Skedden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Skedden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2440 (2 August 2022)
AppID:  Skedden and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType:   Migration
Division:GENERAL DIVISION
File Number:          2022/3777
Re:Mark James Bradley Skedden
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:02 August 2022
Place:Adelaide

The decision under review is affirmed.
..........[sgnd].................................................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – mandatory revocation of Class TY Subclass 444 Special Category (temporary) visa under section 501(3A) – where Applicant does not pass the character test – whether the discretion to revoke the visa cancellation should be exercised – consideration of Ministerial Direction No. 90 – significant criminal record prior to entry not disclosed on entry card – minor children in Australia – Family violence – decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Family Law Act 1975 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCAFC 185
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
02 August 2022
INTRODUCTION

The Applicant is a 41-year-old citizen of New Zealand born on 10 November 1981.[1] He arrived in Australia on 27 March 2001, aged 19. He has remained in Australia ever since.[2] He came here to join his mother, brother and step-father, who had arrived in 1999. His biological father and older sister remain in New Zealand. He has had no contact with them “for the last 20 years”.
[1] Exhibit 2, G10, Attachment F, p 57.
[2] Ibid, G17, Attachment H, p 17.
On 11 August 2021, a delegate of the Minister (“the Respondent”) cancelled the Applicant’s Class TY Subclass 444 Special Category (temporary) visa (“the visa”) under section 501(3A) of the Migration Act 1958 (“the Act”).[3] This cancellation was based upon his conviction on 15 July 2021, to a term of imprisonment of 11 months and 31 Days (12 months).
[3] Ibid G18, Attachment I, p 213.
On 31 August 2021, the Applicant made representations to the Respondent in support of a request that the s 501 (3A) decision be revoked.[4]
[4] Ibid, G10, Attachment F, G11, Attachment F1, G12, Attachment F2, G13, Attachment F3, G14, Attachment F4 & G15 Attachment F5.
On 10 May 2022, the delegate decided not to revoke the visa cancellation. (“the decision”)
On 11 May 2022, the Applicant filed an application in this Tribunal seeking review of the decision.
The issues before the Tribunal are whether the Applicant meets the “character test” as defined in section 501 (6) of the Act, and if not, whether there is “another reason” why the mandatory cancellation of the visa should be revoked. (section 501CA (4) (b) (II))
The hearing was held on 13 and 14 July 2022. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr Cummings of Sparke Helmore Lawyers.
The Applicant generally presented well as a witness. He was direct in answering questions. He did not usually seek to make excuses for himself and generally admitted to his wrongdoing. I am not sure about the accuracy of some of his evidence however, as I will explain in due course. Whether this was the product of deliberate manipulation of the truth on his part, or a failure of memory, is difficult to assess. Where his evidence conflicts with alternative sources, I have had to consider which version of events is most probable. I formed that view that his expressions of regret and disappointment for his past behaviour are genuine. The main motivating factor for his regret, however, is that in the past, he never realised that his visa may be cancelled if he continued to offend. His main motivation in wanting to remain in Australia is to establish a connection with his biological children. He said in evidence that he had now “realised that I could lose my children forever”. I note that he has been isolated from his children in the past and that has not stopped his drug use or his offending. This topic is discussed at some length later. He took full responsibility for his drug use. He accepted that this had been a choice that he had made and that it was wrong. He accepted that he had chosen drugs over his children in the past. He did not seek to blame others. He has done an online DV course and has participated in a course “Life without barriers”. He did, however, seem to lack insight into how his drug use had played a major role in his criminal behaviour. In evidence, he did not accept the proposition that if he was to use methamphetamines again, he would probably reoffend. He claimed not to be drug dependant. This lack of insight is a matter of some concern. He stated that he had been drug free since his imprisonment in June 2021.
The Applicant called witnesses who gave evidence by phone. All of these witnesses have provided statements in support of the Applicant which form part of the admitted evidence before the Tribunal. These were:
(a)The Applicant’s mother, Kerry Bradley;
(b)The Applicant’s “partner” Alison Coyle (“Kneebone”);
(c)Alison Kneebone’s daughter, Paige Kneebone; and
(d)The Applicant’s stepfather, David Bobridge.
All of these witnesses gave helpful and clear evidence. They were supportive of the Applicant and would all be distressed if he were to be deported. To the extent that they offered different accounts of the relevant history to that offered by the Applicant, I generally prefer their evidence. This is relevant to a few issues, as will be seen in due course.
The Tribunal attempted to contact two other witnesses, Mr John Wells and the Applicant’s half-brother, Kane Moir. Despite many attempts, neither of these men answered their phone. Their statements in support of the Applicant are nevertheless part of the admitted evidence before the Tribunal.
The Tribunal received the written evidence listed in the attached exhibit list, marked “Annexure A”.
The last item in Annexure A, is a table produced by the Respondent, detailing all of the relationships with minor children upon which the Applicant seeks to rely for the purposes of Primary Consideration 3 of Direction 90. Some amendments were suggested by the Applicant and made to the original draft. The final amended version represents an agreed position between the parties. A copy of this document is attached and marked “Annexure B”.

Factual background

At the time of his entry into Australia, the Applicant failed to declare any of the 29 convictions that he had accumulated in New Zealand between 21 June 1999 and 16 March 2001.[5] He conceded in his oral evidence that he knew that he was making a false declaration. These offences involved unlawful use of motor vehicles burglary, theft and offences of dishonesty. His pattern of offending was already serious. As will be seen, this offending was to continue and escalate after his entry into Australia. He explained his failure to disclose his criminal history on the basis that he had a return ticket at the time, and only intended staying for 28 days, to visit his family. He didn’t think that he needed to disclose much about himself, when he was just visiting. This plan to return to New Zealand changed when he obtained work as an upholsterer in Sydney.
[5] Ibid, G5, Attachment B, pp 36-38.
This account is materially different to that given by his mother, Ms Bradley. The Applicant stated that he was close to his mother. She told the Tribunal that her then partner had arranged work for the Applicant in Sydney, well before he left New Zealand. She arranged for him to travel to Sydney and paid for his ticket. She flew over to New Zealand to collect him and brought him back. It was always planned that he was moving to Sydney to be with her, not that he was just coming on a holiday. There was some confusion about whether she purchased a return, or a one-way ticket. There was, she conceded, not much point in wasting money on a return fare if the travel was only to be one way. Notwithstanding this confusion, on balance, I accept that her account is more likely to be accurate. This contradicts the Applicant’s explanation or excuse, such as it is, for making a false declaration upon entry. This reflects both on his honesty at the time of entering Australia, and on his evidence before the Tribunal.
As has already been mentioned, the Applicant’s history of offending began well before he arrived in Australia. He told the Tribunal that he was imprisoned for a period of 3 months in New Zealand. It seems that he had a troubled youth and was kicked out of home by his then step-father. He was bullied as a child at school. He was homeless for a period of time and mixed with a bad crowd.
On 21 June 1999, the Applicant was convicted of various offences relating to shoplifting, unlawful taking of motor vehicle and theft and sentenced to supervision by Community Corrections for a period of 9 months. The Applicant was aged 17 years at the time.[6]
[6] Ibid, G5, Attachment B, p 38.
On 17 August 1999 the Applicant was convicted of various offences relating to unlawfully interfering with motor vehicles, unlawfully taking a motor vehicle and burglary and sentenced to supervision by Community Corrections for one year. The Applicant was aged 17 years at the time.[7]
[7] Ibid, p 37.
On 3 March 2000, the Applicant was convicted of various offences relating to take, obtain or use document for pecuniary advantage, unlawful taking of motor vehicle and wilful damage committed between 27 June 1999 and 21 December 1999. (The Applicant turned 18 on 10 November 1999). He was sentenced to a six-month suspended sentence.[8]
[8] Ibid.
On 11 May 2000, the Applicant was convicted of various offences relating to taking or obtaining or using a document for pecuniary advantage and property theft committed between 15 October 1999 and 21 October 1999. He was sentenced to 9 months imprisonment, suspended.[9]
[9] Ibid, pp 36-37.
On 6 June 2000 the Applicant was convicted of offences relating to unlawful entry of premises and theft occurring on 17 May 2000. He was sentenced to one month’s imprisonment.[10]
[10] Ibid, p 36.
On 16 November 2000, the Applicant was again before the courts relating to being “UL in yard.” He was convicted and discharged.[11]
[11] Ibid.
On 16 March 2001, the Applicant was convicted and sentenced to a $250 fine plus reparation of $500 in respect of the crime of wilful damage committed on 21 February 2001.[12]
[12] Ibid.
On 27 March 2001, 11 days later, the Applicant entered Australia. On his incoming passenger card, completed upon arrival in Australia, in answer to the question “do you have any criminal convictions?” He crossed the box “no”. This declaration was obviously false. It served to conceal his multiple convictions from Australian authorities, the most recent of which had been the subject of a court attendance, only 11 days previously. His undisclosed offending was serious. This also concealed the fact that the Applicant had been sentenced Community Corrections orders and served at least one term of imprisonment (3 months) in the past, indicating the gravity of his past offending record.
From March 2001 until 2005 the Applicant lived in Sydney. During this time, he was employed as an upholsterer and as an apprentice sprinkler fitter. He completed various training courses including a forklift course and a senior first aid certificate.[13] The Applicant said in evidence that he has worked and paid taxes for about 15 of the 21 years that he has been in Australia. This period ended in about 2015-16. Since then, until his incarceration in June 2021, he has been unemployed and heavily addicted to methamphetamine.
[13] Ibid, G13, Attachment F3, p 101.
On 29 November 2001 the Applicant was convicted in the Fairfield Local Court of breaking and entering and stealing goods valued at less than $15,000, stealing a motor vehicle and being unlicensed. He was fined, sentenced to a community service order, and placed under a two-year good behaviour bond.[14]
[14] Ibid, G4, Attachment A, p 35.
On 27 May 2002, a warrant for the arrest of the Applicant was issued by the Fairfield Local Court for breach of probation.
On 7 July 2004, the Applicant was placed on an 18-month bond for driving without a licence.[15]
[15] Ibid.
In 2005, the Applicant moved to Adelaide and was employed for approximately three years as a trainee sprinkler fitter. He commenced a relationship with Ms. Lauren Dodt at about this time.
On 30^th of March 2007, the Applicant was convicted in the Adelaide Magistrates Court for being a driver involved in a crash, failing to give particulars to specify persons in a crash scene, driving a vehicle contrary to a defect notice, defacing altering or obscuring a defective vehicle label in contravention of conditions of the learner’s permit and driving without due care.[16]
[16] Ibid.
On 17 October 2007, the Applicant was convicted in the Holden Hill Magistrates Court of driving with an excess of blood alcohol and failing to hold a licence.[17]
[17] Ibid, G4, Attachment A, p 35.
On 25 January 2009, Lauren Dodt, the Applicant’s then partner, gave birth to a son (“Child A”), the Applicant is the child’s father. They separated in about 2012 when Child A was 3 years of age. For a while, Child A stayed with the Applicant on every second weekend. This pattern ended in about 2014-15. He last saw Child A and spoke with him in 2016. The Applicant consented to an order that prevented him being in contact with Ms Dodt. He is unsure whether that order remains in force. Since that time, the Applicant has lost contact with Ms Dodt and Child A. Ms Dodt has since married and moved to QLD. The Applicant has no idea where they are and has no way of contacting Child A. The Applicant would like to find Child A if he were to remain in Australia and develop some relationship with him. He concedes that he did not contribute much to Child A in the past. He has paid some small amounts in child support when he has worked. This has not happened for some years now. The chance of the Applicant being a part of Child A’s life before he is an adult, must be objectively assessed as small. Child A’s mother is not well disposed towards the Applicant. She has severed all ties.
Between 2009 and about 2015, when he was not incarcerated, the Applicant worked in various positions as a welder, sheet metal worker and labourer.[18]
[18] Exhibit 2, G13, Attachment F3, p 101.
On 9 April 2009 the Applicant was convicted in the Holden Hill Magistrates Court of interfering with a vehicle without consent. He was fined and disqualified from holding a driver’s licence for 12 months.[19]
[19] Ibid, G4, Attachment A, p 35.
On 7 May 2009, the Applicant was convicted of failure to comply with a bail agreement. He was discharged without penalty.[20]
[20] Ibid.
On 10 June 2009 the Applicant was again convicted of failure to comply with a bail agreement. He was discharged without penalty.[21]
[21] Ibid.
On 1 July 2009 the Applicant was convicted in the Elizabeth magistrates Court of various offences including, failure to comply with a bail agreement, driving under disqualification, taking property without consent, serious criminal trespass (non-residential), driving with an excess blood alcohol content, driving an insured vehicle and driving an unregistered vehicle. He was sentenced to 6 months imprisonment (suspended) and a two-year good behaviour bond.[22]
[22] Ibid.
On 26 August 2009 the Applicant was sentenced in Holden Hill Magistrates Court for breach of bond and driving under disqualification or suspension. He was sentenced to 5 months imprisonment (suspended) and a two-year good behaviour bond.[23]
[23] Ibid.
On 15 October 2009 Applicant was convicted in the Holden Hill Magistrates Court of driving under the influence. He was fined and he was disqualified from holding a driver’s licence until further order.[24]
[24] Ibid, G5, Attachment A, p 36.
In 2011, the Applicant began using methamphetamine. He says this use escalated over time and that by 2017 he had become an addict.[25] He told the Tribunal that he was eventually spending $100 per day on this addiction. This was money that he did not have.
[25] Ibid, G13, Attachment F3, p 101.
On 12 August 2011 Applicant was convicted in the Elizabeth Magistrates Court of driving under disqualification or suspension, driving an insured vehicle and driving an unregistered vehicle.[26] He received a one-year good behaviour bond.
[26] Ibid, G4, Attachment A, p 34.
In about 2012-13, the Applicant commenced a relationship with Kirsty Moore.
On 13 November 2012 the Applicant was convicted in Holden Hill Magistrates Court of driving under disqualification suspension and without due care he was fined and sentenced to one month’s imprisonment.[27]
[27] Ibid.
On 15 November 2013 the Applicant was convicted in the Port Adelaide magistrates Court of breach of a Community Service Order and fined $7000.[28]
[28] Ibid.
On 10 March 2015, the Applicant’s then partner, Kirsty Moore gave birth to a daughter (“Child B”). Child B’s birth certificate states the Applicant to be her father.[29] Ms Moore has two older children from a previous relationship. The Applicant and Ms Moore separated when Child B was about 1 year of age. The Applicant had some ongoing contact with Child B, seeing her a few times per week, until he moved to Murray Bridge in about 2018. He saw her every second weekend for a while, but this ended in 2019, about 1 year before he went into prison. The Applicant was told that he had to choose between seeing Child B and drugs. He chose drugs. He has not seen her since. He made some modest contributions to child support if he was working.[30]
[29] Ibid, G12, Attachment F2, p 87.
[30] Ibid, G12, Attachment F2, p 84.
A SA Police Apprehension Report regarding the Applicant’s conduct towards Kirsty Moore on 27 September 2015 states:
“On Sunday 27th September 2015, the accused Mark James Bradley SKEDDEN assaulted the victim …,when he struck her to the side of the face with the back of his hand causing her to fall to the ground. The victim suffered soreness to her head and jaw. This offence is further aggravated and victim have a child together and were in a relationship for over 4 years.
<<<VICTIM VERSION>>>
The victim in this matter is…, who has provided a statement to police. She states in 2010 she ended a four (4) year relationship with Mark James Bradley SKEDDEN due to his ongoing violence up to the birth of their son… States since this time they have lived separately with the accused having custody of… every second weekend.
States at about 4:30 p.m. Saturday 26th September 2015, she attended at…to pick up… States the accused came out the front door and shut the door behind him. States they spoke to each other and the accused got increasingly angrier. States she helped…open the front screen door when the accused pushed the door closed and stepped towards her with his right fist raised. States she told him to think about what he was doing and he hesitated. States… got in between the, and she was worries he would get hurt. States when she tried to push…out of the way, the accused struck her to neck and jaw with the back of his right fist. States she was knocked to the ground and landed on her bottom with her upper back also hitting the concrete. States… was screaming, so she leapt up, grabbed…bag and ran to the car. State the accused followed her to the car and was banging on the window. States she drove away and went to the police station to make a report.
The victim did not receive medical attention. The victim has suffered soreness to her jaw, neck and back. Nil permission.
<<<POLICE VERSION>>>
At about 7:30 p.m. Sunday 27th September 2015, police P was on uniform station duties when the victim… attended at the Port Adelaide Police Station to make a report of domestic violence. P took a report from the victim. Police Incident Report 16/S76258 refers.
At about 8.45 p.m. police L and PO attended at…where they spoke to the accused Mark James Bradley SKEDDEN.
At about 8.50 p.m. the accused was arrested and given his arrest rights. These were conducted on body worn video camera. The accused was conveyed to the Port Adelaide Police Station.
At about 9.17 p.m. the accused was charged with aggravated assault.
At about 9.18 p.m. a video camera was activated and the accused was cautioned and interviewed. This interview concluded at about 9.31 p.m. The video was burnt to DVD and has been booked into PPMS.
At about 10.33 p.m. the accused was served a PIIO and given a copy of the order, SAPOL-16-105680 refers.
The accused's identity was confirmed by police systems and OIM.
<<<ACCUSED VERSION>>>
The accused in this matter is Mark James Bradley SKEDDEN who answered questions while under police caution. He states he was at his address at… on Sunday 27th September 2015, when the victim arrived to pick up their child… States he made… stay inside the house as he wanted to talk to the victim about things that…had been saying to him. He states the victim did not want to talk to him and he got angry that she would not answer his questions.
States the victim went to open the screen door and let… out of the house when he grabbed the door handle to hold it closed. States the victim also grabbed the door handle placing her hand over his trying to open the handle. States she pulled hard against his hand so he let go of the handle. Due to the victim pulling at his hand, the sudden release caused the victim to fall back. States his hand may have hit her as it went back. States he did not intentionally assault the victim. He stated he did not want to see the victim or…again as he is sick of the lack of communication that he has with them.[31]
[31] Exhibit 12, pp 3-4 & 9-10.

The Applicant denies deliberately hitting Ms Moore. He admitted visiting Child B when he was high on methamphetamine. He asked Ms Moore to give evidence to the Tribunal on his behalf, but she refused. She seems to be at best, indifferent, as to whether he remains in Australia, or goes. She has told the Applicant that Child B “does not need a father”. No conviction was recorded, but I can see no reason why Ms Moore would go to the trouble of making this story up and reporting it. It is in any event, largely accepted by the Applicant.
On 21 October 2015, Police spoke to Ms Moore who stated that she had not heard or seen the Applicant since the last incident on 27 September 2015 (abovementioned). She stated that she had applied for a private rental accommodation on the other side of Adelaide and that when she moves out, she will change her phone number. She stated that she had deactivated her Facebook account to avoid all communication with the Applicant. Ms Moore declined a referral to the Northern Domestic Violence Service (‘NDVS’) as she was already receiving assistance from Victim Support Service. On 23 October 2015, police again spoke to Ms Moore who stated that she was having difficulty obtaining a rental. Police referred Ms Moore to Northern Domestic Violence Service. Ms Moore said that until she moves far away from the Applicant, she will be at risk of further harm.[32]
[32] Ibid, pp 46-47.
A SA Police Apprehension Report regarding the Applicant’s conduct, again towards Kirsty Moore, on 6 December 2015 states:
“***BRIEF OVERVIEW***
Count 1 – Property Damage
On Sunday 6th December 2015, the accused Mark James Bradley SKEDDEN damaged the property of the victim, namely her vehicle a FORD Territory, by hitting it with 2x4 piece of wood and marking the rear window and cracking a plastic spoiler.
Count 2 - Property Damage
On Sunday 6th December 2015, the accused Mark James Bradley SKEDDEN damaged the property of the victim, namely an IPHONE 5, by throwing it on the concrete floor causing it to smash. No person had permission to damage the IPHONE 5.
Count 3 - Aggravated Assault
On Sunday 6th December 2015, the accused Mark James Bradley SKEDDEN assaulted the victim,…, by pushing her into a parked car, punching her in the chest, and biting her cheek.
The circumstance of aggravation is that the offender committed the offence knowing that the victim of the offence was a domestic partner of the offender.
***VICTIM***
…is the victim in this matter.
She states that at about 6.30pm on Sunday 6th December 2015, the accused attended her house to retrieve some of his belongings. While in the backyard they began arguing and the accused grabbed a piece of wood and hit her car with hit, leaving marks on the rear window and cracking the plastic spoiler. He then took the victim's phone and threw it at the ground causing it to smash. The accused then grabbed hold of the victim's arms and pushed her into a parked car, then punched her in the chest. The victim then got into the car attempting to drive away, but the accused took the keys out of the ignition and bit the victim on the cheek.
The victim states she has been in a relationship with the accused for about four years. The victim and the accused have an eight month old baby daughter together.
The victim states she is scared of what will happen when the accused finds out she has reported the assault and property damage to the police.
On Thursday 10th December 2015 the victim signed a PD207B in relation to the matter, stating she would not like Police action in relation to the matter as she wants the accused to get help for his drug, alcohol, and anger management issues and doesn't want the report stopping him from starting his own business.
***POLICE***
At about 8.10pm on Sunday 6th December 2015, Police PORTOLESI/LOWE on uniform mobile patrol attended…to make follow up on enquires for a Police Incident Report (16/T24923 refers).
The accused was located in the rear yard of the property and was placed under arrest.
The accused was given his arrest rights in the rear of the police vehicle and conveyed to the Port Adelaide Police Station.
A Record of Interview was conducted with the accused on a video recording device and later booked into Police Property Management System (PPMS 16/A29056).
At the conclusion of the interview the accused was presented to the Cell Sergeant to be charged, and then left in the care of the cell staff.
The accused was subsequently issued a PIIO (SAPOL-16-106427) for the protection of the victim.
The accused was identified via SHIELD.
***ACCUSED***
Mark James Bradley SKEDDEN is the accused in this matter.
The accused states he and the victim had been arguing since 11.00am on the day. He left the house during the day to stop the arguing but returned to get his clothes and they began arguing again in the rear yard. He states the victim grabbed a piece of wood and started hitting his quad bike with it, so he grabbed it off her and hit her car with it causing the damage.
The accused states he smashed the victim's phone by throwing it on the ground.
He denies punching the victim in the chest but admits to biting her on the cheek out of frustration.
He did not have any permission to bite the victim or smash her phone.
The PIIO was explained to the accused and he stated he understood the conditions of the order and his requirements in relation to the order.”[33]
[33] Ibid, pp 15-16.
Police records of that date indicate that the “victim wants no further action”[34].
[34] Ibid, p 52.
Police records of 26 December 2015 state:
“WALKER - WAFVIS - The victim…has completed a PD207b in relation to the IO, requesting condition 4 and 4 be removed from the order She stated she wanted the defendant to have a relationship with his daughter and the conditions needed to be removed for that to take place. This was forwarded to CJS on 10/12/2015 and on 24/12/15    contacted me and advised she had received paperwork from the court detailing the changes and she is happy with that.
She stated she had not had any further problems with the defendant and he was sticking to the order as it was presently.
Due to this and the fact she has not reported any other incidents with the defendant I felt it appropriate to forward the PD207b she completed in relation to the charges to WACJS.
I have scanned and emailed the form and sent the H/C in the internal post. There is also a copy with the PIR. Kirsty is aware she is still to attend her counselling session.
The risk assessment has been reassessed and reduced to 21 - standard risk. This PIR can now be filed.
……..
WALKER – WAFVIS – I have advised          this is unlikely to be dropped until she had attended her counselling session due to the short time scale from the incident occurring and her wanting to drop the charges. DV Gateway counselling referral has been sent.
……..
WALKER – WAFVIS -           has attended PAPS this afternoon and requested the charges be dropped against Mark. She completed a PD207b and has been referred for counselling. She stated she has no intention of remaining in a relationship with Mark but feels he is trying to sort his life out and he doesn’t need this hanging over him.
She has also requested the IO be amended. This is in court on 11/12/15. PD207b has been completed in relation to the vary of IO.”[35]
[35] Ibid, p 55-56.
The Applicant told the Tribunal that Ms Moore’s older two children saw the events of that day and that they were very upset. He denies punching her but admits biting her on the cheek. He agreed that his conduct was very serious.
On 11 May 2017 the Applicant was convicted in the Port Adelaide Magistrates Court of various offences including being unlawfully on premises, damaging of a building or motor vehicle, driving under disqualification or suspension, aggravated assault against a child or spouse, damaging property, driving with excessive blood alcohol levels and hindering police. He was sentenced to 6 months imprisonment, and a section 96(4) bond of 18 months.[36]
[36] Exhibit 2, G4, Attachment A, p 34.
The sentencing Magistrate stated the following:
“……
All of that is relatively recent but I wish to make it very clear that the defendant deserves and will received credit, and significant credit for the fact that he was prepared to acknowledge that he had a problem and also takes steps to at least attempt to address that problem. I suspect he still has some distance to go in relation to that. He has spoken frankly to me about some recent use, but I am going to sentence the defendant on the basis that as he sits before me today, he is perhaps as motivated as he ever has ever been to address his issues. It has been mentioned to me by his counsel that his partner, who remains supportive, has effectively insisted that stops his use otherwise he will be denied access to his daughter – and I get the impression from the defendant that that is something he would struggle with enormously. I can think of no greater incentive.
The defendant has pleaded guilty to the following offences: we go back to 6 December 2015 – two counts of property damage involving a motor vehicle and smashing a phone on the ground. They related to his partner as the time. He then assaulted his partner at 6:30 in the evening. They had been arguing all day. I accept and will proceed on the basis there had been arguing on both sides. I accept that personal damage may have been caused to some of his property but he took hold of a wooden plank at some stage and caused damage to the victim’s motor vehicle. He then smashed her phone to the ground. To his credit I pause at this stage to note that there is no claim for compensation and I gather that is the case because he fairly quickly after the incident made arrangements for compensation.
Far more concerning in many respects is count 3 which is an aggravated assault on his partner. At one stage in the midst of this argument he grabbed her by the arms, pushed her into the vehicle and then punched her in the chest. At that stage he was attempting to take at least preliminary steps to drive off in the motor vehicle and he took the keys away from her then bit her on the cheek. They had been in a relationship for about four years.
I note that there has been a subsequent intervention order. What started off as a full non-contact order I am told was reduced to a basic order of its type. I understand that continues. I understand also that there has been a resurrection of the relationship. I note that the alleged victim at least at some point did not want the charges to proceed. His guilty pleas are significant. His admission of his appalling behaviour is significant. He does not have a history of such behaviour and there has been no suggestion of any further problems. Despite those last two matters that I have referred to, I am firmly of the view the gravity of that offending is such that when I consider personal and general deterrence in particular, a period of imprisonment is the only appropriate penalty.
On 27 January 2016, in the very early hours of the morning the defendant having consumed a good deal of alcohol saw fit to drive whilst disqualified to the local service station. He produced a blood alcohol reading of .195. He had been disqualified until further order back in October 2009. He made reasonably frank admissions to the police at the time. Unfortunately, what then occurred was that he arranged with the police to drop him back in the vicinity of where his motor vehicle had been kept. Obviously, he needed to be taken to the local police station. The defendant’s personal circumstances at the time was such that most of his personal property was in his motor vehicle and despite the fact that he had just been arrested and charged with driving whilst disqualified and despite the fact that he had just been arrested and charged with driving whilst disqualified and despite the fact that as will become apparent that the defendant knows full well what the consequences of driving whilst disqualified, he was so concerned about his personal property that not thinking clearly, he heeded the police by not cooperating with them about leaving the car there so that they could impound it, and he drove the motor vehicle away. He was again driving whilst disqualified. Again, he was frank with the police and he has entered pleas to both of those matters today.
For the sake of completeness, I referred to offending on 2 June 2016. It is a charge of being unlawfully on premises without lawful excuse. The defendant was in an abandoned house and was just having a look. There is no suggestion that he was there for an unlawful purpose. I note the extent of his previous history but given the circumstances of the matter and given that he was arrested and spent some time in custody at the time of his arrest and I have already convicted him without further penalty on that matter.
Let me address the defendant’s previous offending history: he is not to be resentenced for those previous matters, but the sheer extent and relevance of his offending history is of significance for my sentencing purposes.
In 2009 he received three separate suspended sentences. One of which at ;least was for driving disqualified and another was for serious charge of serious criminal trespass. In 2011 on a charge of driving whilst disqualified the defendant received a good behaviour bond. In 2012 the defendant was ordered to serve one month imprisonment for driving whilst disqualified. The defendant knew well the consequences of driving whilst disqualified. Both matters before me are contumacious.
I have considered making the inevitable period of imprisonment for both the drive disqualified run concurrently, but I have ultimately resolved that if I was to adopt an individual and file by file approach to sentencing, then those periods of imprisonment ought to be cumulative.
Ultimately, I have resolved to utilise s 18A and my approach will become apparent in due course.
I note that the defendant’s personal circumstances. He is 35 years of age. It is significant to me he has got supporters sitting in court. He needs to embrace that support. He is old enough now to really get serious about addressing what has obviously been a long-standing drug issue for him. I am pleased to hear that he has that support. I am pleased to hear that despite his various issues he has had a pretty reasonable employment history. The defendant is far from being a lost cause. He is a bloke who can hold down a job. He is a bloke who has shown that he be supportive of his partner and can be a good family man. He is simply needs to stop using illicit substances and play the road rules of this State.
The thrust of counsel’s submissions have been for a partially suspended term of imprisonment.
I note all the sentencing options.
In my view imprisonment is the only appropriate penalty for the offending of December 2015, the first driving disqualified on 27 January this year and the second driving disqualified on 27 January of this year. Full suspension cannot possibly be justified given the circumstances of the offending and the extent of his previous offending history. I have indicated and hopefully made it clear however that I do think this man has taken some reasonable steps with his involvement with the Treatment Intervention Program, has been out of trouble for a period of time, and is perhaps committed as he has been at any time in the past to address his various issues. I think there is weight in the submission for partial suspension and I will ultimately do intend to utilise s 18A and s 38(2a) of the Sentencing Act. Let me be clear as to how I have ultimately resolved that a period of six months imprisonment as the appropriate on a s 18A basis.
If I was to deal with these matters separately; for the offending on 6 December 2015, I would impose one penalty to cover all three matters. He is entitled to a 25% discount so if I was to deal with the matter individually, what would otherwise have been four months imprisonment , would be reduced to three months imprisonment. If I was to deal with the drive disqualified matter from 27 January 2016 separately, my starting point would be something in the vicinity of 10 weeks imprisonment but he is entitled to a 40% discount in my view on that and that will become something in the vicinity of six weeks. For the second drive disqualified on 27 January 2016, again if I was to taken an individual approach to that matter my starting point would again be 10 weeks imprisonment which I would again reduce to six weeks but for the reasons I have already indicated, I would make that cumulative. If we then do the maths regarding that individual approach, we would have three months plus six weeks plus six weeks. Or to express it slightly differently; three months plus one and a half months plus one and a half months, reaching a period of six months imprisonment.
I do not see any reason – sitting back from a totality point of view – to further reduce that.
On a s 18A basis, for all three offences from 6 December 2015, for count 2 from the first file for 27 January 2016 and for count 1 on the second file from 27 January 2016 I impose one period of six months imprisonment.
I have considered all of my sentencing options. At least some period of time in custody is demanded and entirely appropriate in all of the circumstances. The defendant needs to have yet another message sent to him that this repeated offending will not be tolerated. But whilst I note the maximum periods, I ultimately intend to order that he be released after serving two months.
The order will be that he be released after serving two months, upon him then entering a $200 good behaviour bond for a period of 18 months. It will be a condition that for the first 12 months of that bond he be under the supervision of Corrections and he obey their lawful directions, particularly as to the undertaking any drug and alcohol assessment, counselling and treatments. There will be the standard clause that whilst he is on that bond he is to not use any drug – in fact, not to drug and alcohol just restricted to drug. The man does not have a history of alcohol problems. It will be to undertake any drug assessment, counselling and treatments. The standard clause in relation to him not possessing or using any illicit drug and is to be subject to testing and he is to report within 24 hours of his release to the Corrections office here at Port Adelaide.
That still leave some remaining matters.
For the drink driving charge – the pca charge, count 1 from 27 January 2016. I note his history of drink driving that goes back a period of time, but this is a matter to be dealt with as a first offence. I note he has served a 12 month disqualification already. He will be convicted on count 1 and I impose a fine of $1100. I note the period of time he has already been without his licence. I impose a reasonably token period of a further one week period of disqualification to commence forthwith. Obviously, the defendant will not be able to drive during that period of time.
Court fees are waived. Payment of the prosecution fee levies only, and despite his incarceration I still think the impounding fee is appropriate of $977.70.
Four count 2 on the second file from 27 January 2016 – the charge of hindering police. In my view there is a significant element of duplicity regarding that offence. He will be convicted without further penalty on count 2. On that file court fees will be waived. Simply payment of the prosecution fee and the levy.
Court feed on the file from 6 December 2015 are also waived and he simply has to pay the prosecution fee and the levy.
The final file before me relates to an application for forfeiture of a particular motor vehicle. There is an element that that vehicle having at some stage belonging to someone else and quite genuinely having been sold since this application was taken out. The defendant has indicated a preparedness to undertake community service upon his releasee from custody. For practical purposes I refrain from ordering any community service. I will give the defendant a period of 10 months to do that because I am mindful that he is about to go into custody at least for a couple of months. He needs to perform 80 hours of community service within 10 months of today’s date, but I make and order that the defendant is to report to the appropriate authorities within 24 hours of his release from custody.
Mr Skedden, you have a couple of months to serve. When you get released you are going to have four months hanging over your head. You need to be clean. I do not want you to have to serve that further four months.”[37]
[37] Ibid, G8, Attachment D, pp 47-51.

On 12 February 2018, 19 March 2018 and 6 June 2018, the Applicant was convicted of failure to comply with a bail agreement.[38]
[38] Exhibit 2, G4, Attachment A, p 34.
On 26 June 2018 the Elizabeth Magistrates Court issued a notice of non-compliance with community service requirements.[39]
[39] Ibid.
On 6 August 2018 in the Murray Bridge Magistrates Court, the Applicant was convicted of failure to comply with a bail agreement.[40]
[40] Ibid.
on 24 September 2018, the Applicant was convicted in the Port Augusta Magistrates Court of being unlawfully on premises and possessing an article to commit an offence together with there being an application for enforcement of the breached bond. He was convicted of the first of these offences and sentenced to 2 months and two weeks imprisonment in respect of the breached bond this was found to be proven and the suspension was revoked and there was a period of four months imprisonment imposed.[41]
[41] Ibid.
In February 2019 the Applicant was introduced to Alison Kneebone by mutual friends. She told the Tribunal that she separated from her abusive husband in June 2019. Both she and her husband were long term drug addicts. They were able to afford their habit because he had a well-paid job. After their separation, her addiction continued, but she was short of money to buy drugs. The Applicant became romantically involved with Ms Kneebone almost straight after her separation, in June/July of that year.[42] Ms Kneebone has 4 children from her marriage. Her daughter Paige Kneebone is 20 years of age. She lives in Murray Bridge. She has a young son, (Child D) but is not living with the child’s father. He offers little by way of support or interest. She has a new partner who performs a father role for Child D to some extent. The new partner does not live with her full time. Ms Kneebone’s other children live with their father in Victoria. Two of them are under 18 years of age. She sees them occasionally. Ms Kneebone has a criminal history which she says started after her marriage broke down. It was driven by her need to feed her drug addiction. She was involved in a joint criminal enterprise with the Applicant in 2021. She has multiple convictions commencing in 2019. She has been a methamphetamine user for 20 years, although she claims to have stopped using since June last year. She is presently on a suspended sentence of 6 months. The 2 year bond expires on 11 July 2023. She is prohibited from having direct contact with the Applicant as a condition of that bond. She regularly breaches this condition to speak with the Applicant by phone. She is not sure what sort of relationship she would have with the Applicant if he were to be returned to the community. This contrasts with his evidence to the Tribunal, that they have plans to marry. She does support him remaining in Australia. She is not sure how they would get on if the Applicant were to be returned to the community, as their previous relationship was built around their mutual need to “get high”. The impression that I was left with is that she may or may not be interested in resuming a de-facto relationship with the Applicant. This would depend on how they progressed in getting to know one another all over again, without drugs. This would obviously impact on how often the Applicant would be around. Ms Kneebone told the Tribunal that she wanted Child D to have a relationship with the Applicant. She was much more guarded about her own relationship with him. She was clear that the Applicant could not come to live with her if released. They would have to “take things slowly” if he were released.
[42] Ibid, G15, Attachment F5, p 171.
Ms Kneebone told the Tribunal that she had a long-term history of substance abuse. She has a criminal record. She has been a victim of DV at the hands of her former husband. She was diagnosed in about 2018 as having a bi-polar disorder. She controls this with prescribed medication. She has not used drugs since June 2021 and describes her current situation as a “maintenance stage”. She said that she has access to support services.
As far as the Applicant’s mother, Ms Bradley was concerned, his relationship with Ms Kneebone was over. She stated that she did not like Ms Kneebone, she did not want the Applicant to be with Ms Kneebone again and would try to stop that happening. She drew a connection between his use of drugs and his offending.
On 11 May 2020 the Applicant was convicted in the Murray Bridge Magistrates Court of unlawful possession, dishonesty, taking property without consent and failure to comply with a bail agreement he was given a 12-month good behaviour bond.[43]
[43] Ibid, G4, Attachment A, p 34.
on 20^th of May 2020, Alison Kneebone gave birth to a son (“Child C”). The Applicant appears on the birth certificate as the child’s father.[44]
[44] Ibid, G12, Attachment F2, p 86.
On 26 August 2020 Applicant was convicted in the Murray Bridge Magistrates Court of driving under disqualification or suspension and sentenced to 36 days home detention imprisonment.[45]
[45] Ibid, G4, Attachment A, p 34.
In September 2020, Child C was removed from the custody of Ms Kneebone and the Applicant due to safety concerns related to their drug use. Ms Paige Kneebone gave evidence that she was one of the reporters to Child Protection regarding Child C. This demonstrates how bad things must have been, for her to be so concerned, as to report her own mother. Child C is in foster care at least until the expiration of the current order in October 2022.[46] The Applicant and Ms Kneebone hope to recover custody of Child C in due course, but that depends upon many factors. Orders currently prevent contact between the Applicant and Ms Kneebone due to their respective criminal histories.[47] Ms Kneebone told the Tribunal that she was having regular and increasing access to Child C and that she hopes to have him returned to her full custody soon. A critical factor here is her remaining drug free. Child C is a powerful motivation for Ms. Kneebone to remain drug free. She wants the Applicant to have a relationship with Child C, though not necessarily to remain her partner. Unfortunately, the Tribunal had no access to any direct or independent evidence about Child C from the relevant State Government agency or the Children’s Court.
[46] Ibid, G4, Attachment A, p 33.
[47] Ibid, G15, Attachment F5, p 172.
On 22 September 2020 the Murray Bridge Magistrates Court revoked the home detention order for breach of condition and the Applicant was sentenced to 23 days imprisonment.[48]
[48] Ibid, G4, Attachment A, p 34.
Police records of 8 December 2020 state:
“Victim reports that her ex-partner transferred $200-00 out of her Commonwealth bank account (no. 30044430) at about 3-00pm on 30/11/20 using a Pay ID to Mark SKEDDON.
Victim was in the bank at that time, and had asked the teller for her balance, and was advised it was $625, which was $200 less than it should have been. The teller advised her where the money had gone. Victim stated he had no right to take the money, and the teller told her she couldn't stop the payment, nor could she reverse The teller did delete the suspects phone number from the account so he wouldn't be able to transfer any more money.
Victim rang suspect who stated that he didn't care and that she had told him he could have it. Victim states nil permission.
…….
BAU SJ ID 75098
After reviewing this occurrence and looking at the last OEL entry made by MOTTASHED it would appear that this matter has been dealt with and that this is now a civil matter. If the suspect has stated to police the money is paid for and left with the victim suggest no further action to be taken and a mater between both parties.”[49]
[49] Exhibit 12, pp 59 & 63.
This complaint was made by Ms Kneebone. In her evidence she said that she was angry at the time, but should never have drawn the police into it and that she had “wasted their time”. According to the Applicant the money was taken in order to purchase drugs for the two of them. There is sufficient uncertainty about the actual circumstances of this matter, for me to give it no weight.
On 21 January 2021 the Applicant was convicted in the Murray Bridge Magistrates Court of failure to comply with a bail agreement and was sentenced to 14 days imprisonment.[50]
[50] Exhibit 2, G4, Attachment A, p 34.
Police records for 15 May 2021 state:
“FSM Referral from MMGPN re Victim- Partner- Mark SKEDDON Other agency Risk Assessment score 36 has revealed to 2 clinicians that she has been both verbally and physically assaulted by her partner. A safety plan was agreed upon but is limited on regard to the plan as both individuals on Home Detention, in the same residence. Both parties have D&A related issues, of which the Victim is receiving treatment by MMGPN and DASSA. This treatment/counselling at times is jeopardised by the nature of both party’s relationship.”[51]
[51] Exhibit 12, pp 67.
A SA Police report of 18 May 2021 states:
“Entry Time: 18/05/2021 12:13. Type: Investigator action. Entry: Referral sent via email from MMGPN -…
Liaised with DCS…and arranged passout for …to attend MBPS
Appointment with her 18/5/21, discussion re DA and made her aware that we had received concerns re DA in relationship. She stated that as they are both currently on Home D bail they are annoying each other and arguing more. She denied that there any been any physicality and/or threats.
She stated the only time he has been physical with her was in 2019, when she was arguing with her daughter and he had grabbed her head in between her hands in an attempt to calm her down. She said that this was not in an aggressive manner, but trying to help her.
She believes agencies may be concerned about him due to his history of DA- she is aware that he has a history of DA with ex-partner and IO's in place.
Stated she is unsure at this time by MMGPN would be concerned about her, she looked in her diary and said the last appt she had was with on the 27th. Stated she does not really discuss Mark during these sessions, they are more about grief and her past.
She admitted that they have both had drug problems and this is why DASSA/DCP are involved with her. She has baby that has been removed - will be 1 year old next week.
Stated her ex-partner was a DA offender and a big guy. She states that she does not think that Mark could overpower her, and she does not think he would use weapons.
She denied being scared of him and does not feel that he has any associates keeping an eye on her. She stated that she would be honest with him re her contact with police, not due to fear of him finding out, but because she feels honesty is important in a relationship.
She is well-engaged with services – DASSA
2 counsellors through MMGPN- … and …
DCS-…(Mark sees…from DCS)
She was provided with DA booklet and DA safety card. Discussed emergency accommodation and possibility for discussion with DCS to vary her bail if there were safety concerns.
She stated she has already discussed with DCS that if there is any arguments/concerns for her safety that she would leave the address- and make contact with DCS/Police immediately - to not breach Home D conditions.
Risk assessment to be completed by SAPOL and loaded to occurrence. At this stage I do not believe this needs to be tabled at FSM.”[52]
[52] Ibid, pp 67-68.
In evidence, Ms Kneebone conceded that she had argued with the Applicant, but that this was as much her fault as his. She denied that any physical abuse had taken place. I accept her evidence on this point. It corroborates the Applicant’s evidence.
On 7 June 2021, Ms Kneebone was incarcerated for various offending associated with the Applicant. She was subsequently released from prison on 12 July 2021.[53] As previously mentioned, she is subject to a bond until 11 July 2023. This requires her not to associate with the Applicant. It appears that this is not being strictly complied with.
[53] Exhibit 2, G13, Attachment F3, 103.
On 15 July 2021, the Applicant was convicted of various offences in the Murray Bridge Magistrates Court including serious criminal trespass, damage to property, failure to comply with a bail agreement, possessing an article to commit an offence, unlawful possession, dishonestly taking property without consent and damage to a vehicle. He was convicted and sentenced to 11 months and 31 days imprisonment.[54]
[54] Ibid, G4, Attachment A, p 34
It is this last conviction on 15 July 2021, that has given rise to the cancellation of the Applicant’s visa.
The sentencing Magistrate stated the following:
“ Mr Skedden, you have pleaded guilty to two counts of failing to comply with a bail agreement. Each offence is punishable by a maximum penalty of two years imprisonment or a fine of $10,000.
You have also pleaded guilty to one count of being unlawfully on premises which carries a maximum penalty of two years imprisonment.
You have also pleaded guilty to possessing an article to commit an offence which is punishable by a fine of $2,500 or six months imprisonment.
The remaining offences that you have pleaded guilty to are all punishable by a maximum term of imprisonment of 20 years. You have pleaded guilty to seven charges of theft, one of which is the subject of a good behaviour bond. You have pleaded guilty to one count of serious criminal trespass and two counts of damaging property or a motor vehicle. The maximum penalty in this court for any single offence is five years imprisonment
I turn first to the bond that was imposed on 11 May 2020. For the offences of breaching nail and theft on 23 April 2020, you entered into a good behaviour bond to return to court to be sentenced if you breached that bond. A number of the offences that I am to sentence you for today breach that bond and so that bond will be revoked and I will sentence you for those offences.
The first offence in this time was committed on 21 April 2020, involving an offence of theft. You, along with Ms Kneebone, stole packets of meat from a store to the value of $204.
The following offences, which I will deal with in order of time, all breach the good behaviour bond.
There is one offence of theft on 25 July. You and Ms Kneebone attended at Aldi in Murray Bridge You placed items of meat into a pram and into a backpack that was in your trolley. Ms Kneebone paid for some items and you walked out with your backpack which contained the meat items worth approximately $250.
The following day you were seen at Aldi and were observed on CCTV to place trays of steak into a backpack in your trolley. Later, when a witness went to the front of the store to wait for you, you turned away and placed the steak down the front of your pants and walked out of the store. The meat was valued at $100. When you were interviewed about that matter you stated that you did not believe it was you.
The next offence of theft was on 23 November at Coles, and it again involving meat products that you placed in a pram and also an LED light. When interviewed you admitted placing the items into your pram and you stated that you stole the meat to supply to your family. The value of the items was $138.67.
The theft on 21 December 2020 was committed at Bunnings and involved you taking side cutters, two clamps, a soldering iron, drill bits, saw blades and a power saw. You used the side cutters to cut wire around the saw, in order to take it. You placed it under your clothing. You paid for some other small items and left the store without paying for the others. Those items were recovered in a car in which you were a passenger and were valued at $584.63.
The offence of serious criminal trespass on 31 December 2020 was committed at Murray Bridge High School. You entered the premises and extracted from walls and ceilings spools of cabling. In doing so you caused damage to the building and some toolboxes. You are charged with theft of the electric cabling and you are charged with damaging property in relation to three tool boxes which were damaged on the premises. Ultimately you were found with three spools of cabling and seven bundles in your bicycle trailer and those items were seized.
You were arrested for those offences on 12 January 2021 and as well as another matter I will come to shortly. When you were interviewed you told police that you had found the cabling in hard rubbish and you had walked though the school to get home. In a later interview on 12 January, you said you had received the cabling from a family member of a friend. It was put to you that you had given two different versions of events and you said that the family member of the friend had been putting it into hard rubbish.
On 12 January 2021, you were seen at the Murray Bridge Backpackers. You were with Ms Kneebone and you were caught in the act of stealing copper piping. You were seen to have copper pipe in your bag and plier cutters in your pocket. Lengths of copper and tools suitable for cutting copper were later found in your possession when you were arrested the same day. You were charged with being unlawfully on premises, damaging property and theft. You were also charged with possessing an article to commit those offences.
Following those offences, you were released on home detention bail on 20 January 2021. You were re-arrested the following day and spent 14 days in custody. You were again released on home detention bail which was revoked on 7 June 2021. The offences of failing to comply with bail were committed on 14 and 15 May 2021. The first offence relates to the failure to comply with the condition not to consume alcohol or other drugs not prescribed for you. You returned a dirty urine sample to methylamphetamine and amphetamine. On 15 May, you failed to attend for urinalysis and you advised at the time that you had simply forgotten to attend.
As you can see from the penalties that I outlined at the beginning, these offences are serious offences. You come before the court with some history that is relevant. You have driving offences, in 2006, 2007, 2008, 2009, 2010, 2012 and 2016. Many of those involve driving disqualified. The most recent of these offences was on 26 August 2020 and you were sentenced to a term of 36 days imprisonment on home detention conditions. Those home detention conditions were revoked on 22 September 2020 and you were ordered to serve the remainder of that sentence in custody.
You were convicted in 2008 for interfering with a motor vehicle and you have nine prior offences of failing to comply with bail spanning a period between 2009 and January this year. For the most recent offence in time you received a penalty of 14 days imprisonment.
You have also been convicted and sentenced for the offence of serious criminal trespass and theft for which you received six months imprisonment which was suspended. You have also been convicted and sentenced for the offence of unlawfully on premises and on a separate occasion you received a term of imprisonment of six months which was partially suspended after you served two months for the offences of damaging building, aggravated assault, driving offences and hindering police.
That bond was breached by offending in 2017 of being unlawfully on premises and possessing an article to commit an offence. For those matters you received two months and two weeks imprisonment and the suspended sentence bond was revoked.
I outline your history, not because you are to be punished for that prior history but it is relevant to the assessment of the penalties to be imposed today in terms of personal deterrence. That history demonstrates that you have a poor record of complying with court orders, whether that is an order that you be disqualified from driving, bail conditions, home detention imprisonment conditions, good behaviour bonds or suspended sentence bonds.
I take into account your guilty plea, which entitles you to a discount of up to 30% and I have heard submissions from your counsel. It is plain enough that your offending is directly related to your methylamphetamine addiction and whilst you did wish to deal with that problem and engage with the treatment program, it was difficult for you to do so because you were required to live in Adelaide and were unable to gain accommodation there.
Your counsel has explained that you were living as a functional member of society until about five years ago when your relationship with your partner broke down and you were unable to see your children. That resulted in you experiencing depression and abuse of methylamphetamine. Your life has subsequently spiralled out of control. Your counsel has also explained that you had regularly been attending DASSA prior to being in custody most recently.
You have a son who is only about 12-months-old who is presently under the guardianship of the Chief Executive of the Department for Child Protection. As I understand he is under an interim order and there is a court appearance on 25 August 2021 in the re-unification program.
You have been receiving financial benefits but you have advised your counsel that you have recently received an offer of employment. You intend on your release to live with your mother.
Sentencing is a complex balancing exercise and the court must assess different factors in sentencing you, including the seriousness of the offence, which is to be assessed in the context of your prior reoffending, the maximum penalties that apply, your personal circumstances and your risk of re-offending as well as the need for general deterrence.
In determining what is an appropriate sentence, I need to have regard to personal as well as general deterrence. I must weigh all of that against your prospects of rehabilitation and in that regard, I take into account that you wanted to be involved in the Treatment Intervention Court but were unable to do so.
I do consider that you prospects for rehabilitation are guarded because they are tied to your substance abuse. I have not seen evidence of a commitment from you that will be needed in order to rehabilitate yourself but I am told that you wish to do so, particularly in the interests of your child and your wish to be reunified with your child.
There is no doubt that a period of imprisonment is required for these offences and there will be one penalty under s.26 of the Sentencing Act 2017 however I will explain how I have calculated the sentence.
Turning first to the offences the subject of the good behaviour bond, that is the fail to comply with bail agreement and theft on 23 April 2020, I would have imposed a term of two weeks imprisonment.
For the next offence in time which is the theft on 21 April 2020, I would have imposed a term of two weeks imprisonment.
For each of the offences in July and November 2020, that is three counts of theft, I would have imposed for each offence a term of one month imprisonment. Similarly, I would have imposed a term of one month imprisonment for the offence of theft on 21 December 2020.
For the offending on 31 December 2020, serious criminal trespass, theft and property damage, I would have imposed a term of eight months imprisonment but I have notionally assigned six months imprisonment, taking into account your time spent in custody and the time you have spent on home detention bail.
For the offending on 12 January 2021, being unlawfully on premises, damaging building and theft, I would have imposed five months imprisonment.
For the breaches of bail on 14 and 15 May 2021, I would have imposed one month imprisonment.
Altogether, that adds up to 17 months or one year and five months. I reduce that by 30% to a period of 11 months and 31 days. I turn to consider whether that term should be suspended. Your counsel points to your desire to rehabilitate and the fact that it is in your interests to do so, as you wish to reunify with your child.
I do not consider there is good reason to suspend that sentence in its entirety. I have considered whether there is good reason to partially suspend it and again, whilst I think your prospects for rehabilitation are guarded, it is ultimately in the community’s interest to see that you are rehabilitated. I find that there is good reason to partially suspend the sentence to give you the opportunity to pursue rehabilitation.
I order that you serve a period of five months in custody and the balance of the sentence will be suspended if you enter a bond to be of good behaviour for a period of two years in the amount of $100. It will be a condition of the bond to be under the supervision of the Department of Correctional Services for the duration of that bond and I will come to those conditions shortly.
The sentence of imprisonment will be backdated to commence on 7 June 2021, when you were taken into custody. If you breach the bond by committing any offences during the term of the bond or by failing to comply with supervision conditions, the suspension of the sentence of imprisonment may be revoked which will mean that you will be required to serve the remaining period of imprisonment.
The conditions of the bond will include that you obey the directions of Community Services, that you attend for assessment for rehabilitation programs, that you attend and participate in suitable rehabilitation programs, attend for psychiatric and/or psychological assessment and report to the Department of Correctional Services within two days of your release. There are also some mandatory conditions that apply.
I will waive court fees and in light of your inability to pay due to being in custody I decline to award the prosecution costs. The victims of crime levies are payable.”[55]
[55] Exhibit 2, G6, Attachment C, pp 39-43.

[2022] AATA 2440

2 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice