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austlii:cth/ARTA/2026/433
General information, not legal advice.
ARTA
2026-03-26
General Member J
Original judgment source is linked above.
"I acknowledged the seriousness of the crime I have committed. I understand that even though the firearms I held at my property were for hunting purposes at my farmhouse, however it was unregistered and if it falls into the hands of another person, it could have been used for other illegal purposes. My mind wasn't thinking straight as I was more concern (sic) about my drug habits and couldn't even care about any consequences whatsoever. > > I also acknowledged that withdrawing money from my parents account without them knowing is a serious crime for fraud. I needed money so desperately for owing people, outstanding bills and for my drug habit (daily), and due to this situation, which led me down the path of doing the wrong thing. > > > > > > > >
STATEMENT OF FACTS ISSUES AND CONTENTIONS SUBMITTED BY THE APPLICANT TO THE ADMINISTRATIVE APPEALS TRIBUNAL
APPLICANTS UPDATED AND UNDATED STATEMENT PROVIDED TO THE ADMINISTRATIVE REVIEW TRIBUNAL AT HEARING ON 13 JANUARY 2026
APPLICANTS OFFENDING HISTORY AND DISTRICT COURT SENTENCING COMMENTS 1 MAY 2017
AGREED FACTS AND SENTENCING CAMPBELLTOWN DISTRICT COURT 15 MARCH 2018
"Firearms constitute a significant hazard within the community, and particularly to the police. Firearm offences in Sydney are rife and are of grave concern to the community. This offender had no legitimate purpose for possessing this firearm. He says it was for target practice and shooting rabbits, and that may well be so, but had it fallen into the wrong hands it could well have been used for illegal purposes. Others knew of his possession of this firearm. > > It was kept in residential premises where young children were present. It was initially kept between the mattress and the base of the bed. The offender was concerned enough to secrete the firearm first in the bed and then in the spa. I infer in those circumstances he knew full well that the possession of that firearm was illegal. He knew full well that it was unlikely that he would be able to obtain a license due to his physical impairment. > > In terms of where on the range the offence falls, I find it falls at the midrange. The offence is aggravated by reason of the fact that the offender was on three s 10 bonds at the time. I referred earlier to his antecedents. They are not such as to aggravate the offence but do disentitle him to leniency. > > This offence was committed in February 2014, four years ago. He was committed to stand trial in April 2015 and, as I have said, the plea was not entered until October 2017. It has of limited utilitarian value given the history of the matter in the District Court. I allow him a 10% discount for his plea. His plea does demonstrate some contrition. As to whether he is truly remorseful, it is difficult to say. He does not demonstrate any insight into the impact of such a firearm falling into the hands of criminals. He does say that he is sorry for what he has done. He has put the community, the police, and indeed his family at risk by possessing this firearm. > > His prospects of rehabilitation I find are guarded given his past attitude when interviewed by Community Corrections. His Honour Judge Zahra was of a similar view. His Honour found it unlikely that the offender would commit similar offences to that which were committed against his parents in the future. Hopefully the same can be said about this offence. He was sentenced to a significant period of custody and, as Judge Zahra stated, that should have a substantial deterrent effect upon him. I adopt what His Honour Judge Zahra had to say in that regard. > > It is difficult to know what the prospects of reoffending are likely to be. The Community Corrections Service considers the offender to be at a medium to high risk. I would not disagree, although given the length of sentence he will be in custody and on parole, hopefully that will enhance his prospects for rehabilitation and reduce the likelihood of him reoffending. There can be no doubt that his time in custody will be more onerous because of the nature of his disabilities. His speech and mobility difficulties will make him particularly vulnerable. > > ... Mr Lewis, you are convicted. You are sentenced to a fixed term of imprisonment for two years and three months commencing on 21 October 2017, expiring on 20 January 2020. I declined to set a non-parole period as the sentence is wholly subsumed in the sentences imposed by the District and the Local Courts respectively. As matters stand you are eligible for release to supervise parole on 20 January 2020".
The property the subject of the first count on the indictment, being a count of aggravated break and steal, consists of rural property containing a residence and adjoining garage and sheds. At the time of the offending here Mrs Jill Lewis and Mr Anthony Lewis resided on the property. Jill and Anthony Lewis are the parents of the offender Russell Lewis. The offender SF is the de facto partner of the offender Russell Lewis. > > The property was previously owned by the offender Russell Lewis. In May 2005 Jill and Anthony Lewis purchased the property from the offender for the sum of five hundred thousand dollars. > > Jill and Anthony Lewis carried on business on the property which included land excavation, drainage and plumbing. Equipment and tools used in the business were stored on the property. The business equipment included a truck and excavator. > > The offender Russell Lewis at times worked in the business. In evidence Mrs Lewis said no monies were owing to the offender nor did he have access to business accounts or their personal accounts. Mr Anthony Lewis said prior to departing for travel overseas on 4 November 2013 the truck and excavator were left with the offender Russell Lewis so that he might undertake work of the business, if customers required, or for his own use. > > Mrs Lewis controlled the business bank accounts and personal bank accounts. Access to the bank accounts included Internet access. Mrs Lewis used a password or pass code to gain access. The password was written in a notebook which was kept in a filing cabinet in a bedroom of the house which was used as an office. The business papers which were kept in that room included a number of chequebooks. > > In the days leading up to 4 November 2013 Jill and Anthony Lewis were making preparations for overseas travel. On 4 November the offender Russell Lewis took possession of the truck and excavator. On that day the offender went to the property to collect some foodstuffs. He was told that a security camera had been installed. > > At the time of departure Jill and Anthony Lewis secured their premises. A key had been left in the lock on a rear door. It was the Crown case that, at some time prior to the departure of Jill and Anthony Lewis, the offenders came into possession of that key. Mr Anthony Lewis said in evidence that the accused did not have keys to the house. > > The daughter of the offender SF, KRJ, had been residing with the offenders. She said that about midday on the day the Jill and Anthony Lewis left for travel overseas her mother told her that she was going to see Mr and Mrs Lewis and asked her to look after her children. She said her mother and Russell Lewis left the home and when they returned, they had with them a basketful of cleaning products and toiletries and other household items. She said she had a conversation with her mother, and her mother told her that Mr and Mrs Lewis told them they could have the items because they would not be used by them when they were overseas. Ms Johnston said that about a week later her mother told her that she was going back to the farm and, after a couple of hours, the offenders returned with an esky with frozen food and a portable air conditioner. She said she recalled a couple of TV screens were also brought into the home. She said at the time her mother was holding documents which she said look like bank statements with Jill Lewis's name on them. She said on a couple of other occasions she saw her mother with documents. She said one time her mother came home with a folder. She also recalled tools including power tools being brought into the home. > > Ms Johnston said on one occasion, around mid-December, her mother told her she needed to go to the farm and that she also went to the farm with her mother and the offender Russell Lewis. She said they entered the house using a key. When she entered the house Ms Johnston said she saw her mother in what she described as a computer room or office and that she was looking through documents and looking at the computer screen. She said that she believed that her mother was accessing Internet banking, and she saw an image depicting a bank logo on the screen. She said her mother told her that she was looking for passwords to sign into the account. She said her mother asked her whether she could help her search for the password. > > Ms Johnston said that at Christmas time "there was a lot of money and a lot of items coming through the house". She said at the time her mother was otherwise in a poor financial position. One occasion Ms Johnston said that Russell Lewis told her that her mother SF had been transferring money from Mr and Mrs Lewis's account. She said that Russell Lewis told her that her mother was transferring at least $5000 from Mr and Mrs Lewis account almost every week". > > ..." When Mr and Mrs Lewis returned to their home from their overseas travel they notice the front door of the house was locked however when they entered the house they noticed the bedroom door was open and wardrobe drawers were also open. The contents of the bedroom, which was used as an office, was scattered around the room. Mrs Lewis said that papers which had been kept in a wall unit in the dining room were also scattered around. Mrs Lewis noticed a TV which was previously affixed to a wall was missing and TV in the dining room was also missing. She observed that the key from the rear door had been removed. At the time of their return to the home the phones were not operating. The following day Mr and Mrs Lewis reported the entry into the property and the taking of items to police".
"Risk assessment testing carried out by Community Corrections indicated that the offender is at "medium/high risk of reoffending". Factors identified as requiring attention include family, financial management, accommodation, associates and drug and alcohol use. The report notes that the offender, in his attempt to apportion blame for the offences to his parents, has "[failed] to identify that his drug use at the time appears to have been a contributing factor". The report notes that, in the opinion of the author, the offender would benefit from the period of supervision by Community Corrections. His supervision would include "referral to EQUIPS foundation program, referral to financial counselling, drug testing and referral to programs or services to address drug issues if deemed appropriate". > > The psychologist expressed the opinion that the offender requires treatment and monitoring of his depression as he has been suicidal in the past. > > Whilst the offender has a number of convictions over a number of years his record could not be said to be extensive. At the time of the commission of the offences for which he faces sentence he was subject to a bond and there have been some minor convictions since the offending here which impacts upon the assessment of the offender's prospects of rehabilitation. The offender Lewis' life in recent years could also be said to have been chaotic. It is somewhat unclear as to the reasons and mechanisms behind the difficulties he faces in the community. The offender faces a significant period in custody and that will have a substantial deterrent effect upon him. The offender also requires a lengthy period of supervision in the community upon his release in order in order achieve some stability in his life. The offender requires lengthy supervision so that the risk factors and treatment needs identified in the psychologist report and the pre-sentence report can be addressed. It is difficult to predict the offender's prospects of rehabilitation. It is unlikely however that he will commit offences of this gravity in the future. Supervision in the long-term upon his release and the implementation of treatment programs will ensure his prospects of rehabilitation will be significantly enhanced. For these reasons I find special circumstances".
PSYCHOLOGISTS REPORT ANTHONY DIMENT 25 FEBRUARY 2017.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
REVIEW HEARING 13 and 14 January 2026 and 9 March 2026
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
a) legal consequences of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests.
(i) that the Applicant passes the character test; or > > (ii) that there is another reason why the original decision should be revoked.
Primary Consideration 1: Protection of the Australian Community
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Nature and seriousness of the Applicant's conduct to date
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[2]
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
Primary consideration 2: Family Violence committed by the non-citizen
Primary Consideration 3: The strength, nature and duration of ties to Australia
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Primary Consideration 4: Best interests of minor children affected by the decision
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Primary Consideration 5: Expectations of the Australian community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Legal consequences of decision under section 501 or 501CA
(a) Primary Consideration 1, Protection of the Australian community from criminal or other serious conduct; > > (b) Primary Consideration 2 family violence committed by the non-citizen; > > (c) Primary Consideration 5, The expectations of the Australian community.
[1] Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.