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[2005] AATA 92
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2005-01-31
Original judgment source is linked above.
CATCHWORDS - IMMIGRATION - visa - cancellation - character test - failure of character test - extent to which Tribunal bound by conviction and sentencing remarks - whether discretion should be exercised to cancel visa - decision affirmed.
Migration Act 1958 ss. 31(1), (2), (3), , , (2), (6), (7), (12),
Migration Regulations 1994 Schedule 2
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 264; (1991) 30 FCR 49
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277; (1999) 56 ALD 321
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441
Minister for Immigration and Multicultural and Indigenous Affairs and Serevi [2000] FCA 1691
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
R v Anderson [1981] VicRp 17; [1981] VR 155; 2 A Crim R 379
R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80; 131 A Crim R 523
R v Howells [1998] EWCA Crim 2515; [1999] 1 WLR 307; 1 All ER 50
R v Izzard [2003] VSCA 152; (2003) 7 VR 480
Re Lachmaiya and Department of Immigration and Ethnic Affairs [1994] AATA 27; (1994) 19 AAR 148
Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780
Re Serevi and Minister for Immigration and Multicultural and Indigenous Affairs [1999] AATA 884
Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276
Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578
The Queen v Ince [1999] VSC 418
The Queen v Ince [2001] A Crim R 517; [2001] VSCA 214
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133
R v Williscroft [1975] VicRp 27; [1975] VR 292
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney
Ross, David, QC, 2004, Ross: Crime, 2nd edition, Lawbook Co
DECISION AND REASONS FOR DECISION [2005] AATA 92
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Decision: The Tribunal affirms the decision of the respondent dated 15 November 2004.
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
CORRIGENDUM TO DECISION [2005] AATA 92
The Tribunal amends its decision and reasons for decision published on 31 January 2005 as follows:
page 2, line 2
delete the file number:
"V2004/1195"
and replace with:
"V2004/1302"
and replace with:
"Mr B Wee"
S A FORGIE
Deputy President
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
CORRIGENDUM TO DECISION [2005] AATA 92
The Tribunal amends its decision and reasons for decision published on 31 January 2005 as follows:
Paragraph 132, line 15
after the words:
"per Wood CJ"
insert the words:
"at CL"
S A FORGIE
Deputy President
A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("Minister"), cancelled the Class AH101 (Child Migrant) ("visa") held by the applicant, Mr Mehmet Ince. He did so on 15 November 2004 after concluding that Mr Ince does not pass the character test under s. 501(6) of the Migration Act 1958 ("Act"). I have also decided that Mr Ince does not pass the character test and that the discretion whether or not to cancel his visa should not be exercised in his favour.
2. At the hearing, Mr Ince was represented by Mr Hughan of counsel and the Minister was represented by his solicitor, Mr Wee. I had regard to the G documents and supplementary G documents lodged pursuant to s. 501G of the Act ("G documents") as well as to written statements by Mr Ince, his mother (Mrs Nurdan Engez), Mr Nevil Knell and Ms Denise Celek, reports from Dr Lester Walton dated 18 February 1999, 9 December 2002 and 23 June 2004, an open letter from Ms Mary-Louise Riley dated 7 January 2005, WHO Europe Fact Sheet EURO/03/03, September 2003, WHO Core Health Indicators 2002 Australia, WHO Core Health Indicators 2002 Turkey, document entitled "Republic of Turkey, Ministry Culture - Military Service and Leaving Home" dated 5 January 2005 and a printout from the internet site of the Turkish Embassy in Washington. Also in evidence were the judgment of Justice Teague regarding the admissibility of a covert tape recording and of a record of interview (The Queen v Ince [1999] VSC 418) and the judgement of the Court of Appeal in The Queen v Ince [2001] A Crim R 517; [2001] VSCA 214. Oral evidence was given by Mr Ince, Mrs Engez, Mr Knell, Ms Celek and Dr Walton.
4. In this section of my reasons, I set out the findings I have made regarding the facts forming the background to the issue that I must decide. I have made those findings based on the evidence to which I have referred above and in light of the lack of controversy between the parties about them.
5. I find that Mr Ince was born in Turkey on 4 March 1978. His mother, Mrs Engez, who is Kurdish, was the fourth wife of his father, Mr Turgud Ince, who is Turkish. His parents had two older children: a daughter, Fatma, and a son, Bakir. Fatma is now 31 years of age and living in Turkey with her three children. She is divorced from her husband. Bakir was born in 1976 but, together with 17 other people, was killed in 2003 when the small bus he was driving was hit by a truck.
6. Mr Ince's family was very poor but not as badly off as some other families in their home town of Narli. Narli is a small town of 4,000 people located near Corum and the Black Sea and some 250 kilometres from Ankara. They tried to grow their own food but were not always successful. Until he was 11 years of age, Mr Ince lived with his parents, his father's third wife (his step-mother), his two siblings and his step-mother's children. They lived in the one building.
7. His father then suffered a heart attack and died. Mr Ince was then sent to a boarding school in Corum. He had previously attended school at Narli but found boarding school very restrictive. After a year, he ran away and went to live in Ankara for a few months with relatives of his father and his step-mother. He was then about 12 years of age and could not find a job. He left and later returned to Ankara. Mr Ince worked at a brick factory in Ankara for about a year.
8. When Mr Ince was approximately 16, his mother married Mr Nail Engez. Mr Engez had been born in Turkey but now lived in Australia. In 1994, Mrs Engez migrated to Australia with her new husband. The following year, Mrs Engez sponsored her younger son, Mr Ince, to come to Australia. He was granted a permanent resident visa and arrived on 15 August 1995 to live with his mother and her husband in a one bedroom flat in Brunswick.
9. Mr Ince has been convicted of the following offences:
All licences cancelled and disqualified for 12 months
Driving a motor vehicle upon a highway causing undue noise
Driving whilst licence suspended/cancelled/disqualified (2)
42 days on each charge - concurrent - to be served by way of intensive correction order
Disqualified from obtaining any licence for 12 months
Being in possession of housebreaking implements without lawful excuse
12 months' imprisonment on each charge concurrent - to be served by way of intensive correction order
Convicted and sentenced to 12 months' imprisonment to be served concurrently by way of intensive correction order
2 months - sentence suspended for 12 months under s. 27, Sentencing Act
15 years, 10 years non-parole period (declare a period of 412 days have already been served by way of pre-sentence detention i.e. 687 days less 275 days for sentence imposed in April 1998)
4 months - to be served concurrent with sentence now serving
Events preceding and following the day of Mr Broadbent's death
10. Mr Ian Broadbent died on 14 December 1972. He had been to a party on 13 December 1997 and had drunk alcohol to excess. While being driven home, he left the car and began to act irrationally and aggressively towards cars and people. He approached two cars that were stationary at a set of traffic lights and acted in the same manner. Mr Ince was a passenger in the second car driven by Mr Tolga Caliskan but owned by Mr Ince. The windows of Mr Ince's car were shut and the doors locked but the sunroof was open. Mr Broadbent held onto the side of the open sunroof and continued to hold on even though Mr Tolga drove through the lights when they changed and accelerated as well as zigzagging along the road. Mr Ince fired two shots from a gun. One of those shots hit Mr Broadbent in the head. Mr Broadbent was found at the side of the road and taken to hospital but could not be resuscitated. He was found to have a bullet in his head and he also suffered a fractured skull.
11. On the basis of the report of the Early Psychosis Prevention and Intervention Centre ("EPPIC") dated 26 August 1998, I find that Mr Ince was referred to it by Dr Roger Chan, a Consultant Psychiatrist. He presented at EPPIC on 18 December 1997 and was treated with anti-psychotic and anti-depressant drugs and then admitted on a voluntary basis for three days from 24 to 26 December 1997. He was diagnosed as suffering from a Major Depressive Episode with Psychotic Features. Over the next three months, his symptoms appeared to improve slowly but he remained quite depressed and continued to describe hearing voices most days.
12. At the time he fired the shots, Mr Ince was 19 years of age. On the basis of Justice Teague's findings in R v Ince [1999] VSC 418, I find that it was not until March 1998 that Mr Ince became a possible suspect in the death of Mr Broadbent. On 13 March 1998, he was arrested and cautioned by the police. The police arranged for Mr Ince to be seen by Dr Welborn. She formed the opinion that Mr Ince was not fit to be interviewed because of his mental state and arranged for him to be certified and admitted to a psychiatric hospital. Mr Ince was discharged from hospital on 18 March 1998.
13. On 20 March 1998, the police interviewed and obtained a statement from Mr Caliskan. The police asked Mr Caliskan to speak with Mr Ince and to wear a tape recorder while he did so. Mr Caliskan did so.
14. When Mr Ince was arrested on 22 March 1998, the police arranged for him to see Dr Odell with an interpreter. Having been advised of Dr Welborn's opinion and Mr Ince's subsequent period as in involuntary in patient at a psychiatric hospital, Dr Odell concluded after he had seen him that he was fit to be interviewed. At that interview, Mr Ince made no material admissions and was charged with murder.
15. On the basis of Dr Walton's report dated 9 December 2002, I find that Mr Ince was received in the Acute Assessment Unit of the Melbourne Assessment Prison on 24 March 1998. On the basis of Justice Teague's judgment, I find that at some time on or before 3 April 1998, Mr Ince was admitted to the Rosanna Forensic Psychiatric Centre and seen by Dr Bell. Dr Bell noted signs of psychosis including complaints of auditory hallucinations, perplexity of thought and passivity of thought. He diagnosed Mr Ince as suffering from paranoid schizophrenia. Dr Bell supervised Mr Ince's care until 22 December 1998.
16. Mr Ince was discharged from the Rosanna Forensic Psychiatric Centre on 22 December 1998 when he was returned to the Acute Assessment Unit. He had been treated with anti-depressant and anti-psychotic medications and continues to be treated in that way. Mr Ince has also been investigated for the possibility that he suffers from epilepsy. The results of EEG examinations on 13 August 1998 and 27 October 1998 and of the CT brain scan on 13 August 1998 were normal.
17. Mr Ince said that he first met his stepfather in Turkey. He met him twice for about four days in all. At the beginning, they enjoyed a good relationship. That continued when Mr Ince migrated to Australia. He and his mother slept in the dining room in the one bedroom flat in Brunswick. She slept on a small bed and he on an old couch. They lived together in the flat for a year before moving to a flat in Carlton.
18. The relationship changed when Mr Engez made Mr Ince's mother angry. Mr Ince said that his stepfather drank a lot and sometimes used marijuana. His mother discovered marijuana in her husband's pocket. It is grown as a crop in Turkey but they discovered from a neighbour that it is a drug in Australia. His mother became upset. Mr Ince was also upset with Mr Engez when he discovered that he had not permitted his mother to go outside the house for three months. Mr Engez had done so, Mr Ince said, because there are no other Turkish ladies. A neighbour had introduced her to another Turkish lady whom she brought to the garden. In his oral evidence, Mr Ince indicated that the difficulties he and his stepfather had began in early 1997. In Mr Ince's opinion, Mr Engez did not like him because he was a stepchild.
19. While they were living in Carlton, Mr Ince said, his stepfather abused and hit him. Mr Engez and his mother argued all the time. On one occasion, Mr Ince said, his mother had paid too much money to Telstra. When Telstra returned the excess by cheque, he had given that cheque to Mr Engez to give to his mother. When he asked him one evening about the cheque, Mr Engez had replied that he, his stepson, ate and drank in his house. At the time, Mr Ince was not working. Mr Engez attacked him and stabbed him with a knife. The police came and Mr Ince said that he and his mother forgave Mr Engez. His stepfather never lived with them again. At the end of 1997 or the beginning of 1998, Mr Ince and his mother moved to a two bedroom flat in Flemington.
20. Mrs Engez said that her husband was angry with her son regarding what he drank and ate and would not allow him to watch television. For a time, she and her son slept in the park because her husband used to make her suffer. After a time, her son began to stay out a lot of the time. He associated with other young people. She was always afraid for him but could do nothing as she has no education and cannot read. There was no comfort for him at home as he was not happy and would go out.
21. For the first three months of his life in Australia, Mr Ince studied English at the English Language Centre in Brunswick. He then began to work at a Turkish restaurant.
22. Mr Ince became engaged to a girl at some time before he shot Mr Broadbent. His fiancée left him and his car was stolen. He then became very depressed. Both Mr Ince and his mother referred to his attempt to kill himself at that time.
Mr Ince's convictions before his conviction for murder
23. Mr Ince said that he spent a lot of time with people whom he met at the English Language Centre and began to get into trouble. He was young as well as a bit lost and lonely. At the time, he thought that it was cool to be with these people but he now knows that it was not. He can now understand that they could get him into trouble but he was a bit immature then.
24. In giving evidence, Mr Ince explained his previous convictions in the following way:
Possessing regulated weapon (knife)
Mr Ince said that his stepfather, who worked in a chicken factory, had left one of his knives in his car. The police found it when they stopped him.
Driving whilst licence suspended/cancelled/disqualified
Mr Ince said that he had been caught speeding and his licence had been suspended. He kept driving though.
Theft of a motor vehicle and theft from a motor vehicle
Mr Ince said that this occurred when he was 17 or 18. He was with five friends in his car. They stopped in a car park. The friends went to another car, which they started and drove. Mr Ince followed them in his car. When they got there, the friend told him to follow them into some bush. They started to remove the stereo from the car but the police then came. Mr Ince did not understand English at the time. The friends told him to tell the police that they had found the car there. The police came to his home the next day and charged him with stealing the car.
Attempted theft of motor vehicle
Mr Ince said that the charges of attempted theft of a motor vehicle had occurred when he was sick and he could not remember any details of the matter.
Drive while disqualified
Mr Ince said that the charges of attempted theft of a motor vehicle had occurred when he was sick and he could not remember any details of the matter.
Use copy of false document
Mr Ince said that a friend made a document for him to show that his licence had been lost. The document was used to rent a car. The car was returned without any damage, but the owners found out that he did not have a driver's licence and reported the incident to the police.
25. When asked in cross-examination about all of the offences other than the first, Mr Ince replied that he was very ill when he was doing all the bad things. It was as Dr Walton says; the same sickness exactly. He thought that there was only a few months between the murder and his earlier offences. The first time he committed an offence, he did not even know that he was doing so. With regard to burglary, Mr Ince said that his friends stole computers. They were in his room at his home when the police called on him. He could not tell the police who had taken them because of his safety. They charged him and he had to do nine months of community service.
26. Mr Ince could not remember about having housebreaking implements. He might have been ill; he could remember the knife but not the housebreaking implements.
27. Dr Walton referred to Mr Ince's using a modest amount of cannabis but this was not explored further with Mr Ince (Exhibit B at [5]).
28. In September 1997, Mr Ince said in his statement, he bought a gun when a friend showed him a gun that he had. Mr Ince said in his statement that he was young and the gun made a big impression on him. He became interested in having a gun himself. Mr Ince said that he purchased the gun because he feared that people were trying to harm him. In his oral evidence, he said that he was scared and paranoid. He added that the friend told him that he had another gun and asked him if he wanted to buy it. When the friend showed him the gun, Mr Ince bought it. In cross-examination, Mr Ince said that he showed the gun to his friends and shot it in the air in front of one of them, Mr Mick Gibson.
29. In cross-examination, Mr Ince said that he was not sure if he showed people his gun. He was scared for his mother. At one time, he had it in the house but then kept it in the car. He had bought the gun to protect himself. He had shot it in the air in front of Mr Gibson because he was the man who had forced him to buy the gun. He told him he had a gun and he was to buy one too. At the time, Mr Ince said, he was paranoid. Mr Gibson did not sell him the gun but put the idea to do so in his head. Mr Ince did not know whether or not he shot at street signs.
30. Mr Ince said that all of his trouble came together. He had had trouble with the police and with his stepfather. He tried to jump from a window of the flat in Carlton but his mother caught him. She was crying and he said that he went to see a general practitioner, Dr Erciyas. Mr Ince understood Dr Erciyas to tell him that he had depression and that he had to see him again. Mr Ince thought that there was nothing wrong with him. When he hurt his hand, though, he saw Dr Erciyas again. This time, Dr Erciyas sent him to a psychiatrist at EPPIC. By the time that he got into trouble, he did not really know what he was doing.
31. Mrs Engez confirmed that her son had cut the flyscreen on the window, was making noises and was hitting his head on the wall. He had a lot of bruises on his body.
32. Mr Justice Teague described the events leading up to Mr Broadbent's death in his sentencing remarks to Mr Ince:
"2. On 13 December, the deceased had been to a party at Montmorency. He had taken to the party two joints of marijuana. He stayed at the party until around 11 p.m. He seemed happily drunk. He left the party to be driven home. Near the intersection of Settlement and Plenty Roads, in Bundoora, he insisted on getting out of the car in which he was being driven. He walked west in Settlement Road. He walked onto the road and tried to get car drivers to stop. He intruded on a dance at a hall nearby. He returned to Settlement Road and walked east. He acted aggressively towards approaching drivers. His movements suggested that he was angry, upset, irrational, violent and swearing. At the intersection of Grimshaw Street and Plenty Road, he approached cars in a confrontational way as if he was wanting to fight. He went up to and tried to open car doors. He continued to act aggressively towards car drivers until he came up to the Mazda in which you were the front seat passenger.
3. Tolga Caliskan was driving that Mazda. You had lost your driving licence some months earlier, but your mother had organized for the Mazda to be available for your use. It was stationary at the traffic lights in Plenty Road governing turns into Grimshaw Street. Tolga Caliskan was waiting for the right turn light to switch from red to green. Like you, Tolga Caliskan had come to Australia from Turkey two or three years earlier. The two of you had been friends for over twelve months. Some time before 13 December 1997 you had bought for $3,000 a Belgian Browning handgun. You had shown Tolga Caliskan and others your capacity to use the gun. Unknown to Tolga Caliskan, you had placed the gun under the passenger seat in the Mazda on the night in question. On the night of 13 December 1997, Tolga Caliskan was driving the Mazda at your request to pick up a girl named Sibel in Greensborough. He was following the directions that you gave him. He had stopped the Mazda at the traffic lights behind another car.
4. The deceased went to the car in front, and punched or kicked that car. The deceased then came up to your car. The windows were closed, but the sunroof was open. The deceased had no shirt on. He was swearing and acting in a way that appeared angry and violent. He struck the front driver's side window. He was in a position to look and speak through the sunroof at you. You said 'no, no' to him. The right turn light switched to green. Tolga Caliskan started to move the car and to execute a right turn. The deceased moved with the car. That was because he had chosen to hold on to the car at the edge of the sunroof. The deceased continued to swear at you from a few inches above your head. Tolga Caliskan queried with you whether he should stop the car. You said not to stop as the man would kill you both. You said that the man might jump off soon. Caliskan completed the turn, and drove east in Grimshaw Street. He increased the car's speed to over 80 kilometres per hour. The deceased held on, and continued swearing loudly at you.
5. Without indicating to Tolga Caliskan what you intended to do, you took out your gun. You got up from your seat. You fired two shots at or towards the deceased in quick succession. The second hit the deceased in the top of the head. He fell to the roadway, finishing up nearly 500 metres east of the point where he had first held on to the sun roof. Tolga Caliskan asked you if you had shot the man. You said that you had fired the gun in the air and that the man had got scared and jumped. Caliskan continued driving to Greensborough following your directions. You acted as if nothing unusual had happened. A few days later you told two friends you had shot the man. Much later again you told Tolga Caliskan that you had done so." (Exhibit N)
33. The evidence that Mr Ince gave regarding the way in which the murder occurred was generally consistent with Justice Teague's sentencing remarks. In his oral evidence, Mr Ince said that he had the gun with him because he was scared. When Mr Broadbent hit the window, he and Mr Caliskan were very scared. Mr Ince said that he asked Mr Broadbent to let them go but he just swore at them. He then told Mr Caliskan to drive and Mr Broadbent jumped on the car. They thought that he would leave the car. Mr Caliskan braked the car twice and then made a zigzag movement. Mr Ince said that he was very upset and thought that Mr Broadbent meant to kill them. He pulled out the gun to protect himself and shot twice. Mr Ince said that he was very scared, that he did not want to kill anyone and only wanted to get away. Mr Broadbent left the car and Mr Ince told Mr Caliskan to drive on. In cross-examination, Mr Ince said that Mr Caliskan had said "let's go". They were scared and could not stop. In cross-examination, Mr Ince denied that the car was travelling at high speeds when Mr Broadbent fell off. When asked why that was so, Mr Ince replied that he was young.
34. Mr Ince said that he and Mr Caliskan went on to pick up the girlfriend. They had been going out but they did not. They went first to the girlfriend's house and then Mr Caliskan drove him home. He said that he had not given any evidence in the court. He was not very good talking with people at the time.
35. Mr Ince said that he had not known that Mr Broadbent had died until the police went to his home. He knew nothing of newspaper reports at the time of Mr Broadbent's death. Mr Ince denied that he had told people that he had shot Mr Broadbent and had done so before March 1998. He had told people what had happened but not that he had shot him because he did not know that he had.
36. Mr Ince agreed that he had denied that he had been at the scene when he was interviewed by the police. He had done that as his lawyer had told him to say nothing and not to make any comment. When asked how he was feeling in the first months of 1998 and prior to the interview, Mr Ince replied that he felt very unwell. He denied asking anyone to go to the doctor with him and to tell the doctor that he was more unwell than he actually was. Someone took him once but otherwise he took himself.
37. In cross-examination, Mr Ince admitted that he had told Mr Caliskan that he had shot in the air. Mr Ince denied that he had told Mr Caliskan not to tell anyone about the incident. Rather, it was Mr Caliskan who had told him not to tell anyone. That is what Mr Caliskan told the court. Mr Caliskan is older than he and could tell the court whatever he liked. He lied. They did not go to Lygon Street as they usually did. He could not recall what time they took the girlfriend home. He felt shocked and was not calm. He had frozen and was like a zombie; he could not talk. Later, he added that he was ill.
38. In cross-examination, Mr Ince denied telling anyone that he had shot Mr Broadbent. The day after the shooting, he told his friends what had happened and they told him to say nothing. He did not tell them that he shot Mr Broadbent but did say that he had shot twice in the air and the man had left the car. At the time, he did not know that he had killed Mr Broadbent. He did not look at the television. At the time, he was ill. Even if he looked at it, he did not understand it. Mr Ince denied that he had told Mr Caliskan that he had capped a man. Mr Caliskan made that up from language used in films on the television. All that he told his friends was what had happened and then asked them "How bizarre is that?". They told him not to say anything. He could not recall precisely when he told them as he was ill. Mr Ince agreed that he had shown the gun to Mr Kaya but denied calling him to ask him not to tell the police that he had done so.
39. Mrs Engez said that her son had not told her anything of events until the police came. He had only told her of driving while disqualified when she had been required to pick up the car.
40. Mr Ince said that he has not handed in the gun with which he shot Mr Broadbent. An "old man", who is a family friend, took the gun when Mr Ince was arrested and gave it to another to destroy.
Mr Ince's mental condition at the time of Mr Broadbent's murder
41. In his sentencing remarks, Mr Justice Teague made the following findings:
"6. Twice in the few days before the events of 13 and 14 December 1997 you had seen your general practitioner, Dr Erciyas. Dr Erciyas referred you to Dr Chau, a consultant psychiatrist, who saw you on 17 December. You made no mention to Dr Chau of an incident involving a man on a car. Dr Chau concluded that you were then in a psychotic state and ought to be referred on for further psychiatric treatment. After you were arrested and charged with murder, you came under the care of Dr Douglas Bell, a psychiatrist with Forensicare at Rosanna. You were a patient under his care from 3 April to 22 December 1998, and since the trial you have been under his care for a further period.
7. Dr Bell has made the diagnosis that you have been suffering from paranoid schizophrenia. He has expressed the opinion that you had been so suffering for at least six months prior to April 1998. You told him of what he took to be persecutory delusions that you were in danger, that when you are in public people were looking at and talking about you and that someone in the community wanted to kill you. Dr Bell made his diagnosis aware of concerns that you might be feigning to be mentally ill. With antipsychotic medication, your symptoms were reduced in severity and scope. However, you have had your ups and downs. In June 1998, you made an attempt to hang yourself. You were seen in early 1999 by Dr Walton, another psychiatrist. He also formed the opinion that you suffered from paranoid schizophrenia.
...
9. I come back to the important question of your psychiatric state. It is easy to make the finding that as from the time you were seen by Dr Bell you have been suffering from paranoid schizophrenia. However, on the whole of the evidence, I am unable to find that the state of your psychiatric health was nearly as bad on 14 December 1997 as it was later. It is not possible to reconcile satisfactorily the opinions of Drs Bell and Walton with evidence from other sources. I have noted the evidence from Dr Chau and from consultants at the Early Psychosis Prevention and Intervention Centre. But I must weigh against that other evidence. That includes testimony, tested before the jury, from several people who were in close contact with you on or about 14 December 1997. I note that I have little to go on as to the position of Dr Erciyas.
10. The evidence overall is such as to warrant my finding that you were suffering to a limited extent from the paranoid schizophrenia on 14 December. I say only to a limited extent for reasons that include that your symptoms then appeared not to have been severe. You appeared to be functioning more than moderately well in the community. You were also capable of feigning and trying to manipulate to advantage, and speaking of such matters and other matters, even in a boastful way.
11. I find that you intended to kill the deceased. I find that you did so with a gun that you obtained earlier, apparently for the purpose of self-protection. Those findings as to specific intent with a firearm would warrant a heavy sentence, if it were not for my having found as I have as to your incipient psychiatric state at the time you shot the deceased." (Exhibit N)
42. The Inpatient Discharge Summary prepared by Dr Paddy Power, Consultant Psychiatrist, and Dr Fiona Cairns, Psychiatric Registrar, recorded the history of Mr Ince's illness:
"Mehmet was referred to EPPIC on the 18/12/97 by a private psychiatrist, Dr Chan. Mehmet reports a thirty day history of positive psychotic symptoms occurring against a background of twelve months of social stressors. Symptoms included clear distinct voices outside his head calling his name and a number of other things. Reported looking around for people but unable to see them. Believes that people were looking at him in a negative way and maybe were able to read his thoughts. Also reported believing that he may die from something pushing down on his head so was consequently not looking up properly. Associated depressive symptoms include lowered mood, poor sleep and suicidal ideas since the onset of his psychotic symptoms. Stressors include breaking up with his girlfriend, loosing [sic] car licence, and recently loosing [sic] job." (Exhibit 2 at 158)
43. Dr Walton first saw Mr Ince on 17 February 1999 prior to the committal proceedings. He concurred with Dr Bell's diagnosis of paranoid schizophrenia. In his view, Mr Ince's illness was the primary drive towards his acquiring the gun well before the shooting. If it is correct that Mr Ince was in the grips or a paranoid psychosis at the material time, then it was highly likely that he was deprived of the capacity to distinguish meaningfully between right and wrong. In Dr Walton's opinion, Mr Ince was markedly more vulnerable to experiencing fear because of Mr Broadbent's behaviour. That was because of his paranoia.
"Without doubt, Mr Ince has been involved in a very serious offence resulting in the loss of life of the victim. It was not raised at the time of the trial but it has been my consistent opinion that Mr Ince did have a defence of mental impairment available to him. I am aware that even if that had been the outcome, that is, qualified acquittal on the grounds of mental impairment, that would still be captured within the character test. I simply state the information to emphasise the Mr Ince's state of mind at the time was not that of conventional criminality. During the extended period of time that I have now known Mr Ince, there has been no suggestion of any tendencies towards violent behaviour, and that is thoroughly reassuring in terms of the likelihood of his engaging in any further worrisome misconduct. A significant amount of time has now passed, Mr Ince's offence having occurred on 14 December 1997. I have no reason to suspect that Mr Ince exhibits any blatant disregard or contempt fort the law, quite the opposite." (Exhibit B at [5])
45. Dr Walton said that it is possible that Mr Ince had exaggerated his symptoms. It is more common to minimise them but not uncommon to exaggerate.
46. In arguing that the jury's verdict was unsafe and unsatisfactory, Mr Ince's counsel argued that Mr Broadbent may have died either as a result of a bullet in his skull or as a result of a fractured skull when he fell from the car to the ground. His fall, the argument proceeds, began independently of being shot. The jury could not be satisfied beyond reasonable doubt of either of these options. Furthermore, there was insufficient evidence to establish any of the mental elements of murder associated with a gunshot wound. The evidence that there was did not negate self-defence.
47. Charles JA, with whom Phillips JA concurred, said:
" Turning then to the question of intent, the jury could have been in no doubt that the bullet which entered the deceased's head was fired by the applicant's pistol at a distance of less than 20 inches from the head of the deceased. There was also the evidence of Mr Ross of gunshot residue on the fabric of the deceased's shirt, indicating that the muzzle of the firearm had been in very close proximity to it when fired. The deceased had of course been holding the shirt, waving it, before he leapt onto the applicant's car. As to the argument that the applicant had had very little time to form any state of mind for murder, Caliskan's evidence was that as the car moved away from Plenty Road, he had suggested that they should stop, presumably to dislodge the deceased. The applicant had directed him not to do so. Caliskan then became aware of the applicant rising out of his seat and turning. After the gunshots, Caliskan saw the applicant sitting down with the gun in his hand, and saw him then put the gun into a pull-out drawer under the front passenger seat. It follows that the jury would have been entitled to conclude that before rising in his chair and turning to shoot the deceased, the applicant must have drawn open the pull-out drawer under the front passenger seat and removed from it the gun. After the shooting he remained, according to Caliskan, calm, saying only that he had fired his gun in the air. As to intent, the jury also had before them the evidence of Karahan, if they accepted it, together with the contents of the covert tape made by Caliskan with equipment provided by the police. The recorded conversation contains a number of clear admissions by the applicant that he had been responsible for the shooting, and there is no suggestion at these points that the fact that he fired the pistol or that the bullet struck the deceased was accidental, or anything other than the result of an intentional shooting. In my view on all the evidence the jury were perfectly entitled to be satisfied that the applicant shot the deceased intending to kill him, or at least to do him really serious injury. But even if, as Callaway, J.A. has suggested, the applicant fired and shot intending only to scare the deceased, the jury would equally have been entitled on the evidence to conclude that he did so, knowing that a probable or likely result of his doing so was that the deceased would fall from the car and suffer death or really serious injury. Even if the alternative of recklessness be a relevant consideration (and this was by no means put plainly by Mr Just), I agree with Callaway, J.A. that the jury was still entitled to convict the applicant of murder.
The issue of self-defence raised the question whether the applicant believed upon reasonable grounds that it was necessary in self-defence for him to have acted in the manner described above. If the jury were left in any reasonable doubt about the matter, the applicant was entitled to an acquittal. They would have been entitled to consider that all the applicant and Caliskan had to do to defend themselves from the deceased was to slow the car and close the sun-roof. There were two of them, and the applicant was armed, had the deceased then attempted to attack them. This was, I think, pre-eminently a matter for the jury, and, again, I think that on all the evidence they were quite entitled to be satisfied that the applicant did not have reasonable grounds for shooting the deceased, or, as Callaway, J.A. says, engaging in conduct that risked really serious injury, notwithstanding his wildly irrational behaviour, and accordingly to be satisfied that self-defence had been negated.
There is, I think, no substance in the argument that the conviction for murder is unsafe or unsatisfactory. It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty as charged." (at [41]-[42])
48. The essence of the judgment of Callaway JA is reflected in this passage. In summary, he said that:
"All that is required is that an act of the accused was done with the requisite intent or recklessness was a cause of death, even if not in the manner intended or foreseen.
On that analysis, it matters not that the only form of recklessness referred to by the prosecutor in his final address and by the learned judge in his charge was recklessness with respect to death to really serious injury as a result of falling on the roadway. It was sufficient that an act of the applicant that was done with that form of recklessness was a cause of death, even if it was so not in the manner foreseen but by reason of the bullet lodged in the deceased's brain. In other words, it does not matter that the Crown's alternative contention did not extend to the applicant's knowing that a probable or likely result of his firing at or towards the deceased was to kill him by a bullet. That omission went to mens rea, not causation." (at [46] -[47]).
49. In considering self-defence, Callaway J took the view that the jury's verdict on self-defence was open to it whether it considered that issue in the context of Mr Ince's intending to kill or cause really serious injury or in the context of his being reckless as to whether his actions would cause death or really serious injury. He
"... It is important to remember that the applicant and Caliskan were not required to judge to a nicety the appropriate response to the alarming situation in which they found themselves; but I have concluded that, whichever version of the Crown case succeeded, it was open to the jury to be satisfied to the requisite standard that the applicant did not believe on reasonable grounds that it was necessary in self-defence to do what he did. For it is also important to remember that there were two of them, that the deceased was unarmed and there was no reason for them to think otherwise and that, although Caliskan began to slow down, after speaking to the applicant he speeded up to between 84 and 100 kilometres per hour. In that context the jury were entitled to be satisfied that there was no need for the applicant to engage in the conduct in which he did, even if he only foresaw really serious injury. A fortiori it was open to the jury to exclude self-defence if they were properly satisfied of intention to kill or do really serious injury or recklessness with respect to death. ..." (at [49])
50. The rationale of Justice Teague's sentence is set out in the following paragraphs from his sentencing remarks:
"11. I find that you intended to kill the deceased. I find that you did so with a gun that you obtained earlier, apparently for the purpose of self-protection. Those findings as to specific intent with a firearm would warrant a heavy sentence, if it were not for my having found as I have as to your incipient psychiatric state at the time you shot the deceased.
12. Sentencing principles require me to make allowance appropriately for the minimal impact of considerations of general and specific deterrence in such circumstances. Your incipient state of psychiatric illness also means that I place little weight on the circumstance of your having convictions relating to events which occurred earlier in 1997. I accept that there are a number of further mitigating factors that I must take into account in your favour. High on the list of mitigating factors is your youth, which carries with it a high prospect of rehabilitation.
13. You are now 21 years of age, having been born on 4 March 1978. I note that you come from a deprived background. You were raised in a village in Turkey. You came to Australia in 1995. Your opportunities for education in both countries have been limited. Problems with skills have come on top of difficulties with English. I note that you have done some unskilled work.
14. I also note that there was no question of premeditation. The deceased was quite unknown to you until he chose to attach himself to your car. Events preceding and including the shooting of the deceased occurred in a very short time-frame. The level of fear and panic for you as for Tolga Caliskan and the deceased must have been extremely high. The circumstances of this untimely death were as bizarre as they were tragic." (Exhibit N)
Mr Ince's activities and outlook since being imprisoned
51. Mr Ince has completed the following courses since being imprisoned:
Certificate of General Education for Adults: Reading and Writing - Introductory Level
Conducted by Kangan Batman TAFE and certificate granted on 22 March 2000.
Attendance and Progress reported to be excellent with the general comment that Mr Ince was unable to read or write English when he began. He worked extremely hard and is a very conscientious student who is co-operative and positive at all times.
Course in Forklift Operations: subjects of Forklift Fundamentals and Operating a Forklift
Conducted by Kangan Batman TAFE and certificate granted on 11 December 2000.
Certificate I in Hospitality (Kitchen Operations): subjects of Organise and Prepare Food, Present Food, Clean & Maintain Premises, Follow Health & Safety Security Procedures and Follow Workplace Hygiene Procedures
Conducted by Kangan Batman TAFE and certificate granted on 21 March 2001.
Competencies achieved
Certificate 1 in Hospitality (Kitchen Operations); subjects of Organise and Prepare Food and Present Food
Conducted by Kangan Batman TAFE and certificate granted on 15 June 2001.
Competencies achieved.
Certificate II in Asset Maintenance (Cleaning Operations): subjects of Maintain Hard Floor Surfaces, Maintain Soft Floors, Bonnet Buff Soft Floor to Achieve a Clean Surface Appearance, Maintain Wet Area in an Odour Free, Soil and Hazard Free Condition and Follow Relevant OCC Health & Safety Policies & Procedures to Ensure Own Safety & that of Others
Conducted by Kangan Batman TAFE and certificate granted on 2 January 2002.
Competencies achieved
Certificate III in Asset Maintenance (Cleaning Operations): subjects of Replace Hard Floor Finish and Remove Dirt and Soil from Soft Floors or Fabric Upholstery Using a Water Extraction Method
Conducted by Kangan Batman TAFE and certificate granted on 2 January 2002.
Competencies achieved
Certificate II in Horticulture: subjects of Plant Trees & Shrubs, Prune Shrubs & Small Trees, Undertake Propagation Activities, Meet Industry Requirements, Meet Workplace Health and Safety Requirements, Use Hazardous Substances Safely, Cooperate in the Workplace, Act in an Emergency and Plan Daily Work Routines
Conducted by Kangan Batman TAFE and certificate granted on 3 January 2002.
Competencies achieved.
Certificate II in Information Technology (Computer Applications): subject of Freehand Graphics Packages
Conducted by Kangan Batman TAFE and certificate granted on 12 September (year indecipherable).
Competencies achieved.
52. Mr Ince said that he undertook these courses after he had gained a bit of maturity. He spoke with people and found out what was right and wrong. One day, the skills may be useful.
53. Ms Sue McDonough, Occupational Therapist, Mr Peter Thorneycrot, Psychologist, and Ms Juneann Price, Programme Coordinator, wrote to the Department on 17 June 2004. They noted that Mr Ince had been a patient in St Paul's Unit, which is a psychosocial rehabilitation unit in the Port Phillip Prison, for two periods totalling more than two years. As a patient, Mr Ince willingly and enthusiastically participated in a range of programmes relevant to his rehabilitation needs. He also worked as a billet and was a trusted worker responsible for cleaning the prison's Visitor Centre. Interactions between Mr Ince and other patients and staff have been consistently positive, considerate and respectful. Mr Ince has shown ongoing concern for the welfare of members of his family in both Turkey and Australia. He maintains regular contact with his mother and their relationship is especially close. Mr Ince has given his mother a great deal of support since the recent death of her elder son.
54. Mr Knell, who is a retired mechanical engineer, is a member of Prison Fellowship and has been for some 20 years. Each week, he would talk to approximately seven inmates for 20 minutes each. He used to visit Mr Ince weekly but has not done so since Mr Ince was transferred to HM Prison Loddon ("Loddon") in September 2004. He telephones Mr Knell and his wife each week and exchange letters every 10 to 14 days.
55. Mr Knell noted that Mr Ince gets on well with both officers and prisoners and has no trouble. He is a very pleasant young man whom Mr Knell finds quite easy-going. In their discussions, Mr Ince has told him about the murder, has expressed his sorrow and has accepted responsibility for his actions. On at least two occasions, Mr Ince has shown him that he has experienced regret and sorrow. Mr Ince understands his illness and accepts the need to take medication. At times, he has spoken of the side effects of his medication and his hope that these can be minimised by changing to a different medication or to a different dosage. He is willing to do what is required of him by the medical staff who treat him.
56. In Mr Knell's opinion, Mr Ince has done everything in his power to rehabilitate himself while in prison. He has shown remorse for his actions and, In Mr Knell's view, the efforts that Mr Ince has made to rehabilitate himself, show that he is not a risk to the Australian community in the future.
57. Mr Brian Revell, the Operational Support Supervisor of Loddon, reported that Mr Ince had not come to the attention of staff as a management concern or raised any issues. Some incidents had been recorded against him from previous locations. They had involved self-harm and one incident of fighting with another inmate. Mr Ince has been employed at Loddon as a billet in the Industry Section and in his short time in that position has shown a reasonably good work ethic. In cross-examination, Mr Ince said that he had punched an inmate once. That inmate had punched him first and hurt him. At the time, he had not lost control but he had been ill. Every day, three or four inmates fought.
Mr Ince's psychiatric and general health care since 1998
58. In his third report dated 23 June 2004, Dr Walton stated that he had continued to follow Mr Ince's progress as a psychiatric outpatient in the mainstream prison. They met approximately once a month. He observed that:
"... Mr Ince's rather cyclical pattern of anxiety, hallucinations and paranoia have continued at a level tolerable to him, he having developed a considerable amount of insight into the nature of his psychopathology.
However, a few months ago there was a family tragedy when Mr Ince's brother was killed in a bus accident in Turkey, along with a considerable number of other persons. In the aftermath of this incident, Mr Ince's mental state, perhaps not all that surprisingly, deteriorated to a point where he required a brief readmission to the St Paul's Psychiatric Unit, but he has again been discharged and essentially he has returned to his baseline level of somewhat fluctuating symptoms.
The psychiatric treatment regimen remains the same." (Exhibit B at 1)
59. A consistent feature of Mr Ince's behaviour has been that he has been consistently pleasant and friendly. The type of schizophrenia from which he suffers does not distort emotional expression and he is able to interact with others warmly and appropriately. At times, he suffers from auditory hallucinations; voices adamantly insist that he has a different name. While Mr Ince has insight into the psychopathological nature of his condition but he finds it distressing. He is consistently compliant with his psychiatric treatment.
60. Dr Walton considers that Mr Ince is continuing to mature psychologically, despite his ongoing and disabling illness. There could be no serious concerns about Mr Ince's re-offending in a similar fashion. He has proved to be a model prisoner and would assimilate into the community on his release. As for his future employment, Dr Walton said:
"Rather unusually for a person suffering from schizophrenia, there would seem to be a very real prospect of his being able to sustain employment, especially as there is a potential employer available who is thoroughly aware of Mr Ince's individual circumstances and who already extends employment and support Mr Ince's mother. I have met with this restaurant owner on several occasions myself and he certainly impresses as a caring and supportive person, thoroughly aware of the realities which surround the Ince family." (Exhibit B at [3])
"In my opinion there is evidence that Mr Ince has reformed. He is now thoroughly insightful into the dangerous [sic] of the taking of illicit drugs to his illness. Even in his current situation of incarceration, there is ample opportunity for he [sic] to indulge in drug abuse were he of a mind to do so and there is simply no evidence that he has done so. Within the quite limited opportunities of a prison setting, Mr Ince has demonstrated that he is caring and helpful towards both staff and fellow prisoners. Mr Ince will be able to provide you with other evidence of his good character as observed by others." (Exhibit B at [5])
"... Then that unfortunate incident was occurred and he was put into jail which affected my mental wellbeing and health. I get into very heavy depression. I started seeing psychiatrist which prescribed medicines for me to be able to keep going." ( G documents at 71)
63. Dr Mustafa Ahmet noted on 15 June 2004 that Mrs Engez, who had been his patient for the previous three years, suffers from depression and renal stone. She relies on her son for her care and requires his presence because of her medical condition. Dr Walton referred to Mrs Engez's entering a state of intense and acute grief following the death of her elder son. "If Mr Ince and his mother were to live together in Australia, the situation amounts to mutual dependency, they [sic] each requiring the assistance of the other, and that would seem to be the best option for them" (Exhibit B at [4]).
64. Mr Knell and his wife visit Mrs Engez once each month. He wrote on 18 December 2002 that:
"... My wife and I have visited Nurdane both in the Turkish Restaurant where she works as a cook and in her home. Whilst not dependent on Mehmet for support what has happened has obviously upset her and left her perplexed, dazed and uncomprehending of the situation. She is after all a Turkish lady in a strange land, with little knowledge of English and our way of life." (Exhibit A, Attachment)
65. Ms Marie-Louise Riley is a social worker with Doutta Galla Community Health. She wrote on 7 January 2005 that the service has supported Mrs Engez, who is being treated by a psychiatrist. She felt that Mrs Engez and her son need to be together to provide ongoing support for each other.
66. In his second report dated 9 December 2002, Dr Walton noted that he had now been acquainted with Mr Ince for some four years. He stated that he was:
"... impressed with what might be described as significant progress towards psychological maturation, despite his ongoing symptoms and his placement in custody. Simply on that basis, the risk of his reoffending would be significantly lowered. It is also the situation that substantial control of this man's mental illness has been achieved and, in particular, he not afflicted by any psychiatric symptoms which might be seen as driving him towards reoffending. There have been no untoward incidents whatsoever while Mr Ince has been in custody. Mr Ince impresses as having developed insight into the nature of his former misconduct. In my opinion this man could not be stated to be a serious risk to the Australian community. Furthermore, Mr Ince's illness is much less severe compared with other sufferers of schizophrenia. There is a very real prospect of his taking up employment, especially as his mother's employer has indicated that there would be work available for Mr Ince in the restaurant the employer operates.
There are what I would describe as humanitarian issues surrounding this case. On the one hand, there is no doubt that Mr Ince's rehabilitation will be assisted by the ongoing support of his mother and her employer compared with what would be available to him in Turkey. Furthermore, in years to come it is likely to be the situation that the support which is currently forthcoming from the mother will change to a situation where she is increasingly dependent upon Mr Ince for support in the face of her deteriorating physical health and aging. While it is the case that Mr Ince does have a brother and sister who remain in Turkey, in fact they having never lived in Australia, effectively, because of their own financial and family commitments, they would not be meaningfully available to Mr Ince." (Exhibit A at [3]-[4])
67. Dr Walton expressed similar views in his third report dated 23 June 2004. He added that Mr Ince had been nothing short of a model prisoner. In his view, the defence of mental impairment was available to him at his trial. His "... state of mind at the time was not that of conventional criminality" (Exhibit B at [5]). During the time that he had known Mr Ince, there had been no suggestion of his having any tendencies towards violent behaviour. Dr Walton had no reason to suspect that Mr Ince displays any blatant disregard or contempt for the law and, indeed, thought that the opposite was the case. Were Mr Ince not to take his medication, nothing would happen for some months but he would then be at risk of an acute relapse. If he were released on parole, he would most likely be required to be under a lengthy period of treatment and supervision.
68. Dr Walton said that, if it is accepted that Mr Ince's psychosis is central to Mr Ince's criminal act, there are a number of factors that must be considered when deciding whether he is likely to offend again. They include his not being prone to aggression other than on one occasion and the fact that his illness is the only reason for his being out of control and in the serious risk category.
69. Mr Ince said that he did not accept that he had a mental illness before he went to gaol but he does so now. He accepts that he has to take medication for the rest of his life. The side effects are not such that he wants to stop taking it. He needs to because Dr Walton said that he has to in order to live a normal life. He does not want to ever offend again. When asked how he felt, Mr Ince replied that killing someone is not very easy. He understands that what he did was wrong. He hurt himself, he killed someone and it was a tragic accident for himself and Mr Broadbent.
70. Mr Ince has no other relatives in Australia. His mother has suffered for each of her children. If he is granted parole, Mr Elturan will help him and his mother to open a restaurant. He will work for Mr Elturan at first. His mother and he would have to live together as his mother is part of his life and he cannot leave her. His mother said that she would use money she has inherited from her father to open the restaurant.
71. In Turkey live his step mother and her children, one of whom is mentally ill. His sister is also there with her three children. If he were to return to Turkey, it would be hard for him. He came to Australia when he was 17. How would he live there, he asked, and went on to say that he would not be able to purchase his medication there. He would have to perform military service and he did not think that he would be excused because of his mental illness. His tablets cost $7 each. In Australia, the government pays for the medication but not in Turkey. Mr Ince did not know what his mother would do.
72. Mr Ince said that he was a young man when he committed the crimes and he was ill. He has done some wrong things but now he is different; he has changed and has become better. He has changed day by day and has rehabilitated himself. It is impossible that he will re-offend. To re-offend would bring harm to his mother, shame to his people and shame to himself after this much rehabilitation. Even if he did not take his medication, he did not think that he would offend again after so much rehabilitation and maturation.
"Due to all these painful experiences Memet has matured and learned to become very responsible person. I believe that in the future my son only would be very useful person for this society.
My son Memet is everything to me. He is only what I have in this country. Both of us suffered so long, so deeply. It is time for us to live in peace and together as a family who has gone through hell. Please do not separate my son from me. More separation from him would kill me.
When you make this decision, please take into consideration the impact of the difficult lifestyle that we had as well as our wishes and commitment to starting fresh life as a family and being useful to the community and the country." (G documents at 71)
74. Mrs Engez said that she had returned to Turkey when her elder son died. She returned as there is no-one there for her. The family she does have in Turkey all live in different cities. Since she has been in Australia, she has returned to Turkey on one occasion to visit them. This trip was in addition to her trip on the death of her elder son. She only lives for her younger son. Every now and then, she talks to her daughter. Her son contacts her daughter every now and again but cannot afford to do so often. Her daughter's financial circumstances are not very good. If her son were required to leave Australia, it would be very difficult for her. She is receiving treatment and needs him to support her just as he needs her. "Mother and son cannot be separated", she said, "God protect me. I don't think I could live". They would live together on the basis that they never separate. Her only hope, Mrs Engez said, is her son; nothing else. In cross-examination, Mrs Engez said that she likes Australia and does not want to leave. When asked whether she would follow her son to Turkey were he required to go, she replied that she did not want to be asked that. No-one would be able to help them in Turkey but, were they to stay in Australia, then they would hope to have a good future. When asked the question again, she said that her last resort would be to kill herself.
75. Mrs Engez said that she is taking medication for depression so that she can sleep. She is always anxious and cries all of the time. She will sacrifice herself for him. If he has to go back to Turkey, her last resort would be death. Death will deal with her.
76. Mrs Engez considered it impossible for her son to offend again. He was a child then. They speak on the telephone every day. He tells her that he will never make that mistake again; he was a child then. She believes him. Mrs Engez said that she is seeing a lot of good people, such as Mr Elturan, who have good sons. Her son will be dealing with those people.
77. Ms Celik has visited Mr Ince after becoming friends with his mother. She sees Mrs Engez each day and spoke of Mrs Engez's distress at her son's situation. Mrs Engez is quite dependent on her son even though he is not physically there. Ms Celik say that Mrs Engez and her son have frequent contact. She confirmed that Mrs Engez wants to kill herself if her son has to return to Turkey.
78. Mr Ibrahim Elturan has worked as a teacher, painter, musician and sculptor in Turkey and in Australia. He came to Australia in 1980 but knew Mr Ince when he was born. Mr Ince was born to a good family but, Mr Elturan wrote to the Department, his father died when Mr Ince was very young. Mr Ince never knew his father and never had a good role model. His mother is illiterate but he looks after her and is happy to have her work in a significant role in his restaurant, the Rumeli Restaurant. Mrs Engez has worked for him for four years and a position will always be available for her son. Mr Elturan regards Mr Ince as well and truly capable of cooking, waiting, delivering food and cleaning as well as an enthusiastic and hard working person. His offer was available in June 2004 when he wrote the letter. Mr Kemal Erpolat of Red Rose Cleaning Company Pty Ltd wrote to the Department in the same month and guaranteed that Mr Ince would have a job with him if he chose to do so.
79. Mr Knell considered that it would be very harsh on Mr Ince and his mother were Mr Ince not permitted to remain in Australia.
80. The World Health Organization ("WHO") has prepared a fact sheet entitled "Mental health in the WHO European Region" (Exhibit I). The WHO European Region includes countries from the United Kingdom in the west to Kyrgyzstan in the east. Turkey is among them. The fact sheet begins with the general statement that mental health problems are quite general with some 450 million people suffering from them at any one time. One in four families has at least one member with a mental disorder and one in five people will suffer from depression. In the WHO European Region, mental disorders figure among the leading causes of disease and disability. The fact sheet estimated the effect of mental disorders on those in the region:
" According to a recent calculation, stress-related conditions count for more than half of all disability in a northern European country.
Life expectancy has in one decade decreased by 10 years in some Member States, much due to stress and conditions related to mental health.
Mental health problems account for up to 30% of consultations with general practitioners in Europe.
Over a lifetime, slightly over 3 million adults (or 7 out of 1000 people) in the WHO European Region are affected by schizophrenia, with the onset in adolescence in 33% of cases.
Some 33.4 million people in the WHO European Region suffer from major depression in any given year.
Depression is a condition that shows a genuine increase. It is also increasingly affecting adolescents. In a recent European investigation, 8% of all girls and 2% of all boys aged 16, in the country studied, fulfilled the criteria for severe depression; 1% of girls and about 5% of boys were found to be moderately depressed. Increasing problems also related to depression are violence, suicide, addiction and behavioural disturbances.
One in four European adolescents shows one or more mental symptoms.
About 41 million adults are estimated to be abusing or dependent on alcohol. In a northern European country, 45% of men who committed suicide were alcohol abusers. In one of the Baltic states, 40% of traffic accidents are alcohol-related. Despite the severity of these problems about 66% of people are untreated. In a western European country, the economic costs of alcohol reached 1.4% of gross domestic product (GDP) in 2000.
Suicide is a major cause of death in adolescents and young adults, but also in risk populations such as farmers in changing societies. Suicide rates range widely from 2 to 44 per 100 000 population; the highest rates in the European Region are also the highest in the world. Certain populations are at particular risk, such a males in Eastern Europe. In western Europe, however, adolescents and women are at an increasing risk." (Exhibit I at 1-2)
81. Countries in the WHO European Region represent those among both the richest and poorest in the world. The percentage of GDP spent on health care by each country in the WHO European Region varied from 2% to 11%. It is apparent from Core Health Indicators documents prepared by WHO in relation to Turkey and Australia, that in 2001 those countries spent 5.0% and 9.2% of GDP respectively on health care (Exhibits J and K). Of that amount, the fact sheet continued, some countries allocated no part of their health budget for mental health care while others allocated over 20%. Many spent less than 3% of their health budgets on mental health care. The treatment gap is considerable, the fact sheet reports:
" In the WHO European Region, about 47% of people suffering from major depression remain untreated.
The estimated percentage of people with untreated schizophrenia ranges from 36% to 45%.
In European countries, 10% of all children and adolescents suffer severely from mental disorder and need treatment. Even in countries with well developed services, three quarters of those remain untreated.
In some European countries, the untreated percentage of epilepsy is over 60%.
Thirteen countries of the WHO European Region have neither initiated the reform process leading to community-based care, nor stated their will to start. Twenty five countries have initiated a partial reform and only thirteen have established it in full.
One feature of community-based care is the availability of beds in general hospitals for those who need hospital treatment. The proportion of psychiatric beds in general hospitals in the Region (105) falls inexplicably below the world average (16%).
Some eastern European countries face over-hospitalization, with 60% of all patients treated in large psychiatric institutions of over 500 beds. Some of these hospitals have high mortality because of unacceptable conditions of care and shortcomings in human rights and integrity.
In Europe, as in other parts of the world, many people with mental health complaints contact primary health care services. Yet, these are inadequately integrated with mental health services. At present, 12 of the countries of the WHO European Region have yet to integrate the two systems, 22 countries have partial integration, while 16 have achieved full integration.
Essential psychotropic drugs ought to be available in primary care to allow adequate treatment, yet at least three of these drugs are not freely available in one out of five European countries." (Exhibit I at 2-3)
82. Some countries, WHO reported, have elaborated new policies and have transformed the services that they offer. Some are restructuring. A third of the countries do not have a mental health policy and, of those that do, 45% have no national programme for mental health. All countries have to work with limited resources.
"Througout Europe, taboo, stigma, discrimination and social exclusion can be found to different degrees and in different groups with mental problems in different countries. In less well resourced countries, the mentally ill are still hidden in huge institutions with severe shortcomings with regard to integrity, human rights and professional treatment. In some western European countries, severely mentally ill people are unacceptably neglected and abandoned and, in some capital cities, up to 50% of the homeless are psychotic.
The WHO Task Force on Destigmatization carried out an investigation that shows that schizophrenia is heavily stigmatized in most European subregions. Depression, addiction, senile dementia and epilepsy also still lead to exclusion from human rights, decent and integrated living conditions, and adequate education in many countries. Nevertheless, positive changes are occurring. Families with mental illness are being empowered. Key elements of mental health care are being openly debated. Awareness-raising events in many countries have led to mass-media initiatives to change the focus in reporting and informing people about mental health issues." (Exhibit I at 3)
84. A print out from the web site of the Turkish Embassy in Washington states that Turkey's Armed Forces defend and protect the nation as well as fulfil NATO duties. In addition:
"The activities of the military ... are also oriented towards creating new values and making social, economic and educational contributions to society as a whole.
Education and training offered by the Turkish Armed Forces to the youth of Turkey, who come from different backgrounds, unites them around a common aim and help them acquire a social conscience that keeps Turkish history and culture alive. On the other hand, technological training given during military service turns conscripts into qualified personnel able to contribute to the development of the country.
Furthermore, the organization of literacy courses, the production of medical drugs in the military pharmaceuticals plant, the treatment of civilians in military hospitals within limits permitted by laws and regulations, mapping services offered to the public sector and research and development activities can be cited as other contributions of the Turkish Armed Forces to the Turkish economy." (Exhibit M)
85. Military service is the right and duty of ever Turkish citizen. All Turkish male citizens who are qualified for service are enlisted on the first day of the year in which they turn 20 years of age (Exhibit M at 2).
86. Chaplain Billy R Rice is a Salvation Army Chaplain at the Port Phillip Prison. He wrote on 16 June 2004 stating that he has known Mr Ince for over four years. He has a good and trusting relationship with Mr Ince and has come to understand and appreciate him. In Chaplain Rice's view, Mr Ince has come a long way in his rehabilitation while serving his sentence and is remorseful for the crime he committed and any pain he might have inflicted. Mr Ince is respected within the prison where he has not caused any trouble for nearly four years. That is a testament to his reliability and trustfulness because holding any position for that length of time is rare within the prison system.
87. Chaplain Rice observed that the relationship between Mr Ince and his mother is very important. It is a special relationship and even more so since the death of her elder son in Turkey. Captain Mark Wagland of the Salvation Army supported the sentiments expressed in Chaplain Rice's letter.
88. Under the Act, the Minister may grant visas either to travel to and enter Australia or to remain in Australia or to do both. There are classes of visas (s. 31(1)). Some are specified in the Act itself and some are prescribed in the Migration Regulations 1994 ("Regulations") (s. 31(2)). The Regulations may prescribe criteria for a visa or for a visa of a specified class (s. 31(3)). For the purposes of this case, the prescribed criteria for the grant to a person of a visa of the type held by Mr Ince are found in the primary criteria (and secondary criteria, if any) set out in the relevant Part of Schedule 2 to the Regulations. Among the primary criteria that must be satisfied for a Class AH101 (Child Migrant) is that, at the time the decision is made, the person satisfies the requirements of public interest criterion 4001 i.e. that there is no evidence that might justify refusal of the visa under s. 501.
89. Even if a person satisfies the primary criteria for a visa, s. 501(2) of the Act provides that:
"The Minister may cancel a visa that has been granted to a person if:
(a)
the Minister reasonably suspects that the person does not pass the character test; and
(b)
the person does not satisfy the Minister that the person passes the character test."
90. The "character test" is set out in s. 501(6), which, in so far as it is relevant, provides that:
"For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) ...
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)
engage in criminal conduct in Australia; or
(ii)
harass, molest, intimidate or stalk another person in Australia; or
(iii)
vilify a segment of the Australian community; or
(iv)
incite discord in the Australian community or in a segment of that community; or
(v)
represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test."
A "substantial criminal record" is defined in s. 501(7) to mean, in part, that:
"...a person has a substantial criminal record if:
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or
(e) ..."
The term "imprisonment" means "... any form of punitive detention in a facility or institution" (s. 501(12)).
91. I find that Mr Ince has a substantial criminal record. That is so on two bases. First, he comes within s. 501(7)(c) because of his being sentenced for murder to 15 years with a non-parole period of 10 years. Second, he comes within s. 501(7)(d) because of the sentences he has received on being convicted not only of murder but of theft of and from a motor vehicle, burglary and theft. Each carried a sentence of 12 months' imprisonment and satisfy the provision even though each was served by way of an Intensive Corrections Order.
92. 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 23 August 2001 the Minister made directions under s. 499 for the guidance of decision-makers in making decisions to refuse or cancel a visa under s. 501 of the Act, Direction - Visa Refusal and Cancellation under section 501 - No. 21 ("the Direction"). This is a matter to which the Tribunal will pay regard and particularly so as is it is policy formulated by the Minister. At the same time, "... the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be." (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590 per Bowen CJ and Deane J).
93. In commenting generally upon his power to refuse or cancel a visa, the Minister stated in the Preamble to the Direction:
"In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it.
... When a visa applicant or a visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen's links to Australia and any relevant international law obligations."
94. The Minister goes on to give a direction as to the purpose for which the powers of refusal or cancellation were given by the Parliament in enacting s. 501 when he said:
"The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community."
The Direction - application of the character test
95. The Direction is then divided into two: the application of the character test and the exercise of the discretion. Taking first the application of the character test, there is no dispute between the parties, and I find, that Mr Ince has a substantial criminal record within the meaning of s. 501(7)(c) and so does not pass the character test.
96. Although Mr Ince has not passed the character test, it is worthwhile to focus for a moment on what is meant by the expression "good character". It was considered in Re Lachmaiya and Department of Immigration and Ethnic Affairs
[1994] AATA 27; (1994) 19 AAR 148 where Deputy President McMahon said that:
"'Good character' cannot have the meaning commonly attributed to it in criminal trials. In that context, it usually means absence of convictions or, at most, absence of adverse police notice. The distinction drawn in the two subparagraphs between criminal and general conduct supports the view that here, good character does not have the narrow criminal law meaning. There are many cases dealing with prohibited references to bad character and the effect on trials when evidence of that nature is allowed before a jury. In the present context, it is more likely that good character was intended to be given a broader meaning.
The Macquarie Dictionary defines character as '1. the aggregate of qualities that distinguishes one person or thing from others; 2. moral constitution, as of a person or people; 3. good moral constitution or status; 4. reputation; 5. good repute; 6. an account of the qualities or peculiarities of a person or thing.' In assisting the Minister to determine whether a person has a good aggregate of qualities, as distinct from a bad one, regard should be had to the structure and purpose of the legislation." (pages 154-155)
97. In Re Prasad and Minister for Immigration and Ethnic Affairs (1994) 35 ALD 780, Deputy President McDonald added:
"A decision about whether a person is of good character requires a consideration of an aggregate of qualities. It is true to say, however, that, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness." (page 781)
98. What is meant by the expression "good character" was also considered by the Full Court of the Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 (Davies, Lee and Nicholson JJ). While each rejected the notion that good character referred to a person's reputation or repute, Lee J expressed that to which it does refer in the following passage:
"Unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion ...
...
Notwithstanding the breadth of the disqualifying elements of the prescribed criteria, the purpose of reliance upon the concept of good character in the regulations is of importance. Common sense suggests that the Act and regulations are not concerned with infractions or patterns of conduct that show weaknesses or blemishes in character but with ensuring that the exercise of a sovereign power to prevent a non-citizen entering Australia is only invoked when the non-citizen is a person whose lack of good character is such that it is for the public good to refuse entry." (page 94)
99. Finally, regard should be had to the judgement of the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs 1999 FCA 1277; (1999) 56 ALD 321 (Spender, Drummond and Mansfield JJ). Speaking generally of s. 501, the Full Court said that it:
"... does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, ie, a judgment to which the statutory context is of no relevance. The concept of 'good character' in s 501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry. The standard is, moreover, not fixed but elastic, in the sense that identified deficiencies in the moral qualities of an applicant for a short-term entry permit may not justify the conclusion that he is 'not of good character' within s 501(2), while similar deficiencies may suffice to justify that conclusion, where the person seeks long-term entry.
... Even though the appellant sought a long-term entry permit, the tribunal may well have set too high a standard in determining, on the basis upon which it acted, that he was not a person of good character: it appears to have concentrated, in making this finding, on considerations showing a lack of the highest integrity on his part, without making any attempt to test the deficiencies it identified in his conduct against the level of harm to the public good that would be presented by his admission into the Australian community on a permanent basis. However, no challenge being made to the tribunal's decision on this ground, so it is unnecessary to pursue this question." (pages 324 and 327)
"... must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations." (Direction, cl. 2.2)
"(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental relationship or other close relationship between a child or children and the person under consideration, the best interests of the child or children." (Direction, cl. 3)
103. Of particular significance in relation to the seriousness and nature of Mr Ince's conduct, I must have regard to the Direction that:
"It is the Government's view that the following are examples of offences which are considered by the Government to be very serious:
...
(f) murder, manslaughter, assault or any other form of violence against persons;
104. In assessing such matters, regard must also be had to any relevant factors put forward by Mr Ince as mitigating factors (Direction, cl. 2.8(a)). The sentence imposed for any offence is regarded as an indication of the seriousness of the offender's conduct against the community (Direction, cl. 2.7). So too is the extent of the person's record and the time between offences and the repugnance of the crime. Mitigating factors must be taken into account.
105. Clause 2.9 of the Direction is concerned with those who suffer from psychiatric conditions:
"In relation to non-citizens who do not pass the Character Test due to convictions resulting from unsoundness of mind or insanity, the degree of recovery must be taken into consideration. If the non-citizen continues to rely on medication to control their condition, the non-citizen cannot be defined as having fully recovered. Moreover, the likely consequences of a non-citizen deliberately or accidentally not taking their medication must be considered."
106. Regard must also be had to the likelihood that his conduct may be repeated and to the need to deter other people from repeating such conduct. In assessing that in the context of Mr Ince's case, it is relevant to have regard to:
"the extent of rehabilitation already achieved, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make." (Direction, cl. 2.10(c))
107. General deterrence, the Direction continues, is intended to deter others from committing the same or similar offences (Direction, cl. 2.11(a)). It may be relevant as follows:
"(a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and
(b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes." (Direction, cl. 2.11)
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is a significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. ..." (Direction, cl. 2.12)
109. The third primary consideration relates to the best interests of a child. That is not relevant in this case as Mr Ince does not have any children.
110. The Minister has recognised that there are considerations, other than primary considerations, which may be taken into account. As each of those other considerations is given less weight than is given to the primary considerations, I will return to them later in these reasons. Before doing so, I should mention the manner in which I am required to consider primary considerations. This was considered by the Full Court of the Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 (Branson, North and Stone JJ) in the context of the primary consideration relating to the best interests of the children. The Full Court said:
"32 An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
33 The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan's children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan's children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations." (page 142)
111. Before returning to the balancing of the primary considerations, I will set out the remaining considerations of which the Direction requires consideration. These considerations are considered by the government to be relevant but of less individual weight than the primary considerations. In so far as they are relevant in this case, they include:
"(a) the extent of disruption to the non-citizen's family, business and other ties to the Australian community; ...
(b) genuine marriage to or de facto or an interdependent relationship with an Australian citizen;
(c) the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d) family composition of the non-citizen's family, both in Australia and overseas;
(e) ...
(f) ...
(g) ...
(h) any evidence of rehabilitation and any recent good conduct;
(i) whether the application is for a temporary visa or permanent visa;
(j) the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k) the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within ... the visa refusal and cancellation provisions at section 501." (Direction, cl. 2.17)
The principles determining the extent to which I am bound by Mr Ince's convictions and Justice Teague's sentencing remarks
112. In giving his evidence, Mr Ince explained the circumstances of the offences. In relation to the theft of a motor vehicle and theft from a motor vehicle, his evidence effectively contradicted his having committed the offences at all.
113. In relation to Mr Ince's conviction for murder, Mr Hughan submitted that, at the time he committed the murder, Mr Ince's mental state was a central contributing factor in his doing so. That finding would be supported by the evidence of Dr Walton. It would be contrary to Justice Teague's remarks that Mr Ince's mental state contributed only to a limited extent. Mr Hughan submitted that the Full Court's judgment in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 (Branson, Lindgren and Emmett JJ) requires me to accept the sentence imposed by Justice Teague but not his conclusion that Mr Ince's mental state contributed only to a limited extent.
114. He relied on Whitlam J's judgment in Minister for Immigration and Multicultural and Indigenous Affairs and Serevi [2000] FCA 1691 at [13] considering an appeal from a decision of Deputy President Chappell in Re Serevi and Minister for Immigration and Multicultural and Indigenous Affairs [1999] AATA 884. Mr Hughan submitted that full disclosure of Mr Ince's mental state was not put before the jury. The Tribunal was entitled to conclude that Mr Ince's mental state had been taken into account because that was the only way that a sentence of 15 years with a ten year non parole period could be justified for a person who lacked remorse and had previous convictions.
115. Mr Hughan also submitted that the Tribunal is not bound to accept the finding of Justice Teague that Mr Ince intended to kill Mr Broadbent. A number of statements in the judgment of the Court of Appeal do not support that finding. The Court of Appeal acknowledged that other scenarios are open. He relied on the comments of Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at 326; [45].
116. Mr Wee distinguished Minister for Immigration and Multicultural and Indigenous Affairs v Serevi on the basis that the material referred to by the Tribunal in that case had not been before the trial judge. Dismissing his finding that Mr Ince only suffered paranoid schizophrenia to a limited extent impugns the sentence that Justice Teague imposed. The psychological factor in the case was critical as a mitigating factor. It has already been taken into account even though 15 years is a lengthy sentence. Clause 2.7 of the Direction states that the length of the sentence must be taken into account but does not state that it should be taken into account in respect of the crime. The sentence of 15 years imposed on Mr Ince should not be further mitigated by considerations of mental illness because his illness has already been taken into account.
117. The extent to which I may have regard to such evidence has been the subject of consideration in several cases including those to which Mr Hughan and Mr Wee referred. In Minister for Immigration and Multicultural Affairs v SRT, the Full Court reviewed the earlier cases of Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354 (Fisher, Davies and Lockhart JJ), Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441 (Fox, Fisher and Sheppard JJ), Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276 (Spender, Gummow and Lee JJ) and Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578 (Davies, Lockhart and Beaumont JJ). The Full Court was concerned with a decision to deport SRT under s. 200 of the Act. A deportation order may be made where a person has been convicted in Australia of an offence (s. 201(a)) that he committed when he was a permanent resident for a period of less than ten years (s. 201(b)) and where he was sentenced to death, imprisonment for life, or for a period of not less than one year (s. 201(c)). Relying on Daniele and Gungor, the Full Court said that it is impermissible for the Tribunal to impugn the conviction on which a deportation is based (at 240, [25]). They explained why that is so:
"... 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. (at 244; [40])
118. The Full Court explained the policy reasons for its conclusion:
" 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. ...
...
To impugn the sentencing process in that way [by the Tribunal] 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.
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._" (at 244-5; [41]-[46])
119. The cases, including SRT, were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali. Her Honour was again concerned with s. 200 but with both convictions on which the Minister relied to make a deportation order and convictions on which the Minister did not rely. Where a legislative provision, such as s. 200, operates by reference to the fact that a person has been convicted of a criminal offence Branson J summarised the effect of those decisions:
" First, it seems to me clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman [[1943] AC 627], Daniele, Gungor and SRT_)._
Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence (Daniele, Gungor and SRT).
_Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based (_Ridley [v Department of Social Security [1993] FCA 213; (1993) 42 FCR 276] at 281-282), policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
(b)
limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).
...
Fourthly, although a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).
Fifthly, the above limitations on the matters to which a decision-maker under s 200 of the Act is entitled to have regard do not mean that the decision-maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned." (at 325-6; [41]-[45])
120. Applying these principles, her Honour said that the way in which a decision-maker should, in reviewing a decision under s. 200:
"... treat a conviction and sentence (not being a conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence followed a contested factual hearing." (at 325; [43])
121. Shortly after the judgment in Ali had been delivered, Whitlam J delivered his judgment in Serevi. Deputy President Chappell had found that the sentencing Judge had not been given a full appreciation of the nature and extent of Mr Serevi's mental illness at the time he sentenced him. He elaborated upon that finding and went on to observe that it was not very helpful to speculate whether, had he had that full appreciation, the judge would have reached a different view about the gravity of the offences and the appropriate sentence to be imposed. Deputy President Chappell had regard to all of the psychiatric evidence even though not available to the judge.
122. On appeal, the Minister submitted that the Tribunal's acceptance of the psychiatric evidence repudiated the judge's view about the significance of Mr Serevi's mental condition. Whitlam J concluded that the Tribunal had not impugned the sentence. It did not accede to a tentative submission that the sentence might not have been appropriate. The sentencing judge had referred to the sentencing principle that less weight should be given to considerations of deterrence where an offender is suffering from a mental disorder but his Honour's implicit acceptance of the views expressed in the psychiatrist's report before him did not amount to a finding of historical fact upon which the sentence is based or which relate to the circumstances relating to the commission of the offence. The Tribunal had considered questions of Mr Serevi's future management and treatment. (at [13]-[14])
123. Whitlam J's judgement is consistent with that of Davies J in the earlier case of Beckner v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 264; (1991) 30 FCR 49 when he pointed out the different functions of the sentencing judge and the Tribunal:
" The Administrative Appeals Tribunal, when it is reviewing a decision to deport, is not bound by or limited to all the findings of fact made by a sentencing judge in the course of giving his reasons for sentence. The function of sentencing a person convicted of a crime is a different function from that of deciding whether or not the convicted person should be deported. Matters which may be of great significance to a decision to deport, because for example, they go to the risk of recidivism, may be of little significance to a sentencing judge. In the present case, for example, where a long term of imprisonment was imposed because of the nature and seriousness of the crime, it was not necessary for the sentencing judge to determine whether Mr Beckner's crime was an isolated event or formed part of a pattern of drug-related activity on his part. From the point of view of deportation, however, such a matter was important. ..." (at 50-51)
124. As the Full Court said in SRT, Beckner does not stand for the principle "... that the Tribunal should feel free to disregard historical findings of fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence" (at 245; [47]). Rather:
"... 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. ..." (at 245; [47])
The extent to which I am bound by Mr Ince's convictions and Justice Teague's sentencing remarks
125. The effect of s. 501(6)(a) of the Migration Act is that Mr Ince does not pass the character test. That is because he has a substantial criminal record. One reason why he has that substantial criminal record is because he has been convicted of murder and has been sentenced to more than 12 months' imprisonment. That is the conviction and sentence on which the Minister has based her decision. It is the conviction on which the decision that Mr Ince is not of good character depends. The Minister's decision could have been based on other convictions for which Mr Ince was sentenced to 12 months' imprisonment or other convictions for which the sentences total more than two years but she did not. Her decision could have been based on considerations of Mr Ince's past and present criminal conduct and/or past and present general conduct under s. 501(6)(c) but it was not. Having regard to the principles I have set out in the preceding paragraphs as well as to Justice Teague's sentencing remarks and the judgment of the Court of Appeal, I consider that I am bound by the conviction and by Justice Teague's sentencing remarks to the following extent:
Mr Ince has been convicted of murder;
Mr Ince was not suffering from a psychiatric condition to the extent that it overbore the mens rea required to found that conviction;
at the very least, Mr Ince was reckless as to whether Mr Broadbent would suffer death or really serious injury when he fired his gun. Mr Broadbent would do so either as a result of being shot or as a result of being scared and falling from the car when it was moving at some speed;
at the very most, Mr Ince intended to kill Mr Broadbent or cause him really serious injury by shooting him when he fired his gun;
Mr Ince did not have reasonable grounds to act as he did in defending himself from Mr Broadbent; and
Justice Teague sentenced Mr Ince on the basis that he intended to kill Mr Broadbent and that his psychiatric condition of paranoid schizophrenia affected him only to a limited extent.
126. Although she might have done so, the Minister has not relied on Mr Ince's other convictions. They are not the foundation of Mr Ince's being deemed to fail the character test. Therefore, I may have regard to evidence that may appear to contradict those convictions but I may not conclude that he was wrongly convicted.
Should Mr Ince's visa be cancelled on the basis of his not passing the character test?
127. I will begin with the seriousness and nature of Mr Ince's conduct and, in particular, with the offence of murder and the sentence that Mr Ince was given. In sentencing a person convicted of a crime, a judge must balance many different and conflicting features:
"... Attributing a particular weight to some factors, while leaving the significance of other factors substantially unaltered, may be quite wrong. ... the sentencer is required to take account of all of the relevant factors and to arrive at a single result which takes due account of them all ... the sentencer is required to reach a single sentence which ... balances many different and conflicting features." (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 per Gaudron, Gummow and Hayne JJ)
"... ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, ... , it is profitless ... to attempt to allot the various considerations their proper part in the assessment of the particular punishments presently under examination." (R v Williscroft [1975] VicRp 27; [1975] VR 292 (CCA) at 300, per Adam and Crockett JJ; approved in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 120 per McHugh J and Wong v The Queen at 611 per Gaudron, Gummow and Hayne JJ)
129. General and specific deterrence were factors that played only a minimal role in formulating his sentence. Although not specifically stated by Teague J, it must follow from the context of his sentencing remarks that their minimal role follows from the Mr Ince's suffering from a psychiatric illness. Clearly, Mr Ince's conviction for murder means that he was not found to be insane at the time he committed the offence and, indeed, it appears from the sentencing remarks and the judgments in the Court of Appeal that insanity was not suggested by his counsel. In sentencing:
"Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways:
(i) It may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective.
(ii) The prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(iii) General deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.
(iv) Specific deterrence may be more difficult to achieve and is often not worth pursuing as such.
(v) Psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health." (Ross, David, QC, 2004, Ross: Crime, 2nd edition, Lawbook Co at [19.910])
130. It is apparent from his sentencing remarks that Teague J particularly had in mind the first, third and fourth of these principles. In addition, he placed little weight on Mr Ince's previous convictions in 1997 because of his incipient psychiatric illness. These matters suggest that Teague J may have may have recognised Mr Ince's psychiatric condition in the sentence he imposed. The sentence of 15 years with a 10 year non-parole period is at the lower end of sentences that he could have imposed.
131. The sentence itself is only one indicator of the seriousness of the offence but I must also have regard to the circumstances of the offence itself. That follows from the fact that, given the manner in which it is formulated, the sentence that is finally formulated may not always reflect on its face the seriousness of the offence. As Young CJ and Jenkinson J said in R v Anderson [1981] VicRp 17; [1981] VR 155; 2 A Crim R 379 (CCA) in approving R v Mooney (unreported, Vic CCA, 21 June 1978):
"... The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced." (at 160; 384)
132. The offence of murder was committed because Mr Ince was at least reckless as to the consequences of his action in shooting his gun. Those consequences included killing Mr Broadbent or causing him really serious harm. Implicit in the verdict is that Mr Ince's mental capacity was not overborne by his paranoid schizophrenia. As I have said, at the very least, I must conclude that Mr Ince was reckless as to whether Mr Broadbent would suffer death or really serious injury when he fired his gun. Mr Broadbent would suffer death or really serious injury either as a result of his being shot or as a result of his being scared and falling from the car when it was moving at some speed. The effect of a finding that Mr Ince was reckless necessarily entails my also finding that he had a certain knowledge of what he was doing. That knowledge is that, when he fired the gun, he knew that there was a likelihood (i.e. substantial or real chance, as opposed to a mere possibility), that he would cause Mr Broadbent's death or cause him really serious harm. Furthermore, knowing of the likelihood, he went ahead and did the act regardless of the likelihood (R v Grant [2002] NSWCCA 243; (2002) 55 NSWLR 80; 131 A Crim R 523 (CCA) per Wood CJ, with whom Spigelman CJ concurred, at 89-90; 531; [33]-[34]). Also implicit in the verdict once it is examined in light of the judgments of the Court of Appeal is that Mr Ince did not act in self-defence. I am bound by both of those findings.
133. Teague J considered that he was suffering from paranoid schizophrenia only to a limited extent at that stage. I have had regard to that but have considered the matter independently as I am not bound by his Honour's view of the matter provided I do not stray from the matters I have set out above (see [125] above). Although Dr Walton has spent some time with Mr Ince over the years, his first visit did not take place until over a year after the offence. He and Dr Bell came to the conclusion that Mr Ince was affected by paranoid schizophrenia when he committed the offence. The medical staff at EPPIC saw Mr Ince approximately four days after the offence. At that time, they reported that Mr Ince reported a thirty day history of positive psychotic symptoms occurring against a background of twelve months of social stressors. They did not make any comment regarding the severity of those symptoms or the effect on Mr Ince's perceptions. Dr Chau's evidence is not included in the material but was referred to by both Teague J and Dr Walton in his report of 23 June 2004. It is clearly to the effect that the severity of his illness was not as great as Dr Bell and Dr Walton consider it to have been.
134. Other circumstances of the offence that are relevant in the context of reviewing a decision under s. 501 of the Act is Mr Ince's possession of the gun and his having it under the front seat of his car in which he was a passenger. I find that he had purchased that in September 1997. On the basis of what Mr Ince told EPPIC, he did so at a time when he was suffering social stressors but had not yet begun to experience positive psychotic symptoms. His having that gun in the car does not mean that he premeditated the offence - Teague J expressly found that he did not. What it does mean is that he was armed and ready to defend himself. He was ultimately armed and ready to do so in circumstances where it was not called for. As it turned out, he used it recklessly. Taking all of these matters into account, I consider that the offence must be regarded as serious. The seriousness of that offence is not reduced by reason of Mr Ince's suffering from paranoid schizophrenia at the time.
135. That brings me to the likelihood of Mr Ince's repeating his conduct. By the time of the murder, Mr Ince had a history of committing a number of offences. The dates of the convictions do not indicate the date on which the offences were committed. I have assumed that they were all committed from some time in early 1997 to the end of 1997 or sometime before March 1998. They were, therefore, committed within a fairly circumscribed time frame when Mr Ince was 18 or 19 years of age. They show a graduation from driving offences some time before 1 April 1997 to theft and burglary. Mr Ince was in the Melbourne Magistrates' Court less than a fortnight before the murder on those charges as well as theft of a motor vehicle, theft from a motor vehicle, being in possession of housebreaking implements without lawful excuse and damaging property intentionally. Mr Ince had not been deterred by his conviction, wrongly in his view, for an offence of carrying a regulated weapon. He then chose to carry a gun that was loaded albeit even if he did so because he feared for his safety.
136. That brings me to the role of mental illness in Mr Ince's committing these offences and in the risk of his re-offending. I observe at the outset that, even if I were to accept that Mr Ince was ill when he committed all of his previous offences, I cannot find that he was not properly convicted of those offences. I must remember that:
"... Mental illness is not, however, solely a mitigatory factor. It may mean that the offender, whilst deserving of compassion, is also a greater danger to the community. That was pointed out by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68 and 70-1 and, more recently, by Batt JA in R v Bux [(2002) [2002] VSCA 126; 132 A Crim R 395 at 402-4, [33]- [40]] at 395, [1]. ..." (R v Izzard [2003] VSCA 152; (2003) 7 VR 480 at 483-4; [15])
137. I accept Dr Walton's evidence that Mr Ince is continuing to mature psychologically and that substantial control of his paranoid schizophrenia has been achieved. I also accept that Mr Ince understands that he needs to take medication for the rest of his life if he is to continue to control his condition. He understands that he has the condition and that he must not take illicit drugs as they are dangerous to his condition. In view of these matters, I find that Mr Ince would continue to take his medication even if he were outside the regimented prison environment where he currently takes it.
138. My being reassured that Mr Ince will continue to take his medication and that his psychotic symptoms are controlled does not lead me automatically to the conclusion that the chances of his re-offending are reduced. At the hearing in the Tribunal, he has resorted to his illness on some occasions when asked about his previous offences and said that he did not really know what he was doing by the time he got into trouble in December 1997 and that he was ill. In a different way but still in the context of his resorting to illness, Mr Ince's statements towards the end of his interview with the police on 22 March 1998 emphasise his tendency to resort to his illness and his reliance upon it to explain his actions. Having given many responses of "No comment" or in the nature of "I don't know" or "I don't remember" to questions regarding the events on 14 December 1997, Mr Ince agreed that he did take medication. He would not comment upon what medication he took but when asked to explain whether his illness caused him any irrational behaviour, Mr Ince agreed that it did. When asked to describe that behaviour, Mr Ince replied "I have no comment. I'll explain it to the doctor." (Exhibit 2 at 139)
139. I do not, however, accept that, in the context of my reviewing the Minister's decision, Mr Ince may resort to his illness or rely upon it as he seeks to do. Prior to December 1997, he was experiencing social stressors but was, on the balance of probabilities, not yet suffering from psychotic symptoms. His psychiatric illness cannot be used to reduce his moral culpability for those previous offences. In relation to possessing a regulated weapon, he disclaimed responsibility on the basis that it was his stepfather's knife that happened to be in his car. In relation to the theft of and from a motor vehicle and theft and burglary, he attributed blame to his friends. He acknowledged that he had been caught speeding but did not offer an explanation for it. At the same time, he acknowledged that he kept driving despite his disqualification. Mr Ince could not recall the housebreaking implements even though he was convicted on the same day as he was convicted of burglary and theft. He claimed to be ill when he committed all of the offences.
140. If Mr Ince was ill before December 1997, it was an incipient illness. Given my findings regarding his mental state at the time that he committed the murder, I consider that his symptoms in the months preceding December 1997 were less than they were in that month of December 1997. As he was affected by it to a limited extent in December 1997, he was suffering to a less limited extent, if at all, in the earlier months of 1997. Even on his own evidence, he had no explanation for his driving offences other than to state that he continued to drive while disqualified. He did not refer to his being ill to explain them. His driving while disqualified showed a conscious disregard for the law. With regard to his other offences, it is possible that a person may be put forward by friends to take responsibility for their wrong actions. Given Mr Ince's voluntary actions in relation to his continuing to drive despite being disqualified and in light of his being convicted for the other offences, I am satisfied that he was responsible for those offences. He was not suffering from a mental illness that reduced his moral responsibility for them.
141. By resorting to illness when asked about his offences, Mr Ince does not give an indication that he has addressed the issues that led him to commit those crimes. His conscientious attention to maintaining his treatment for paranoid schizophrenia does not give that indication. His mental illness played only a limited role in relation to the murder and a limited, if any, role in relation to the others. While I am satisfied that Mr Ince has an understanding of his illness, I am not satisfied that he has developed an understanding of his behaviour at the time that is separate from his illness. He has shown regret for his actions but his expression of regret does not reveal any understanding of his behaviour. His regret is expressed in terms of his hurting himself as well as killing Mr Broadbent and hurting others. It does not reveal any understanding of the errors that he has made and that have led to his committing offences. It does not reveal an understanding of why he acted at least recklessly as to whether Mr Broadbent died or was caused really serious injury as a result of his action. Mr Ince's lack of understanding discounts his statement that it impossible that he will re-offend. Taking all of these matters into account, I consider that the risk of Mr Ince's re-offending is quite high.
142. As I have said in other cases, deterrence in the context of the character test is always difficult. There is no empirical or other evidence that I have been given as to the deterrent effect that requiring a person's departure from Australia has on other people's behaviour. It may be that people who know Mr Ince know of what happens to him but would that deter them from behaviour leading to their committing offences? They might not have engaged in such behaviour in the first place or even thought of it. If they did, they might be Australian citizens in any event. Does the news of what happens to a person travel through the community in ways I am not aware of? I am left in the realm of speculation and so do not make a finding one way or the other regarding deterrence.
143. The notion of deterrence in the Direction equates with the notion of general deterrence in sentencing. Mitchell J reflected similar concerns in the context of sentencing:
"Whatever the judge may say, his remarks may or may not reach that section of the community to which they are directed, depending upon whether those who publish reports of court proceedings regard the remarks as being worthy of reporting, and whether the criminally-minded persons for whom they are intended read or listen to any report which may be made. It is useless to suggest that one of the purposes of a sentence is to deter others from committing a similar crime, if the knowledge of such sentence does not come to those who are likely to commit the crime." (Mitchell J, The Web of Criminal Law, 1975 Boyer Lectures, ABC, Sydney at 49)
144. That brings me to the expectations of the Australian community. It expects that its members will be able to go about their lawful business without being approached at the traffic lights as Mr Ince and Mr Caliskan were approached on 14 December 1997. At the same time, is fair to say that the Australian community expects that its members will react within appropriate levels even when confronted with a situation that is out of the ordinary and that could be somewhat frightening. At the same time, the Australian community also exhibits understanding. It acknowledges that people do make errors of judgment and sometimes react excessively. The Australian community's understanding stops somewhat short of understanding an excessive reaction that involves the use of a gun in a suburban street. Keeping a gun in a drawer under the passenger seat of a car so that it is at hand when faced with what must be admitted to be a very unusual situation is something that is beyond its understanding. The Australian community understands that people can change and rehabilitate themselves. It understands that people affected by mental illness can behave inappropriately and do things that they would not do if not ill. It expects that people who do acts to which mental illness makes only a limited contribution will address their behaviour in addition to addressing their mental illness.
145. In relation to his recent conduct, I find that Mr Ince has not come to the attention of the authorities in an adverse way since his incarceration. I pay no regard to the one incident at the Rosanna Forensic Psychiatric Centre where he was involved in an altercation with another inmate. It was not taken any further by the authorities and he was under treatment at the time.
146. I find that Mr Ince and his mother, Mrs Engez, enjoy a very close relationship. They have maintained that while he has been imprisoned and have kept in telephone contact even though the opportunities for visits have been reduced since September 2004 when he was transferred to Loddon. Mrs Engez in particular feels a dependency on her son. Although he also claims to have a similar dependency, his past actions have not shown the care and consideration for her that a relationship of mutual dependency would suggest. He has spent time with his friends and committed his offences. His not telling her of those offences might have been to protect her but his committing them in the first place shows little regard for the fact that she is dependent upon him. His committing them, has led to their being separated and his not being with her to care for her in any practical way or even at an emotional level. He has added to her sense of anxiety.
147. If he were required to leave Australia, I find that Mrs Engez would suffer further anxiety. It would be open for her to return with him to Turkey should she choose to do so as she is a Turkish citizen. I accept that her daughter and three grandchildren would not be able to support her and that her other relatives live in different cities. She would have to turn to her own resources. That she has been able to do in Australia by cooking and there is no evidence to suggest that she could not do that again in Turkey. I also find that she has some money, or expectation of receiving some money, from her father's estate.
148. If he were required to return to Turkey, I find that Mr Ince would face the prospect of undertaking national service. I make that finding on the basis of the documentary evidence from the Turkish Embassy in Washington. The state of the mental health system in Turkey is more problematic. The information from the WHO fact sheets is general. Although Australia spends a greater percentage of its GDP on health care than does Turkey, that does not lead me to make any conclusion of fact regarding the health care that is offered. The WHO fact sheets are written in general terms and do not identify any particular country in the WHO European Region. I am unable to draw any conclusion as to the state of mental health care that would be available to Mr Ince were he to return to Turkey.
149. I also find that Mr Ince does not have any close relationships with his relatives in Turkey apart from, possibly, his sister with whom he has contact by telephone. I accept that she is not in a financial position to assist him but I have no evidence as to whether she would be available to assist him by giving him emotional support.
150. As for work, Mr Ince would be in much the same position in Turkey as in Australia. On the basis of the evidence of Mr Elturan as well of Mr Ince, I find that Mr Ince would be capable of cooking, waiting, delivering food and cleaning. These are capabilities that are transportable from Australia to Turkey.
151. I find that Mr Ince was not given any warning that his visa would be cancelled if he broke the law. Ideally, those who are given visas to remain in Australia permanently should be given that warning in clear and unmistakeable terms. Whether he would have been deterred in committing offences had he been given such a warning is questionable given his continuing to offend when given fines and then imprisonment to be served by way of intensive correction orders. Such sentences should be regarded by their recipients as a warning that more restrictive sentences may follow if they continue to offend. Mr Ince appears not to have heeded that warning and, for the reasons I have given, cannot explain that by reference to his mental illness. That would have had only a limited impact on his behaviour at the time.
152. There are issues in this case that cause me great difficulty. The possibility that mother and son will be separated is one of them and Mr Ince's mental illness and its continuing treatment and control is another. At the same time, I must have regard to the principle that is common to all cases. That is that the principle behind the character test is, as the Minister has said, "... to protect the community from criminal or other reprehensible conduct ..." (Direction, Preamble). As the Full Court of the Federal Court said in Goldie v Minister for Immigration and Multicultural Affairs, deficiencies in Mr Ince's conduct must be measured against the level of harm that that would be presented by his remaining in the Australian community on a permanent basis. That, of course, is not to diminish the other matters to which I must have regard. When I have regard to all of those issues, I consider that the risk of Mr Ince's re-offending and committing further crimes that show disregard for the members of the Australian community and its laws is such that the need to protect that community outweighs the undeniable difficulties that will face Mr Ince in Turkey and those of his mother in Australia.
153. For the reasons I have given, I affirm the decision of the respondent dated 15 November 2004.
I certify that the hundred and fifty three preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Hearing 14 January 2005
Date of Decision 31 January 2005
Counsel for the Applicant Mr G Hughan
Solicitor for the Applicant Mr B Wee
Australian Government Solicitor
AB
The Queen
(1991) 30 FCR 49
(1979) 24 ALR 577
(1982) 63 FLR 441
(1999) 91 FCR 234
(2003) 7 VR 480
(1993) 42 FCR 276
(2001) 107 FCR 133
(2001) 207 CLR 584
(1999) 198 CLR 111
(1996) 139 ALR 84
(2000) 106 FCR 313
(1981) 61 FLR 354
(2002) 55 NSWLR 80
(1991) 30 FCR 578