Whittaker and Minister for Immigration and Multicultural Affairs
[2000] AATA 425
•1 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 425
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N99/1377
GENERAL ADMINISTRATIVE DIVISION )
Re LEO ANDREW MICHAEL WHITTAKER
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President)
Date1 June 2000
PlaceSydney
Decision 1. The order made by the Tribunal on 28 August 1998 prohibiting the publication of certain information including the applicant's name is revoked. 2. The decision under review is affirmed.
..............................................
BJ McMahon
Deputy President
CATCHWORDS
IMMIGRATION & CITIZENSHIP – deportation – manslaughter conviction – serious nature of crime – risk of recidivism - expectations of the community that non-citizens who are convicted of crimes that are abhorrent to the Australian community will be removed from Australia – general deterrence - best interest of the child – hardship to deportee and deportee's family – hardship to other Australian citizens – no primary or secondary consideration outweighs expectation of the community.
Administrative Appeals Tribunal Act 1975 – s 35
Migration Act 1958 – s 200
Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197
REASONS FOR DECISION
Mr B.J. McMahon (Deputy President)
This is an application to review an order made by a delegate of the respondent on 13 June 1997, pursuant to section 200 of the Migration Act 1958 to deport the applicant. This is the second hearing of the application for review, the matter having been remitted from the Federal Court for re-hearing. At the first hearing before Deputy President Blow, an order was made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of the name of the applicant (inter alia). The Federal Court made similar orders in relation to the Court proceedings. After hearing submissions, I have concluded that the need which gave rise to the desirability of anonymity has now passed and that the ordinary principles applicable under section 35 should apply. I have therefore revoked the section 35 order made by Deputy President Blow on 28 August 1998.
The events which led to the making of the deportation order occurred on the night of 20 May 1991, when the applicant and Darren Oliver were involved in the death of John Cranfield at his home in Elizabeth Street, Surry Hills. This is now the seventh occasion on which a Court or Tribunal has considered the future of the applicant as a consequence of the events which took place on that night.
After being interviewed by police, the applicant was charged with the murder of Cranfield, to which he pleaded not guilty. On 20 November 1992, a trial was held before Matthews J and a jury. The jury returned a verdict of not guilty of murder but guilty of manslaughter. On 17 December 1992, Her Honour sentenced Mr Whittaker to a minimum term of imprisonment of four years, two months with an additional term of three years.
The second Court hearing came as a result of an appeal from this sentence to the Court of Criminal Appeal. On 9 August 1993, that Court held that the direction to the jury given by Matthews J was defective and was contrary to recent authority declared by the High Court in R v Wilson (1992) 174 CLR 313. The Court of Criminal Appeal quashed the applicant's conviction of manslaughter and the sentence and ordered a new trial on the charge of manslaughter.
The second trial was the third judicial proceeding. It was presided over by Wood J before a jury. Mr Whittaker pleaded not guilty to the charge of manslaughter but was found guilty by the jury. He was sentenced on 14 April 1994 to a period of detention comparable to that imposed by Matthews J, having regard to the periods which he had by then already served in detention. It was as a result of this conviction that the deportation order was eventually made. The applicant applied to this Tribunal to have that order reviewed. The application was heard by Deputy President Blow, whose decision was given on 28 August 1998. This was the fourth occasion on which the applicant's future had been considered by either a Court or a Tribunal.
There was some debate concerning the role which the applicant had played in bringing about the death of Mr Cranfield. In sentencing the applicant, Wood J had said:
"The facts before me would tend to suggest that his involvement was somewhat more than her Honour found, in that he knowingly assisted Oliver by providing him with the smaller knife, held the rope while Oliver fetched the larger knife, and then used the larger knife himself to inflict two stab wounds to the deceased.
There were two scenarios put to the jury, the first being that, as an accomplice, he provided aid and encouragement to Oliver in circumstances where his act was unlawful and dangerous; as defined in Wilson; and the second being that he stabbed the deceased at a time when, although he may have suspected him to be already dead, that could not have been known by him as an absolute fact, and as a consequence of his act was both unlawful and dangerous.
By their verdict, which was clearly justified upon the evidence, the conduct of the prisoner did not arise in lawful defence, that is in defence either of himself or of Oliver."
Deputy President Blow analysed the proceedings before Wood J and concluded that His Honour was incorrect in adopting the second rather than the first scenario. He concluded, therefore, that the gravity of the crime was less than that alleged. On the basis of this assumption and after examination of other relevant facts, Deputy President Blow set aside the deportation order.
The respondent then appealed to the Federal Court. The hearing before Einfeld J was the fifth proceeding dealing with the applicant's future. His Honour dismissed the appeal in an oral judgement. The respondent again appealed to a Full Court of the Federal Court. The hearing of that appeal became the sixth proceeding. On 31 August 1999, a Full Court upheld the appeal and remitted the matter to this Tribunal to be re-heard. It affirmed the binding nature of a criminal sentence as the jurisdictional basis for the making of a deportation order and re-affirmed the limitations on this Tribunal in impugning any such sentence.
Their Honours said [(1999) FCA 1197 at paragraph 40 and following]:
40 The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
41 There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
42 Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner.
43 Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent's statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:
"To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence."
44 It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
45 To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
46 While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party: cf Minister for Immigration and Ethnic Affairs v Gungor, above, at 445-446 per Fox J.
47 We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing Judge will assume greater importance before the Tribunal, and that the Tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
48 In so far as the Tribunal adopted the approach that it need not accept the essential factual findings made by the sentencing judge in imposing the sentence that was a precondition to the making of an order under section 200, the Tribunal erred in law.
In this, the seventh proceeding, it is now clear that in assessing the facts which are essential to the conviction, I am bound by the observations made by Wood J in sentencing the applicant. To this day, Mr Whittaker insists that he did not stab or garrotte Mr Cranfield. The findings of the Judge, however, are binding on me. They are as follows:
"The facts which gave rise to that conviction disclose a savage and entirely reprehensible killing. The prisoner and his co-offender, Darren Scott Oliver, went to the home of John Cranfield in Surry Hills on the evening of Monday 20 May, 1991. They went to those premises ostensibly for the purpose of obtaining drugs.
Within a short time of arriving the co-offender Oliver came upon the deceased from behind with a length of rope which he tightened around his neck. While being garrotted in this fashion the deceased struggled and managed at some stage to place his hands between the rope and his throat.
It appears that during the struggle he was not being entirely overcome, and at the request of Oliver the prisoner fetched a small kitchen knife. Oliver then struck the deceased several times in the body with that knife before it bent. He then threw it to the ground.
The struggle continued and in the course of it the deceased, with the assistance of the prisoner, was dragged towards the door. As he was still showing resistance, Oliver asked the prisoner to hold the rope while he fetched a larger knife. Oliver returned with that knife and inflicted one stab wound.
He then put the knife down, at which point the prisoner himself took up the large knife and stabbed the deceased twice in the region of the chest. The post mortem examination, and the evidence of Dr Bradhurst, revealed that there were two causes of death, namely strangulation and a stab wound to the heart.
I am satisfied, having regard to the evidence, and to the admissions of the prisoner, that it was he who inflicted the stab wound to the heart, which was the second last in time and as such his act was a direct cause of death.
Having inflicted these injuries upon the deceased, Oliver stole a sum of money from his pocket and the two men decamped. Some of the money was used later for the purchase of drugs or for the repayment to Ms Brooks in connection with money which she had contributed for that purchase. Portion of the money was given to, and kept by, the prisoner."
Wood J described Mr Whittaker's actions as "entirely reprehensible" (page 1) as being involved in "a dreadful killing" (page 4) and in terms of community perception:
"To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence."
Mr Whittaker was born on 26 January 1972 in Dublin, Ireland, and remains a citizen of that country. At the age of 4, he moved with his family to Naas, a village some 30 kilometres from Dublin, where he grew up.
On 11 June 1986, at the age 14 years and 4 months, he migrated to Australia with his parents (Leo Senior and Mary), two sisters (Diane and Louise), and his twin brother (Roger). He attended the Marist Brothers School at North Sydney for two years until he left in December 1988 after completing year 10.
The following year his family moved to Perth where housing was more affordable. Neither the applicant nor his twin brother Roger wished to leave their friends and move again. They therefore decided to stay in Sydney.
In the same year, Mr Whittaker met Darren Oliver at a party at the home of Oliver's guardian, Stewart Graham. At the time, he was living in Epping with Roger and a friend, Marcus Lily. Oliver had a criminal record and was on a 12 month good behaviour bond. When he was 14, he had been given an 18 months suspended sentence for stealing, dangerous driving, drug taking and possessing a firearm. He was also in custody for four months in 1989 for a stealing offence.
His friendship with Oliver grew. During 1989, Mr Whittaker worked voluntarily for Stewart Graham in his hairdressing business. Occasionally he would travel to Perth to visit his family.
He had begun to use marijuana in 1988. Around September 1990, he tried speed for the first time. He and Oliver would visit John Cranfield at his home to buy speed from him. During November 1990, he saw more of Oliver and began to use more drugs such as LSD. He was becoming so close to Oliver that in February 1991 he moved in with him and Oliver's girlfriend, Fleur Brooks.
After he returned from Perth in April 1991, he began to use marijuana and speed everyday. He said:
"I worked during the day and partied most nights – usually six nights a week. I was stoned most of the time. Oliver was getting regular supplies of drugs from Cranfield and I would go with Oliver two to three times a week from Cranfield (usually speed). On three or four occasions my brother Roger had come with me."
The events of 20 May 1991, as related by Mr Whittaker, were as follows:
"On Monday, 20 May 1991 I went with Oliver to Cranfield's unit at Elizabeth Street, Surry Hills to buy speed. Cranfield was 35 years old and a Qantas steward. Cranfield was a drug dealer as well as a user. Oliver and I had spent the weekend stoned on speed and marijuana and I had also taken Mandrax.
On the evening of 20 May 1991 Cranfield gave Oliver and I a line of speed in a drink of Coca Cola. Cranfield then injected himself. As the speed began to have its effect on me I closed my eyes and listened to music playing in the background. While doing so, I heard Oliver say to Cranfield words to the effect "Fuck off" because Cranfield was stroking Oliver's leg. Oliver and Cranfield began to fight and I separated them. I then sat down and closed my eyes and continued listening to the music. Then the next thing I remember was the sound of furniture hitting the ground. I opened my eyes and saw Oliver and Cranfield fighting on the floor. I yelled at them to stop and tried to separate them but I was driven back by their kicking. They kept on struggling with each other on the floor. Oliver took a rope from his pocket and put it around Cranfield's neck. Oliver then called to me "Get me a knife, get me a knife to keep him back". I did so, believing Oliver would use it to fend off Cranfield. Instead Cranfield took no notice of the knife that Oliver was waving around and Oliver stabbed him four times when the knife bent and threw it to the ground. Oliver then dragged him towards the front door of Cranfield's unit. I was standing at the front door in shock and yelling to Oliver "Let's get the fuck out of here". Instead Oliver went to the kitchen and took another knife and stabbed Cranfield another two times. At no time did I stab, strangle or drag Cranfield. I believed Cranfield was HIV positive and I was scared to go near him in that state. Oliver then took $2,400.00 from Cranfield's pocket and we left and went to Oliver's place.
Oliver and I then left Cranfield's home and went to our home at Marlborough Street. We went upstairs to Oliver's bedroom and Fleur Brooks, Oliver's girlfriend, came in and we told her than Cranfield was dead. Oliver divided the money he had taken from Cranfield between all three of us and together we went to a nearby pub to buy marijuana. I was aged 19 and 4 months at the time of the offence. Oliver had just turned 18.
The next day I went to work at the hairdressing salon. That afternoon I went with Oliver and Fleur to Gosford for three days and stayed in a motel, however I still continued to report to work each day at the Darlinghurst salon. On 24 May we returned to Sydney. On the afternoon of 28 May Oliver was taken to the Sydney Police Centre for questioning as to Cranfield's death."
This account of the facts differs in important respects from the findings of Wood J, to which I have referred. Those findings, as I have said, are binding. To the extent that the above evidence is inconsistent with those findings, the evidence must be rejected. Cranfield's body was not found until some two days after his death. Mr Whittaker was taken in for questioning by police. He gave (and continued to give at this hearing) a version of the interrogation which was not accepted by Wood J.
Then followed the series of trials and the appeal, interspersed with periods of bail while the applicant lived with his parents in Perth.
Oliver pleaded guilty to the charge of murder and was sentenced to a minimum term of 10 years imprisonment with an additional term of 7 years. Mr Whittaker pleaded not guilty to the charge of murder with the forensic results which I have outlined above.
He was quite shocked to be confined to prison. Nevertheless, he settled down to prison life at Parklea. During his time in custody he did the following:
"a. worked in the kitchen as an assistant to the head cook as a leading hand;
b.working in the library setting up a computerised library lending system by entering books onto computer;
c.worked in maintenance as an electrician's assistant and as officer's assistant in the rations store;
d.obtained my forklift licence (C24 Classification – any weights);
e.completed two computer courses in 1991 and 1993;
f.completed voluntary drug programs and obtained certificates in Drug Relapse Prevention Programs;
g.was selected by prison authorities as an advocate for young drug offenders;
h.completed voluntary anger management courses;
i.completed the Oberon Program in 1995."
The prison records indicate that his conduct was excellent. He kept in contact with his mother and said:
"During the time in gaol I tried to keep busy my participating in various programs available. My mother promised to me when I was sentenced that she would write to me every day that I was in gaol which she did. The letters would arrive every day or sometimes I would receive three or four on the same day. The other inmates, some of whom never received any mail, would joke with me and say "Come on Leo spare us a letter". Mum always kept me in touch with what was going on with the family back in Perth, for example, that Lauren had cut a tooth, and try and involve me in family decisions. I imagine the telephone accounts and postage costs were substantial. Often Mum would send me poems, pictures of saints, and self-help books, and consequently she was a great source of support and encouragement. She was always encouraging me to boost my self esteem and find inner strength and her dedication made my time in custody a whole lot easier."
After the first conviction, but before the re-trial, he was in Perth on bail. In August 1993, he met Andrea Bunce, who was a friend of Roger. Andrea had given birth to Matthew on 20 September 1991, when she was aged 19. The father had left Andrea when she told him she was pregnant. Between August 1993 and March 1994 the applicant and Andrea saw each other whenever they could. It was during this time that he first became involved with Matthew's life. On 17 January 1994, they married. Matthew adopted Mr Whittaker's surname. The evidence is that he continues to call the applicant "dad".
Around May 1994, Andrea and Matthew moved from Perth to Sydney and rented shared accommodation in Blacktown. By this time, of course, Mr Whittaker was serving his sentence after the second trial. His wife and Matthew came to visit him every weekend for the entire day on Saturday or Sunday or for three hours on the Saturday and three hours on the Sunday. In August or September 1995, Andrea returned to Perth because of financial problems living in Sydney and the lack of support and loneliness. Mr Whittaker encouraged this because he thought that her return would be beneficial both for her and Matthew. During this time, he returned a positive urine test showing cannabis use while in prison. His evidence was that he has not taken cannabis again since July 1995. There is no reason to disbelieve him.
On 11 June 1996, the applicant was allowed out on day leave which he spent looking for employment. He obtained work with Laurmat Concrete Paving and ultimately was allowed overnight release on weekends, which he spent with his sponsors. After the deportation order was made, it was necessary to keep him in detention until his release was ordered.
Between September 1997 and the present, the applicant has divided his time between Sydney and Perth. In Perth he has gone to many job agencies and has obtained jobs labouring or as a storeman or other casual work. He has been on unemployment benefits from time to time. When he is in Sydney he works in the building industries with companies associated with Laurmat. However, it is casual work which lasts only for limited periods. He has a bad back and would like to get out of the building industry and into customer service and phone sales. He has talked about looking into courses which might be available for him at TAFE colleges in that area but so far has not made any serious effort to obtain additional qualifications.
On one of his trips to Perth he realised that Andrea was taking drugs and was in a relationship with another man. He has not lived with her since November 1997. In relation to Matthew he said:
"At first when I returned to Perth I would see Matthew four or five days a week. Andrea would make it increasingly difficult for me to pick Matthew up and take him out because she did not want her current boyfriend to see me because she did not want them to know she was married. When I saw Andrea the first time after I returned to Perth in February 1998 I was shocked by her appearance. She was under the influence of what I think was marijuana and she had really let herself go. I felt very upset that Matthew was living in an environment of which drugs were obviously very much a part. By the time I returned to Sydney to work in September 1998 I was seeing Matthew about twice a week and I stopped seeing Matthew a week or two before I returned to Sydney because Andrea did not want me to see him.
…
About mid December 1999, my mother told me that Matthew had been granted a scholarship to attend the Academy of Arts School in Perth because of his singing ability. I have offered to set up a trust fund to pay the school fees of approximately $800.00 a year as well as his uniform which was greatly appreciated by Andrea, who discussed the details with my mother. However Andrea's current boyfriend forced her to reject my offer. I am still in favour of paying the fees in the event Andrea reconsiders the matter.
On 25 January 2000 I returned to Perth to reside with my parents and Roger. If I am allowed to stay in Australia then I do not intend to return to Sydney to live. Each time I have returned to Sydney I eventually become very homesick and feel the need of the support of my family. I also miss Matthew and when I am in Sydney I cannot even talk to him by telephone because Andrea does not pay the telephone bills and then the telephone is disconnected. I sent Matthew presents such as clothes and lollies when I was in Sydney. Since returning to Perth from Sydney Andrea has agreed to let me see Matthew on alternate weekends when her boyfriend is working in the mines. Her boyfriend flies in and out on alternate weekends. When I see Matthew I take him to the beach, to McDonalds or to visit my nine year old niece Lauren."
In reviewing a decision made under section 200, I am bound to take account of the general direction given by the Minister on 21 December 1998. This direction recites that the object of the Act is to regulate in the national interest the coming into and presence in Australia of non-citizens. In exercising his powers of deportation, it recites that the Minister has a responsibility to the Parliament and to the Australian community to protect the community from the possibility of further criminal behaviour and to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it.
The direction sets out two primary considerations, namely the expectations of the Australian community and the best interests of any relevant child. There are two aspects to community expectations, namely the expectation that the community will be protected and not be put at risk and the expectation that non-citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.
In considering the protection of the community, the decision maker is to have regard to the seriousness and nature of the crime, the risk of recidivism, and the likelihood that deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.
The respondent did not seek to make out a case of deterrence except in the general sense. The seriousness and nature of the crime have already been adequately described by Wood J. All the evidence before me indicates that the risk of recidivism is low. This was the assessment of the officer who prepared the submission for the delegate. It was also the assessment of Professor Hayes, who gave evidence for the applicant in both Tribunal proceedings. Wood J also considered that there would good prospects of rehabilitation.
All these assessments, however, were made on the assumption that the applicant had a stable married life to a woman and had a quasi-parental relationship with her child. Wood J said that his marriage "is a further influence for the good so far as is rehabilitation is concerned". The fact is, however, that he is now separated from Andrea. His evidence to me was he is likely to commence divorce proceedings against her. To the extent that this relationship underpinned an assessment of low level risk of recidivism, the foundations of the assessment have been somewhat eroded. The evidence of Professor Hayes, however, was that irrespective of the continuance of this relationship, the fact that he has been out of prison for three years and has not re-offended in any way at all, indicates that he is well past the risk period for re-offending. The evidence is uncontradicted that he has not been taking drugs for the past five years. I would also conclude, in all the circumstances, that the risk of recidivism is probably low, although account should now be taken of hitherto absent destabilising factors in his personal relationships.
Predictions of this nature, however, are difficult. Even Professor Hayes said:
"The assessment and prediction of violence is notoriously unreliable (T R Litwack L B Schlesinger, "Assessing and Predicting Violence: Research, Law and Application", in : I B Weiner, A K Hess (1987) Handbook of Forensic Psychology, John Wily and Sons, New York, Chapter 9, pp 205-257). The authors point out that:
1.When an individual has a recent history of repeated violence, it is reasonable to assume that he will act violently in the foreseeable future unless there has been a significant change in the attitudes or circumstances that led to the violence in the past.
It is clear that Mr Whittaker has undergone significant changes because he has given up drugs and has settled into a stable family life both with his wife and son, and with his birth family. He does not have a pattern of offending behaviour during his time in prison and since his release. He has been in employment since his release and he says that this is the first time he has looked forward to getting up and going to work.
2.It is reasonable to assume that an individual will act violently if it can be shown that he or she maintains the same complex of attitudes and personality traits that led to violence in the past and that the individual would confront the same circumstances that led to violence in the past.
It is clear Mr Whittaker has changed his attitudes. There is no evidence about his pre-offending personality and no psychiatric diagnoses, so it is likely that he was not suffering from any psychiatric illness or personality disorders prior to the offence. He was, however, abusing substances. At present, Mr Whittaker does not suffer from any psychopathology. Furthermore, he would not confront the same circumstances that led to violence in the past because he does not mix with the drug sub-culture to which he belonged and nor does he abuse drugs or alcohol currently."
The direction from the Minister indicates offences which are considered by the Government to be very serious. These include manslaughter, for which the applicant was convicted. Recidivism does not necessarily mean a repetition of manslaughter or even a repetition of crimes of violence. I take it to mean a recurrence of any form of criminal behaviour sufficiently serious to ground a deportation order and therefore to concern the Minister. Whilst I consider that even under present circumstances, the likelihood of such a recurrence is probably low, it is impossible to be dogmatic.
Notwithstanding the low risk of recidivism, a primary consideration, nevertheless relates to abhorrence of the applicant's crime. The direction says on this subject:
"Community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community.
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. Decision makers should have due regard to the Government's view in this respect."
This direction (so called) does not create an obligation on the decision maker to order deportation in the case of every abhorrent crime. The paragraph does not have a mandatory effect. Nevertheless, it is a primary consideration – that is to say it is put at the highest level of concern to the Government (and therefore to the decision maker) that the community expectation that non-citizen perpetrators of crimes abhorrent to the community should not be allowed to remain in the community irrespective of all other considerations, unless these are outweighed in the balance of other primary and secondary considerations.
The second primary consideration is that of the best interests of the child, in this case Matthew. This is not a case where the potential deportee is living with the child and seeing him on a day to day basis. Although Mr Whittaker undoubtedly is fond of Matthew and keeps in touch with him, he does not have this closeness of association. He did not, for example, know the name of Matthew's teacher at school. He had not spoken to Matthew in six or eight weeks prior to the hearing. There was no evidence from Andrea, Matthew's mother, nor any explanation for her failure to give evidence except that she is, from time to time, under the influence of drugs. There is no evidence that her new boyfriend does not have the same feeling towards Matthew that Mr Whittaker has. In fact, there was no evidence to which one could give any weight, to the effect that Matthew's best interests would be served by setting aside the deportation order. One would normally expect cogent evidence as to the best interests of a child to be given by the mother with whom that child lives on a day to day basis. The fact that there was no such evidence, could well lead to an inference that Andrea would not have supported the proposition that the best interests of Matthew would be served by setting aside the deportation order.
In considering the interests of the child, the direction sets out three guiding principles:
"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 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 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.
It is the Government's view that when considering what are the best interests of the child or children, regard should be had to:(a)the nature of the relationship to potential deportee;
(b)whether the child is an Australian citizen or permanent resident;
(c)the likely effect that any separation from the potential deportee would have on the child or children;
(d)the likely effect on the child or children of leaving Australia if the parents decide to take the child or children with them from Australia; and
(e)the impact of the potential deportee's prior conduct on the child.
Decision makers should have due regard to the Government's view in this respect.
It is the Government's view that considerations which aid in assessing the above factors include:(a)the age of the child;
(b)the time that the child has spent in Australia;
(c)any language barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children acquire new languages;
(d)any cultural barriers for the child in the likely country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances;
(e)any medical problems of the child and the likely access to relevant facilities in the likely country of future residence;
(f)the child's degree of emotional and psychological dependence on the potential deportee; and
(g)the amount of time that the potential deportee has actually spent with the child.
Decision makers should have due regard to the Government's view in this respect."
Matthew is now aged eight. He attends primary school and lives with his mother. The degree of contact between Matthew and the applicant is diminishing. If and when they divorce, the degree of contact may decline even further. There is no evidence of Matthew's degree of emotional and psychological dependence on Mr Whittaker except that he calls him "dad" and that there is a general presumption that a young male child is better off with a father or father substitute to whom he can turn. In my view, the evidence concerning Matthew is not sufficient to raise any question of the best interests of a child to be taken into account as a counter balancing consideration.
I am obliged by the direction to take into account any hardship which may be suffered both by the potential deportee and by any other persons, including his family. I accept the evidence of Professor Hayes and of Mr Whittaker's mother that he has been subject to considerable stress and anxiety. I accept that he becomes depressed (although perhaps not in the clinical sense) as a result of all the litigation he has been through following the events of one night. There was no real evidence, however, that these feelings and emotions are beyond the degree one would expect to find in somebody in Mr Whittaker's position.
In assessing his hardship, I have to take account to the degree and extent of his ties with the likely country of return. The evidence was that he has a large number of relatives in Ireland. Both his mother and father have many siblings, all of whom have their own children. Mr Whittaker did not know the exact number, but he thought he had around 50 first cousins living in Ireland. Although he has not seen them since 1986, it seems likely that such a large number of relatively close ties with his family will provide some support. This support should replace the social ties which he has in Australia. His working life has been patchy and has not resulted in any significant business ties in this country. His ties with his immediate family appear to be quite strong. The ties with Andrea do not indicate any degree of hardship to her that might ensue from the carrying out of the deportation order. The situation in Ireland (as I am bound to consider) does not appear hostile. What general evidence that is available indicates that Mr Whittaker would be likely to encounter a stable, prosperous environment with job opportunities were he to be deported to Ireland.
I am also bound to consider the degree of hardship to other Australian citizens, including Mr Whittaker's family. In this category, the views of the "victims of the crimes committed by the potential deportee" are to be given some weight under paragraph 24(d). The prosecution policy of the New South Wales Director of Public Prosecutions defines a victim of crime as a person who suffers harm as a direct result of an act committed or apparently committed by another person in the course of a criminal offence. In the present circumstances, the victim is not merely the deceased. His death has affected Mr Cranfield's brother, father and sister, all of whom gave evidence during the hearing. Mr Cranfield Senior told of the emotional distress which he still experiences as the result of the death of his son. Mr Cranfield Junior (who had to identify the body of the deceased) has also been affected in his day to day work. He added that his mother drinks alcohol to excess, especially on occasions such as anniversaries which remind her of her late son. Ms Robyne Cranfield gave evidence of her emotional stress and the effect it had had on her fashion business. She described the violent death of her brother as "the most horrific thing a family can go through". Whilst the views of the victims (all of whom supported the deportation order) cannot be determinative of the outcome, they must be taken into account in accordance with the Government's direction.
There will be hardship to the applicant's parents, particularly his mother. She has supported him in an exemplary way throughout all the events of the last nine years. Although she is an occupational health, safety and training consultant, and although her husband is employed in an accounting position with a company, neither of them could afford to visit the applicant often in Ireland if he were deported. Certainly, they would miss their association with Mr Whittaker who, with his brother Roger, now lives with them in their four bedroom home in Perth.
Having taken all these matters into consideration, I am left with the principal primary direction provided by paragraph 15 quoted above. There is no other primary or secondary consideration which would outweigh the expectation of the community that Mr Whittaker, having been convicted of such an abhorrent crime, should be removed from Australia. The expectations of the community are not reflected in the many character references that were tendered in evidence. Some of them were old and obviously prepared for the purpose of other proceedings. All of them, however, are flawed because the authors of the references depend for their knowledge of events of the night of the crime upon what Mr Whittaker has told them. As he has consistently denied an active role, these references are based on a false premise. For example, a reference from his sister Diane dated 5 March 1997 said:
"The actual crime he is in prison for is a serious charge and I do not want to make light of it, however he did not play an active role in the actual murder."
Based as they are on questionable foundations, the references cannot be taken to be a reflection of community expectations, quite apart from the fact that they were drawn from personal friends and supporters of the applicant.
As a general discretionary consideration, I have taken into account the fact that Mr Whittaker was only 19 when he committed the crime. Some nine years later he is a much more subdued and mature person. I have taken into account that the events of the crime were extraordinary. Mr Whittaker's counsel eloquently put everything that could be said on this subject. I am left, however, with a required perception of the crime, different from that of the previous Tribunal. Such an approach to the facts must enliven the primary consideration, which the Government believes, should be one of the most important considerations. The Government has concluded that it is most important to remove from the community those persons whose actions are so abhorrent to the community that they should not be allowed to remain within it.
For these reasons, the decision under review will be affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)
Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 22 May 2000
Date of Decision 1 June 2000
Counsel for the Applicant Mr R. Beech-Jones
Solicitor for the Applicant Ms L. D'Ambra
Counsel for the Respondent Ms S. McNaughton
Solicitor for the Respondent Ms M. Adamson
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