Wang and Minister for Immigration and Multicultural and Indigenou S Affairs

CATCHWORDS – IMMIGRATION

– deportation – multiple convictions for rape and breaking and entering over that period of time – risk of recidivism – hardship to applicant including risk that will be re-tried for offence in China – balancing protection of Australia from repetition of offences against hardship to applicant – decision affirmed.

Migration Act 1958 ss. 200, 201, 202, 203, 204 and 499

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

DECISION AND REASONS FOR DECISION [2003] AATA 555

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2002/702
GENERAL ADMINISTRATIVE DIVISION     )

Re XIANG DONG WANG

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 13 June, 2003

Place: Melbourne

Decision:The Tribunal affirms the decision of the respondent dated 16 September, 1997.

S A FORGIE
Deputy President

REASONS FOR DECISION

On 7 October, 1997, the applicant, Mr Xiang Dong Wang, applied for review of a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) dated 16 September, 1997. In that decision, the delegate decided that Mr Wang be deported pursuant to s. 200 of the Migration Act 1958 (“the Act”). That decision was reviewed by a differently constituted Tribunal and affirmed on 25 July, 2001. Mr Wang’s appeal to the Federal Court against that decision was allowed and the matter remitted to the Tribunal to be heard and decided again.

At the hearing, Mr Wang was represented by Mr Heerey of counsel and the Minister by his solicitor, Mr Brereton. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence as was the Appeal Book from the proceedings in the Federal Court. Also admitted were certificates relating to courses undertaken by Mr Wang, an affidavit of Mr Justin Ford with attachments, a bundle of documents from CORE Sex Offender Programs (“CORE”), a letter from Fouad Najjarine, a statement by Mr Wang, a report by Dr J. Barry-Walsh dated 4 March, 2001, statements by Mr Wang’s father, Mr Weihai Wang, and sister, Ms Nina Xiacong Wang, a photograph and an Informed Consent Form relating to the Modular Management and Intervention Program (“MMIP”). Oral evidence was given by Mr Wang, Mr Weihai Wang, Mrs Xinlin Gao Wang, Ms Nina Wang and Ms Galia Wang in support of his case. No oral evidence was called on behalf of the Minister.

THE ISSUE

The issue in this case is whether Mr Wang should be deported under s. 200 of the Act.

LEGISLATIVE AND POLICY FRAMEWORK

Section 200 of the Act provides that “The Minister may order the deportation of a non-citizen to whom this Division [Division 9 of Part 2] applies.” Sections 201, 202 and 203 go on to specify those persons to whom s. 200 applies. Of relevance in this case is s. 201, which provides, in so far as it is relevant, that:

“Where:
(a)a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)when the offence was committed the person was a non-citizen who:
(i)has been in Australia as a permanent resident:
(A) for a period of less than 10 years; or
(B) for periods that, when added together, total less than 10 years; …
(ii)…

(c)the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;
section 200 applies to the person.”

In calculating the period for which a person has been a permanent resident of Australia, any period during which that person has been confined to prison for an offence of which he or she has been convicted is disregarded unless the conviction is subsequently quashed (s. 204(1)).

Apart from designating those persons in respect of whom the Minister may exercise his power under s. 200, s. 201 of the Act does not impose any limitation upon the Minister’s discretion to exercise, or not to exercise, that power. Pursuant to s. 499, the Minister may give written directions to a person or body about the performance of functions or the exercise of powers under the Act. The person or body must comply with those directions which must not be inconsistent with the Act or the regulations made under it.

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

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

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

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

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

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

“(a) the seriousness and nature of the crime;
(b)the risk of recidivism; and
(c)the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.” (clause 10)

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

“11.   It is the Government’s view that the following are examples of offences which are considered by the Government to be very serious:
(a)the production, importation, distribution, trafficking (including possession for this purpose), commercial dealing, or selling of illicit drugs.
.        Persons who embark upon drug-related crime for financial gain have shown a callous disregard for the insidious effects of illicit drugs on the health and welfare of Australia’s young people.
.        The Government views potential deportees who have sought to profit from the import or supply of drugs, whether or not motivated by their own need for illicit drugs, as extremely serious offenders. It is important both are a deterrent to other criminals and to protect Australian society that it is clearly understood that crimes involving drug trafficking, which puts the lives of young Australians at risk should be viewed as completely unacceptable to the community.
.        Offences involving heroin and other illicit drugs of dependency or addiction are of particular concern to the Government and the community.
(b)organised criminal activity resulting in a conviction in Australia;
(c)sexual assaults, whether or not accompanied by other violence, and especially where there has been more than one sexual offence;
(d)armed robbery (including robbery involving the use of imitation weapons);
(e)murder, manslaughter, assault or any other form of violence against persons;
(f)terrorist activity;
(g)kidnapping;
(h)blackmail;
(i)extortion;
(j)serious theft (including ‘white collar’ crimes);
.        Such crimes are of concern because of the amounts of money involved and/or the disruption caused to individuals, business and Government.
(k)crimes against children;
.        Because of their vulnerability as victims and potential victims, crimes against children take on a special significance, especially crimes involving inducing children to take illicit drugs, sexual assaults on children, child prostitution, violence to children, kidnapping and crimes taking advantage of children.
(l)any other crimes involving violence or threat of violence;
.        Such crimes are of special concern to the welfare and safety of the Australian community.
(m)ancillary offences in respect to any of the above offences, including:
.        convictions for attempting to commit any of the above offences;
.        convictions for conspiracy to commit any of the above offences;
.        convictions for being an accessory before or after the fact in any of the above offences.

Decision makers should have due regard to the Government’s view in this respect.”

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

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

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

“13.   It is the Government’s view that the person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. Decision makers should have due regard to the Government’s view in this respect. In particular the following factors will be relevant to the assessment:
(a)     the person commits a further offence after having been warned previously about the risk of deportation. They should expect that the warning will be given significant weight in consideration of his or her case;
(b)     a person with several previous convictions in Australia should be considered as an increased risk in the light of that past behaviour. In cases where there is a gap or gaps between convictions, the inference may be open that the potential deportee has demonstrated that a substantial period since an earlier conviction is not a reliable indicator that future offences will not be committed;
(c)     the extension of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.”

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

“       It is the Government’s view that this factor may be relevant to protecting the Australian community in various ways:
(a)     the nature of the offence is such that deportation is expected to deter other non-citizens from committing similar offences; and
(b)     the deportation of a potential deportee who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from committing new offences. For example, the potential deportee may be a ringleader whose deportation may reduce the likelihood that his or her associates will commit other offences. …”

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

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

The second primary aspect identified in the Direction relates to the best interests of the child. It is the Government’s view that the decision maker must determine the best interests of any child aged less than 18 years who is in a parent-child relationship or other close relationship with the deportee. The Direction states:

“18. It is the Government’s view that, in general, the starting point for any consideration of the best interests of the child would be that the child’s best interests will be served if the child remains with its parents. Countervailing considerations, which may point to the child’s best interests being served by separation from the potential deportee, include, but are not limited to:
(a)any evidence that the potential deportee has abused or neglected the child in any way, including physical, sexual and/or mental abuse; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the potential deportee’s unlawful conduct.

Decision makers should have due regard to the Government’s view in this respect.”

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

“It is the Government’s view that factors to be considered here include:
(a)whether the offender has an ongoing marital or defacto relationship with an Australian citizen or Australian resident including an assessment of whether that person would leave with the potential deportee;
(b)while it is less likely that potential deportees who have spent the greater proportion of their formative years in Australia will be deported, it is not the Government’s intention that such people will never be deported.
(c)the degree and extent of the potential deportee’s ties with the likely country of return;
(d)the strength of other family, social or business ties in Australia;
(e)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(f)the situation in the country of proposed return, including the overall environment, job opportunities, or the possibility of additional criminal sanctions. Civil or military hostilities are more likely to affect the timing of a deportation than to constitute a reason that the offender should continue to live permanently in Australia. Alternative places of return should be considered if the situation warrants such consideration.

…”

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

“23. The best interests of any relevant children are a primary consideration and are not considered under this heading.
24.It is the Government’s view that factors to be considered here include:
(a)the effect deportation would have on any marital or de facto partner, including whether he or she would leave Australia with the deportee and whether this would impose undue hardship on the non-deportee partner;
(b)the effect deportation would have on other family members, social ties and business associates and whether deportation would impose hardship on them;
(c)social ties developed after the liability for deportation arose, especially after the liability had been brought to the notice of the offender, may be given less weight; and
(d)the views (if any) of the victim or victims of the crimes committed by the potential deportee.

…”

BACKGROUND

Some of the facts forming the background to the issue that I must decide were not in dispute between the parties. In view of that and on the basis of the evidence, I have made the findings of fact set out in the following paragraphs.

Mr Wang was born on 29 March, 1968 in the People’s Republic of China (“China”) and is a citizen of that country. He has two sisters, both of whom are younger than he. He has a mixed Chinese, Russian and Jewish heritage. Both his grandmothers were Russian and both his grandfathers were Chinese. His maternal grandmother was Jewish. His father was born in Russia and moved to China at the start of World War II. The family always lived in Xinjiang Province in China.

Together with his parents and his sisters, Mr Wang migrated to Australia on 17 December, 1985. He was then 17 years of age and his sisters approximately 14 and 12 years respectively. For three or four months after his arrival, he worked as a spray painter in the automobile industry for Holden. His father, Mr Weihai Wang, also worked for Holden as an assembler before moving to do the same work at the Toyota plant. He worked until 1994 when Toyota moved to Altona. Mr Wang’s mother, Mrs Xinlin Gao Wang, worked at Star Poultry from 1986 until 1994. She speaks very little English and her husband none at all. One of her daughters, Ms Galia Wang also works at Star Poultry.

Since arriving in Australia, Mr Wang has been convicted of a number of offences. As the offences occurred in three States, the proceedings have been somewhat protracted as he has been transferred from State to State at the completion of each sentence in order to face charges in respect of the earlier offences. I have set the convictions out in the order in which the offences occurred rather than in the order in which he was convicted.

Victoria – County Court

On 15 January, 2001 Mr Wang pleaded guilty to, and was convicted of:
1 count of burglary (i.e. entering premises with intent to commit an offence involving an unlawful and indecent assault) on 3 March, 1986. He was sentenced to 3 months imprisonment.
2 counts of rape of a woman who was in those premises on 3 March, 1986. He was sentenced to 3 years imprisonment on each count. All but 4 months of the sentence on count 3 was to be served concurrently with the sentence imposed on count 2. Otherwise, the sentences on all 3 counts were to be served concurrently. Mr Wang is due to be released on 28 May, 2003.
Sydney: Supreme Court of New South Wales
On 2 July, 1992, Mr Wang pleaded guilty to two offences and, on 13 July, 1992, was found guilty of a further offence. They were:
2 counts of sexual intercourse without consent while knowing that consent was not given on 17 September, 1986 and 26 September, 1986. On the first count, he was sentenced to 4 years imprisonment commencing on 22 February, 1990 and expiring on 21 February, 1994. On the second count, he was sentenced to 4 years imprisonment to commence on 22 February, 1994 and to expire on 21 February, 1998 with an additional term of 2 years imprisonment to commence on 22 February, 1998 and to expire on 21 February, 2000.
1 count of breaking and entering a dwelling house and stealing property in that dwelling house on 17 September, 1986. He was sentenced to a fixed term of imprisonment for 3 years to be served concurrently with the first sentence commencing on 22 February, 1990.

Adelaide: Supreme Court of South Australia

On 3 March, 1987, Mr Wang pleaded guilty to, and was convicted of:
5 counts of burglary (i.e. in the night, breaking and entering a dwelling-house with intent to commit a felony therein, namely stealing) on 2 October, 6 October, 7 October, 10 October and 19 October, 1986 respectively. On each count, he was sentenced to 5 years imprisonment with the sentences to be served concurrently.
1 count of rape on 19 October, 1986 for which he was sentenced to 7 years imprisonment to be served cumulatively upon the sentences for burglary.

While in prison, Mr Wang has learned some English and can read and write in that language to an extent that he described as “30%”. His first language was Mandarin but he is not literate in it as he received only three years of schooling in China. He has now lost a great deal of fluency in Mandarin and can only communicate in it at the most simple level.

Since being in prison, Mr Wang has completed the following courses and programmes:
24 March, 2003 – Certificate 2 Hospitality (Cooking) conducted by University of Ballarat– modules completed were Basic Methods of Cookery, Preparing Appetisers and Salads, Preparing Sandwiches, Preparing Stocks and Sauces, Working with Colleagues and Customers, Working in a Socially Diverse Environment and Following Workplace Hygiene Procedures (Exhibit F).
10-13 February, 2003 - Community Integration Program – three day programme conducted by CORE in which presenters spoke and answered questions on Identification, Parole, Finance, Post Custodial, Legal, Drug and Alcohol/Harm Reduction, Housing, Centrelink and Employment (Exhibit E).
23 October, 2000 – Certificate in Hospitality (Kitchen Operations) – modules completed were Clean and Maintain Premises, Following Health & Safety Security Procedures and Following Workplace Hygiene Procedures (Exhibit A).
3 March, 1999 – English module conducted by the Adult Education & Vocational Training Institute (Exhibit A).
13 August, 1997 – Certificate of Proficiency issued when completed International Cable Manufacturers Vocational Development Programme Modules 1-16 conducted by Adult Education & Vocational Training Institute and International Cable Manufacturers (“ICM”) (Exhibit A).
17 February, 1997 – Basic Occupational Health & Safety Awareness Course conducted by the Adult Education & Vocational Training Institute (Exhibit A).
23 May, 1996 – completed Anger Management Course (Exhibit A).

THE EVIDENCE

Life in China

Ms Nina Xiaocong Wang said in her affidavit that the family was always treated as second class citizens because of their Russian ethnic background. As children, she and her brother and sister were often harassed and teased by other children. She said that this was as a result of their Russian background. Her father worked as a truck driver and was paid only 90 yuan per month. Due to their background, her mother was unable to find employment. As a result, the family’s financial circumstances were very difficult, she said.

Ms Nina Wang said that her brother was a “nice boy” and a dutiful son when he was a child. He helped with family responsibilities such as cooking and looking after his sisters when their parents were away. As a student he was diligent and hardworking and a good student as well as a good brother. Sometimes he was naughty but that occurred when he was teased by other children and he swore at them. He did not engage in any physical retaliation.

The move to Australia

The family migrated to Australia because of the mistreatment that they suffered and also because it was too difficult for her father to support his family on 90 yuan per month. They were sponsored by Ms Nina Wang’s uncle who had migrated to Australia with his family in approximately 1980. The two families have since fallen out of contact, she said.

Ms Nina Wang said that her brother had made some friends while he was working at Holden. They were Chinese Russians also. At the time, his lack of English prevented him from making a wider group of friends. Most of the time, he saw his friends away from the family home. As a consequence, the family could not see what sort of people the friends were or what sort of influence they had on him. Despite that, Ms Nina Wang said that she did know some of her brother’s friends and thought that they had a bad influence on him. Had he not been involved with them, she believes that he would have worked as his father worked and not become involved in criminal behaviour.

Ms Nina Wang said that her brother had left Victoria to find other employment opportunities. The family had assumed that it would not hear from him until he had found a job. He was not heard from for about a year. The whole family was very shocked to hear what had happened because he had been a nice boy who listened to his family. It was very hard for his family to accept what had happened.

The circumstances of the offences

The circumstances of the offences were set out in the sentencing remarks made by each of the Judges imposing sentence:

Victoria – Judge Hassett

“ By pleading guilty you admit in relation to Count 1 that you entered those premises with the intent to commit an offence involving an unlawful and indecent assault to a person, therein, and by your pleas to Counts 2 and 3 you admit that while in those premises you, on two occasions, committed rape of a young woman, I think, aged about 26, who was then in the premises. In each instance the rape was constituted by the introduction of your penis into the vagina of the young woman.
The maximum penalty for rape at the time was 10 years’ imprisonment. Of course, they were the more serious offences. The offences of rape were not surrounded by any gratuitous violence and in saying that, I don’t by any means seek, of course, to minimise the seriousness of the offences. They were indeed rendered more serious by reason of the fact that they occurred within the home of the victim. There is a dual attack upon the integrity of the victim in those circumstances.
The young lady awoke in the early hours of the morning to find you in her bedroom and alongside her. She was frightened, you assaulted her sexually and ultimately you raped her in the bedroom. You then picked her up and carried her out to the lounge room where you again raped her. By that time she had pretty much ceased struggling against you or seeking to resist you in the light of the trauma to which she had been subjected.
After raping her you left the premises via a window. The victim then rang the police and rang her mother. The police attended at the premises and amongst other things, fingerprints were located inside and outside the relevant window. Some months later those fingerprints were identified as matching your fingerprints.” (Exhibit 3, pages 74-75)

New South Wales – Justice Studdert

“The two offences were related in that they were committed on the same date and the victim of the first crime was the daughter of the victims of the second crime and each offence was committed by the prisoner when he broke into the … residence in the early hours of 17 September 1986.
1.The sexual offence
… was sixteen years of age at the time of the commission of the offence upon her, having been born on 30 December 1969. When he gained entry to the … residence in the manner later described, the prisoner went into … bedroom where he awakened her. The full details of … terrifying ordeal are described in her statement of 17 September 1986 identified as Exhibit D and I have no reason to doubt the accuracy of the description of the events therein recorded. It is unnecessary to repeat those details in these remarks on sentence. Suffice it to say that the prisoner removed his victim's under-clothing, fondled and licked her vagina and handled her breasts before attempting penile penetration of her vagina. … was successful in resisting this attempt but eventually the prisoner succeeded in effecting penile penetration of her anus. The prisoner used a condom during the commission of the crime which he later removed and left on the bedroom floor.
The act of intercourse specifically relied upon by the Crown as constituting this offence was the act of anal intercourse.
The maximum penalty for this offence at the time it was committed was penal servitude for seven years.
Before the prisoner pleaded guilty to this offence an application was made by the Crown for an order providing for … to give her evidence while the prisoner was screened off from view because she was fearful of retribution in the event that the prisoner saw her as she gave evidence. … gave evidence before me on that application which revealed the ongoing effect which this offence had upon her. I accept that evidence as being both truthful and reliable. She said that she was emotionally unstable for a long time. She had counselling for a period of six months. She now finds herself very wary of people and she told the Court that she had lost her faith in God. At the time this offence was committed she was a regular church-goer and taught younger children Sunday school.

…
2.The break and enter offence
According to the statement made by … he secured the house before retiring at about 10.30 pm on 16 September 1986. The back door was locked and bolted and the deadlock on the front door was secured. All the windows in the house were locked except for the laundry window which was kept open a little to allow the family cat in and out. Unfortunately … kept a set of house keys in the laundry and it appears that the prisoner forced his way into the laundry, found the keys and then gained access to the house. Having committed the crime on … he then stole a number of items of jewellery from … and her mother. Those items of jewellery (nine in all) are described in the statement of … tendered before me (Exhibit F) and I do not propose to set the items out for the purposes of these remarks.

…
THE … MATTER
The prisoner stood trial on a charge of having had sexual intercourse with … without her consent knowing she was not consenting. The offence was alleged to have occurred on 26 September 1986.
The prisoner pleaded not guilty to the offence charged when the indictment was presented on 13 July 1992 but the jury found him guilty after a three day trial on 15 July 1992. He was remanded in custody for evidence and submissions on sentence.
…, who at the time of the offence was eighteen years of age, was assisting her father on his milk run in the early hours of 26 September 1986. She made a delivery in Baringa Close, Green Valley and was making her way back to the roadway when she was approached by the prisoner. He dragged her at knife point into a nearby park where the offence was committed.
The real issue at the trial was the issue of identification and of course the jury's verdict reflects that it was satisfied beyond reasonable doubt that the offender was the prisoner. There was no real challenge to the version given by ….
As to the details of the offence and having assessed this witness as she gave her evidence I have no hesitation in accepting her evidence as being both truthful and reliable.
What was done in the park was done at knife point. … was dragged some distance into the park and thrown to the ground. Her pants and underclothing were removed and the prisoner put his penis into her vagina whilst he had the knife he was carrying against her neck. After this invasion the prisoner required … to fit a condom on to his penis and after another attempt at vaginal intercourse the prisoner turned his victim on to her stomach, pulling her up until she was in a kneeling position and he then had anal intercourse. … was then pulled further away from Baringa Close and again the prisoner penetrated her anus once more whilst still holding the knife. The prisoner was disturbed by the arrival of … father who pursued him but the prisoner was able to make a good his escape.
This was a ruthless sexual attack. … feigned an asthma attack at the outset but her plea concerning this was disregarded. ” (Exhibit 3, pages 35‑42)

South Australia – Justice Matheson

“ You followed another young man to Adelaide who had a similar background to your own. Your money ran out and you had no food and that was your explanation for committing the burglaries. I have not been supplied with the precise details but I am told most of the property stolen has been recovered.
The rape is the most serious of your offences. It is true that you did not cause your victim any serious injuries and that you used a condom but you placed your hands around her throat and after the offence you tied up her wrists and her ankles very tightly and put some clothing in her mouth whilst you proceeded to ransack her belongings and get away with a lot of her jewellery. It must have been a very distressing incident for your victim.” (Exhibit 3, pages 33-34)

In cross-examination, Mr Wang said that he knew that his conduct would have been against the law in China. Not only would his conduct have been against the law, it would have been an offence simply to talk about such a matter. His friends told him that if he broke the law while he was under the age of 18 years, he would not be punished under Australian law. His friends had all been in trouble with the law and he would not have been accepted by them had he not committed offences. He committed offences to impress his friends. At the time, he did not necessarily know that it was wrong because he was not intelligent, had just come to the country, did not speak English and did not know the law.

He did not plan the offences and did not plan to commit sexual offences. He would see a house that was empty and where there was no car. Mr Wang agreed that he had pleaded guilty to an offence of breaking and entering with the intent to commit a sexual offence but had done so by his barrister so that he would get a lesser sentence. When asked why he needed to break the law when his friends had not seen him commit them, he replied that his only intention was to break into the houses and to steal property. Mr Wang agreed that he had a condom when he raped a 16 year old girl. His friends had given it to him, he said in cross-examination. When it was suggested to him that a condom was a strange thing to have with him, he said that it had been in his pocket for a few weeks. When he attacked the second young woman in Sydney, Mr Wang agreed that he had a knife. He said that he was walking to his home near the scene of the crime and always had a knife in his pocket. A report dated 3 September, 1996 from the Department of Corrective Services (NSW) noted that Mr Wang had denied that he had raped her (Exhibit 3, page 64). In cross-examination, Mr Wang said that he was not saying that he was innocent and he was not claiming anything. He had been found guilty by a jury and it was not up to him to say that he was guilty or not.

Mr Wang later said that he felt remorse about what he had done to others. He had done something horrible and it was the worst thing that a person could do to another. When he had been raped in prison, he felt very bad and he felt what his victims felt. He said that he committed the offences because he had not been very mature and was young. In addition, he had been easily influenced and not taken moral responsibility in society. He had been very naïve.

Offences committed while in prison

The only evidence of offences committed while in prison relate to his time in prisons in New South Wales. Of those proved, there were three for failing to attend muster (22 March, 1998 (reprimand and caution), 24 May, 1998 (1d Cells) and 13 August, 1998 (Proven-dismissed)), not complying with routine (25 June, 1998 and 15 March, 1999 (reprimand and caution on both), damaging cell/contents (18 April, 1998 (compensation)) and having unauthorised property (11 November, 1998 (Proven-dismissed)). (Exhibit 3, page 144)

Mr Wang said that he spent 18 months at Mannus in New South Wales. That is an open prison farm. He could leave it whenever he wanted to and walk to town. There were in fact three towns that he could walk to. One was 20 minutes walk away and another 30 minutes away. His work on the farm involved him in growing trees and in trimming tree branches after trees were logged. He worked in a group of ten supervised by one prison officer. At lunch time, he could walk into any one of three towns.

The area manager’s assessment of Mr Wang on 20 April, 1996 was that:

“Wang has not adapted to an open camp to date, he maintains very much to a maximum security attitude. Wang can become aggressive if thing’s dont (sic) go his way 100%. I believe Wang would find it difficult if granted parole at this time.” (Exhibit 3, page 63)

The Governor’s assessment was that it was too early to make an assessment as to Mr Wang’s suitability to adapt to normal community life. He was not considered a security risk although he was having problems in adapting to an open institution’s routine. Mr Wang’s response to this was that he was not saying whether the comment was true or not true but if he questioned what he was told, he could be described as a trouble maker.

Counselling and related programmes while in prison

Mr Wang said in giving evidence that he received no counselling services at all while he was imprisoned in South Australia and saw only a gaol psychologist and a social worker before he was sentenced in New South Wales. Although he had been trying to get on a sex offenders course since 1998, he said, he had been unsuccessful in New South Wales as had been due to be transferred to face charges in Victoria. In cross-examination, Mr Wang’s attention was drawn to a note in a Case Review Form dated 18 August, 1997 in which Mr Wang is said to have stated that he had no interest in any education programmes when it was put to him about attending a SORT or GAIN course. Mr Wang’s behaviour was recorded as having improved slightly but that he was still not prepared to address his offending behaviour. (Exhibit 3, page 167) Mr Wang said that there was no sex offenders’ programme offered in Long Bay Gaol in 1997 and that it was first offered in 1998. He would only be offered a sex offenders’ course if he were within 12 months of his release.

A further Case Review Form dated 26 July, 1997 noted that Mr Wang had told an officer that he was not interested in enrolling in a SORT programme or in speaking to a counsellor about addressing his offending behaviour. The officer also said that Mr Wang could, at times, be non-compliant and that he could lose his temper with officers very easily. His conduct within the unit was only just acceptable. The case management supervisor’s review stated that Mr Wang should be encouraged to attend a GAIN programme if at all possible even if he did not attend any others. The GAIN programme it was said, would assist him in addressing his offence. (Exhibit 3, page 168) A later report dated 19 May, 1998 noted that Mr Wang had not utilized the “psyc services to address his offending behaviour” (Exhibit 3, page 110). In cross-examination, Mr Wang said that he had not been shown what had been written. He was not saying that the reports were not inaccurate. Reports were written each month and what he said was not recorded. The reports were only the opinions of the officers who wrote them.

Later, Mr Wang said that he did not want to know about the past but about the future. In therapy, a person can say whatever he wants to say. Questions are thought of and solutions given.

Since he has been imprisoned in Victoria, Mr Wang said that he has been assessed as suitable to commence the CORE sex offenders’ programme, Mr Wang said. He has started that since he has been at Ararat but was not able to begin it immediately upon his transfer to that prison due to an administrative problem. Consequently, he has missed the first module of the course but was continuing with later modules. Should he be released from prison and permitted to remain in Australia, Mr Wang intended to complete as much as he could before his release on 28 May, 2003. He has given a written undertaking to complete each of the outstanding modules of the CORE Sex Offender Program Management and Intervention Program that he does not undertake or any modules accepted by CORE as equivalent modules as soon as they are made available to him on his release. He has undertaken to send the Minister a copy of any Completion Report issued by CORE or by Forensicare of Brunswick, Victoria. (Exhibit H)

A report by CORE dated 30 July, 2002 summarised the clinical assessment and psychometric testing it had conducted of Mr Wang. That report summarised Mr Wang’s family history and life in China. It reported that he had “… never had a relationship and has no children” (Exhibit H, page 3) and reported his sexual development in the following way:

“ Mr Wang’s first experience of sex was being abused by his friend’s uncle at night when he stayed at his friend’s place. He was reluctant to disclose this abuse, as he felt ‘embarrassed’. However, Mr Wang describes his first sexual experience as being with a prostitute in a brothel. He recalls starting to masturbate when he was first incarcerated at about 18 years of age. He stated that in China he did not think about sex and never saw pornography or spoke about sex to any one because it was ‘illegal’. He stated ‘I never thought about sex, I never talked about sex and I never masturbated’. On his arrival in Australia his friends introduced him to video pornography and he became a constant consumer (at least once a day for three months).” (Exhibit H, page 4)

The report went on to assess Mr Wang’s likelihood of re-offending:

“ The STATIC-99 a brief actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males was administered. Using this instrument Mr Wang is considered to fall into the Medium-high risk category. This is consistent with the author’s opinion based on review of the available depositional and file information, psychometric testing and clinical interview.” (Exhibit H, page 5)

CORE recommended that Mr Wang attend five level 1 modules of the MMIP as a pre-requisite to offence specific treatment. They were Adult Relationships, Gender Attitudes, Social Skills, Aggressive Behaviour Management and Sex Education. With regard to the offence specific treatment, the report recommended that Mr Wang participate in a prison based Sex Offenders Program that includes five modules: Cognitive Distortions, Victim Empathy, Social Competency, Emotional Regulation and Relapse Prevention.

In a report dated 27 March, 2003, CORE reported on the modules completed by Mr Wang to date. It noted that MMIP is a specifically designed intervention programme designed to occur three times a week over an eighteen week period. Mr Wang was able to attend only for the last eight of those eighteen weeks as he was transferred to the unit after the programme had started. The modules that he commenced were Social Competency and Emotional Regulation but he had not undertaken any of the five modules required as a pre-requisite. It had been expected that Mr Wang would be able to complete his modules at the beginning of the next MMIP but this has not happened and he now has limited time in which to complete them.

As to his progress in the MMIP, the report said:

“During Mr. Wang’s initiation into the group he presented himself in an open and honest manner. Mr. Wang demonstrated that he was eager to comply with group norms and was able to reflect back to group members the initiated group rules and was able to demonstrate his own personal responsibilities within the group. Mr. Wang presented willing to fit into the group and was amendable to answering questions posed to him in an open and direct manner. Mr. Wang presented in sufficient details an overview of his life story and his past offences. Areas that were highlighted during this presentation were Mr. Wang’s need for acceptance by others, anger control difficulties and themes of power and control.
Mr. Wang initially presented with some difficulty grasping general concepts but demonstrated a developing ability in the application of some of the recommended strategies to real life situations. He completed homework to a satisfactory level, however due to Mr. Wang experiencing difficulties with literacy his homework was evidently written by other inmates, which posed difficulties for the facilitators to accurately assess the authenticity of the content of the homework presented and deciphering if it fully reflected Mr. Wang’s true comprehension and own insights into his emotions.
Mr. Wang generally participated well in group, he was able to challenge other group members, however on other occasions he would tend to withdraw. At times Mr. Wang appeared to experience difficulties in responding to questions around his own cognitive distortions and exhibited a limited insight into victim empathy.. These difficulties can be attributed to Mr. Wang not having engaged in either the cognitive distortions or victim empathy modules during his course of treatment. Mr. Wang was generally able to take responsibility for his actions but also eluded to his young age as an artefact of his offending and reporting that now that he has matured he would not engage in such behaviour. Mr. Wang at times had difficulties understanding concepts and terms that were presented in group however he was able to articulate these difficulties and would utilize the support of group members to help him with his homework and further develop his understanding of the session content.” (Exhibit H, pages 2-3)

With regard to the Social Competency and Emotional Regulation modules, it was reported:

“SOCIAL COMPETENCY MODULE
Mr Wang is aware of his sexuality, however at times had difficulty relating this module content in respect to social relationships which is possibly due to his limited experience and support from family as a result of his incarceration at the age of 14. It is also important to recognise that most of Mr. Wang's social interactions have predominantly been within the prison environment for the past 17 years. Therefore making the application of social strategies a more difficult concept for Mr. Wang to process due to his history of learnt interactions with people of a different social group.
Mr. Wang presented as having a limited understanding of the application of problem solving strategies and despite his ability to walk away from situations and implement behavioural strategies. Mr. Wang displayed limited insight into his ability to generate strategies to manage the emotions evoked by socially challenging situations. He had a mixed presentation within group which may have been contributed by him having commenced this module after the group had completed two modules prior to his participation. With respect to his initial presentation Mr. Wang appeared slightly reluctant to engage in some group activities, however he was able to identify that this is a result of his difficu1ties with accepting and trusting others. Mr. Wang has a sound understanding of his reluctance to trust others and how this impacts on his relationships with other individuals however he sees this as a protective factor as opposed to an inhibitory behaviour.
Generally, Mr. Wang was able to provide relevant feedback to other group members, however experienced difficulties involving managing his anger and generally internalising these feelings as opposed to expressing them. Towards the cessation of this module Mr. Wang had demonstrated a gradual increase in group participation, yet he still tended to not wish to appear to be challenging other group participants; preferring to go with the ‘majority’.. Possibly a result of his limited school education and being of Chinese origin, Mr. Wang regularly appeared to have some difficulty understanding modular concepts and the rational regarding the application of these concepts to his behaviours.
Despite these difficulties, he was able to understand and was generally ref1ective of his personal experiences and how they had impacted on his management in social interactions. At times Mr. Wang would tend to catastrophise situations rather then seek management strategies for non-catastrophic events and had limited insight in respect to taking on feedback related to his own behaviours. He tended to have some difficulty identifying his own attachment style and at other times become dismissive to others feedback.
Mr. Wang also experienced some difficulty understanding the rationale for implementing management strategies for stressful situations, which may be reflected back to his past experiences in the prison for 17 years, which may have contributed to his bleak outlook of managing difficult situations.
Overall, Mr. Wang's willingness to participate in the program was the key factor to the development of some of his insights, however difficulties identify the relationship between his offending behaviours and the triggers related to his offending were observed. Limited trust, lack of experience in social situations and a limited support network were regular barriers for Mr. Wang. Subsequently this hindered his ability to draw connections between the benefits of implementing management strategies and their application within his environment for a more productive and healthy lifestyle.
EMOTIONAL REGULATION
Mr. Wang had limited involvement in group activities and general participation and he tended to comply with majority rule as opposed to expressing his own opinions as he acknowledged he would rather be quiet than cause disruption with other group members. However, with this limited involvement, Mr. Wang appeared to still exhibit some comprehension of the session content. As a result the true nature of his understanding was difficult to ascertain. It is noted that Mr. Wang was able to identify that he generally internalises his emotions and was reflective of the relationship between his current management of his emotional responses and past education and reinforcement by role-models.
Overall, as the module progressed Mr. Wang became more forthcoming in group, providing questions and clarifying issues he had difficulty understanding. He demonstrated a sound understanding of the benefits of implementing relaxation strategies, time out and distraction techniques with further exploration and reinforcement for Mr. Wang to continue further development on these strategies in the future. As Mr. Wang reported he experienced difficulty in identifying how these strategies could always be beneficial and implemented on the outside. Mr. Wang is able to recognise the difficulties he experiences but does not fully understand the true nature of his emotions.” (Exhibit H, pages 3-5)

Before making recommendations as to his future participation in additional modules and repeating Social Competency and Emotional Regulation, the report concluded:

“Generally Mr Wang’s participation and progress throughout the two modules presented as initially difficult for him to adapt to an already established group. However despite this difficulty Mr. Wang made a significant effort to contribute to the group process by adhering to the already established group norms and rules as well ad demonstrating a sound effort to participate in program content and complete all homework requirements, which once again is important to note were not written by himself due to literacy difficulties and subsequently making it difficult to ascertain Mr. Wang’s full comprehension and insight into the homework set. However due to the fact that Mr. Wang has not completed his full recommended treatment program there are concerns about his ability to fully comprehend his offending pattern and the associated risk factors related to his offending behaviours which in turn has impacted on his ability to develop and implement appropriate strategies in an attempt to live an offence free lifestyle.” (Exhibit H, page 6)

Relationships since his imprisonment

Since he has been imprisoned in Victoria, Mr Wang said, his family has visited him. They drive for about 4½ hours to reach Ararat and make the journey each fortnight. When he was in New South Wales, he was permitted weekend leave from Friday night until Sunday night. His sister, Nina, sponsored him for that leave.

Mr Wang said that he had a relationship, which was one of mutual commitment as well as a sexual relationship, with Ms Joanne Sayers from 1996 until 1999. They met through her brother who was in the same gaol. She would visit her brother and so came to meet Mr Wang. At the time, she was living in Blacktown in New South Wales and would visit him when he was at Parklea Gaol, which was near Blacktown, Long Bay, Junee and Mannus. She would travel by train or bus to see him, Mr Wang said, and did so even when she had to travel some 400 kilometres to Mannus.

They had planned to marry, Mr Wang said, and he had understood that the Victorian charges would not be pursued. When the Victorian authorities decided that they would continue with the charges, Ms Sayer and he both decided to part. He told her, he said that he might get an extra sentence. Mr Wang said that he and Ms Sayers are still friends. He last spoke to her in August, 2002.

Relationships with his family

Ms Nina Wang said that the family had been in touch with her brother on a regular basis since he went to gaol. Members of the family have spoken to him every week and sometimes twice each week. Ms Nina Wang visited him on one occasion when he was at Mannus Prison. She did so in order to sponsor his having weekend leave at her family home. The leave did not eventuate due to his immigration status. That visit occurred in 1996 and more frequent visits were difficult as Ms Nina Wang had her first child in 1994, a miscarriage in 1995 and another child in 1996. She and her husband were working very long hours to pay for their house. Since Mr Wang has been in gaol in Victoria, she and other members of the family have visited him on a regular basis. Sometimes, the visits occur each week and sometimes each fortnight. Ms Nina Wang usually accompanies either her mother and her sister or her father on the visits because her brother’s Mandarin is very poor and she has to act as translator between him and her parents. She also takes her children to visit their uncle.

Ms Nina Wang believes that her brother is a different person from the person who left home. He is much more mature and has learned his lesson, she said. The family has told him that he has to behave himself while in gaol, to work hard, to listen to the prison authorities, to get a job when he is released, to look after his parents and to obey the law. Ms Nina Wang said that her brother has raised with her the issue of his behaviour. He wants to do what his family tells him and tells them that he is ashamed of what he has done. Already he has spent half of his life in gaol and he does not want to re-offend. He wants to care for his parents now that they are getting older. The family has spent between $30,000 and $40,000 in legal expenses in trying to keep her brother in Australia and that is a very large commitment for them. They have had to mortgage the house. Mr Wang wants to repay the debts to the family. Taking into account the way her brother now thinks, Ms Nina Wang said, she does not believe that there is any way that he would commit any further criminal offences. She believes that he would try to find work, contribute to the family and obey the law.

Plans for the future

With the help of friends, Mr Wang had prepared a document setting out his hopes for the future. With regard to where he would live, he wrote that he would live with his parents because, in Chinese tradition, the eldest son always looks after his parents. It is his duty and responsibility and he looks forward to it just as he looks forward to spending time with his sisters and his nieces and being able to spend time with them as a normal family.

Mr Wang said that he is of the Muslim faith and is looking forward to being able to attend the mosque. He will gain support from the strong Chinese community. An important area of support for him will be the community of the mosque and his local Iman. In his document, Mr Wang wrote that he had:

“… been asked by my local Mosque to help part time in the community. They have a young offenders program which hopes to stop young people from escalating in their crimes. My experiences in jail ideally suit me to help explain to these young people the futility of crime and the harshness of prison life. It is something I am proud to be offered and am looking looking forward to. Many of the skills I have learnt on the programs, such as thinking before acting will form part of what I will pass on to the young offenders.” (Exhibit D)

Mr Wang said that he had spoken with his family at great length about his goals on his release. They have enthusiastically embraced his ideas and offered financial, emotional and spiritual support. His long term goal is to open a restaurant. While in prison, he has enjoyed cooking and believes that he has a natural flair for it. He also wants to pursue further study at night. In cross-examination, Mr Wang said that it his responsibility to ensure that his mother and father are healthy.

In cross-examination, Mr Wang was asked how he would support his parents. He replied that in the Chinese tradition, it is the parents’ duty to look after them. He would use his parents’ mortgage because he was the eldest son. Everything they own belongs to him. He can borrow from the bank. His parents will be very happy to provide him with whatever he needs. If his parents become sicker, Mr Wang said that he would look after them. He would do that as well as go to work to repay the mortgage. It would not be easy but nothing in life is easy.

Mr Wang said that he had been raped while in prison in Adelaide. Two raped him and the third held him down. He told the authorities of the rape, he said, but they simply laughed and told him that he at least had a chance to complain; think about your victims. The rape was repeated two days later.

Mr Wang acknowledged that it would be very difficult on his return to the community. He would have a social worker. If he had a long term rehabilitation programme, he would have someone to whom he could put any problem he experienced.

Ms Nina Wang said that, if her brother were released from gaol and allowed to stay in Australia, he would stay in the family home. The family is prepared to assist him in whatever way possible. The Chinese Xinjiang Association of Australia would help him to make friends and to find employment. She believed that the first thing that her brother would do would be to get a job and plan to have a wife and children. He would contribute to the family, care for his parents and repay his debts to his sisters.

It is a very important part of Chinese tradition that the eldest son look after his parents. Therefore, her brother is expected to fulfil this duty. Ms Nina Wang said that she and her sister would eventually marry outside the family. She is unable to care for her parents as she is supporting her two children as a single mother on a Parenting Payment. Her sister, Galia, works full time at Star Poultry and her earnings are used to pay the mortgage with which the family secured the loan it obtained to pay for her brother’s legal expenses. The family shares its expenses.

The family is not well off, Ms Nina Wang said, and would not be able to afford to travel to China to visit Mr Wang. Her parents are not in good health and travel in China where health care is expensive is not sensible for them to undertake.

Mr Wang has no relatives living in China and has no contacts. There is no social welfare system and, with a criminal record, he would find it very difficult to find employment. It is likely that the family would have to support him from Australia were he to return. He would have difficulty with the language as his Mandarin is so poor.

Ms Nina Wang said that the family would be devastated if Mr Wang were to be deported. Her parents would probably never see their son again. They would not have their son to care for them in their old age.

Ms Nina Wang’s evidence was confirmed by that of her parents. Mr Weihai Wang said that the family has plans that his son will work as a chef when he is released. While he has been in prison, his son has obtained certificates for cooking, computing and electrical education. There is a chance that his son will be able to work in a friend’s IT business, he said. The family also hopes that his son will soon be married. His son will live at home on his release. It is his responsibility to help repay the debts that they have incurred. They incurred some $50,000 in legal expenses and still owe about $20,000. Mr Weihai Wang’s daughter, Galia, has problems with her back. She is the only member of the family working full-time and the other members of the family are in receipt of pensions, he said. The family needs Mr Wang to help support it.

Mr Weihai Wang said that he is sick and does not know how much longer he has to live. He has had two operations for urinary problems. His age (he turns 65 in May, 2003) and his health problems make it very hard for him to travel. He has to relieve himself 25 times each day, he said. Mr Weihai Wang said that he has been suffering from depression because he is worried about what will happen to his son. It is the Chinese tradition that the son carry on the family tradition. Should his son be deported, it is unlikely that he will ever see him again, he said. The family will have to send money to him to support him as it will be very hard for his son to find a job in China. The unemployment rate is high and his son’s Mandarin is so poor that he will not be able to communicate, he added. Mr Weihai Wang also said that he is very concerned about the view that the Chinese authorities will take of his son’s convictions. They take a very serious view of crimes such as rape and drug dealing.

Like her husband, Mr Wang’s mother, who is now 54 years of age, is most concerned about her son’s fate in China. She cannot travel to China because she suffers from high blood pressure and diabetes. In July, 2002, she suffered from cancer of the uterus and underwent an operation. She suffers from depression and anxiety, she said, because of what has happened to her son. If he is sent to China, she will never see him again. Her only hope is that he stays in Australia and lives with the family.

References

Mr Paul Bethune, ICM’s Quality Assurance Manager, wrote on 11 December, 1996 that Mr Wang had been employed by ICM for a total period of three years (Exhibit A). In that time, he was employed as a power board assembler but also worked in most other machine operator and assembly positions including cable cutting and die setting after being moved to the cord extension socket line. In addition and because of his accuracy and reliability, Mr Wang was also employed as a final electrical test operator and in the assembly quality inspection area. Before leaving ICM, Mr Wang was promoted to the position of line leader because of his consistent hard work and efforts to improve the quality and flow of the line on which he worked. Mr Bethune noted that Mr Wang was punctual and easily learned new skills. Once trained, he could be left to work alone and to identify and to address any problems that arise. He makes any extra effort that is needed without complaint.

Mr Peter Silveri, the Head Chef at the Port Phillip Prison, wrote on 22 April, 2001 that Mr Wang had worked at the prison for 16 months. In that time, Mr Wang had worked in many areas including the mains department, centre cleaning and night pots. Mr Silveri reported that Mr Wang has a good work ethic and the ability to achieve results. Mr Wang had a good rapport with the Eurest staff and that had contributed to his having a long association with them. (Exhibit A)

In a letter dated 14 March, 2003, Mr Fouad Najjarine of KRF General Engineering in Victoria, wrote that the firm had a position in which Mr Wang could commence work immediately. He had no hesitation in offering him long term employment. Mr Najjarine noted that Mr Wang was due to be released from prison in the near future and that Mr Wang wanted to secure stable and permanent employment. He also noted that Mr Wang was more than willing to work in the fabrication industry. Mr Wang was mindful of his parole conditions and would be a most reliable asset to his business, Mr Najjarine wrote. (Exhibit G)

The members of the Chinese Xingiang Association of Australia wrote of Mr Wang’s past and of his being under the age of 18 years when he came to Australia. Had he not been in gaol, he would have been an Australian citizen by now, they wrote. They continued:

“… the meaning of humanity is to help people, give them a chance to have a normal or even a better live, instead of destroy their life simply because they made a mistake once in their life. Beside prison is already a place for criminals to pay for what they did. Thousands and thousands of criminals had been given a chance to become better people after they came out of prison. Therefore why not give Alex a chance too. We strongly believe, after Alex comes out, he would do his best to be a better and useful person to our society.” (Exhibit J)

Possible consequences for Mr Wang were he to return to China

Mr Justin Ford, who is acting in the case as pro bono research assistant to Mr Heerey, had gathered from various sites on the Internet material relating to the law in China on issues such as criminal offences and the imposition of the death penalty. They include Articles 10 and 236 of the Criminal Law of the People’s Republic of China, which was last modified on 7 April, 1998:

“Article 10. Any person who commits a crime outside PRC territory and according to this law bear criminal responsibility may still be dealt with according to this law even if he has been tried in a foreign country; however, a person who has already received criminal punishment in a foreign country may be exempted from punishment or given a mitigated punishment.
Article 236. Whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than three years and not more than 10 years of fixed-term imprisonment.
Whoever has sexual relations with a girl under the age of 14 is to be deemed to have committed rape and is to be given a heavier punishment.
Whoever rapes a woman or has sexual relations with a girl involving one of the following circumstances is to be sentenced to not less than 10 years of fixed-term imprisonment, life imprisonment, or death:
(1)rape a woman or have sexual relations with a girl and when the circumstances are odious;
(2)rape several women or have sexual relations with several girls;
(3)rape a woman in a public place and in the public;
(4)rape a woman in turn with another or more persons;
(5)cause the victim serious injury, death, or other serious consequences.” (Exhibit B, paragraph 3)

Amnesty International’s Annual Report for 2002 contained the following material:

“ ‘A ‘strike hard’ campaign against crime led to a massive escalation in death sentences and executions. The limited and incomplete records available at the end of the year showed that at least 4,015 people were sentenced to death and 2,468 were executed; the true figures were believed to be far higher. In the autonomous regions of Xingjiang and Tibet, freedom of speech and religion continued to be severely restricted. Repression of Muslim ethnic groups suspected of nationalist activities increased.
Torture and ill-treatment continued to be widespread, occuring (sic) in many state institutions - from police stations to drug rehabilitation centres - as well as in peoples homes or workplaces. The victims included all types of detainees and prisoners, as well as bystanders to protests, people involved in disputes with officials, migrant workers, vagrants...
The death penalty continued to be used extensively, arbitrarily, and frequently as a result of political interference...Executions were carried out for non-violent crimes such as bribery, pimping, embezzlement, tax fraud, selling harmful foods, as well as drug offences and violent crimes….On 20 April, over 200 people were executed in a single day after sentencing rallies were held across China…
Gross violations of human rights continued in the XUAR (Xangjiang Uighur Autonomous Region), including arbitrary and summary executions, torture, arbitrary detention and unfair political trials. ...Restrictions on religious practice were also placed on schools and other institutions during the holy month of Ramadan.’” (Exhibit B, paragraph 6)

Amnesty International’s Annual Report for 2001 contained the following passage:

“The enormous social costs of restructuring continued to provoke social unrest during 2000. The absence of effective social welfare provisions left many of the millions of workers who had lost their jobs in recent years facing acute poverty.
Torture during interrogation was perpetrated against all types of detainees…
The death penalty continued to be used extensively and arbitrarily. Political interference was common. Often mass executions were carried out before major events or public holidays as warning to others. Execution…sometimes took place within hours of sentencing. The limited and incomplete record available to AI at the end of the year showed that at least 1,511 death sentences had been passed and at least 1,000 executions carried out in 2000. These were believed to be only a fraction of the true figures as death penalty statistics remained a state secret in China.
There was an increase in religious persecution by the authorities. Islamic groups and prominent individuals in the Muslim community were subjected to repressive and often brutal measures.” (Exhibit B, paragraph 7)

Another report by Amnesty International was entitled “China: The Death Penalty in 1999” and was dated 1 March, 2001:

“Only a fraction of death sentences and executions carried out in China are publicly reported, with information selectively released by the relevant authorities …
From 1990 to the end of 1999, Amnesty International has recorded a figure of over 27,588 death sentences in China and over 18,023 executions - an average of at least 2,758 death sentences and 1,802 confirmed executions every year in China. National statistics on the death penalty remain a state secret in China.
Amnesty International is the only international organization which systematically monitors and records executions and death sentences in China. In many cases, the Death Penalty Log is the only easily accessible public record of a death sentence or judicial execution. In many of the cases monitored, there are very few details and the organization is unable to ascertain the defendant's alleged crimes nor the circumstances surrounding their arrest, trial and subsequent execution or sentencing. It is likely that many of the defendants recorded did not have fair trials. Many may have been subjected to torture to obtain a confession. Many may be illiterate and have little way of arguing their defense or understanding the processes. Many more have been executed summarily during peaks in sentencing or crime crack downs...
The death penalty falls predominantly on those people with a low educational and social standing. For example, Amnesty International has monitored numerous death sentences being imposed on migrant workers who are often marginalised in their communties (sic) and labelled by the local population as the main source of crime...
Amnesty International continues to call upon the Chinese Government to make public national statistics on the imposition of the death penalty. Only then can claims of a reduction in the use of the death penalty to be taken seriously. Instead such statistics remain a state secret.” (Exhibit B, paragraph 12)

Material from the United States of America Department of State report entitled “1999 Country Report on Human Rights Practices – China” contained a number of extracts relating to the criminal process in China. These included:

“The Constitution and laws provide for fundamental human rights; however, these protections often are ignored in practice. Abuses included instances of extrajudicial killings, torture and mistreatment of prisoners, forced confessions, arbitrary arrest and detention, lengthy incommunicado detention, and denial of due process. Prison conditions at most facilities remained harsh. In many cases, particularly in sensitive political cases, the judicial system denies criminal defendants basic legal safeguards and due process because authorities attach higher priority to maintaining public order and suppressing political opposition than to enforcing legal norms. …
Particularly serious human rights abuses persisted in some minority areas, especially in Tibet and Xinjiang, where restrictions on religion and other fundamental freedoms intensified. …
The law prohibits torture; however, police and other elements of the security apparatus employed torture and degrading treatment in dealing with detainees and prisoners. Former detainees and the press reported credibly that officials used electric shocks, prolonged periods of solitary confinement, incommunicado detention, beatings, shackles, and other forms of abuse against detained men and women. …
Arbitrary arrest and detention remain serious problems; there were more reports of long incommunicado detentions than in 1998. Because the Government tightly controls information, it is impossible accurately to determine the total number of persons subjected to new or continued arbitrary arrest or detention. …
It has been estimated that as many as 1.7 million persons per year were detained in a form of administrative detention known as custody and repatriation before 1996; the number of persons subject to this form of detention reportedly has been growing since that time…
Even if fully implemented, the Criminal Procedure Law still would fall short of international standards in many respects. For example, while the statute precludes a presumption of guilt, it includes no explicit recognition of the presumption of innocence; has insufficient safeguards against use of evidence gathered through illegal means such as torture; the appeals process it provides for fails to provide sufficient avenue for review; and there are inadequate remedies for violations of defendants' rights. …
A major flaw of the new Criminal Procedure Law is that it does not address the reeducation-through-labor system, which permits authorities to sentence detainees administratively without trial to terms of 1 to 3 years in labor camps. …
The new Criminal Procedure Law also does not address custody and repatriation, which allows the authorities to detain persons administratively without trial to ‘protect urban social order.’ Persons who may be detained under this provision include the homeless, the unemployed, petty criminals, and those without permission to live or work in urban areas...
It has been estimated that as many as 1.7 million persons per year were detained in a form of administrative detention known as custody and repatriation before 1996; the number of persons subject to this form of detention reportedly has been growing since that time. …
Prior to sensitive anniversaries, authorities in urban areas rounded up and detained ‘undesirables,’ including the homeless, the unemployed, migrant workers, those without proper residence or work permits, petty criminals, prostitutes, and the mentally ill or disabled. These persons often were detained or expelled under custody and repatriation regulations or similar administrative regulations (see Sections I.d. and I.e). …
There are laws designed to protect women, children, the disabled, and minorities. However, in practice, societal discrimination based on ethnicity, gender, and disability persists. The concept of a largely homogeneous Chinese society pervades the thinking of the Han majority. …
Nonetheless, in practice, minorities fact discrimination. Most of the minorities in border regions are less educated than the national average, and job discrimination in favor of Han migrants remains a serious problem. Racial discrimination is the source of deep resentment on the part of minorities in some areas, such as Xinjiang and Tibet. …” (Exhibit B, paragraph 19)

An Amnesty International report dated 30 April, 2002 was entitled “Workers want to eat – workers want a job” and reads in part:

“ ‘Growing labour unrest in China is being met with repression, including imprisonment and torture …
In the shift from a state run economy to a market-led economy, large state-owned enterprises (SOEs) have been shut down resulting in layoffs of millions of workers. ...
For those that do work, conditions are often very harsh - overtime is frequently compulsory, workers may be forbidden to get married, workers may not be allowed move in and out of the factory compound even after work hours, they may be forbidden to talk during work hours and they be fined for going to the toilet too often. If workers complain about conditions they are often dismissed or their complaint ignored.
Workers are often exposed to dangerous chemicals or explosive materials without the necessary safeguards. As a result industrial accidents are common.’ ” (Exhibit B, paragraph 20)

As to the health system in China, a document was issued by the Department of Foreign Affairs and Trade on 30 September, 2002 under the heading of “Health Issues”:

“Travellers to China should be aware that medical care can be very expensive. The standard of medical care and range of familiar medicines available in China are limited, particularly outside of major cities. Upfront payment is usually required for medical treatment and medical evacuations from China can be extremely costly.” (Exhibit B, paragraph 21)

Likelihood of re-offending

Dr Barry-Walsh has practised as a consultant psychiatrist in forensic psychiatry since 1996. He has spent a year at the Brunswick Road Clinic of the Victorian Institute of Forensic Mental Health where he assisted in the assessment and treatment of over 100 to 150 offenders. He has also treated those who have committed sexual offences and who have concurrent psychiatric condition. He wrote a report dated 4 March, 2001 in which he set out Mr Wang’s history both in China and in Australia as well as Mr Wang’s view of himself. After reporting that Mr Wang does not and has not suffered from any psychiatric disorder, has a settled mood and has no other psychological difficulties, Dr Barry-Walsh wrote:

“However, he himself believes that he has a sexual problem or at least had at the time at which the offending occurred. He is unable to give a complete account for the offending and this relates as much to the passage of time as to any reluctance on his part to discuss these areas. However, he indicates a willingness to participate in a sexual offender programme in order to further understand his offending and to diminish any risk that may be present.
I would note that these offences occurred when Mr Wang was still very young. He and his family had been the victims of persecution and he had clearly had an unhappy and hard life in China. He had moved to Australia where he was isolated because of his language and culture and soon found himself immersed in a sub-culture of offending. It is within this context that the offences occurred. It is very plain that Mr Wang must be a significantly different man now having spent half his life in jail. Further, he has taken the opportunity whilst in custody to improve his literacy and language skills. He describes himself maturing in his attitude. It is therefore unwise and speculative to comment upon his risk given the very substantial changes and the elapsed time between the offences and the present day. However, I would note his willingness to engage in a sexual offender’s programme. I would further make the point that such programmes are available both within custody through Ararat Prison and in the community through the Brunswick Road Clinic at the Victorian Institute of Forensic Mental Health. Aside from recommending that he complete such an assessment and programme I can make no recommendations for Mr Wang.” (Exhibit I)

In his oral evidence, Dr Barry-Walsh said that his report is supported by the fact that Mr Wang has not had any incident or displayed any problems since being in prison and had been compliant with the expectations and the limitations imposed upon him. To a limited extent, this demonstrates Mr Wang’s ability to conform to the expectations of the community. During that time, he has been able to conduct a relationship with a woman. In a limited way, Dr Barry-Walsh said, that demonstrates a limited capacity to develop a healthy sexual/intimate relationship.. It is predictive of re-offending. In cross-examination, Dr Barry-Walsh said that Mr Wang’s good behaviour at the prison farm is only a limited test. He agreed that the prison farm required Mr Wang to return to the prison each night and he knew that if he transgressed it would become known to the prison authorities.

In assessing the likelihood of re-offending, Dr Barry-Walsh said that several matters are relevant. The most important matter is that the person has started a sexual offenders’ course. It has been shown that the rate of re-offending is reduced if people have completed them. A difficulty in Mr Wang’s case is his lack of literacy and a further difficulty is his lack of adult experience in the outside world. If he completes the modules in the sex offenders’ course, his risk of re-offending is reduced. If he were not to complete the modules, the risk would be somewhat higher. If he is released without completing the programme, there is a question whether he will complete it. There is a need to have the out-patient sexual offenders’ programme in place before Mr Wang’s release.

Dr Barry-Walsh said that it is difficult to know the effect of the passing years. It is known that re-offending often occurs a number of years after the original offences were committed. He said that the expression or otherwise of remorse by offenders has no significance at all in assessing their risk of re-offending.

Mr Ball prepared a psychological assessment and court report dated 19 June, 2001 in relation to Mr Wang (Exhibit 3, pages 86-100). He based it on a combination of a limited actuarial assessment, limited psychometric and extensive clinical interview. He administered The Minnesota Multiphasic Personality Inventory – 2 (“MMPI-2”) and the Eysneck Personality Scales – Adult (“EPS-Adult”) but the tests could not be interpreted because of Mr Wang’s limited literacy skills. Mr Wang attempted all scales in the Wechsler Adult Intelligence Scale – Third Addition (“WAIS-III”) and Mr Ball classified his intelligence by IQ Range (Kaplan & Saddock, 1998) at 70. That placed him in the Borderline Range and at the second percentile. That means that 98% of the Australian population have a higher measured intelligence than does Mr Wang.

Mr Ball reported that he had been unable to rule out the possibility that Mr Wang currently satisfies the DSM-IV-TR diagnostic criteria for Antisocial Personality Disorder as he had not examined Mr Wang’s EEG trace and Mr Wang had not completed behavioural or cognitive treatment programmes such as the adult sex offender treatment programme and relevant social skills programmes aimed at addressing his maladaptive behaviours. Mr Wang does satisfy the DSM-IV-TR diagnostic criteria for Relational Problems. He lacks appropriate courtship and interpersonal skills. Apart from raping his victims, Mr Ball wrote, Mr Wang has had no sexual contact or intimate social relationships with another person. Based on what Mr Wang had told him of his childhood experiences, Mr Ball considered that Mr Wang would have satisfied that current DSM-IV-TR diagnostic criteria for Conduct Disorder. His behaviour resulted in a clinically significant impairment to his academic, social and occupational functioning. In summary, Mr Ball referred to discriminatory treatment that Mr Wang and his family had received in China, his father’s being a very strict man who disapproved of drugs, lying and fighting and a man whose rules were too strict in Mr Wang’s view and sexual abuse by a relative in China. Mr Wang was in trouble at school and only attended from the ages of 8 to 11 because the other children would kick and punch him and he would end up in the teacher’s office. As a result, he was told to leave.

In relation to his offences, Mr Ball summarised what Mr Wang had told him about his reasons for committing his offences:

“In relation to his stealing offences, he said, ‘I never had friends before and tried desperately to fit in and impress them. When I got away with stealing, my friends would praise me and I got brave, my friends said I would not get caught and I believed them’.
In relation to his sexual offences, Mr. Wang said, ‘I never entered a property intending to rape a person, my main purpose was to steal the jewelry’. He explained, ‘prior to arriving in Australia, I never had any sexual experiences. Everything was against the law in China, if you visited a brothel, engaged in pre marital sex or watch pornography you would go to jail. When I arrived in Australia everything was available, every house I visited would have pornographic videos on television and my friends told me that it was legal in Australia’..
Mr. Wang continued, ‘When I entered a house to steal, I would accidentally wake the people up, so I wanted to keep them quiet.. I could not speak English well so I put my hand over their mouth. Most of the girls were in their nightdress and when I touched their skin it reminded me of the pornographic videos. I thought that I could get away with it’. He said, ‘my friends would make me feel proud of what I had done and so I did it again and again and was rewarded by my friends’.
Mr. Wang expressed what I believed to be genuine remorse. He stated that his prison sentence has cost him his life and he has learned right from wrong. He said ‘If I had of got caught the first time, I would have never done it again because I knew it was wrong’. Mr. Wang said, ‘I only want to be given a chance to live in society, I was 17 years old and at 34 years I am a very different person now’. Mr. Wang stated he ‘knows what it is like to be a victim’ and claimed to have been raped whilst incarcerated.” (Exhibit 3, page 93)

Referring to various sources in the literature, Mr Ball wrote in his report that criteria have been established for ascertaining whether or not a sex offender is a low risk of re-offending. Having regard to that literature and to his own clinical experience, Mr Ball had assessed that Wang would be a low risk provided that he participated in treatment and supervision with the CORE sex offender programme. He based this on the following factors:

“A. Mr. Wang committed his crimes at 17 years of age. At the time of his offences, Mr. Wang claims he was not familiar with Australian law and was mislead by his peers. Mr. Wang is not a well-educated or intelligent man and at the time he could not speak or read English.
B.Mr. Wang experienced violence, alienation and discrimination whilst residing in China and had arrived in Australia with limited social skills.
C.Mr. Wang has been imprisoned for 16 years and seems to have made a reasonable adaptation to prison life. He has a number of job qualification certificates and has improved his English and literacy to some degree whilst incarcerated.
D.Mr. Wang expresses appropriate remorse towards his victims.
E.Mr. Wang indicates a willingness to participate in a sexual offenders program.” (Exhibit 3, page 88)

In giving evidence, Mr Ball said that a prisoner who is due for parole will be given priority for a sex offenders’ course. At Ararat prison, he is generally accepted for the course about 12 months before his release date. In his report, Mr Ball noted that Mr Wang had told him that he had not attended sex offenders’ programme because they had not been available in the prisons in which he had been placed. Mr Ball’s attention was drawn to a number of references in which Mr Wang is noted as having failed to utilise psychological services or to address his offending behaviour (e.g. Exhibit 3, pages 101, 110, 167 and 168). The last of those had been dated 17 November, 1999 and outlined Mr Wang’s needs as being to address his sexual offending by way of individual interview. At that time, he did not have the appropriate classification for a SOPE programme. It was noted that Mr Wang had refused to participate in a parole psychological assessment and that he was facing further sex offence charges in Victoria (Exhibit 3, page 101). Mr Ball said that CORE programmes did not become available until 1990 and, in Victoria, not until 1994 or 1995. Before that, it was possible to have counselling or other sorts of psychological treatment to address behaviour but resources were limited. It is suggested that such courses were counter productive and that those undertaking them were at greater risk of recidivism than those who did not. Mr Ball was not aware of the nature of a programme such as SORT or of the other programmes referred to in the materials and so could not comment upon whether or not they would have been counter productive.

Mr Ball confirmed his evidence in the earlier proceedings that:

“There was an article published in 1996 showing an 8 per cent recidivism rate for the community based program. There are no recent recidivism rates. Those recidivism rates are parallel with overseas rates of 8 per cent with a 12 month follow up period. Recidivism rates over a five year follow up period have increased to 15 per cent with treatment. Without treatment, recidivism rates are quite high. The most conservative recidivism rate that has been found anywhere in the world for untreated sex offenders is 30 per cent. It is more typically around the 72 per cent level. So, in essence, sir, that research suggests that untreated sex offenders pose a considerable threat to the community.” (Exhibit 3, page 226)

These figures apply to people who have completed a sex offenders’ programme, Mr Ball said. He also confirmed that those who have intellectual impairment, have a higher risk of recidivism than those who do not. His view that Mr Wang’s risk of recidivism is low is dependent upon his completing a sex offenders’ programme successfully. There are no guarantees. All that can be done is to provide them with the best possible treatment and lead them to a clear understanding of victim empathy so that they understand clearly what they are doing to their victim.

In the case of Mr Wang, he has critically important modules of the CORE programme left to complete. Whether he will completed them as an outpatient is something that he can only take Mr Wang’s word on. If he were not to complete the modules, he would certainly be a higher risk of re-offending Mr Ball said. A written undertaking by Mr Wang that he would complete the course would indicate that he understood the situation.

Mr Ball said that his experience with the reintegration of prisoners into the community at the end of their sentences was more dated. It is never easy to reintegrate. There may or may not be difficulties in reintegrating into the family but it is naïve to expect that there will be none at all. Mr Wang’s lack of English is not so much a problem in his reintegration as his lack of education.

If he is released into the community in Australia, Mr Wang plans to spend some time getting used to living in the wider community. He is very familiar with the Dandenong area although he recognises that it will have changed to some extent. His mother and sister will take him on an orientation exercise upon his release, he wrote. Mr Wang plans to maintain the fitness programme he began in prison by joining the gym near his parents’ house. He also plans to join a local sports team. Mr Wang especially likes soccer but has also played volleyball, basketball and rugby league while in prison. Before being imprisoned, he trained as a boxer. Although he will not be able to become a professional boxer, he will pursue his training as a means of keeping fit and of developing discipline. Mr Wang also enjoys using his Playstation. His favourite games include adventure games, chess and similar games of strategy. Mr Wang said that he has come to enjoy gardening and caring for the unit’s cat since being in prison. He will continue gardening and caring for a pet on his release.

In the long term, Mr Wang said that he wants to marry and to have a family. He also wants to be the owner of a successful business and a respected member of the community.

CONSIDERATION

I will first consider the seriousness of the convictions upon which the order for deportation was made. In all, he has been convicted of five offences of rape, however described, involving four girls or young women, six offences of burglary and one of breaking and entering a dwelling house and stealing property therein. All of the offences represent the violation of one person, in one form or another, by another person. Rape is by its very nature a crime in which the will of one is overborne by the will of another. It is a crime of violation of a person. There can be no question that it is a crime that is serious. Burglary or breaking and entering a dwelling house is a violation of the place in which a person should feel safest from intrusion by others. The seriousness of such an offence depends upon the circumstances.

Mr Wang did not seek to mitigate the circumstances and that is to his credit. In any event, while a conviction and sentence stands, as do those with which I am concerned, it must be conclusive of the essential factual findings made by the sentencing judge in imposing the sentence (Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349 at 359 per Branson, Lindgren and Emmett JJ). When viewed in chronological order and having regard to the remarks of the sentencing judges and the sentences imposed, I find that each succeeding offence of rape appears to have been regarded more seriously than its predecessor. In respect of his first two offences of rape on the one young woman in Victoria, for which he was sentenced last, he was sentenced to three years imprisonment on each when the maximum was ten years. As the sentences were served concurrently, the effective term was three years. In relation to the second two offences of rape in New South Wales, perpetrated against two young women, he was sentenced to two cumulative terms of four years imprisonment when the maximum for each was seven years. In addition, a further term of two years imprisonment was imposed. In relation to the single offence of rape of which he was convicted in South Australia, Mr Wang was sentenced to seven years imprisonment. It is apparent that the terms of the sentences imposed that they increased proportionately in relation to the maximum sentences that could be imposed. It is also apparent that they increased so that the last offences were treated more seriously than the earliest offences. When regard is had to the sentencing remarks, it is also apparent that the circumstances of the offences themselves showed why this should be so. As serious as rape is of itself, the earliest offences in Victoria were committed without a weapon and without Mr Wang’s seeking to restrain the young woman with the help of some form of bonds. The second of the two offences in New South Wales, however, was committed with the aid of a knife and the offence in South Australia with the aid of bonds and clothes to make a gag. Having regard both to the terms of the sentences imposed and the circumstances, I am satisfied that the offences of rape were very serious and increasingly so as time went on.

That is not to disregard the offences of burglary or of breaking and entering. Very little detail of those offences appears in the sentencing remarks regarding any of these offences. In relation to the first in Victoria, it was an offence of entering premises with intent to commit an offence involving an unlawful and indecent assault, which he subsequently perpetrated. The other offences of which he was convicted in this category were related to stealing. Although Mr Wang subsequently raped two girls or young women after breaking into and entering their homes, the offences of which he was convicted reflect his evidence that he did not do so with the intention to commit rape or some other sexual offence. Having regard to the circumstances that I do have, I am satisfied that they are serious offences whether committed with the intention of violating a person’s personal integrity or taking his or her property.

That brings me to the question of whether or not Mr Wang is likely to commit further offences if he were permitted to remain in Australia after he is released from prison. This is a difficult case for many reasons. One is that it is very difficult to have a view of Mr Wang before his incarceration. His time in China is somewhat clouded. His sister, Ms Nina Wang, gave a view of him as a nice boy and a dutiful son who acted as a responsible member of the family in times when the family was treated poorly because of their Russian heritage. That heritage was also the cause of his being teased and harassed by other children. There is a report of Mr Wang’s being sexually abused as a child while still in China. He lived in Australia for only three or four months before he began to commit offences. There then followed a period of nine or so months in which he committed each of them.

The next 17 years have been spent in the prison systems of three Australian States at various levels of security. I am satisfied that his offences in those 17 years have been for minor breaches and have been a handful at that. He was first imprisoned either at the end of 1986 or beginning of 1987. There is no evidence of his having undertaken any courses during the first nine or so years of his terms of imprisonment. I find that the first one of which I have evidence is an Anger Management Course completed in May, 1996. During the years from 1997 until 2000, he completed four vocational courses although I note that a course such as the International Cable Manufacturers Vocational Development Programme comprised 16 modules. There then appears to be a break of a little over two years before he completes a certificate in Hospitality (Cooking) and commences the CORE programme.

The gap between the CORE programme and the Anger Management Course is one of almost seven years. It is a long gap. I accept Mr Wang’s evidence that he was not offered the CORE programme, or a programme similar to it, until he was within 12 months or so of release. That, however, does not explain why he did not undertake counselling or other programmes at an earlier stage. I do not accept his evidence that they were not made available to him and base that finding on the three notes in the prison records to which I have referred in paragraphs 36 and 37 above. Those notes were dated 26 July, 1997, 18 August, 1997 and 19 May, 1998 all indicate that Mr Wang had expressed his lack of interest in taking part in courses to address his offending behaviour or to make use of services to do so. Specific courses were named and I conclude that, had he expressed interest, Mr Wang could have taken part in them. Based on Mr Wang’s own evidence, I find that his lack of interest in them was because they addressed the past whereas he wanted to know about the future.

I find that Mr Wang is currently participating in the CORE programme. Many years have passed since he committed the offences of which he has been convicted. I accept Mr Wang’s evidence that he fell into bad company when he arrived in Australia. In addition, I am satisfied that he was isolated by his lack of English language and literacy skills. Mr Wang continues to be isolated to some extent by his lack of language and literacy skills. He has attended one course in English during his imprisonment and has improved his language skills through use. For all that, his English skills are still limited and Mr Wang himself describes them as approximately 30%. His limited literacy skills not only limit his ability to communicate but limit the assessment of him. Therefore, for example, some of the tests administered by Dr Barry-Walsh could not be interpreted for that reason. On the basis of the report of his progress in the MMIP, I find that some of his written work had been completed by other prisoners because of Mr Wang’s difficulties. As it was not his written work, it was difficult to assess whether that work represented Mr Wang’s understanding and insights into his behaviour or someone else’s views as to Mr Wang’s understanding or what it was thought his understanding should be.

I find that Mr Wang is unlikely to complete the CORE programme before he is released from prison. He has undertaken to complete it if he is released. I do not doubt that it is his intention to do so but it is hard to assess whether he will be able to do so. His difficulties with the English language have meant that he has relied on fellow inmates to assist him with written work. There must be a question whether or not he will receive such assistance and, if he does not, whether he will cope without it. For all that, I accept that Mr Wang intends to use his best endeavours to complete the CORE programme whether inside or outside prison.

If he completes that programme, I find on the basis of the evidence of Dr Barry-Walsh and Mr Ball, that Mr Wang’s risk of re-offending is reduced. Further refinement of that risk is difficult. Mr Ball referred to figures showing a recidivism rate of 8% after 12 months and 15% after five years. Persons with an intellectual impairment have a higher risk of recidivism than those who do not. Mr Wang, I find on the basis of Mr Ball’s evidence, is in the Borderline Range or second percentile when measured against the Australian population.

By completion of the programme, I understand it to be successful completion. I accept his evidence that he felt that he had gained an insight into that when he himself was raped when in prison but I also find that his insight was yet to show itself in the CORE programme. In his report of 19 June, 2001, Mr Ball recorded Mr Wang as saying that he thought that he could get away with it and that had he been caught the first time, he would not have offended again as he knew right from wrong. Mr Wang told Mr Ball that he was a very different person but even by the time that the progress report on the MMIP module of the CORE programme was written on 27 March, 2003, it was reported that Mr Wang had demonstrated limited insight into victim empathy.

The third matter that I must consider is whether, if Mr Wang were to be deported, his deportation would be expected to deter other non-citizens from offending. This is a difficult matter to assess. His deportation is likely to become a matter that is known to others in the community with which the Wang family associates but it is a small community. It would certainly deter those who would be likely to be deterred in any event. Whether it would deter a 17 or 18 year old who is isolated from the mainstream Australian community by his language and cultural background and who is placed in an environment where he seems not to understand that, for all its apparent freedoms, the standards of right and wrong in relation to stealing and rape are similar to those in his own culture, is another matter entirely.

The next aspect to consider is the Australian community’s attitude to the nature of the crimes themselves. Rape is a crime that is unacceptable to the Australian community. The rape of four young women over such a relatively short period of time is extremely worrying and something that must be weighed in the balance. In some cases, such a series might be something that the Australian community would find so abhorrent as to justify a person’s being deported. In the context of this case, there is a background of the offences having been committed by a person with language, learning and cultural difficulties and it is not something on which I think it appropriate to make a positive finding in this case. Instead, it is more appropriate to take community attitudes into account as one of the factors but not as the sole determining factor of whether Mr Wang should be deported.

The considerations that I must take into account other than the primary considerations concern Mr Wang and his family and the hardship that they will face should he be deported. Having heard from all of them, I accept that they have made plans for his future life in Australia. His family sees him as returning to the family home and assuming his responsibilities as a son. At the same time, his family will support him in his endeavours to find work and, if he cannot find it, to support him in establishing a restaurant. They have already supported him financially and see as one of his responsibilities his helping the family to pay the mortgage they entered in order to support him. Mr Wang, I find, considers that he will be able to use his parent’s mortgage to enable him to borrow money to pursue his plans. The Chinese Xiang Association, I find, is a group to whom Mr Wang would be able to turn for help and guidance. Mr Najjarine has offered Mr Wang long term employment. Having regard to the references from Mr Bethune and Mr Silveri, I am satisfied that Mr Wang is a person who has a good work ethic and who is regarded as a responsible person in the workplace.

Should he be deported, I find that Mr Wang’s parents will be devastated. Even though their son’s Mandarin is now so poor that they can only communicate with him through their daughter, Ms Nina Wang, they care for him and see him as the person who should assume responsibility for the family as their health fails. They can look past his offences to the boy that they knew and loved before he committed them. If he should be deported, it is unlikely that they will see their son again. That will be so because of a combination of their poor health and financial considerations. They will still have their two daughters in Australia as well as their two grandchildren and it is quite clear that their daughters have supported them and their brother, at least to some extent, both emotionally and financially for quite some time. For all that, they will not have their son and I accept that in the Chinese culture, sons have a role that cannot be fulfilled by daughters.

If Mr Wang were deported, I also find that there is a risk that he would be charged again with the offences for which he has already been convicted and sentenced in Australia. I make that finding on the basis of Article 10 of the Criminal Law of the People’s Republic of China. Just how large that risk may be is a matter upon which I do not have the material to make a finding. The Article states that a person who has already been punished in a foreign country, as has Mr Wang, may be exempted from punishment or given a mitigated sentence. If a sentence were imposed, I find on the basis of Article 236 of the Criminal Law of the People’s Republic of China that rape carries a sentence of not less than three years and no more than 10 years imprisonment. However, raping a woman in a public place or raping several women, as Mr Wang has, could lead to the imposition of a heavier sentence. One of the options would be the imposition of a death sentence. What the likelihood of that occurring is again a matter upon which I am not in a position to make a finding. In view of the reports of Amnesty International, I am satisfied that the rate of execution certainly appears to be extremely high in China. It appears to be imposed in a range of circumstances in which the death penalty is not imposed even in those countries where it is accepted as lawful. There must be some risk of Mr Wang’s facing such a sentence if he were to return to China but I am unable to quantify it.

If Mr Wang were to return to China, I find that he would be isolated, at least initially, by his lack of Mandarin. He does not have any family or family friends in China to whom he could turn for assistance. Whether his employment prospects would be limited is difficult to say. He has some qualifications and quite a deal of experience in production line work as well as good references. Whether they would have any standing in China it is not known. It is a fair thing to say that his life in China would be difficult at least initially even if he were not to face charges on his return.

The situation that I must face in this case is that there are risks on both sides. On one side is the risk to the Australian community. That risk is relatively low if Mr Wang completes the CORE programme but it is a relatively low risk of the repetition of a very serious risk. It is apparent from the comments of the sentencing judges that at least one of the young women who were Mr Wang’s victims suffered very seriously over a prolonged period of time as a result of his having raped her. That was one of the young women in New South Wales. If Mr Wang does not complete the CORE programme, the risk is much greater and, on the basis of Mr Ball’s evidence, I find that it rises up to something in the order of 72%. There must be a risk, unquantifiable as it may be, that Mr Wang will not complete that course successfully.

On the other hand is the risk to Mr Wang should he return to China of losing his liberty and possibly his life. That is an unquantified risk but still a risk. In balancing those risks, I also have regard to the hardship to Mr Wang and his family should he be deported even if he is not charged again. It is with some anguish that I have reached the decision that I have. It seems to me that the nature of the offences of which Mr Wang has been convicted are so serious both in their nature and their repetition that the need of the Australian community to be protected from the risk of their repetition (even though that risk may ultimately prove to be small), outweighs the risk to the individual, Mr Wang, and the hardship to him and his family.

For the reasons I have given, I affirm the decision of the respondent dated 16 September, 1997.

I certify that the one hundred and nine preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President)

Signed: ....(sgd P. Paczkowski)............................
P. Paczkowski Associate

Date/s of Hearing  7, 8 and 10 April, 2003
Date of Decision  13 June, 2003
Counsel for the Applicant             Mr E. Heerey
Solicitor for the Respondent         Mr M. Brereton,
Australian Government Solicitor

[2003] AATA 555

13 June 2003