//
[2010] AATA 556
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2010-07-26
Original judgment source is linked above.
CATCHWORDS - IMMIGRATION - visa - cancellation - character test - whether discretion should be exercised to cancel visa - interpretation of Ministerial Direction No. 41 - decision affirmed.
WORDS AND PHRASES - "take account of" whether arithmetical or intellectual process
Sentencing Act 1991 (Vic), ss 5, 11
Migration Regulations 1994, rr 1.06, 2.01
Director of Public Prosecutions v Josefski [2005] VSCA 265; (2005) 226 ALR 174
GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198; 78 ALJR 786; 206 ALR 116
Metropolitan Water Board v St Marylebone Assessment Committee [1923] 1 KB 86
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673
Minister for Immigration and Multicultural Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649
Minister for Immigration and Multicultural Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
R v D'Orta-Ekenaike [1998] 2 VR 140; 99 A Crim R 454
R v Duong [1998] 4 VR 68; 99 A Crim R 218
R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
R v Lavender [2005] HCA 37; (2005) 222 CLR 67; 218 ALR 521
R v Lowery and King [No 2] [1972] VicRp 63; [1972] VR 560
R v Storey [1998] 1 VR 359; 89 A Crim R 519
R v VZ [1998] VSCA 32; (1998) 7 VR 693
R v Williscroft [1975] VicRp 27; [1975] VR 292
Ridley v Secretary, Department of Social Security [1993] FCA 213; (1993) 42 FCR 276; 113 ALR 655
Saffron v Commissioner of Taxation (Cth) (No 2) [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19
Wong v R [2001] HCA 64; (2001) 207 CLR 585; 185 ALR 233
Recidivisim Rates in a Custodial Population: The Influence of Criminal History, Offence & Gender Factors, Stuart Ross & Tricia Guarnieri, February 1996, Criminology Research Council Grant 35/89
DECISION AND REASONS FOR DECISION [2010] AATA 556
Decision: The Tribunal affirms the decision of the respondent dated 30 April 2010 to cancel the Class BF Transitional (Permanent) Visa held by the applicant.
A delegate of the respondent, the Minister for Immigration and Citizenship ("Minister"), cancelled the Class BF Transitional (Permanent) Visa held by the applicant, Mr Mario Giuseppe Basile. He did so on 30 April 2010 under
s 501(2) of the Migration Act 1958 (Migration Act) after concluding that Mr Basile does not pass the character test under s 501(6) and that the discretion in that section should be exercised in favour of cancellation. Mr Basile was advised of his decision on 3 May 2010. I have also concluded that Mr Basile does not pass the character test. He has a substantial criminal record within the meaning of s 501(7). Once he has that, s 501(6) provides that he does not pass the character test and the Act does not give the decision-make any discretion in to conclude otherwise. Section 501(2), however, does have an inherent discretion permitting the decision-maker to decide whether or not to cancel Mr Basile's visa even though he did not pass the character test. I have decided that the discretion inherent in s 501(2) should not be exercised in his favour. Consequently, I have affirmed the Minister's decision to cancel Mr Basile's visa.
2. In this section of my reasons, I set out those matters that are not in dispute between the parties. They set out the background to the matters that I will consider later in these reasons with regard to whether the Minister's decision should be affirmed or set aside. In order to preserve the chronology of events, I have also set out Mr Basile's explanation of events leading to his being convicted but will return to those convictions and the circumstances leading to them later in these reasons.
Mr Basile's life in Italy and early years in Australia
3. Mr Basile was born on 20 November 1961 in Ischitella Foggia in Italy where he lived with his parents and his three older sisters. He left school at the age of 16 and travelled to Germany to find work. His father had been living in that country. For about 12 months, he worked for one of his father's friends in his Italian restaurant near Berlin. He learned to cook generally and, in particular, how to make pizza and pastry. Mr Basile then moved to Dusseldorf to live with his two cousins. For a further 18 months, he worked in two other Italian restaurants and received further training in Italian cookery.
4. In the middle of 1980, Mr Basile returned to Italy where he worked on his family's olive groves, helped his father in his business and, during the summer, worked as a lifeguard.
5. Mr Basile was 27 years of age when he met his wife, Tatiana, in 1988 in his home town. She was on holiday with her sister, Maritza. They had an instant attraction and Tatiana remained with him at his parent's house when her sister returned home. Tatiana became pregnant and they married in Italy on 26 April 1990. Their daughter, Tamara, was born on 28 July 1990.
6. In December 1991, they visited Australia as Tatiana was homesick. They arrived in Australia on 9 December 1991. Mr Basile was granted a subclass 664 - Other Visitor visa. He had no intention of staying but Tatiana decided that she did not want to return to Italy. Mr Basile felt that he had no choice but to remain in Australia as he loved her and his daughter.
7. Initially, the family lived with Tatiana's parents. Mr Basile's relationship with his parents in law was not a happy one. His former mother in law, Mrs Rosa Jamett, agrees that she was not happy with Tatiana's marriage or the circumstances that led to it. There was considerable friction and, after a short time, Mr Basile and his family moved to a flat in Burwood.
8. Mrs Jamett wrote to the Department of Immigration and Ethnic Affairs (Department) on 1 April 1992 regarding Mr Basile's application for permanent residence.[1] She set out her family situation, the marriage of her daughter, Tatiana, to Mr Basile and her perception of Mr Basile's behaviour since his arrival in Australia. She also set out her perception that her family's troubles had arrived with him and with his emotional and verbal abuse of them.
9. Mr Basile found employment with Mr Juan Bobadilla. Like Tatiana's parents, he had migrated to Australia from Chile. Mr and Mrs Jamett were the godparents to his children. He met Mr Basile at the home of Mr and Mrs Jammet.
Mr Bobadilla and his family often visited Mr and Mrs Jammet. Mr Bobadilla had started his business, Absolute Asbestos Removal Pty Ltd, in 1990. He was engaged in demolition and asbestos removal and engaged Mr Basile on a casual basis as he had work available. The work involved him in such activities as pushing a wheel barrow and smashing walls. Mr Bobadilla found him to be a hard worker, always punctual and good humoured and a person who got on well with his fellow workers.
Consideration of application for permanent residence
10. The Department interviewed Mr and Mrs Basile on 20 July 1992 regarding their relationship. The Department's officer concluded that she was satisfied that they were living together in a genuine marital relationship. She also discussed with them the contents of Mrs Jamett's letter and recorded the views of each of them as to Mr Basile's relationship with his parents in law. The officer then:
"...advised a/n [Mr Basile] that any disputes he had with Tatiana's family are not of any concern of this department and that his application would be assessed on the genuine and continuing nature of his relationship with Tatiana.
I explained 2 year spouse EETEP provisions to a/n and Tatiana and they appeared to understand these procedures.
Whilst the couple still obviously have unresolved problems with Tatiana's family, I accept that at present they are living together as husband and wife and have every intention of continuing to do so in the future.
Case to continue processing. However, I recommend that couple are re-interviewed prior to PEPAE finalisation."[2]
11. After a few months, Mr Basile found work at a meat processing factory and stayed there for two years. He had not previously worked as a butcher but received on the job training. Mr Basile then opened his own pizza restaurant with a partner, Robert. He cooked and Robert served in the restaurant but the hours were long and the work very hard. His long hours meant that he did not have time to spend with his family. His wife remained home looking after Tamara and then their son, Michael, who was born on 24 April 1994. Robert and Mr Basile sold the business in 1994 as both were tired from the hard work and they felt that the competition was becoming so fierce that, if they did not sell then, they would not get their money back from the business.
12. With the assistance of Mrs Jamett, Mr Basile obtained work as a tram conductor. He remained in that position for 18 months. At the hearing, he said that his reason for leaving that position was that Mr Kennett introduced a ticketing machine and abolished conductors.
13. By this time, Mr Basile and his family were living in a house, which was located across the road from Mr and Mrs Jamett and which was owned by their youngest daughter, Tatiana's sister, Jasna. They still saw Mr Bobadilla when he and they visited Mr and Mrs Jamett's house across the road. Mr Bobadilla thought that Mr Basile took very good care of his children. He saw him supporting his family in all different ways including economically. Mr Bobadilla never heard Mr and Mrs Basile argue and their later separation came as a surprise to him.
14. I have set out Mr Basile's first four convictions in the following table. As are the others to which I refer below, they are drawn from those recorded in a Court Outcomes Report taken from Victoria Police's LEAP computerised records.
(1) Possession of amphetamine: three months imprisonment wholly suspended for 18 months.
15. Mr Basile explained the first charge as arising from a police check of a car he had recently purchased. He supposed that they wanted to see if it was roadworthy but located a cross shaped piece of metal that had been in the boot of the car when he bought it. He described it as a shaped like a "T" and explained that it was to prevent a person from cutting him or herself in a butcher's shop. He pleaded guilty to the charge.
16. Mr Basile thought that he had been set up in relation to the further offences of which he was convicted in July 1994. A month or so after he had been stopped by the police, he said, the police came to his house. He had been asked on the previous day to hold a small amount of amphetamine for a friend of the family and he had hidden it in the garage. At the hearing, Mr Basile said that he had about three grammes of amphetamine. When they came, he showed the police where he had hidden it. They also saw an air rifle that he had found on the street among items waiting for a hard waste collection. Mr Basile did not regard it as dangerous as he had no pellets for it and had never used it.
17. On 28 November 1994, the Department wrote to Mr Basile advising him that he had been granted a Class BF Transitional (Permanent) Visa on 28 November 1994.[3]
Difficulties in Mr Basile's relationship with his wife
18. Mr Basile took his family on a four month holiday to Italy between June and October 1997. On their return, Mr and Mrs Basile started to argue more often until it became every day. In his statement, Mr Basile said that it was his understanding that the arguments were about money and his wife's desire to go to work. He wanted her to stay home and care for their children. In his view, he was prepared to work double shifts so that he could support his family. In giving oral evidence, Mr Basile said that the arguments were over the baptism of their son.
He had wanted him baptised and was trying to convince her to do that.
19. It was Tamara's view that her parents had argued a lot before they separated. There had been a lot of yelling between her parents but she never recalled her father hitting her mother.
20. In the meantime, Mr Basile continued to have problems with his parents in law even though, in his view, he had never done anything wrong to them.
At the end of August 1999, Tatiana took the children to live with her parents across the road. He tried to talk her into returning but she would not. When he tried to talk with the children, his wife and her mother told him that they were asleep or not at home. Mr Basile's evidence in this regard is supported by his daughter, Tamara, who was nine or ten years of age at the time. Tamara found the battles unsettling and distressing. She and her brother were unhappy about having to leave their father. Tamara blamed herself for the arguments and thought that their parents had separated because she and Michael had not behaved well enough. She did not understand why they were not allowed to see their father.
21. Michael, who was five years of age when his parents separated, did not understand why his parents were no longer living together. Although his memory of those times is vague, he does recall a couple of verbal arguments or altercations. Their life before the separation was a normal family life. He was a young boy wanting to be a soccer player and so did not pay too much attention to what was going on around him. After the separation, he missed his father a great deal because he had always been affectionate and loving to him. Memories of weekend soccer games still come back to him.
22. As his wife would not let him see the children, Mr Basile told her that he would apply to the Family Court for an access order and instructed solicitors to make the application. In November 1999, an interim Intervention Order was served on him. I do not have a copy of that order but accept that it had the effect of
Mr Basile's not being permitted to approach his wife or mother in law or to see the children outside the terms of the Family Court access order. An Intervention Order having effect for two years was made on 24 January 2000.
23. Tatiana was not called to give evidence on behalf of Mr Basile.
She was not called on behalf of the Minister as Mr Brown had understood that she was on a three month holiday caring for her sister's child in Saudi Arabia. As it was, she returned a few weeks ago. The only material that expresses her views is found in two documents. One document records notes of an interview conducted by Mr Peter James, an officer of the Department. He wrote that she had said:
"Since early in their relationship until their separation late in 1999 there was an ongoing pattern of behaviour where Mario would be abusive and then make up. He lost jobs because of his thieving. He kept bad company (drugs). He would frequently be out until 4 or 5 AM and not explain where he had been. Lack of trust had been a issue with their relationship."[4]
24. Mr Basile was very angry with his wife for breaking up their marriage and their family, which he regarded as sacred to him. He still loved all of them and were the reason why he had come to, and had remained in, Australia. In his statement, Mr Basile described how he felt in the following year:
"The year 2000 was an emotionally terrible year for me. I could not cope with my personal life, I was desperate, hurt and felt alone and lonely. My whole life had gone to pieces. Tatiana had all her family and friends for support,
I had no-one. I had dedicated my life to working and earning money to support Tatiana and the children and then they were all gone. I desperately tried to win Tatiana back. I breached the intervention order against Tatiana a number of times during that year."[5]
25. Initially, Mr Basile had access to his children for two hours each weekend. He would pick them up from the home of his parents in law but Tatiana's view of the changeover was that "Mario was screaming and raving when he went to her address ...".[6] Mr Basile was then given overnight access to his children every other weekend provided that changeover occurred outside the police station. This also proved unsatisfactory from Tatiana's point of view "as there were massive arguments outside the station".[7] The Family Court then required the changeover to take place inside the police station.
26. Another view of events surrounding the access visits and relationship between Mr Basile and his wife was given by Sergeant McDonagh when he wrote to the Department on 20 January 2002. The Department had sought his views when it was considering cancellation of Mr Basile's visa in 2001/2002. Sergeant McDonagh wrote:
"1. My involvement with the above person began in the latter months of 2000. My intial contact with him was by phone, he contacted me in relation to problems he was having with his wife, Tatiana, regarding access to their children. Over a short period of time the problems between the two escalated and Mario was interviewed by Constable LEIGHTON in relation to the Intervention Order Breaches and Stalking Offences. The problems continued and further breaches occurred, Mario was charged in relation to several incidents and eventually remanded. He was remanded for an extended period due to his real potential for violence and his total disregard for the law.
2. Constable LEIGHTON was the investigating member throughout and dealt with Mario and his wife Tatiana on several occasions. I took a direct interest in this matter and was responsible for overseeing Constable LEIGHTON's investigation. From my initial contact with Mario I had genuine concerns about his propensity for violence, I was of the belief that he could inflict serious harm to his wife. I was also of the belief that he could be a serious threat to police members involved as he appeared to have no real respect for authority or the law. He was often hostile and unco-operative towards members.
3. ... Mario would attend at the Nunawading Police Station to collect and drop off his children to his wife for access visits. Often during these exchanges there would be confrontation. He would be very intimidating and aggressive towards both his wife and police members. At all times I instructed members to approach him with caution and with other members present. His wife was clearly intimidated by him and lived in constant fear of what he might do.
27. Mr Basile called Mr Bobadilla telling him that he was upset because he could not see his children and asking him if he had seen them and how they were. They had lunch together on two occasions. Mr Bobadilla could feel Mr Basile's pain as he too is a father but his loyalty was to his friends, Mr and Mrs Jamett. That friendship is sacred to him and he told Mr Basile that he could not become involved. He stopped seeing Mr Basile. Although he heard a lot of bad things about Mr Basile from the Jamett family, he found them hard to believe as he had never seen him behave badly.
28. Mr Basile's convictions in the first three months of 2001 are set out in the following chart:
* Charges arising out of investigation of complaints by aggrieved family members.[9]
Sentence increased on appeal to County Court of Victoria, Melbourne
(5) Various: 1 month on each concurrent and concurrent
(6) Breach of IO: 14 days on each count concurrent and concurrent
TOTAL imprisonment: 20 months with 14 month non-parole period and declare 61 days spent in pre-sentence detention as period already served.
29. Mr Basile said that the breach of the Intervention Order involving
"... approaching my children at a local Kmart shopping centre in East Burwood when they were in the company of their grandmother. I saw Tamara who started running towards me but was called back by her grandmother.
I just wanted to hold and kiss my daughter. ..."[10]
The charge of stalking arose from his following Tatiana to her place of work and confronting her about the type of work in which he believed she was engaging.
He denied kicking her both at the hearing and at his interview with Mr James, who is an officer of the Department, on 9 January 2002.
30. As to the remaining offences of which he was convicted, Mr Basile said in his statement:
"I was also charged with burglary, two counts of theft, breaching intervention orders on five occasions, assault by kicking, handling stolen goods, going equipped to steal and criminal damage. The burglary related to an allegation by the police that I had entered a flat and stole a wristwatch. It was also alleged that I scratched the wall paint at the police station with a coin. I was not guilty of all these charges as I did not have the money to defend myself and just wanted to get on with my life and leave these matters behind."[11]
31. Mr Basile did not expect to be imprisoned and was deeply shocked and upset, he said. He lodged an appeal but the overall sentence was increased by the County Court. The increased sentence is shown in the table above.
32. In an interview with Mr James on 9 January 2002, Mr Basile explained that:
"Offences all occurred during turbulent break up with spouse and over concerns about access to children."[12]
33. The burglary conviction was canvassed in an interview with an officer of the Department on 13 February 2002. He explained the circumstances that led to his conviction in this way:
"... Mr Basile explained that he had been visiting an acquaintance and found a wristwatch and screwdriver on the ground outside the apartment. The police claimed that he had stolen the watch and the screwdriver was used to force entry. The police were out to convict him. His solicitor advised him to appeal the sentence and then poorly represented him at court. [Court transcripts describing the circumstances of this offence are not available].
I expressed surprise that a 12-month sentence could result from the incident as described and then be maintained at appeal - further discussion failed to allay my surprise."[13]
34. The circumstances of the offence were described by Senior Constable Myers in his report dated 29 July 2002:
"1. On Saturday the 10th October 2000 at approximately 11.50 pm Mario BASILE attended the block of units situated at 62 Wellington Street, St Kilda, where he climbed a dividing wall onto the balcony of unit 21, which is situated on the 1st floor. BASILE then jemmied open a small window using a screw driver to gain entry to the unit. Once inside the unit he has searched the premise collecting property placing the items near the front door in preparation of stealing the items. A short time later police arrived where they located him hiding behind the safety wall at the top of the staircase on the second level. BASILE was arrested and a pat down search was conducted where a grey Casio watch was located in his left jacket pocket, which was identified as being stolen from the unit.
35. Tamara has a view of her mother's role in her father's being imprisoned for breaches of the Intervention Order. She said:
"... I also believe that she felt guilty about dad going to jail because of breaching the intervention order, which she took out on him 10 years ago.
I am just happy that they are no longer angry at each other and that they have moved on emotionally. Dad has forgiven mum but I have not."[15]
36. Mr Basile's mother died on 9 May 2001 while he was in prison.
He was devastated that he could not attend her funeral to say his last goodbye.
His sisters blamed him for her death because, they told him, she was ashamed and broken hearted because he had gone to prison. His mother's disappointment in him has caused him deep emotional pain and he still carries that guilt with him.
37. On 20 October 2001, the Department wrote to Mr Basile at the Dhurringle Prison advising that consideration was being given to the cancellation of his visa under s 501(6)(a) i.e. that he had a substantial criminal record as defined by
s 501(7).[16] The letter listed the offences of which he had been convicted at the Ringwood Magistrates Court on 24 January 2001. A copy of the text of s 501 was attached together with the Minister's Direction No. 17, which is a predecessor of the Direction currently in force. He was asked to provide any comments and information that he wanted the Minister to have regard to in making the decision.
38. In his reply dated 24 October 2001, Mr Basile referred first to the way in which he had come to Australia and then continued:
"I acknowledge the convictions listed in your letter and confirm the sentence of 12 months handed down at the Ringwood Magistrates Court on 24th January 2001. I was moved to the minimum security Dhurringle Prison on 3rd April 2001 and have made good progress in addressing my offending behaviour having achieved this by doing programs, applying my self to work and with a good record of behaviour. Further more while accepting that I did break the law the offences do not constitute a substantial criminal record.
I have no past criminal history or convictions. I believe that punishment has been appropriate and has acted as an effective deterrent and I have resolved not to offend again. This is because of the huge impact that this sentence has had on me and on my relationship with my children. I never wish to repeat this experience again.
I am currently separated from my wife and while initially I did not cope with the loss very well. I have now resolved this and wish to get on with my life.
I also appreciate the fact that my ex-wife also needs to do the same. It is important that I do maintain contact with my two children who I love dearly and seek orders from the Family Court in relation to this. Thereby acknowledging my need for contact with with my children and their need for contact with their natural father. Further more I take seriously the need to support my children financially, and is some thing that I have always provided well for them and will continue to do so. This is by far the most compelling reason's why I wish to remain in Australia. Deportation will make it impossible for me to have contact with my children, the cost of travel will make it impossible for them to visit me in Italy.
On my release I intend to work as a Chef in a restaurant and support my self and my children. I have training and experience in this field and look forward to getting back to work after my release. I have also got confirmation of a job offer made to me by Peter Birch as second chef at a restaurant situated at 96, Sydney road Coburg.
While I have some family in Italy I have adapted to life in Australia and have many good friends and relatives here. I now wish to leave the past behind and be a law-abiding citizen, to work hard and be a good father to my two children."[17]
39. Mr Basile was interviewed in prison on 9 January 2002 by Mr James. Mr James told him that his permanent resident visa could be cancelled. Mr Basile said that it was at this time that he realised that he was not an Australian citizen. Until that time, he said in his statement, he had assumed that he was an Australian citizen because he was married to one and had been working in Australia and paying taxes.[18] His Italian passport had still been valid when he had returned to Italy in 1997 and the issue had never come up. He added in re-examination that "No-one asked me."
40. Mr James interviewed Mr Basile again on 13 February 2002 after his release from prison earlier in the month. Mr Basile's understanding of the outcome of that interview was that Mr James told him that he did not intend to cancel his visa provided he stayed away from Tatiana. Mr James showed him Mrs Jamett's letter to him together with a file note of his interview with Tatiana and a letter from a Sergeant of Police based at the Nunawading Police Station. Mr Basile said that he told
Mr James that the police did not like him at all. The main reason for their view of him was that he and Tatiana were constantly arguing about his access to the children every time the handover for access occurred at the police station.
41. Mr Basile's visa was not cancelled at that time.
42. Mr Basile said that he did not attempt to contact his wife or children after his release from prison as he did not want any further problems. He had some difficulty in returning to a normal life as he had no job, no money and no family. The first few months after his release were hard for him. He felt that he had lost everything that had meant anything to him and everything he had worked so hard for.
43. In June 2002, Mr Basile was charged with various offences to which he pleaded guilty and was sentenced on 28 January 2003 and 16 April 2003. They were:
(1) Theft from motor vehicle: 4 months imprisonment concurrent suspended for 12 months
(2) Possess proceeds of crime: 4 months imprisonment concurrent suspended for 12 months
(3) Theft: 4 months imprisonment concurrent suspended for 12 months
(4) Theft from motor vehicle: 4 months imprisonment concurrent
(1/2)Convicted on both charges and a Community Based Order imposed requiring 150 hours of unpaid community work to be performed over 12 months
44. In his statement lodged in the Tribunal, Mr Basile explained that he had pleaded guilty to each of the charges of theft from a motor vehicle and being in possession of the proceeds of crime. He said that he was sentenced to four months imprisonment, wholly suspended, and referred to the order in so far as it required him to pay restitution of $270.
45. In giving evidence, Mr Basile said that he had not broken into cars.
He had wanted to fight the case but pleaded guilty because he had been put in custody for murder. It was while he was in custody that the charge of stealing motor vehicles came up. His lawyer had told him that the police had caught him red handed and he was more focused on the big charge. He said that he had possession of the goods but had not stolen them as he had bought them.
46. Constable Jordan prepared a report for the Department on 24 February 2003 relating to these convictions. She and Constable Baker had been working the divisional van when they received a call of a male breaking into a car in Burke Road, Malvern. On their way to the scene, they were given updates as to his whereabouts, the car he was driving, a description of his route and a description of him. They observed the vehicle before intercepting it and finding various goods within it. These goods had been stolen earlier from the vehicle in Burke Road. Other items in the vehicle had been stolen from other motor vehicles in other streets on the same night.[20]
47. Of his convictions on 16 April 2003, Mr Basile said in his statement that the offences occurred in December 2002 during a fight between himself and another man in Lygon Street in Carlton.
48. In his statement, Mr Basile referred to his being convicted of theft when he took money from the cash register of his employer on 9 June 2002. He had taken the money because his employer had not paid him his correct wages as a pizza maker. His employer alleged that he had taken $190 from the cash register.
Mr Basile said that the amount was much less than that but he pleaded guilty and was ordered to pay restitution of $190. He did not mention the other offences of which he was convicted on the same day and which are set out in the following table:
(1) Aggregate 6 months imprisonment. Concurrent. Term to be served 2 months with remainder suspended for 2 years.
(2) Aggregate 6 months imprisonment. Concurrent. Term to be served 2 months with remainder suspended for 2 years.
49. The effect of Mr Basile's convictions for these offences was that he was unable to comply with the Community Based Order made on 16 April 2003. On 8 April 2004, a custodial sentence was imposed in place of the Community Based Order. The sentence was:
(1/2)Aggregate 6 months imprisonment. Concurrent. Sentence suspended for 24 months.
50. Mr Basile's most recent conviction has been for manslaughter in relation to the death of Mr Lilikakis on 26 February 2003. One of his co-accused, Yiannis Andos, had pleaded guilty to manslaughter on 13 December 2004. The trial of the third co-accused, Mr Latesto, had begun on 31 January 2005. On the third day of the trial, Mr Latesto had pleaded guilty to a charge of intentionally causing injury to Mr Lilikakis. Mr Latesto had given a statement of evidence which he undertook to give at Mr Basile's trial. On 7 February 2005, Mr Basile pleaded guilty to manslaughter.[21]
9 years imprisonment. Non parole period of 7 years.
Declare 644 days spent in pre-sentence detention as period already served.
51. In giving oral evidence, Mr Basile said that he had been in the company of two people who were looking for a man and whom he knew. They asked him to help them find that man. Mr Basile said that he had no idea about drugs or why they were looking for the man. They had information as to where he was and they waited for him in his hotel room. The man arrived and they started fighting. Unfortunately, the man "got worse". Present were the man, Mr Basile, his two friends and a person he described as a "party girl". When asked what part he played in the assault, Mr Basile replied "Very little". When asked what he did, he replied that he could not remember what he did seven years ago. He had tried to get over it. He still remembered the day but he wanted to get over it and wanted to forget. When it was put to him that the sentencing Judge had said that he had administered some of the kicks to the deceased, Mr Basile replied that there was no DNA evidence or that he did. He disagreed with the Judge but that is what he said. He maintained his innocence until the day before the trial but, on the advice of his lawyer, changed his plea to guilty. He wanted to close the book.
52. In his statement, Mr Basile said that he did not accept the version of events given by Mr Latesto. When his counsel cross-examined Mr Latesto on his statement, it had emerged, Mr Basile said, that he was not a witness of truth and had made the statement to secure himself a lesser charge and a very light sentence of 364 days. He entered the guilty plea on the basis that he was present at the scene and did so reluctantly. As to what the sentencing Judge, Kaye J, had said, Mr Basile said:
"40. ... My lawyers told me that the judge in his written judgment the he treated Latesto's evidence with utmost caution and that he was unable to reach a finding as to what actually occurred. They also told me that the judge did not find that the evidence supported a finding that I was the main perpetrator of the crime. However, I was treated by the judge as being equally culpable.
53. What Kaye J actually said is recorded in the transcript of his remarks when sentencing Mr Basile and Mr Andos. He found that Mr Andos had been looking for Mr Lilikakis because he had become a regular user of illicit drugs including cocaine and amphetamines. Mr Andos had given Mr Lilikakis a substantial amount of money with which to purchase drugs on his behalf for his own use.
Mr Lilikakis had either failed or intentionally omitted to purchase the drugs but had retained the money. He had avoided Mr Andos's attempts to find him to recover his money.
54. As to Mr Basile's motive for the crime, Kaye J said:
"In your record of interview with the police, you, Mario Basile, stated that you had no motive to seek out Lilikakis and that you were only in the vehicle occupied by Latesto and Andos in order to assist them to find Lilikakis for their own purposes. However, I consider your record of interview to be unreliable. In your record of interview you told the police you had nothing to do at all with the violence which erupted in Lilikakis's motel room. That answer to the police is clearly and significantly inconsistent with your acceptance through your counsel that you aided and abetted the infliction of violence on Lilikakis by punching and kicking. Thus, I do not consider your record of interview to be a reliable source of evidence on which I may rely. Your precise motive in wishing to find Lilikakis is not entirely clear. However, the evidence of Liaskos and Latesto satisfy me beyond reasonable doubt that you did bear some antipathy to Lilikakis. Further, it is clear that you wished to confront Lilikakis when he arrived at the motel room; otherwise, there is no acceptable explanation why you entered the motel room and there is no acceptable explanation why you remained there until Lilikakis arrived. More importantly, there is no other explanation why you so willingly participated in the brutal assault which ensued when Lilikakis did arrive."[23]
55. As Mr Basile said in his statement, Kaye J said that he had treated the evidence of Mr Latesto with particular care. Clearly, Mr Latesto had a motive to minimise his own involvement and maximise the involvement of the other two accused. He regarded it as dangerous to rely on it unless corroborated by independent evidence. There were other witnesses. One was Ms Toy, who had come back to the room with Mr Lilikakis. A second was Ms Liaskos, whose relationship with
Mr Basile was described by Kaye J as "turbulent".[24] Kaye J had regard to her evidence, that of Mr Latesto and, to some extent, that of Ms Liaskos in finding that Mr Basile initially pulled Mr Lilikakis into the room. All three were quickly involved in doing so. Mr Lilikakis died as a result of a skull fracture and intracranial haemorrhage as a result of blunt force trauma to the head. His Honour found that the injuries lent strong support to Ms Toy's evidence that Mr Lilikakis had not only been punched but had been kicked in the head. There were at least three or four kicks to his head. There was no corroboration of Mr Latesto's evidence that it was only
Mr Basile who kicked Mr Lilikakis but Kaye J was prepared to accept that he had administered at least some of the kicks. Ms Liaskos had described how he had inflicted the same violence on her and he had a previous conviction for assault by kicking. Kaye J was satisfied beyond reasonable doubt that Mr Basile had kicked
Mr Lilikakis in the head while he was on the ground.
56. Kaye J decided that the evidence did not support his finding that
Mr Basile was the primary mover in the infliction of violence on Mr Lilikakis.[25] Earlier, he had said:
"... By your pleas, you each accepted that you aided and abetted the other in an unlawful and dangerous act which resulted in the death of Mr Lilikakis. Further, it was accepted that you aided and abetted the administration of violence in the form of both punches to the head and also kicking to the head while the deceased was on the ground.
From the point of view of assessing your individual culpability, I do not consider that it matters which of you actually administered the kicks and the punches. Indeed, as I understand it, ultimately it was not submitted to me that the offender who actually inflicted the physical injury was any more to blame that the offender who aided and abetted the infliction of that injury. ..."[26]
"... The offence to which you have both pleaded guilty is particularly serious. You both lay in wait for the deceased. The deceased was subjected to considerable violence. He was outnumbered. He was taken by surprise. After he had been forced to the ground, he was cruelly kicked. He never had a realistic chance of properly defending himself. The attack on him by you was unprovoked and without any justification. Even if either of you had a grievance, and I accept that he owed you, Andos, a large amount of money, such a grievance does not provide any justification for such a violent attack on him.
The attack on Lilikakis was vicious, cowardly and utterly reprehensible. In those circumstances, the facts of the case require me to take the view that this is, on the scale of matters, a particularly serious case of manslaughter."[27]
Courses and work undertaken by Mr Basile in prison
58. During his time in prison, Mr Basile has completed a Food Handlers - Level 1, a Certificate 1 in Transport and Distribution and a Forklift Licence. He also has a Licence to Perform High Risk Work, which I understand to be a qualification he must have if he is to work with certain plant and machinery, including forklifts, considered high risk. Mr Basile worked on Loddon Landmate where his conduct, work skills and attendance and punctuality were regarded as very good. His work attitude, ability to observe health and safety procedures and motivation and initiative were regarded as satisfactory. His supervisor regarded him as carrying out his duties as required, being very reliable and capable of a variety of jobs. Mr Basile received the highest score of very good for every aspect of his work as a Yard Billet apart from his ability to observe health and safety procedures. His ability in that regard was good.
59. He has also completed courses directed to his behaviour. Mr Basile's first course was conducted by Professional Practice Students from Monash University on 23 February 2004. Topics included eight modules covering topics such as the Victorian Court System, Preparing for Court, Evidence, Outcome of the Trial and Sentencing and Parole.
60. On 5 August 2004, Mr Basile successfully completed a Psychoeducational program named "Understanding Anger". It included segments on the physiological, emotional, behavioural and cognitive basis of anger, anger as distinct from aggression and violence, costs and benefits of anger, cognitions, values and beliefs, relaxation, identifying high risk situations and relapse prevention.
61. On 22 September 2005, Mr Basile completed an eighteen hour drug alcohol peer education program named "Minimising Harms, Maximising Connections". The modules completed were: Peer Education - what is it?; Harm Minimisation and Infection Control, including gaining an understanding of risky behaviour and risky use; pharmacology; Referral on; Families and Drug Issues; and Listening, Presentation and Group Work skills.
62. Mr Basile was one of ten out of 700 inmates selected to undertake a Prisoner Listener program and to become a Prisoner Listener. The 48 hour program contained the following modules: Communication and Basic Counselling skills; Suicide and Self Harm Prevention; Grief and Loss; Understanding Stress and Anxiety; and Understanding and improving your Self Esteem. Mr Basile completed that on 19 December 2006.
63. Mr Basile said that he learned about helping other people from the programme. He could tell people not to worry about what was happening and just to do their time. It helped him too. They listened to him when he talked. He is older and has done a bit of study. He told the others that the case could be this way, that way or another way and would get them to relax. When asked how that had helped him, he replied that he spoke from his heart and helped people. He would then go back to his cell and look at his kids' picture. It would be an emotional moment and he wished he could be outside.
64. Mr Basile completed the Cognitive Skills Program (CS Program) on 15 April 2009 after undertaking 60 hours of cognitive skills including Problem Awareness, Means-end Thinking, Consequential Thinking, Decision Making, Recognizing Feelings, Alternative Thinking, Problem Application and Self-Management. Ms Geraldine Mackay, the Program Facilitator, is also a Social Worker. She was required to complete a report on Mr Basile's participation in the Program. Her report contained many positive aspects but they were tempered by a single theme that was repeated throughout her report i.e. that Mr Basile was reluctant to talk about the offences he had committed or to apply the content of the sessions to his own offending behaviour. This was apparent in Ms Mackay's comment on
"Mr Basile had a positive attitude towards both learning and the program content and was always willing to involve himself in group activities. However, Mr Basile seemed ambivalent about applying the content of the sessions to his own offending behaviour."[28]
and in her comment on his development of insight and problem-solving skills:
"Mr Basile demonstrated a good grasp of the problem solving skills covered in this program. Mr Basile talked about the impacts his prison sentence has had on his life and he strongly believes that because of these negative effects on his life he will not offend in the future. However, Mr Basile did not demonstrate a desire to explore the reasons behind his offending behaviour. As a result,
Mr Basile did not develop strategies to minimise potential offending risks in his future life."[29]
Ms Mackay warned that Mr Basile will need to avoid the negative influence of criminal peers and associates. In giving evidence, Mr Basile said that he did not understand why Ms Mackay had made these comments. He had done everything he could to pass the test.
65. On 17 May 2009, Mr Basile participated in the Hepatitis C Education Program.
66. Mr Basile's unit Supervisor at HM Prison Loddon (Loddon), Mr Kevin Florence, wrote that he had known Mr Basile for approximately three years. He noted that Mr Basile had maintained steady employment at Port Philip and at Loddon. In January 2010, he had become Recreation Billet which entailed a higher degree of trustworthiness. Earlier, he undertook LandMate - Bush Fire Recovery receiving very good work reports. That work continued for six months in 2009. This demonstrated Mr Basile's ability to re-adjust with the community, Mr Florence wrote.
67. When he was classified to a minimum security prison, there appeared to be a clash of personalities and Mr Basile returned to Loddon.
68. Mr Basile has had five good order management orders made against him. One arose out of an incident involving a check that he had taken medication in the medical clinic. The other four arose from his not wanting to work because the boss was a racist. He had refused to work at HM Prison Beechworth (Beechworth), which is a minimum security prison after he had applied to continue his programme and nothing had happened. After two days of being confined to his cell for 23 hours each day as a result of the order, he was back at Loddon. Mr Basile regarded those at Beechworth as "red necks".
69. In April or May 2005, Mr Basile wrote a letter to Mr Bobadilla asking him if he could ask Mrs Jamett for a recent photograph of his children. He did hear back from him but Mr Bobadilla had talked with Mrs Jamett, who had initially denied his request. He also gave Mrs Jamett the letter he had received from Mr Basile. Some of the other inmates suggested to Mr Basile that he contact Sister Mary, who helps inmates. Sister Mary telephoned Mrs Jamett and, soon after, she and his children visited him in prison.
70. Mrs Jamett contacted Mr Bobadilla to tell him that she had been very touched by her son in law's letter and she had convinced her daughter to let her take the children to visit their father. Mr Bobadilla would have liked to visit Mr Basile as he had liked him and Mr Basile had always treated him with respect. Mr Basile told him that he was only allowed a certain number of visitors and he would rather limit them to his children and parents in law. Mr Bobadilla never tried to contact him again.
71. Mrs Jamett has, however, contacted Mr Bobadilla and asked him if he could offer Mr Basile a job on his release. Mr Bobadilla now employs approximately 15 people. He has offered Mr Basile a full-time position in asbestos removal and demolition work at the rate of $31.50 per hour plus benefits. The position is a "permanent job for now", Mr Bobadilla said in reply to Mr Brown at the hearing.
72. Since that time, Mr Basile has had frequent telephone contact with his children. He would telephone them at Mrs Jamett's home at approximately 4.00pm when he knew that the children would be at her place having something to eat after school. Tamara said that, once they had resumed contact, she and Michael had visited him two or three times each year while he was in prison. Mr Basile said of his future relationship with his children:
"... I cannot put into words how much this contact meant to me. It gave me a reason to live. I decided that I would make up for my past faults when I was released. Tatiana and I now have a civil relationship because this is in the best interests of the children. She also visited me in prison on three occasions, most recently before Christmas last year.
I am profoundly grateful to my former mother-in-law for doing her best to help me maintain my relationship with my children. We had not had a very pleasant relationship throughout most of my marriage to her daughter because I knew that she thought I was not good enough for her daughter. To her credit, she put the interest of her grandchildren before her own feelings and strangely enough, we developed a friendly familial relationship. I did see my children face-to-face approximately 3 times per year. On most occasions, Rosa Jamett drove them in her car. I was jailed at Loddon Prison in Castlemaine so it was not easy for my children to visit me when they were unable to drive themselves.
The contact with my children gave me a new lease of life. I decided to use my time in jail to improve myself and my skills. I did a number of courses concerning anger management, cognitive skills, drug and alcohol dependence. These courses gave me skills to better manage my emotions and to cope with life challenges. ...
I was so happy to learn that I would be released on parole. I could hardly wait to rejoin my children and celebrate the start of a new life with them.
I was shocked to learn that the Department of Immigration ... intended to cancel my permanent residency. I thought I had done my time and paid for my mistakes. I had tried hard to rehabilitate myself in prison and could not understand why all that counted for so little with the Department. I had been assessed as compliant and trustworthy inmate. I had proven my reliability on many occasions. It was not easy for me to deal with the prospect of my visa being cancelled while I was still in jail. It was awful to find myself released on parole only to be taken into 'jail' again. ..."[30]
73. Mr Basile has plans to live with a friend initially. His friend is, to his mind, old - about 60 years of age - and is a pensioner. Although he described himself as not being highly educated, Mr Basile also describes himself as a hard working person who has never found it difficult to find employment.
74. Mr Basile's father died in 2008. He described that as "yet another blow" for him as he was in custody and could not attend his funeral just as he had been unable to attend his mother's.[31] He has three sisters who live in Italy but
I accept that he is estranged from two of them. I also accept that he understands that they are estranged because they blame him for the "man's death". His sister who continues to communicate with him lives about 300 kilometres from his home town. His view of the suggestion that he could start with her if he were to return to Italy was that he would be in the street. When it was suggested to him that he had skills that he could use in Italy, he replied that he could use them here.
75. Of the future with his children, Mr Basile said:
... My children have done without my physical presence for seven crucial years of their childhood. My son Michael is now entering young adulthood and I want to be there to guide him and be a father. I want to be there when my children get married. I would not have been released on parole if I were a danger to the community. My children would not have wanted to have contact with me if I were a bad father to them. I refer to the statements provided in support of my appeal by my children, my former mother-in-law, my former wife, Juan Bobadilla and my friend Maree Dollard. I am confident I can rebuild my life.
My son Michael has been left in the care of his grandmother. Rosa Jamett is a wonderful grandparent but she is no longer young and her husband Jorge is not in good health. They do not have the energy to guide and look after Michael. I know Michael feels let down and abandoned by me and by Tatiana. I am aware of his recent disappearance and that he is very stressed by what is happening with me. I cannot put into words how distressed I feel about this.
I feel powerless being in detention and not be able to comfort and protect him. He is very confused and angry. I know that he has greatly upset his grandparents who are at a loss as to how to cope with him and concerned for his mental state and physical well-being. Michael is still under age and I very much want to be there for him from now on as well as for my daughter.
I do not believe that I am a person of 'bad character'. I am a person who did not know how to cope with upsetting life events. I did go "off the rails".
I don't think I am the only person to do that after a marriage break-up. I have learned the hard way the consequences of over-reacting to life and I would never want to repeat that awful time in my life. I can only entreat the Tribunal to let me stay in Australia to resume being a worthwhile member of the Australian community."[32]
76. He did not think that his children would visit him if he were to return to Italy because they would not have the money. If his daughter had $200, he said, she went out. It would be hard for them. Mr Basile feels that he could get Michael back on track and be a normal kid.
77. Mr Basile thinks that he will not reoffend again because he knows the gaol system. He has children and he is not young. Mr Basile wants to know his children, wants a chance, does not want to be far away from his children and will turn himself into a father figure for them.
78. Ms Maree Dollard has known Mr Basile since 1994 when they met through mutual friends working in the hospitality industry. They have enjoyed a platonic friendship over the years when they have gone out as part of a group or on their own. Ms Dollard has always thought that Mr Basile appeared to be happy and to have a lovely gentle nature. She has never seen him display any behaviour that was offensive or violent. At all times, he has been a gentleman who never allowed any woman in their company to pay for a meal or a drink. He ensured they were safe and would often go out of his way to help others.
79. Tamara's perspective starts from the basis that she has never felt loved by her mother but has always felt loved by her father. She has felt, and still feels, that her mother hates her. Her relationship with her mother, Tamara said, has never been good and became worse after their separation. She said that her mother used to hit her and throw things at her so that she often had bruises and injuries, which she tried to hide. Her mother, Tamara has said, verbally abused her as well. When she was younger, she would tell her mother that she wanted to live with her father, which made her mother even more angry and violent towards her. She moved out of her mother's home in September 2009 after an argument. Her mother demanded that she leave and maintained that position, Tamara said, even though she begged to remain. He mother called the police and they told her that her mother had no obligation to allow her to remain at home. She stayed with a friend until December 2009. At that time, her Aunt Maritza had returned from Saudi Arabia and advised her that she would be better off living with her grandparents.
80. Tamara said that she had spoken with her mother as to why she is so hard on her. Her mother told her, she said, that it was because she was older than Michael and should be more responsible. He did not get into trouble. He really needs his father, she said. She gets into trouble for anything that goes wrong. Her grandmother cannot look after them because she has her own business and travels overseas two or three times each year. When she took her boyfriend to meet her grandparents, her grandfather knocked her down in front of him. When she was younger, she said, she retaliated but it just meant that she got more bruises and broken bones. Michael, Tamara said, thinks that he is the head of the house and that he can do what he likes. He does not care what happens to him and Tamara is scared that he will get into trouble with the law.
81. Tamara sees the years before her parents separated as the best years of her childhood. There had been no yelling. She had planned to live with her father ever since her parents separated. When she was younger, she had to behave as an adult as she had to look after her brother. They were very close at that time. Now that they are older, they have grown apart. Of her father, she said:
"I honestly believe that my father is a good man. Whatever he has done in the past, he has been punished for it. People make mistakes in life and my father has always said to Michael and me - 'learn from my mistakes in life and be a good person and help others where you can."
82. When asked whether she knew about events leading to her father being charge with manslaughter, Tamara said that her father had told her that he had done nothing. As he had a record, he looked like a person who would commit that crime; he "looked the part". She believes that her father did not commit the crime of manslaughter. Someone had shown her a cutting from the newspaper but she did not know whether he had pleaded guilty or not and did not understand it.
83. Tamara sees the future in the following terms:
"Michael and I have developed a very close relationship with dad since we resumed contact with him. We made all sorts of plans for when dad was released from jail. I wanted to live with my dad once he set himself up with accommodation. I know that he had arranged to live initially with his long-term friend Fausto until he got himself on his feet. We had been counting the days before he was released. I wanted to surprise dad when he was due to be released from Loddon on Friday 7 May 2010. I drove to Loddon with my boyfriend Ben and arrived at 7 am. I was told that dad had been transferred to Port Phillip in Melbourne. We drove back to Melbourne and found out late that afternoon that dad was taken to Maribyrnong Detention Centre to be deported. Dad had found out a few days earlier but did not want to upset Michael and me.
My whole world came crashing down on me. I could never have anticipated this. It is something that neither Michael nor I can deal with. We feel helpless, as I am certain my dad feels. Whilst I live with my grandparents and I know they love Michael and me, I feel alone. It is not the same as a parent loving you and taking care of you and being concerned about you. That is what both Michael and I miss and what we don't have.
More than the loss that I would suffer if my dad were deported, is the effect that would have on Michael. I am very concerned about Michael. "[33]
84. Tamara does not think that she and Michael could visit Italy very often were their father to be deported. They do not come from a wealthy family. She knows:
"... my father will never ever do anything to jeopardize his freedom again and risk being kept apart from us. I will be crushed if my dad is deported. I do not wish to live without him by my side. I know my dad is a good person and I beg the Tribunal to let him stay in Australia and continue being the great, loving father he has always been."[34]
85. Tamara completed Year 12 and then started a twelve month massage therapy course. She completed six months of it but then stopped it because she did not like it. She was not going to do something she did not like, she said, and found a job in a café. Tamara had to leave that work when she broke her wrist "falling down the stairs". She has a call centre type of job waiting for her and she wants to study further in the area of child care or teaching.
86. Her relationship with her brother has been strained in more recent years. She has taken the blame for her brother. Her brother has broken her wrist recently when they were fighting. She said at first that she did not blame him for doing so but later said that their relationship had not been good since he had broken her bone; it would take time to get over it. When their grandmother was overseas, Michael left home for a month and Tamara could not find him. She was frantic and worried that he would become involved with drugs as he had friends who used them. Those friends had been to her grandmother's house when she was overseas. Tamara had cleaned them up. She called the police but they said that he was attending school and was safe. They could not make him come home. Tamara telephoned the school and knew that he signed the roll in the morning but did not know whether he stayed there all day.
87. She hates her younger Aunt, Jasna, and believes that her whole family is against her. Anything that goes wrong is her fault. When she was babysitting her Aunt Jasna's daughter, her Aunt accused her of stealing something that was later found to have rolled under the bassinette. Her Aunt told her that she was just like her father. Tamara says that she tries to be the best person she can be but speaks her mind. She does not like people telling her that she is wrong when she is right.
88. Mrs Jamett acknowledged that she had strongly disapproved of Tatiana's marriage in the early years. She did not like the idea that her daughter had become pregnant before she married and that she did not consult her parents about marrying Mr Basile. Her daughter had started an accounting course at University before she went to Italy and she had high hopes of her having an education and a career. Mrs Jamett thought that Mr Basile was not good enough for her daughter. She and her husband were prepared to look after Tatiana and Tamara so that Tatiana could resume her studies and get her life back in order. Over the years, Mrs Jamett has softened her position and regarded Mr Basile as having done the honourable thing by marrying her daughter. She acknowledged that Tatiana and Mr Basile had enjoyed a few happy years after they arrived in Australia.
89. Of the future, Mrs Jamett said in her statement:
"I have observed Mario mature into a much softer man who becomes emotional and teary when talking about his children and the fact that he had not been there for them when they were little. He has talked so much over the years about all the things he would do with his children and for them once he was released from jail. Both Mario and the children had been counting the days when they would be re-united together. ...
Mario has also arranged to live with a friend after his release until he gets himself on his feet and was able to set up a home where the children could stay with him whenever they wanted to.
If Mario were to be deported, the children would be devastated. I am very concerned about Michael and his emotional well-being. He, in particular, has been badly affected by the separation from his father. Michael really needs his father in his life. I believe that Mario has been sufficiently punished in life. He has paid dearly for his wrongs in his past and I have no doubt that he will be a good father and a productive member of the Australian community."[35]
90. The children cannot continue to live with her and her husband as her husband is sick with jealousy of everyone including her girlfriends and Michael. It is Mrs Jamett's view that her husband can do nothing for his grandson. As she is in the middle between them, she can do nothing for him either. Michael ran away from home for a month recently. He left after his grandfather had told him to leave when his grandmother had gone to Chile for two or three weeks to see her brother who is ill.
91. Mrs Jamett believes that she is getting old too and can no longer care for the children. Michael cannot live with his mother because she is fighting with his sister. He is a little child still and cries because he wants a normal life and to help his Nonna. Her daughter had done many things for her son, Michael, but, when he started to rebel, he needed a strong hand. She would take him to school and take him to his soccer games but, at the age of 12 and on his second day of school that year, he started to rebel. Mother and son started to fight. Michael needs someone and she believes his father is the only one who could do something for him.
92. Mrs Jamett sees Tamara as a child. She is "not grown up like a woman".
93. Michael feels that he missed out on a lot of his childhood because his father was not around. He had not understood why his father's visits had stopped. His mother had not wanted him to be sad. Even at that young age, he said, he could get angry but his mother made him understand that the marriage was at an end.
94. He was 11 years of age, he said, when he found out that his father had gone to gaol but did not know the reason for it; only that it was something bad. To him, his father was always just that and he loves him just as he knows his father loves him. He believes that his father has been punished enough for his crime. Between 2005 and 2010, he visited his father in prison as often as his grandparents could take him. Michael looked forward to his father's telephone calls after school.
95. Had the prison authorities thought that he was a risk to anyone, he would not have been released. He believes that his father has changed for the best. Michael said that he was frustrated with the decision to deport his father and "felt let down again".[36] His father and he had planned to celebrate on his release date.
He wants to have his father around from now on. If he is deported, "... it will just feel like I have been let down again", he said.[37] In his oral evidence, Michael said:
"He done what he needed to do and then to dump that on him is like shit." He said in his statement:
"I know my father to be a basically good person who has done some bad things because he was very upset about breaking up with my mother and not seeing my sister and me every day. I strongly believe that he will not get into trouble again because he has suffered a lot and knows that his behaviour also made his children suffer a lot too. He does not want that to happen again and making him leave Australia will hurt and punish myself and my sister and we have not done anything wrong. I will be hurt very deeply if I don't see my father ever again."[38]
96. His hope was to have a bond with his father and to have a Dad. Michael wants to have a proper father/son relationship where they go fishing and go on drives together. He had planned to have a party for his father when he was released, get him a bit drunk and have a good time. When he found out that his father was not going to be released, Michael became angry. He went away for a month and stayed with a friend because he needed a time by himself. He needed time alone because his family is strong. If anything goes wrong, they always forgive him.
He wanted no rules and to go out and do what he wanted to do before going back and facing reality. Michael knew that his sister and family called him every day but he chose not to pick up their calls. His view is that his family has never let him down but he has always let them down.
97. He is happier living with his grandparents than with his mother because he wants to escape the atmosphere with his sister. Although he gets on with her, she "pisses ... [him] off" and they are involved in sibling rivalry. He gets angry with her and swears and she never backs down. Recently, they had been "scrapping" and he broke her arm when he grabbed and pulled her. Michael did not know that he had broken his sister's arm because she did not say anything as she did not want her mother to know. He said at the hearing: "I felt bad but like, in my mind, I didn't do anything wrong. We always used to fight and stuff. She didn't respond like I wanted her to respond. She held a grudge. I understand because I broke her arm. I am angry with myself."
98. The "atmosphere" comes about because he is the only man in the house and, if anything was going to happen, he was always getting into trouble. His mother always asked him first about anything that had gone wrong. Michael believes that he is happier at his grandparents house but says that there will "always be problems for any kid growing up: trouble at school; young love". Michael regards his mother as having always been there for him and he gets sad when she is upset.
99. Michael wants to live with his father but he wants his father to figure out himself before he comes into his life. He wants him to be there but he wants him to have settled down with a job and an income. Michael wants him to be "solid" before he joins him. It is time he and his father confronted each other and knew how the other one was "travelling". He believes they need to interact on a 'man-to-man' level as his father still treats him like a 'little kid'.
100. As to why his father had been in gaol, Michael had gained some understanding from a newspaper article that he had read when he was in Year 7 or so.
101. When he signed his statement on 5 July 2010, Michael was enrolled at TAFE doing a trade training course and hoping to become a bricklayer. Since then, he has decided that he is capable of doing the work but has now enrolled in Creative Multimedia. He is interested in web design and is now looking for an approach that incorporates his drawing talents. He draws cartoons with a graffiti aspect. The course is a six month course. At the end of it, he must decide whether he wants to continue with it but he has a very supportive teacher.
102. 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.[39] Some are specified in the Act itself[40] and some are prescribed in the Migration Regulations 1994 (Regulations).[41] The classes prescribed in the Regulations are:
"(a) such classes (other than those created by the Act) as are set out in the respective items in Schedule 1; and
Cancellation of visas on basis of visa holder's failure to pass character test
103. As Mr Basile held a transitional (permanent) visa, the provisions of
s 501 apply to him.[45] That means that the Minister has power under s 501(2) of the Migration Act to:
"... 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."
104. 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
(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."
105. 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
The term "imprisonment" means "... any form of punitive detention in a facility or institution" and "sentence includes any form of determination of the punishment for an offence.[46]
106. Section 501G sets out the steps that the Minister must take in giving notice of a decision under, among others, s 501. Sections 500(6A) to 500(6L) make particular provision for those situations in which the Minister's decision relates to a person, such as Mr Basile, who is in the migration zone. The "migration zone" includes mainland Australia.[47] Those provisions make particular provision regarding the time within which documents must be lodged with the Tribunal and the time within which the Tribunal must make its decision.
107. Section 499 of the Migration Act provides, in part, that:
"(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
The Minister's Direction: outline of Direction
108. The Minister issued directions under s 499 on 3 June 2009 in relation to visa refusal and cancellation under s 501 of the Migration Act. It is Direction [no. 41] - Visa refusal and cancellation under s 501 (Direction) and commenced on 15 June 2001. In essence, it sets out the government's policy. Generally:
"... 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.".[48]
Section 499(2A) is a specific statutory provision to the contrary but it does not mean that the Tribunal abdicates its usual function in favour of determining whether the Minister's decision conformed with the Direction. What it means is that the Tribunal must comply with the Direction but the Direction does not require a particular outcome in a particular case. What it requires is that the Tribunal consider matters set out in the Direction and follow its directions in considering the particular circumstances of a visa holder and coming to a decision. If the Direction were to be in conflict with the Migration Act, the Migration Act must prevail. This is recognised in s 499(2) of the Migration Act.
"(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious misconduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors, the elderly and the disabled."
110. Harm to the Australian community, the risk of the occurrence of that harm and an assessment of what is and is not an unacceptable risk of that harm's occurring are seen as fundamental in paragraph 5.1. That this is so is clear from paragraphs 5.2(2) and (4):
"(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a) the nature of any harm that the person concerned may cause to the Australian community: and
"(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia."
111. Factors relating to matters referred to in [5.2(4)] are set out in [5.2(3)] and regard must be had to them as well as any relevant international law obligations. Recognition is given in that paragraph, though, to the need to consider the exercise of the power under s 501 in the context of a wide range of factors among which these particular factors are considered.
112. The Direction is divided into two parts. The first deals with the application of the character test. There is no question that Mr Basile does not pass the character test. I will not spend further time on it other than to say that Parliament has decided that a person who has a substantial criminal record of the sort held by
Mr Basile is a person whose visa may be cancelled. The second part of the Direction assumes that the visa holder has not passed the character test. It sets out directions on the primary and other considerations relevant in determining whether it is appropriate in the circumstances of the particular case to exercise the discretion to, in this case, cancel a visa. I will also consider what those considerations entail.
The Minister's Direction: taking into account the various considerations
113. Under the Direction, decision-makers must take into account primary considerations in every case. Other considerations, which are identified in [11], should be taken into account where relevant.[49] I will summarise the primary and other considerations when I take each into account. For the moment, I want to consider what is meant by the requirement that I "take into account" those considerations. Does it mean that I weigh each one and decide whether it favours cancellation or not, assign additional weight to each of the primary considerations and then treat the exercise as an arithmetical calculation in order to determine whether the considerations weighing in favour of cancellation of the visa outweigh the considerations against cancellation or vice versa? I do not think that it is an arithmetical calculation of this sort.
114. I will begin with the expression "take into account". As the Direction is a Legislative Instrument for the purposes of the Legislative Instruments Act 2003 (LI Act)[50] and there is no contrary intention in the Direction or in the Migration Act under which it is made, I must construe it as if it were an Act of Parliament. That follows from the fact that Parliament has provided that the Acts Interpretation Act 1901 "applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act".[51]
115. The expression "take into account" is not an expression defined in the dictionary but closely related expressions are. The ordinary meaning of the expression "take something into account or take account of something [is] to make allowances for or consider (a problem, opinion or other factor) when making a decision or assessment. ...".[52] These meanings do not suggest an arithmetical approach but rather one of thinking about a matter as part of a process of coming to a conclusion about another. The difference between the two was explained by Lord Hewart CJ in Metropolitan Water Board v St Marylebone Assessment Committee [53] when considering whether, in assessing a poor rate, the respondent could take into account the funds the Metropolitan Water Board (MWB) had raised by issuing precepts to the City and boroughs in order to meet a deficiency in the water fund. The MWB had issued the precepts when it found it had a deficiency in its funds after it deducted its rental payments from the revenue it had received for the year in question. In deciding that it was the arithmetical approach that had to be adopted, Lord Hewart CJ distinguished the two meanings of "take into account":
"... It is quite evident that confusion has arisen in the past between the ambiguous meanings of the word 'account.' 'To take into account' in the sense of including figures in a mathematical calculation is one thing; 'to take into account' in the sense of paying attention to a matter in the course of an intellectual process is quite another thing. ..." [54]
116. It seems to me that it is in the sense of "paying attention to a matter in the course of an intellectual process" that the expression "take into account" is used in the Direction. While it is a document that requires certain things of a decision-maker, it is not a document that takes a formulaic approach. It is a document that recognises that the circumstances in which people find themselves are so diverse that certain considerations that might be relevant in most cases are not relevant in a particular case. It gives the decision-maker the flexibility to put those considerations aside where they are not relevant. This is recognised by the Minister in his Direction when he expressly recognises that even primary considerations may not be relevant in a particular case. The general description of Part B of the Direction shows this recognition:
"Part B ... provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. Decision-makers should note that a number of the primary and other considerations may not be relevant to a decision under certain circumstances. In the case of a visa applicant who is outside Australia (offshore), the primary consideration relating to length of residence in Australia may not be relevant."[55]
It is also shown in [9] when it repeats the decision-maker's task:
"(1) Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note: The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2) Decision-makers should only take into account directly relevant considerations.
Note: For example, when considering a possible refusal where the person is offshore, the decision-maker may only need to take into account some of the primary considerations."
117. It could be thought that there is an inconsistency between a Direction that requires decision-makers "to take into account the primary considerations in every case" and the second Note that in [9] that the decision-maker may only need to take into account "some of the primary considerations". I do not think that there is an inconsistency when the expression "take into account" is understood in its broader sense. Attention must be paid to all of the considerations but, once it is decided that a primary consideration is irrelevant in the circumstances of the case, the decision-maker has completed the task in so far as that consideration is concerned.
118. Finally, the statement at [11(2)] that the "Other considerations" "... must be taken into account but, generally, they should be given less weight than that given to primary considerations" supports my understanding of the expression "take into account". The use of the word "generally" indicates recognition that there may be cases in which the particular circumstances require that the other considerations be given more weight than the primary considerations. The reference to their being given "less weight" also signifies that the approach is not arithmetical. The word "weight" in this context means the "... influence ..." that the considerations may have in reaching the decision. Generally, the primary considerations are to have more influence than the other considerations. Weight in that sense is not something that can be accorded a score.
119. In this section of my reasons, I will consider the circumstances of this case under each of the considerations identified in the Direction. I will not consider the primary condition in [10.2] of the Direction for Mr Basile was not a minor when he began living in Australia and it is not relevant.
"(1) Due consideration is to be given to the Government's objectives set out in Part 1, paragraph 5 of this Direction.
(2) The factors relevant to assessing the level of risk of harm to the community of the person's entry or continued stay include:
(a) the seriousness and nature of the relevant conduct; and
121. The Direction goes on to expand on each of these factors. Of the first, [10.1.1(1)] states:
"Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community."
Among the examples given of offences and conduct considered serious are "murder, manslaughter, or any other form of unlawful killing" as well as assault. Despite that,
I must still consider the seriousness and nature of the conduct that led to Mr Basile's being convicted. I will begin with his conviction for manslaughter for, by its very nature, it is the most serious of his convictions.
122. Mr Basile has given me a view of events that minimises his involvement in the death of Mr Lilikakis. To his daughter, he has minimised his involvement to such an extent that he had nothing to do with the death of a man at all. He was arrested and later convicted because he "looked the part". I cannot accept his version of events for several reasons. The first is that he pleaded guilty to the charge and a:
"... plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the offence: see De Kruiff v Smith [1971] VicRp 94; [1971] VR 761 at 765; R v Henry [1917] VicLawRp 76; [1917] VLR 525 at 526."[56]
123. The second is that the elements of the offence of which he has been convicted do not permit him to renounce responsibility as he would wish to. There is no suggestion that Mr Basile's conviction for manslaughter came about because he was provoked but the following passage from the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in R v Lavender[57] shows the elements of the various categories of the offence of manslaughter that may arise where a person has died:
"As this court held in Wilson v The Queen [1992] HCA 31; (1992) 174 CLR 313 at 333, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender's conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind."[58]
124. Even if I were able to accept that Mr Basile did nothing except stand in the room while Messrs Andos and Mr Latesto administered blows (and I cannot for reasons I will come to in a moment), Mr Basile could not have escaped a conviction for manslaughter. This follows from the effect of aiding and abetting another in the commission of a crime and was explained by Smith J in giving a direction to the jury in R v Lowery and King [No 2]:[59]
"Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another - another whom the law calls the principal in the first degree - if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connection means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal in the first degree."[60]
125. The third reason lies in the regard that the Tribunal must pay to the findings of fact made by a Judge in sentencing a person convicted of a crime. I will begin by referring to the role of that judge and it matters not whether the conviction follows a trial by jury or not:
"1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury ...
126. A five member Court of Appeal in Victoria has set out the standard of proof that must be applied by a sentencing judge:
"[T]he judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."[62]
Where sentencing follows a guilty plea, the findings beyond the elements of the offence must be made on the basis either of an agreed statement of facts or on evidence given to the court.[63] Any facts beyond those elements must either be proved by evidence or be admitted by agreement between the prosecutor and the defence.[64] Where facts have been agreed, a judge may only depart from those facts, or from facts inferred from those facts, if the parties are given sufficient notice to consider whether to challenge that departure and, if appropriate, to withdraw the plea.[65] It is apparent from the transcript of the sentencing remarks of Kaye J that counsel for Mr Basile and his co-accused had cross-examined Mr Latesto and that Kaye J had regard to facts stated by counsel in the course of their submissions.
127. Criminal convictions and sentencing is the task of the courts. What regard must I have to their conclusions in reviewing an administrative decision? This question has been the subject of consideration in several cases. These include Minister for Immigration and Multicultural Affairs v SRT,[66] Minister for Immigration and Multicultural Affairs v Daniele,[67] Minister for Immigration and Multicultural Affairs v Gungor,[68] Ridley v Secretary, Department of Social Security[69] and Saffron v Commissioner of Taxation (Cth) (No 2).[70]
128. These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali.[71] Her Honour recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act is such a section for it permits the Minister to deport persons to whom Division 9 of Part 2 of the Act applies. Such a person is a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded:
"... 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_)._"[72]
129. By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):
" A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction itself is irrelevant. As is stated by G S Bower and A K Turner, in The Doctrine of Res Judicata 2nd ed, 1969, p 215, a conviction is conclusive merely of that which it establishes, namely the fact of conviction for the offence, but not of the facts lying behind that conviction.
... where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279."[73]
130. Even though it is regarded in these circumstances as part of the evidence and not determinative of the grounds on which the conviction was based, caution should be exercised in considering whether to reach a conclusion that runs counter to those grounds. Branson J set out the policy considerations that underpin that caution when she said in Minister for Immigration and Multicultural Affairs v Ali:
"_... 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 at FCR 281-282; ALD 731-732; ALR 662), 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 FLR 445-446; ALD 578; ALR 212-13); and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at FLR 469; ALD 597; ALR 234)."[74]
131. This is a case in which the policy grounds and the facts of the case converge and persuade me that I should have regard to the facts as found by Kaye J.
I cannot ignore the fact that Mr Basile has been convicted of manslaughter and cannot ignore the fact that his conviction follows his own guilty plea and so that he has acknowledged that every element of the offence of manslaughter has been made out against him. Kaye J made the findings of fact on which he based his sentence after taking into account the cross examination of Mr Latesto and having had regard to the evidence of Ms Toy, who had returned to the room with Mr Lilikakis, that of
Ms Liaskos, who had a relationship with Mr Basile and the material put on behalf of Mr Andos and Mr Basile. His Honour was in a far better position to establish what happened that night than I, limited as I am to Mr Basile's version of events and a transcript of the sentencing remarks. This is a case in which I should not depart from the facts as found by the sentencing Judge.
132. On the facts as found by Kaye J, the offence of manslaughter was what he described as "a particularly serious case of manslaughter". He accepted that
Mr Basile, and not Mr Andos, had kicked Mr Lilikakis in the head on three or four occasions. Mr Andos, Kaye J found, was the prime mover in seeking out Mr Lilikakis but both he and Mr Basile readily participated in the violence. Neither made any real step to withdraw from the violence and it was considerable violence that was inflicted on Mr Lilikakis. Kaye J described him as being "cruelly kicked" and as never having a chance to defend himself. The violence was unprovoked and without justification. The fact that Mr Lilikakis owed money to Mr Andos did not provide a justification to an attack that "was vicious, cowardly and utterly reprehensible".
"(1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts."
134. I will start with the purposes that are served by sentencing, parole and any exercise of the discretion to cancel a visa under s 501 of the Migration Act. They are very different and I need to explain them in light of the understanding that
Mr Basile and his children appeared to hold that he had served his time and that was an end of the matter. He had been released on parole and that meant that he was no longer a risk to the community. Neither assumption is correct.
135. It has been said by the Victorian Full Court of the Supreme Court that:
"... ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless ... to attempt to allot to the various considerations their proper part in the assessment of the particular punishments ..."[75]
This approach has not gained universal approbation but what is clear is that its underlying principle has been approved. That is:
"... [T]here are many conflicting and contradictory elements which bear upon sentencing an offender. ... This expression [instinctive synthesis] is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which ... balances many different and conflicting features".[76]
136. I do not need to undertake an exhaustive examination of the various considerations that are relevant in sentencing and will refer only to the very general passage quoted by the Full Court in R v Williscroft from The Courts and Criminal Punishment by Sir John Barry. It reads in part:
"The aims of punishment are often classified as retributive, preventive, deterrent, and reformative, but this classification is plainly an oversimplification. It ignores or leaves inarticulate, for example, other purposes which the criminal law serves by its solemn procedures as a teacher of minimal standards of morality and behaviour; as an agency for the expression of public indignation and condemnation; and as a force operating to produce cohesion within society.
... It [the criminal law] must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which judges discharge the function of imposing punishments upon persons convicted of crimes."[77]
137. This passage sets the context in which very similar principles have been established by s 5 of the Sentencing Act 1991 (Vic) (Sentencing Act):
(1) The only purposes for which sentences may be imposed are -
(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes."
138. These are the principles to which Kaye J was required to have regard in sentencing Mr Basile. That he did so is apparent from his sentencing remarks but the fact that these were the principles underlying his sentence does not guarantee that the sentence will achieve all or any of the purposes for which it was imposed. Therefore, the fact that a person has served a sentence does not mean that his or her rehabilitation will have been facilitated let alone achieved. Similarly, the community will have presumably been protected from the offender while imprisoned but the completion of the sentence does not lead to the conclusion that the community no longer requires protection.
139. Parole may be fixed as part of the sentencing process. Unless a court considers the nature of the offence or the offender's past history to be such that the fixing of a parole period is inappropriate, it must do so if sentencing a person to a term of two years or more.[78] When a non-parole period is fixed under s 11(1) of the Sentencing Act, it must be at least six months less than the term of the sentence.[79] Whether or not parole is given at the expiration of the non-parole period is a matter for the relevant Parole Board but it is instructive to note the short passage from the judgment of Callaway JA, with whom Batt JA agreed, when he set out a number of statements of principle which he later summarised in Director of Public Prosecutions v Josefski [80] In R v VZ,[81] Callaway JA said:
" I put to one side cases where a non-parole period is inappropriate. In other cases, it is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied.
I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element .... The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period .... The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. ..."[82]
140. Rehabilitation is a strong consideration and that is understandable. Parole provides an opportunity for a person who has been imprisoned to re-integrate into society in an environment in which there are both supports to assist that re-integration and consequences should he or she transgress society's laws. Where there is transgression, the Parole Board may decide to return the person to serve the unexpired portion of his or her sentence or part of it or it may not. The transgression will be dealt with separately.
141. Once the period of a person's sentence has expired, the Parole Board has no further role to play. The person may or may not have been rehabilitated as a result of his or her sentence and any subsequent parole period. The criminal law system has rehabilitation of an offender as one of its aims but it does not guarantee that outcome. Therefore, to say that a person who has served his or her sentence or who has been released on parole is not a risk to society does not necessarily lead to the conclusion that he or she will not re-offend. That is why the Minister's Direction requires decision-makers to consider that very matter.
142. The material that I have before me to consider the risk of Mr Basile's re-offending is the evidence about events that led to his offences (including the most recent of manslaughter), his own evidence regarding matters such as the events that led to his offending and his future intentions, the faith that his family has in him, his criminal record, his record in prison, the steps that he has undertaken to rehabilitate himself and articles to which I have been referred.
143. I will begin with the article that is relied on in this context: Recidivisim Rates in a Custodial Population: The Influence of Criminal History, Offence & Gender Factors by Stuart Ross and Tricia Guarnieri.[83] It is a detailed report but it summarises the principle findings of the research as:
"· male and female releases were equally likely to be re-convicted and re-imprisoned;
· releasees who committed their first offence when aged 14 years or less were much more likely to be re-convicted and re-imprisoned than those whose criminal careers started after they were 18;
· releasees with many prior offences were much more likely to be re-convicted and re-imprisoned than those who had only a few priors;
· offenders convicted of property offences were much more likely to be re-convicted and re-imprisoned than those who had been convicted of homicide."[84]
144. These conclusions are supported by detailed statistical analysis of data on 838 prisoners released from Victorian prisons in the mid to late 1980s and reviewed during the next seven years. The paper itself recognises that it has limitations in that the data provides insight into the behaviour of offenders who are at a relatively "developed" stage of their criminal careers and that those persons represent only a small portion of all offenders. It warns against generalising the results to the whole range of criminal offenders.[85] The paper acknowledges that there are difficulties in measuring recidivism and whether a recidivist should be regarded as an offender who has been previously convicted of an offence or, more narrowly, as one who commits something more than minor offences or technical violations of parole.[86] These are only some of the issues that are identified in the paper and of which account is taken in setting the parameters of the research.
145. Issues such as those make me wary of putting too much weight on the conclusions reached in the paper in the circumstances in which Mr Basile finds himself. The general propositions set out in the paper might suggest that Mr Basile has a higher risk of repeating his offending behaviour in view of the fact that he has a number of convictions, some of which are property related. At the same time, they would also lend support to his having a lower risk given that he was over 18 years of age when he started his offending behaviour. I do not think that they help me and
I must look to the particular material relating to Mr Basile as [10.1.2] of Direction requires me to do.
146. Mr Basile was first convicted in 1994 of possessing a dangerous article, possession of an unregistered firearm, possessing a firearm when unlicensed to do so and possessing amphetamine. The three month term of imprisonment imposed for the possession of the amphetamine indicates that it was not regarded as trivial. Suspension of that sentence does not detract from that indication. There was a gap of some seven years before Mr Basile was again convicted of offences. He attributes the second group of offences to the "... turbulent break up with spouse and over concerns about access to children." It might be thought that those offences relating to his breaches of the Intervention Orders could be attributed to that cause and perhaps even the conviction for assault by kicking for all related to events with his wife, his children or his then parents in law. That does not explain his convictions for burglary, theft and handling and retaining stolen goods.
147. There can be no doubt that marriage breakdown, separation and divorce are crises in any person's life. While I can accept, as stated in the report by Stephen Pinlock in Divorce: a man's survival guide, that "To dull the shock and pain, some turn to alcohol and drugs, or they can become violent",[87] there is nothing in the report that supports a finding that a person turns his or her hand to theft, burglary and receiving stolen goods. There is nothing in that report that suggests that divorce leads to a person's offending for an indefinite period. To be fair to its author, it is apparent that it is not written as a scientifically based report that is intended for analysis in a proceeding such as this. It is intended as an aide to those in pain after a marriage breakdown.
148. Mr Basile does not try to attribute the offences of which he was convicted in January and April 2003 to the break up of his marriage. They were committed in June 2002 and he attributes them to the difficulties that he had in returning to a normal life after being imprisoned as a result of the 12 month term of imprisonment imposed in 2001. That may be so but two traits are starting to show at this stage. One is a disregard for others whether it be for their personal safety or for their property. The other is a belief that he is entitled to take matters into his own hands; whatever he thinks is right entitles him to do what he wants to do to enforce his rights. This trait is shown at this stage in the matter of the theft from the cash register of his employer. It was his view that he had not been paid the correct amount so he was entitled to take money from his employer.
149. The culmination of Mr Basile's offences was in the manslaughter conviction. It demonstrated the traits that he had already shown: the disregard for others and his taking matters into his own hands. He has not given any reason for committing this offence either to Kaye J or at the hearing in this case. Kaye J could not divine Mr Basile's reason for kicking Mr Lilikakis in the head. He gave me no explanation. His lack of explanation was either because he did not have one - or one that he wanted to give - or he sees the offence only in terms of its consequences to his life. Having regard to the whole of his life events, I am satisfied that Mr Basile sees every event in terms of its consequences to him. The death of Mr Lilikakis, for example, is something in respect of which he expressed no contrition or remorse. His death did not rate a mention from Mr Basile at the hearing either in his oral evidence or in his statement. Instead, he saw the crime in terms of the consequences to him and in terms of his disappointment about the course his life had taken and the damage to his children. He does not see it in terms of requiring him to make modifications in his behaviour as he thinks that his knowledge of the gaol system will keep him from reoffending. Furthermore, the upsetting life events that were his marriage breakup have passed and he will not over react to them again.
150. A difficulty that I have in accepting Mr Basile's view of the deterrent effect of his most recent imprisonment is that he expressed a very similar view to the Department in 2001. At his interview in the Department, he said that the punishment he had undergone in 2001 had acted as an effective deterrent and he had resolved never to repeat the experience. In the same interview, he had said that the sentence had a huge impact on his children and on his relationship with the children. This is a view he repeated at the hearing. History to date has shown that his punishment has not had a deterrent effect upon him. Not only has he continued his offending behaviour but the nature of that behaviour and its consequences has escalated. That this is so is consistent with what I have found to be his unwillingness, or lack of ability, to understand why he does what he does. It is tied in with his view that he is entitled to take matters into his own hands. This is a trait that continued to find expression at Beechworth when he refused to work because of his view that the boss was a racist. Until Mr Basile works out why he behaves as he does, and stops seeing himself as a person whose reaction, or over-reaction, to life's difficulties and hurdles is simply a consequence of those difficulties and hurdles, the risk of his re-offending is high. This finding is consistent with Ms Mackay's view of Mr Basile i.e. that
Mr Basile talked about his imprisonment in terms of the effect it has had on his life and did not address the reasons behind his offending behaviour.
The length of time that Mr Basile has been ordinarily resident in Australia
151. Mr Basile has been ordinarily resident in Australia since December 1991 and so for almost 20 years. He has developed ties with Australia in the sense that his children were born here and remain here. He has people who are willing to stand by him. They include Mr Bobadilla and his parents in law as well as his children. Mr Bobadilla has had very little to do with him over the past ten years. His mother in law, Mrs Jamett and he have only recently begun to enjoy a civil relationship and it remains to be tested by the normal exigencies of daily living. The same is true of Mr Basile's relationship with his children. It is a relationship that has been developing slowly since 2005 by means of understandably infrequent visits to him in prison and much more frequent telephone calls. Mr Basile looks forward to re-establishing his relationship with his children. I will return to this shortly.
152. The only international obligation that is relevant in this case is that under the Convention on the Rights of the Child. It applies because Michael is under 18 years of age. The Minister's Direction states that "Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents" but factors in a particular case may indicate that a child's best interests are best served by separation.[88] The Minister has set out fifteen factors to be considered in considering the best interests of a child.
153. In this case, Michael is the child but I will begin with Tamara who is 20 years of age but very much a part of Michael's life even though they are currently engaged in sibling rivalry. Both are Australian citizens who have spent their whole life in Australia. Tamara has seen herself as responsible for Michael through the years of his childhood. She sees herself as caring for him and for protecting him from trouble. As he has grown older, Tamara is finding that the task of doing so is beyond her emotional endurance. She wants someone to help her to care for him and to tell him what he should do. Michael does not appreciate Tamara's care however well intended it is for, at this stage, he wants to do his own thing. Tamara, too, is wanting to leave behind her the cares she feels that she has had to carry for most of her life. She wants to be cared for by her boyfriend, Ben, and to do what she wants to do.
154. Just what part the children's mother plays in their lives is hard to gauge. I have Tamara's view of her mother and I have Michael's. They are quite different and the difference lies, from Michael's point of view, in the presence or otherwise of his sister in his mother's home and their relationship. Her presence changes the "atmosphere" with his mother. He is happier in his grandparents' house even though his sister also uses that house as her base. How the children's mother, Tatiana, views her relationship with her children is something that has not been revealed to me. Had she been called to give evidence, she might have thrown a different light on that matter. The letter that she wrote to the Department on 24 March 2010 and annexed to Michael's statement suggests that she would have. She speaks of having spoken with her children and expresses her support for their wish to attempt to re-establish a relationship with their father and that he remain in Australia.[89]
155. I heard from the children's grandmother, Mrs Jamett, and I find that she has played a big part in their lives. The children live with her and their grandfather at the moment and have lived with them in the past together with their mother. They have used their house as a place to go after school as it is well located and, since 2005, have taken telephone calls from their father there. The children both have a relationship with their grandparents that enables them to feel free to do this. Both feel comfortable enough in the relationship to leave their grandparents' home and return to it as they wish. Just how long this will continue is uncertain for
Mrs Jamett is tiring of the caring role and finds it difficult to manage her husband's attitudes to her relationships with her family, including Michael, and her friends.
156. Both Tamara and Michael saw their father after their parents' separation but, initially at least, it was in very emotionally charged circumstances. They enjoyed the longer periods of access and Tamara in particular, as she was older, has very happy memories of those visits and of their outings. Between 2001 and 2005, Mr Basile did not see his children. His absence from their lives dates from some time before his imprisonment in January 2001. It continued after his interview with the Department on 13 February 2002 as he understood that he had to keep away from his wife so that his visa was not cancelled. He was not asked why he had not tried to get access under the Family Court orders but the fact remains that there was no contact between him and the children between 2001 and 2005. The children did not know where he was or what he was doing.
157. Both Tamara and Michael are looking for a relationship with their father. Tamara is looking for the relationship that she and her father enjoyed when she was a child before her parents' separation. Neither of them appears to make allowances for the passage of time and for the changes that life's experiences bring to individuals and their relationships. Tamara is no longer a child but a young woman who clearly has a mind of her own. Michael, as demonstrated by his taking himself away from his family for a month and refusing to have any contact with them or to reveal his whereabouts to them, is also developing a mind of his own. That is not a bad thing but relationships become dysfunctional when all participants are intent on doing their own thing without regard to the impact of their words and actions on others. The relationships in the Basile family appear, on the evidence I have been given, to have many features of dysfunctionality.
158. Michael has a dream of what he wants in and from a relationship with his father but he is more realistic than his sister. Tamara sees herself and her brother living together happily from the start. Michael wants to be with his father and yet he instinctively realises that his father needs to sort out his own life or, as Michael puts it, to be "solid" in the sense of being settled with an income.
159. The upshot is that the relationship between Mr Basile and his children has yet to be tested. It is developing but, to date and by dint of circumstances, has been developing largely by means of the telephone. Until Mr Basile's placement in immigration detention, personal contact was much more occasional because of the distances between Melbourne and the prison in which he was placed. Just what role Mr Basile will play in Michael's life up to his eighteenth birthday or beyond is unknown. I accept that Mr Basile expresses the wish that he have a role in their lives, just as they want him to, but his criminal record and his previous statement in 2002 to Mr James to the same effect, suggest that Mr Basile becomes distracted by activities other than his children.
160. Having listened to both Tamara and Michael and to Mr Basile, it is clear to me that he has never told them about the reason why he has been imprisoned. Not only has he not told them, he has been dishonest with Tamara when he told her that he had been convicted of manslaughter because he had a record and he looked like a person who would commit that crime; he "looked the part". I find he was dishonest because his statement to his daughter is completely at odds with his having pleaded guilty to the offence of manslaughter. His children believe that their father is a good man and that is the way children should view their father but a relationship based on falsities and half truths designed to paint their father in the best light is not a relationship based on a sound footing. Lies have a habit of being found out as do protestations of good intention that are acted upon. Mr Basile is attempting to build his relationship with his children on the former and must act upon his protestations of good intention if he is not to leave them in the position they felt between 2001 and 205 when they did not know where he was.
161. Tamara and Michael both speak Spanish but, while they understand Italian, they do not speak that language. They should not face major difficulty in learning to speak Italian given that they already speak two languages. There is no suggestion that they would move to Italy should their father's visa be cancelled but language would only be a short term barrier for them if they chose to travel to that country.
162. If Mr Basile were deported, he and his children would be denied the opportunity to spend time together in settings outside prison or detention and to decide whether they want to spend that time and whether the relationship of father and children can be restored. They would not be denied the opportunity to maintain telephone contact and, apart from a handful of personal visits during the year, they could continue to develop their relationship. Michael gave evidence that a telephone call for an hour would cost $100. A person can choose to pay a lot of money for an international call of that length or can choose to use a phone card and make it for a couple of dollars. The cost of the call is irrelevant in my consideration.
163. Apart from Tamara, Mr Basile has relationships with the Jametts and with Mr Bobadilla. Mr Basile has ties with Australia but they cannot yet be described as ties that have proved to be enduring. Certainly, those with Mrs Jamett have improved since 2005 and they are more than civil to each other. Those with
Mr Bobadilla were friendly in the past but they have not seen each other for many years. His ties with Italy, however, are even less enduring. Mr Basile has maintained contact with one of his sisters but not to such an extent that he feels that he could call upon her for help were he to return to Italy.
164. If Mr Basile were deported, it would be more difficult for him to build on his growing relationship with Tamara as well as with Michael. The cost of airfares would be a factor in determining the number and extent of face to face visits but telephone calls can be cheap and the cost of airfares is not so prohibitive that the children could not save for occasional trips to Italy. The children have no connection with Italy but they do have family there in their father's sisters and, should he choose to continue with them, the studies that Michael is undertaking in web design will give him skills in information technology that have wide application throughout the world.
165. Mr Basile does not have any formal educational qualifications that would enable him to find employment but he has proved himself talented in the food industry in Germany and in Australia and has worked in a variety of manual positions both in Italy and in Australia. He is at an age where he could still be engaged in those positions in either Italy or Australia.
166. Although Mr Basile denies that he was told that his visa could be cancelled were he to offend again, I am satisfied that he was told. His response dated 24 October 2001 to the Department's letter regarding possible cancellation reveals that he knew that cancellation was being considered. He gave his reasons for wishing to remain in Australia and specifically referred to the fact that deportation would make it impossible for him to have contact with his chidren.
167. In considering the evidence and the primary and other considerations,
I must also have regard to the objectives that are relevant in deciding whether or not to exercise the discretion under s 501 to cancel Mr Basile's visa. At the heart of the objective is the wish to protect the Australian community from unacceptable risks of harm as a result of criminal activity. This is objective is reflected in the first primary consideration identified in [10] and developed in [10.1] of the Direction. It is a primary consideration that has no greater weight than any other primary consideration including the best interests of any child under the age of 18 years.
168. Having regard to all of the considerations, I have decided that
Mr Basile's visa should be cancelled. The risk to the Australian community that he will reoffend is unacceptable in view of the findings I have made about his failing to address the reasons for his offending behaviour. His offences showed a disregard for the property of others and, of far greater concern, a disregard of and for the safety of others. He has shown no remorse for what he has done. I realise that my decision will be a blow to his children but I do not think that it has to put an end to their relationship. It will make it more difficult in that they will not have physical contact very often but a long distance relationship will enable them to build on the embryonic relationship they now have. They are not young children and both are old enough to make the choice whether the extra effort that will be involved is what they want to do. Mr Basile too will have to make extra effort and build up their trust. He does not have any other firmly based relationships in Australia and, apart from his children, his position in Italy will be little different from his position in Australia. In both instances, he has to start again.
169. For these reasons, I affirm the decision of the respondent dated 30 April 2010 to cancel the applicant's Class BF Transitional (Permanent) Visa.
I certify that the preceding one hundred and sixty nine paragraphs are a true copy of the reasons for the decision herein of
Signed: .......................................................................
[6] Interview with officer of Department, Mr James, on 16 January 2002: Supplementary G documents at 18
[14] Supplementary G documents at 25-26
[16] Under s 501(7)(c), a person has a substantial criminal record if "... sentenced to a term of imprisonment of 12 months or more".
[17] Supplementary G documents at 12-13
[19] Sentence subsequently changed when Mr Basile unable to comply due to his being in custody on subsequent charges.
[20] Supplementary G documents at 27-28
[37] Exhibit I at [13] and see also [14]
[48] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 590, 70 per Bowen CJ and Deane J
[50] The Direction is an instrument in writing, that is of a legislative character, has been made by the Minister in accordance with a power given by Parliament in s 499 of the Migration Act: LI Act, s 5(1). Whether a visa is regarded as a privilege or a right, the Direction has the indirect effect of affecting it because decisions regarding its cancellation must be made in accordance with it: LI Act, s 5(2)(b).
[52] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[53] [1923] 1 KB 86; Lord Hewart CJ and Avory and Sankey JJ
[54] [1923] 1 KB 86 at 99
[56] R v D'Orta-Ekenaike [1998] 2 VR 140; 99 A Crim R 454 (Court of Appeal) at 146-147; 462 per Winneke J
[58] [2005] HCA 37; (2005) 222 CLR 67; 218 ALR 521 at [2]; 70; 522
[60] [1972] VicRp 63; [1972] VR 560 at 561-562
[61] R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 (CCA) at 377-8; 591-2 per Gleeson CJ, Mason P, Hunt CJ at CL Simpson and Hidden JJ
[62] R v Storey [1998] 1 VR 359; 89 A Crim R 519 at 369; 530
[63] GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198; 78 ALJR 786; 206 ALR 116 at 211; 793-4; 126 at per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Where a person has pleaded guilty to an offence, the elements of that offence are necessarily admitted. There is no need to lead any evidence in relation to them.
[64] GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198; 78 ALJR 786; 206 ALR 116 at 210-211; 793-4; 125-6; [28]-[31]
[65] R v Duong [1998] 4 VR 68; 99 A Crim R 218 (CA) at 77; 228 per Kenny JA
[66] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 (Branson, Lindgren and Emmett JJ)
[67] [1981] FCA 212; (1981) 61 FLR 354; 39 ALR 649 (Fisher, Davies and Lockhart JJ)
[68] [1982] FCA 99; (1982) 63 FLR 441; 42 ALR 209 (Fox, Fisher and Sheppard JJ)
[69] [1993] FCA 213; (1993) 42 FCR 276; 113 ALR 655 (Spender, Gummow and Lee JJ)
[70] [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19 (Davies, Lockhart and Beaumont JJ)
[72] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673 at 325; 684
[73] [1991] FCA 363; (1991) 30 FCR 578; 102 ALR 19 at 581-582; 21-22
[74] [2000] FCA 1385; (2000) 106 FCR 313; 62 ALD 673 at 325; 684; [43]
[75] R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300 per Adam and Crockett JJ
[76] Wong v R [2001] HCA 64; (2001) 207 CLR 585; 185 ALR 233 at [75]; 611; 252
[77] Quoted in R v Williscroft [1975] VicRp 27; [1975] VR 292 at 300 per Adam and Crockett JJ
[80] [2005] VSCA 265; (2005) 226 ALR 174 at [43]; 183
[82] [1998] VSCA 32; (1998) 7 VR 693 at [15]; 697-698
[83] February 1996, Criminology Research Council Grant 35/89
Director of Public Prosecutions
Josefski
(2005) 226 ALR 174
(2004) 217 CLR 198
(2000) 106 FCR 313
(1981) 61 FLR 354
(1982) 63 FLR 441
(1999) 91 FCR 234
(1997) 41 NSWLR 374
(2005) 222 CLR 67
(1998) 7 VR 693
(1993) 42 FCR 276
(1991) 30 FCR 578
(2001) 207 CLR 585
(1992) 174 CLR 313
(1957) 97 CLR 279
(1979) 24 ALR 577