of seven years, but that he had reduced it to five years and nine months. He referred also to Judge’s remarks (made three years ago) as to recidivism. He referred in particular to the sentencing remarks in the context of mental disorder and also lack of intelligence and education.
106. The Tribunal is handicapped by one major factor and that is that it could not hear evidence from the Applicant’s parents or the Applicant’s children. The evidence before the Tribunal indicates only that the Applicant has had very little contact with the children for a number of years. The Applicant himself agreed that the children are in good hands with his parents.
107. The Tribunal was furnished with some information in confidence and pursuant to section 500(6F) of the Act. The Tribunal is able to consider that information, but may not disclose it by reason of section 500(6F) of the Act; that information does not in any way contradict any of the Tribunal’s findings.
108. As to the Applicant’s lack of intelligence and education (referred to in the sentencing remarks, the Tribunal, while noting the sentencing remarks also notes that the Applicant went as far as Year 11 at High School at Tonga and had a year in Year 12 in New Zealand. The Mormon Church was prepared to allow him to be a missionary and to go out as such after three weeks’ training (per the Applicant), but rather more (per the Bishop). There may be some doubt as to whether the Mormon Church have sent an illiterate, unintelligent person to perform missionary work in Australia.
109. I believe I have demonstrated that the evidence of the Applicant before the Tribunal was throughout, unsatisfactory. He lied in his spouse visa application and he lied at interview. His evidence as to his convictions was simply ludicrous. His evidence as to Joanna was difficult to evaluate. He met her by chance and went home with her, slept with her and moved in with her immediately. He first obliged her to prove that his first child with her was in fact his. He assaulted Joanna and after he went to jail, he seems to have lost touch with her. A spouse visa was applied for years after he had become illegally resident in Australia. It is altogether clear that although this is an Application for a spouse visa, there is in fact no spouse. Here too the evidence was contradictory. The Applicant said that he felt married still, but he also said that he had no idea where Joanna is. The fact that there is no spouse may not determine this matter, but it is relevant.
110. The Applicant’s evidence as to victimisation by the police cannot be accepted.
111. The Applicant’s evidence as regards the victim of what was a singularly unpleasant crime is equally unsatisfactory. He said in answer to a very leading question that he felt remorse. All of his actual conduct demonstrates precisely the reverse.
112. It is impossible, as I have said, to evaluate his relationship with the children because there was very little evidence before the Tribunal as to that relationship. What evidence there is suggests that the children were badly treated by both parents. The Tribunal can come to no conclusion other than that the children appear to be best off with their grandparents.
113. The Applicant did indeed, as contended by Mr Burnett, disregard Australian law. He came to Australia, stayed illegally, (and Mr Sikahele was quick to point out that this is not a crime) worked illegally, lied in official documents and committed a number of offences and leading up to the commission of the sex offence in particularly unpleasant circumstances (having regard in particular but not only to the fact that there was a child present) and for which he received a lengthy sentence. There can be no doubt that the Applicant’s conduct falls within the very serious category. His evidence before the Tribunal was untruthful. Leaving aside the crimes themselves, it is clear that he has breached sections 234 and 235 of the Act; the penalties prescribed for breaches of section 234 of the Act are of course very heavy.
114. There was very little evidence by the Applicant as to the children. He said that he was banned from seeing them in jail. He also said that they could not visit him in jail because of expense and in addition, the undesirability of their seeing him in jail.
PART K - DIRECTION 21 (VIA REFUSAL AND CANCELLATION UNDER SECTION 501 OF THE MIGRATION ACT 1958); DIRECTION NO 21 (“DIRECTION 21”)
115. In this part references to numbered clauses should be construed as references to clauses in Direction 21.
116. Clause 2.3 provides that the primary considerations are as follows:
“2.3In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a)the protection of the Australian community, and members of the community;
(b)the expectations of the Australian community; and
(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.”
117. Clause 2.3 should be considered in relation to clause 2.5 which reads as follows:
“2.5The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent of discourage similar conduct (general deterrence).”
118. Mr Sikahele in referring to the sentencing remarks noted that His Honour Judge Norrish had said that the risk of recidivism was not high. Having regard to the nature of the Applicant’s evidence (generally untruthful with a tendency to place all of the blame on others) I do not agree and consider that the risk of recidivism is real.
119. In Lachmaiya v Department of Immigration and Ethnic Affairs (1994) 19 AAR 148, Deputy President McMahon noted, at paragraph 35, that:
“16. The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement) is of fundamental importance to the control mechanism which this country exercised in visa applications … Australia can have no confidence that he would not again transgress in matter where truth and good faith could be deceptively withheld.”
120. In Beale and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 714, Deputy President Wright QC noted at paragraph 33, that:
“In considering whether or not there is a likelihood that the conduct may be repeated, it is obvious that if the visa sought were granted, there would be no occasion for future repetition. However the risk of recidivism is not constrained in this way. If a person’s past conduct tends to show consistent or sustained evasion or breach of obligations over a substantial period of time, accompanied by the giving of false or misleading information, it is, I think legitimate to conclude that similar misconduct may well occur in relation to other Australian law or law enforcement agencies if the perpetrator is admitted into the Australian community.”
121. Deterrence is always a difficult question. To reward the Applicant with a visa would send entirely the wrong message. It must be remembered that he first came to Australia as a missionary however surprising this may seem. His behaviour thereafter was altogether far removed from that of a man of the cloth.
122. In Re Ayaad and Minister for Immigration and Multicultural Affairs [2000] AATA 935 at paragraph 47, Purvis DP stated that:
“These practices are not only contrary to migration legislation but strike at the very foundation of the right of an independent democratic state to decide who and who not it is prepared to allow to enter into the country and there remain. It is not for a non-citizen or illegal resident to make the decision. Refusing an application that might otherwise have been accepted, where there has been falsity and deception, can only draw this fact to the attention of those who might be contemplating similar conduct [and] the futility of such behaviour. The person who complies with the rules, the immigration legislation and regulations, is the one more likely to have an application favourably considered.”
See also and generally Vaitaiki and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1209.
123. In general terms, the Applicant’s behaviour has been such that in my view he could be a threat to the Australian community. His evidence as to alcohol was demonstrably untrue. The Bishop had said that Mormons don’t drink. The Applicant said in evidence that he drank alcohol only at the time of the commission of the sex offence. When confronted with his own statement as to a liquor problem he said that what he had meant was that the liquor problem was confined to that single occasion only.
124. One of the least (among many) unattractive aspects of this case, was the approach of the Applicant to the victim. Prompted by his representative, he said that he felt remorse. But all of his actions indicate exactly the opposite.
125. As to clause 2.12 the Tribunal considers that this is one of the cases where the Australian public would be overwhelmingly in favour of the view that he should not receive a visa.
126. Hardship under section 2.17 (presumably to members of his family) is again impossible to evaluate because there was simply no evidence of hardship to anyone.
127. As Mr Sikahele pointed out, the interests of the children are primary and I treat them as such. In the ordinary course, children should be with both parents. Having regard to the evidence before me and particularly that contained at G, pp127-128 (and also the confidential material), this is one of those rare cases where the children appear to be better off without either of their parents.
128. Mr Sikahele pointed to the fact that the Applicant has not been in trouble in prison and has taken certain courses. These considerations do weigh in the Applicant’s favour but having regard to all the circumstances, to a very minor extent only.
129. This is not a case where the discretion can be exercised in favour of the Applicant and the decision under review must be affirmed.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Julian Block, Deputy President:
Signed: Associate
Date of Hearing 2, 3 and 14 November 2005
Date of Decision 23 November 2005
Representative for the Applicant Mr O Sikahele, Migration Agent
Solicitor for the Respondent Ms S Burnett, Clayton Utz Solicitors
Key Legal Topics
Areas of Law
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Immigration & Refugee Law
Legal Concepts
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Judicial Review
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Good Character
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Visa Refusal
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