Waikato and Minister for Immigration and Multicutural Affairs [1999] AATA 36 (22 January 1999)

Last Updated: 9 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/115

GENERAL ADMINISTRATIVE DIVISION )

Re JIMMY BOY WAIKATO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President Dr D Chappell

Date 22 January 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

......(Sgd) Duncan Chappell......

Dr D Chappell

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - criminal deportation - citizen of New Zealand - sexual assault offences against family relative and minor - criminal history - applicant's fear of return to New Zealand - strong family ties in Australia - positive custodial reports - psychological evidence assessed risk of re-offending as more than minimal - given community attitude to offences against children, level of risk of re-offending was unacceptable to guarantee the safety and welfare of the Australian community

Migration Act 1958 ss 200, 500(1)(a)

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189

R v Hillsley (1992) 105 ALR 560

VXX and Minister for Immigration, Local Government and Ethnic Affairs (AAT 8026, 17 June 1992)

REASONS FOR DECISION

22 January 1999 Deputy President Dr D Chappell

BACKGROUND

1. This is an application to review a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Minister) made pursuant to section 200 of the Migration Act 1958 (the Act) to deport the applicant, Jimmy Boy Waikato, from Australia. Paragraph 500(1)(a) of the Act grants the Tribunal jurisdiction to review that decision.

2. At the hearing Mr Waikato appeared in person, and also gave personal testimony to the Tribunal. The following witnesses also testified on his behalf: Chaplain Pauline West, Mr Andrew Pocovi, Ms Pauline Waikato, Mr Bill Waikato, Mr Robert Cosman, Mr Owen Warner, Ms Julie Afchal and Mr Fadi Masri.

3. Mr Russell Rigby, a departmental advocate, appeared for the respondent. No witnesses were called by the respondent to give evidence but at the Tribunal's request, Ms Lyndall Sullivan, a clinical psychologist employed in the New South Wales Department of Corrective Services Sex Offender Program provided personal testimony regarding a report of which she was the co-author. The circumstances which led to the preparation of this report will be described in more detail below.

4. The Tribunal had before it documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) The following exhibits were received into evidence on behalf of the applicant and respondent:

Exhibit No. Description Date

A1 Reference from Mr Alan Glass 18/4/98

A2 Reference from Mr Keith Piper 20/4/98

A3 Reference from Chaplain Pauline West undated

A4 Reference from Mr Greg Butler 1/4/98

A5 Letter to Mr Philip Dale from applicant 21/4/98

A6 Letter from Maynessa Lloyd and documents requested by applicant under the Freedom of Information Act 1982 13/5/98

A7 Letter from Mr A Pocovi 7/5/98

A8 Statement by Pauline Waikato undated

A9 Statement by Bill Waikato undated

A10 Reference from Ms Julie Afchal undated

A11 Reference from Mr Nick Sakellaris undated

A12 Reference from Fadi Masri undated

A13 Department of Corrective Services reporting arrangements 1/5/98

A14 Pre release report by Mr Robert Cosman, NSW Probation and Parole Service 3/3/98

A15 Report of Mr Owen Warner, psychologist 15/5/98

A16 Applicant's certificates of attainment various dates

A17 Applicant's invoice and statement book

R1 Selected pages (4, 5 and 7, 8) from transcript of applicant's trial before O'Reilly J at District Court 17/5/95

1 Report by Ms Lyndall Sullivan, clinical psychologist, Sex Offender Programs, Department of Corrective Services 3/8/98

5. Mr Waikato was born in New Zealand on 27 December 1954. Of Maori heritage, Mr Waikato said that he had never known his biological parents and was raised by his grandparents in New Zealand. He had four older sisters and two younger brothers and a younger sister, but although they were all related they had different biological parents (A15: 1).

6. Mr Waikato described his upbringing and formative years with his grandparents as being extremely harsh and chaotic, and involving violence and neglect. He reported that as the oldest boy among his eight siblings, he received a greater level of physical punishment and said that he attempted to shield younger members of the family from violent discipline from his alcoholic grandmother. He attributed his own later antisocial activities to this formative period of his life. He said that he was forced out of the family home at the age of 15 and then lived for several years on the streets with a group of similarly displaced young people (A 15: 1).

7. Mr Waikato left the street group after obtaining employment as a hotel bouncer. He married in his early 20's and his first child, Pauline, was born shortly afterwards. A second child, Bill, was born about two years later. In addition Mr Waikato and his wife assumed the welfare of a niece when she was three years old. It was this niece who subsequently was to become the victim of the offences which have resulted in Mr Waikato's consideration for deportation (A15: 2). It should be noted that at the hearing of this matter the Tribunal issued an order under s35(2) of the Administrative Appeals Tribunal Act 1975 prohibiting publication of the name of Mr Waikato's niece, who in this decision is referred to as Ms A.

8. On 3 January 1983, approximately 10 years after the birth of his second child, Mr Waikato and his family came to this country to commence "a new life". Mr Waikato also indicated that in coming to this country he was seeking to evade a Maori group called Black Power who had made threats against his life. Although once sympathetic to their cause, Mr Waikato claimed to have fallen out with the group when he was required to control people as a bouncer in a hotel bar frequented by Black Power members (A15: 2).

9. After a short period in Australia the Waikato family returned to New Zealand to finalise arrangements to move permanently to this country (T24: 67). Mr Waikato's wife then indicated that she did not wish to accompany Mr Waikato and the children to Australia. Mr Waikato, however, did return on 7 February 1988 in company with his daughter and son. Since that time, apart from short periods spent on vacation in New Zealand, Mr Waikato and his two children have remained resident in Australia (T24: 67 - 68). Mr Waikato divorced his wife in about 1992 and has had no further contact with her following the dissolution of their marriage. In Australia Mr Waikato found employment as a nursing aide, and also as a worker in the construction and earth moving industry.

10. In early 1991, at a time when Mr Waikato's two children were staying in New Zealand with their mother, Mr Waikato's niece, Ms A, moved to Australia to live with her uncle. At the time of her arrival in Australia Ms A was 11 years of age. On 17 May 1995, Mr Waikato pleaded not guilty to two charges of having sexual intercourse with Ms A without her consent, and in circumstances of aggravation knowing that she was not consenting. The first of these charges related to a period between 13 June and 31 August 1991, and the second to a particular occasion on or about 15 March 1992. On 19 May 1995 a jury found Mr Waikato guilty of both charges. On 22 May 1995 Mr Waikato was sentenced by O'Reilly J, of the NSW District Court at Liverpool, to a term of five years imprisonment with a minimum term of three years on the first count, and to a fixed term of two years on the second count (T16: 36 - 41; T18).

11. On 9 January 1998 the Minister's Delegate, Mr Mark Anthony Sullivan issued a deportation order against Mr Waikato (T25). At the time of signing this deportation order Mr Sullivan stated:

I feel sorry for Mr Waikato's children in Australia who would seem very close to their father. However Mr Waikato has committed extremely serious offences repugnant to the Australian community. His failure to acknowledge the crime and his prior record lead me to believe there is a moderate risk of re-offence. These factors outweigh the strong family ties in Australia and make deportation the appropriate decision (T24: 81).

12. On 3 February 1998 the Tribunal received Mr Waikato's application for a review of this deportation decision (T1). At the time of his conviction in May 1995 for the offences which rendered him liable to deportation, Mr Waikato had accumulated a little under two years of permanent residence in Australia (T24: 68).

ACT AND GUIDELINES

13. Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 9 of Part II of the Act applies. A non-Australian citizen who had been in Australia for a period of less than 10 years in aggregate and has been convicted of an offence for which he or she has been sentenced to imprisonment for not less than one year, is liable to deportation (section 201). It was not a matter of dispute that Mr Waikato's conviction made him liable to deportation within the framework of these provisions of the Act.

14. Australia's criminal deportation policy has been set out in a statement to Parliament (the Policy) made by the then Minister on 24 December 1992 (T4). In the absence of any good reason, and none exists in the present case, this Policy should be followed by this Tribunal in these proceedings; see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 1979 2 ALD 834; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189.

15. Paragraph 12 of the Policy nominates serious sexual assaults as an example of crimes which render a non-Australian citizen liable to deportation. This paragraph also states that "crimes against children, because of their vulnerability, take on a special significance, especially inducement to drugs, sexual assaults, violence, kidnapping, and crimes taking unfair advantage of children" (T4: 13).

16. Note should also be made of the following paragraphs of the Policy:

Guidelines for deportation

9. The purpose of deporting a person who has been convicted of a criminal offence in Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the community that the benefit accruing to the community as a whole by his/her removal outweighs the hardship to the persons concerned and his/her family.

10. The greater the potential effect on the community or the greater the potential damage to the community the lower is the acceptable level of risk that the person concerned will commit further offences...

11. Deportation of a person convicted of crime may be appropriate when a person:

* constitutes a threat because there is a risk that he/she will commit further offences if allowed to remain; or

* has committed a crime so offensive to Australian community standards that the community rebels against having within it a person who has committed such an offence; or

* has not established sufficient ties with Australia to have become a full members of the community and, by reason of his/her conduct, is unsuitable for permanent residence in Australia...

19. The most important broad criteria on which judgements will be based are the nature of the crime; the possibility of recidivism; the contribution the person has made to the community or may reasonably be expected to make in the future and the family and/or social ties that already exist. In particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:

* the nature of the offence as outlined in paragraph 12 and the length of sentence imposed by the court;

* the person's previous general record of conduct. The total criminal history of a person should be given significant weight in making a decision to deport. A person who has been previously warned about the liability for deportation and, notwithstanding that warning, commits a further deportable offence, should expect that the warning will be given serious weight in consideration of his case. A person with several previous convictions against Australian society should usually be judged in the light of that past behaviour;

* the risk of further offences;

* the extent of rehabilitation already achieved, the prospect of further rehabilitation and positive contribution to the community the person may reasonably expected (sic) to make;

* the length of lawful residence in Australia, the strength of family, social, business and other ties in Australia.

* the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected;

* any unreasonable hardship the offender would suffer;

* ties with other countries;

* the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government;

* the likelihood that deportation of the offender would prevent or inhibit the commission of like offences by other persons.

This list is not exhaustive; if relevant, other factors that come to notice will be taken into account in individual cases.

(T4: 13-14)

DEPORTATION CRITERIA: THE EVIDENCE

17. Paragraph 19 of the Policy, set out above, lists the most important broad criteria on which judgements in regard to deportation are to be made. The evidence presented to the Tribunal about each of these - the nature of the crime; the likelihood of recidivism; contributions to the community; and family and allied ties - is now reviewed.

Nature of the Crime

18. Justice O'Reilly, at the time of sentencing Mr Waikato in May 1995, provided the following account of the circumstances behind Mr Waikato's conviction:

The circumstances were that the complainant was aged twelve or thereabouts at the time of the first offence and aged twelve at the time of the second offence. You were, I think, aged thirty six in 1991 and then aged thirty seven at the time of the offence in March 1992.

You were the uncle of the complainant, her mother being your sister and you being in the position of her legal guardian.

Each matter involved full sexual intercourse in accordance with the lay understanding of the term.

Mr Cusack has submitted that it was not a strong Crown case in the sense that there was no timely complaint nor was there corroboration and years ago the jury would have been instructed that in these circumstances it would be dangerous to convict. That is an appropriate submission to make but of course the law in this State has changed quite dramatically in that respect. It was interesting while the jury was deliberating that it asked to hear again the cross-examination of the complainant and the jury appeared to me to listen very carefully to the cross-examination so it is plain then that in spite of the directions that they had that the jury was satisfied with the complainant's account of the matter beyond reasonable doubt. That was the direction they were given that before they could convict they would need to be satisfied beyond reasonable doubt of her credibility ...

It is of relevance that there was a plea of not guilty. I am not suggesting for a moment that you were not entitled to put the Crown to proof of the case but it does remove the element of contrition which could have worked considerably to your benefit and by the conduct of the trial of course it was put to the complainant that she was dishonest (and I am not criticising counsel for a moment in this respect), that she was a compulsive liar, that she stole the rent money and so on.

So far as your record is concerned one matter on it did not go to the jury and that was the matter on 17 January 1972 in New Zealand, you were only I think about 17 or 18 years of age at that time. As Mr Cusack has submitted there is nothing like that in your record, that matter was some twenty three years ago. You have had some convictions in this state since coming to Australia in apparently 1988 or 1989 I think it was. But you have had no sentences of full time custody in this state. The problem is that these crimes carry a maximum sentence of twenty years each. That is an indication of the serious view that the legislature takes of it. I have taken out the statistics from the judicial commission data base and they show imprisonment in ninety one per cent of cases and they show even for people with no prior convictions sentences of a minimum term of over four years in many cases. The relative ages of yourself and the complainant are a great problem.

Mr Cusack has taken evidence from you today that although you were unemployed at the time you have been doing a TAFE course apparently in materials handling. You were well into that course, it would have qualified you for operating plant on building sites.

You were attacked last Saturday in the Long Bay prison complex apparently by five men and I see from your appearance today that you were quite badly beaten. Apparently you were attacked from behind. One assumes that other inmates have taken some view about the matters on which you have been convicted and have decided to mete some form of vigilante justice to you. It is to be hoped that the Corrective Services Department can try to see that that sort of thing does not happen again.

The Crown has indicated to me authority in the Court of Criminal Appeal that this sort of consideration should not weigh heavily in the scales when one is conducting a sentencing process. I think I understand that principle but it seems to me to be a matter that one can have some regard to.

I have no material in the way of a victim impact statement as to the complainant's present psychological position but I have seen her in the witness box and I have seen the way she has handled cross-examination and I did not have the impression that she has long term psychological problems.

(T16: 37-40)

19. During the course of his personal testimony to the Tribunal, Mr Waikato, under cross-examination by Mr Rigby, was referred to these sentencing remarks made by O'Reilly J and, in particular, to the statement made that "each matter involved full sexual intercourse in accordance with the lay understanding of the term" (Transcript 30 June 1998: 43). Mr Rigby asked Mr Waikato whether this was a "fair assessment of what occurred". Mr Waikato then denied that there was "full sexual penetration" on his part on either occasion (Transcript 30 June 1998: 43-44).

20. Despite this denial by Mr Waikato the Tribunal had before it excerpts of the transcript made of Ms A's evidence at the trial in regard to the sexual assaults made upon her by Mr Waikato (see R1). Having had an opportunity to read these excerpts the Tribunal has no doubt that each assault did involve "full sexual intercourse in accordance with the lay understanding of the term", as indicated by O'Reilly J.

21. Paragraph 19 of the Policy, set out above, provides that "the person's previous general record of conduct" and "total criminal history" should be given significant weight in making a decision to deport. It should therefore be noted that at the time of his sexual assault conviction, Mr Waikato had a number of prior convictions for other criminal offences in both Australia and New Zealand. These convictions, which are listed below, included one of indecently assaulting a female under 12, and obscene exposure:

DATE OFFENCE CONVICTION & SENTENCE

17/1/72 Indecently assault female under 12 years Obscene exposure (2 charges) Otahuhu MC*: Probation 2 years on each charge

14/2/72 Found in building w/o intent Otahuhu MC: Sentence if call

22/8/72 Common Assault Pukekohe MC: Fined $40

6/3/73 Common Assault Burglary Otahuhu MC: Detention Centre Otahuhu MC: Detention Centre

11/11/75 Rogue and vagabond (found in building) Pukekohe MC: Fined $50, probation one year six months

20/2/78 Common assault Papakura MC: Fined $75

21/8/78 Fighting in public place Papakura MC: Fined $30

5/10/78 Shoplifting (under $100) Papakura MC: Fined $100

14/6/82 Theft car (under $500) Papakura DC**: Probation one year three months, non-resident periodic detention three months, disqualified from driving three months

21/6/82 Drive when disqualified (first offence) Papakura DC: Fined $150

6/12/82 Theft car (under $500) Otahuhu DC: Community Service 100 hours, order - return of property

3/2/88 Theft property (under $500) Papakura DC: Fined $75, order - return of property

10/11/88 Common assault Papakura DC: Fined $100

7/7/93 Larceny Liverpool LC***: Fined $200

5/11/93 Assault Parramatta DC: Nine months periodic detention from 26/11/93

* Magistrate Court

** District Court

*** Local Court

(T14, T15)

Recidivism Risks

Parole Related Reports

22. At the initial hearing of this matter before the Tribunal, both documentary and personal testimony was provided on behalf of the applicant in regard to his prospects for rehabilitation. In a report prepared for consideration by the Parole Board in March 1998, Mr R A Cosman, a member of the staff of the New South Wales Probation and Parole Service at the John Morony Correction Centre, provided a detailed review of Mr Waikato's progress in custody, his attitude to his offences, and his prospects upon release into the community (see A14). In his report Mr Cosman noted, among other things, that:

Progress in Custody

Mr Waikato's progress has been satisfactory and above average. The Commissioner approved the pre release leave committee's recommendation of C3 day leave, week end (sic) leave and work release on 14 November 1997. Three day leave and one week end (sic) leave have been taken without problems since then. Mr Waikato is currently seeking employment for work release. Mr Waikato has received favourable reports from custodial officers and he has participated satisfactorily in case management. There have been four minor offences while in custody, the last, abusive language, was on 29 January 1997.

Above average reports have also been received from industrial officers. Mr Waikato is employed in the wire shop, and is described as a capable and reliable employee.

While in custody, Mr Waikato has attended education facilities and has almost completed the Year 10 level courses. He is reported to be a committed student and has also completed courses in computers, chain saw operations, welding, horticulture and a pre release course.

There are no drug and alcohol issues and Mr Waikato was assessed at John Morony Correctional Centre as no longer needing counselling. He completed a course in concepts of rehabilitation.

Mr Waikato attended psychological counselling particularly at this centre. The Board is referred to Mr Warner's report. During this sentence Mr Waikato has completed courses in Anger Management, Loss and Grief, Suicide Awareness, and Healthy Lifestyle Studies.

Attitude to the Offence

Mr Waikato pleaded not guilty at his trial for two counts of aggravated sexual intercourse without consent. The victim was his niece who was twelve at the time of the offences. He now admits the offences and acknowledges his wrong doing. He has expressed some guilt and shame and appears genuine in his remorse for his actions.

Along with his acceptance of responsibility for the crime is his acknowledgment that he was in a position of authority and power over the victim, and was considerably older than she.

(A14: 2)

23. Mr Cosman also stated in his report that when released Mr Waikato intended to live with his children and his son-in-law in their home at Campbelltown. This arrangement had been confirmed during a home visit by another probation and parole officer. It was also mentioned that Mr Waikato intended to find employment as a labourer or factory worker upon his release. These post release plans were said to be satisfactory from the view point of the Probation and Parole Service. Mr Cosman concluded his report with the following assessment:

Mr Waikato is now aged forty-three, and presented as friendly and cooperative for the preparation of this report. He is nearing the end of a three-year minimum term of imprisonment for the sexual assault of his niece.

The significant factor of Mr Waikato's progress in custody has been his effort to address his offending behaviour through psychological counselling after initially denying that the offences occurred. His acknowledgments of responsibility and expressions of remorse give rise to optimism for him to successfully complete parole and satisfactorily respond to monitoring and supervision in the community.

Risk of re-offending could therefore be managed satisfactorily in the community. Case plans by this Service would preclude him having unsuppressed access to children under the age of sixteen and would include continued counselling by a treatment provider. Appropriate parole conditions would supplement and reinforce this supervision.

(A14: 3)

24. Mr Cosman's report, which recommended that Mr Waikato be granted parole, had attached a copy of a psychological report prepared in October 1997 by Mr Owen Warner, a psychologist based at the John Morony Correctional Centre. An updated version of Mr Warner's report, dated 26 May 1998, was provided to the Tribunal (A15). In this report Mr Warner noted that it had been prepared by him with a knowledge of Mr Waikato's liability to deportation, and was based upon interviews conducted with Mr Waikato over a seven-month period, psychometric testing as well as a review of departmental records. In his report Mr Warner detailed the social and family background experienced by Mr Waikato during his formative years in New Zealand. Mr Warner said that the correctional records showed that he had received regular visits from his adult children during the period of his imprisonment and he was now a grandfather. If allowed to remain in Austra! lia it was Mr Waikato's intention to develop a business servicing the building industry.

25. In regard to the offences which led to his imprisonment, Mr Warner reported that:

Mr Waikato admits the offence(s) and concedes that he was wrong in his actions. He claims that he was lonely after his wife left him and although he realizes that his actions were unacceptable and traumatic to his victim, he presents as fairly dispassionate in his attitude to the offences. This matter was discussed with him and it appears that it is more a feature of his personality due to his upbringing than any indifference; he has impressed as having genuine contrition about his behaviour. And clinical sessions have been directed at addressing his cognitive distortions in gaining insights into what lead (sic) to the offence.

(A15: 2)

26. On the basis of his analysis of Mr Waikato, Mr Warner concluded, in part:

On the basis of the work he has done and his personality features as discussed above, his risk of re-offending is unlikely to be high.

Mr Waikato has been proactive in preparation for his release and is anxious to re-establish links with his family in Australia. He presents as a reasonable and perceptive man who apparently enjoys the support of his children. And test results and his general presentation, including his gaol performance support the view that he is usually in control of himself and aware of what is expected of him.

Mr Waikato presents plausible reasons for remaining in Australia. These include the fear to his well being (sic) if he returns to N.Z., his statement that he has no ties in that country and his willingness to remain in the country he considers his home with his children/grandchildren and support himself through business interests.

(A15: 3-4)

27. Mr Warner, as did Mr Cosman, provided personal testimony to the Tribunal about Mr Waikato's prospects of rehabilitation. Mr Warner, during the course of cross-examination by Mr Rigby, explained that he had seen Mr Waikato on nine occasions over about a seven-month period commencing in March 1997. Mr Warner acknowledged that Mr Waikato had not admitted to him at the initial meeting in March that he was guilty of sexually assaulting Ms A. However, he said that subsequently Mr Waikato had revealed openly that he had committed the offences as charged and expressed some remorse for his actions. This admission had occurred in about June 1997 (Transcript 2 July 1998: 16).

28. Mr Warner was also asked by Mr Rigby whether he was aware of any previous convictions that Mr Waikato had for sexual offending. Mr Warner said that he did not know of any such convictions. Mr Rigby then told Mr Warner of the evidence before the Tribunal that in January 1972 Mr Waikato had been convicted of indecently assaulting a female under 12, and also of two counts of obscene exposure. Mr Warner said that this information might to a certain a degree have affected his assessment of Mr Waikato's reform prospects, but not in a major way. Nonetheless, in his opinion Mr Waikato's risk of re-offending was not even a moderate one (Transcript 2 July 1998: 16-17).

29. Mr Warner was further questioned by the Tribunal about the nature of the treatment programs available in the New South Wales correctional system for sex offenders like Mr Waikato, and also about his own expertise in this particular area of offender therapy. Mr Warner said that a specialised sexual treatment program was still in the planning stages within the New South Wales system, although a post-release assessment and treatment program for sexual offenders had been opened recently in Sydney (Transcript 2 July 1998: 20-21).

30. Mr Warner went on to explain that within the gaol system, psychologists like himself generally had to handle a broad range of offending, and sexual offending was just one area of concern. It was really difficult to become an expert in every particular area of offending, and he was not himself a specialist. Mr Warner said it might be feasible to obtain a more detailed and specialised risk assessment of Mr Waikato from the new post-release program. Any such assessment would have to be made on a voluntary basis and might include judgement about the type of conditions and treatment regime that would apply should a person in Mr Waikato's situation be released back into the community (Transcript 2 July 1998: 23-24).

Risk Assessment and Treatment

31. Following this testimony by Mr Warner the Tribunal voiced the following opinions about the way it might approach the task of assessing the risk of Mr Waikato's re-offending:

THE D. PRESIDENT: I must say having heard what Mr Warner has said this afternoon about the issue of assessing Mr Waikato's re-offending risk and particularly his acknowledgment that no matter how skilled he is as a psychologist that he's not a specialist in this area that the notion of getting such an assessment done would I think be something that the Tribunal would at least like to raise as a possibility. It's at the core of the matters that this Tribunal has to consider. Obviously it has evidence before it and it can act on the basis of that evidence but it is also apparent that whilst in the correctional system he's not had the benefit of that type of review.

I imagine that if he had have been represented that a person who was representing him would have sought such an assessment and I think that it would be appropriate. My concern on the balance though is that that will take more time if we were to do such a thing and that Mr Waikato is in custody.

Also further, Mr Waikato, I'm speaking to both of you so really I'm also thinking that it would if I were to suggest such an assessment it will clearly require your consent and agreement and in a sense it also would I suppose place you at - well, it could place you in a situation that could potentially I suppose be more prejudicial. I mean, it's possible that the assessment would be one that was such that it was clear that the risk level was high. I mean, I'm, just not sure what it would show but it would certainly provide a great deal of assistance to the Tribunal. I don't think at this stage I'll ask you to necessarily voice any opinion about it although you might like to think about it.

(Transcript 2 July 1998: 25-26)

32. When the hearing resumed on the next day Mr Waikato indicated that he would not have any objection to a personal risk assessment being undertaken by the newly established post-release sexual offender treatment program in Sydney. Mr Rigby, on behalf of the respondent, also said that he would not object to such an assessment being made but reserved the right to call further evidence about the issue upon receipt of any assessment (Transcript 3 July 1998: 13-18).

33. On the basis of this consensus the Tribunal then adjourned the hearing in order to obtain a risk assessment report in regard to Mr Waikato from the New South Wales Department of Corrective Services Sex Offender Programs. In seeking this report the Tribunal indicated that it should include consideration of the following matters:

* assuming Mr Waikato is released into the community, the kind of treatment regime that will need to be put in place for him. This would include an assessment of the feasibility of Mr Waikato continuing to reside with his son, daughter, her defacto partner and their two young daughters;

* appropriate reporting and other conditions on Mr Waikato's parole orders;

* a prognosis of Mr Waikato's prospects for rehabilitation and reintegration into the Australian community, including, if possible, an assessment of his risk of recidivism.

(Correspondence from Ms M Tully to Ms L Sullivan, 8 July 1998)

Ms Sullivan's Report and Testimony

34. On 3 August 1998 Ms Lyndall Sullivan, a clinical psychologist with the Sex Offender Programs, provided a comprehensive psychological report (hereafter the Sullivan Report) on Mr Waikato in response to the Tribunal's request. A copy of the Sullivan Report was also made available immediately by the Tribunal to each of the parties.

35. In a summary form the Sullivan Report concluded that:

Mr Waikato presented as cooperative and highly motivated to remain in Australia in order to rejoin his children and obtain work. He showed some indications of progressing towards change from generally antisocial values and behaviour. However, the report concludes that Mr Waikato at this point has not effectively begun to address his sexual offending and that as a consequence, his risk of re-offence is higher than the purely actuarial measure obtaining in his case would suggest. His current views about his offences embody most of the problems of minimisation of responsibility and harm and distorted attitudes which untreated sex offenders exhibit. Until his sexual offending behaviour is actively dealt with by Mr Waikato as part of his willingness to review and change his life, the issue of risk in this area will remain problematic.

Mr Waikato would need to demonstrate considerably greater levels of self-disclosure, responsibility and capacity for self-regulation and understanding of the developmental needs of children for protection rather than sexual victimisation before a lessened risk of offending in similar circumstances might be expected. He is assessed as not yet ready for participation in this Department's community-based Maintenance Group programme for sex offenders and as requiring more basic psychoeducation and awareness-raising as a prelude to more effective work on his problematic sexual behaviour.

As a consequence, should Mr Waikato be successful in his appeal against his deportation and be released on parole, community safety would rely upon stringent conditions of supervision which would preclude access to children below 16 years.

(Sullivan Report: covering letter, 1-2)

36. On 18 August 1998 the Tribunal resumed the hearing of this matter in order to receive personal testimony from Ms Sullivan about the contents of her report. At this resumed hearing the Tribunal issued a confidentiality order under section 35(2) of the Administrative Appeals Tribunal Act 1975 in relation to disclosure of four paragraphs of Ms Sullivan's report contained under the general heading of "Discussion of Offending". This order did not extend to the fifth and final paragraph of this particular section of Ms Sullivan's report which stated that:

Overall, Mr Waikato's discussion of his offending remained vague, with minimal acknowledgment of his own agency and some imputation of responsibility to his victim. A strong impression was gained that Mr Waikato has so far not accepted a level of responsibility for his sexual offending which might allow for basic work on future self regulation. In this, Mr Waikato resembles many other sex offenders in that the main difference discernible from non-offending individuals appears to be the presence of attitudes and thinking styles which allow the person to override norms and taboos which ordinarily protect children from the imposition of sexual behaviour by adults.

(Sullivan Report: 4)

37. Ms Sullivan was questioned at some length by Mr Waikato, Mr Rigby and the Tribunal concerning her estimation of the risk of Mr Waikato re-offending. Ms Sullivan explained that two major types of risk estimation were available in relation to sexual recidivism. The first of these was an actuarial or static estimate of risk which assigned an estimate to an individual based on empirically demonstrated levels of statistical likelihood of offending. The second was of a clinical or dynamic form which constituted a judgement based upon an assessment of individual, potentially variable features such as emotional functioning, attitudes, thinking style, social support and allied matters.

38. Ms Sullivan said that utilising an actuarial scale (the Hanson and Brussiere Scale) which had been developed and tested with success in Canada, Mr Waikato's purely actuarial risk of sexual re-offending would seem to be of the order of 14% within a five year period and 21% within a ten year period. However, the scale was not recommended for use in isolation and its developers advised that it be adjusted using a wider range of clinical information about individual offenders, and especially their deviant sexual interests. Ms Sullivan said that a commonly used scale for the evaluation of the dangerousness of sex offenders, which combined both actuarial and clinical risk factors to produce a rating of dangerousness in terms of suitability for release and likely required level of supervision in the community, had been developed in Vermont in the United States (the Bays and Freeman-Longo Scale). On a generous scoring of this combined scale Mr Waikato fell at the lo! west end of the high risk category which was defined as one being appropriate for incarceration (Transcript 18 August 1998: 30-32, and Sullivan Report: 4-5).

39. On the basis of her current assessment of Mr Waikato's potential for re-offending Ms Sullivan said that his release back into the community within Australia could only be permitted if there were careful containment and supervision provisions. Mr Waikato appeared to have supportive bonds with his children and he wished to live with his daughter if he were to remain in Australia. The usual practice in parole stipulations concerning the release of child sex offenders was that they should be excluded from living with children and should have no unsupervised contact with any children under the age of 16. Thus should Mr Waikato be allowed to remain in Australia, such a requirement would be a necessary safeguard since his daughter had two infant children of her own and Mr Waikato's conviction showed that he had allowed himself to transgress accepted norms of care of young children in loco parentis. Mr Waikato was also, in Ms Sulliva! n's professional opinion, not at the point at which he could be expected to make substantial gains in a community-based maintenance group program for sexual offenders. Mr Waikato had yet to make the gains of disclosure, responsibility and self regulation which were needed to benefit from such maintenance work.

40. Following receipt of this personal testimony from Ms Sullivan it was agreed that both parties would make written submissions to the Tribunal about the issues raised by Ms Sullivan, and also about other aspects of the proceedings. The last of these written submissions was received from Mr Waikato on 23 November 1998.

Contributions to the Community

41. Reference has already been made to Mr Waikato's record of employment both in Australia and New Zealand. While at the time of the commission of the sexual assaults upon Ms A he was unemployed. O'Reilly J, in his sentencing remarks, observed that Mr Waikato was doing a TAFE course in materials handling which upon completion would have qualified him for operating plant on building sites.

42. Mr Waikato tendered to the Tribunal a number of references from members of the community in Australia who provided positive comments about his character and work performance. His references included a letter from Mr Greg Butler, a managing director of Hawkesbury Frame Truss Pty Ltd, verifying that Mr Waikato was then employed with that firm as a yard man and that if he were to be released from prison he could remain in this employment (A4). Mr Fadi Masri also provided a reference and gave personal testimony on behalf of Mr Waikato. Mr Masri, who owned a tow truck business, stated that he would employ Mr Waikato upon his release from prison.

Family Ties and Associated Matters

43. Both of Mr Waikato's children provided written statements and gave personal testimony on behalf of their father (A8 and A9; Transcript 30 June 1998; 49-56; 1 July 1998: 71-77). In her written statement Ms Waikato said that she was only 18 years of age and her brother Bill 15 at the time when their father was sentenced and jailed. They had found it very difficult to survive and pay the bills for their basic necessities following their father's incarceration. Ms Waikato said that they had no other relatives or family living in Australia and were very dependent upon their father who had maintained contact with them despite being in custody. Together with her brother, Ms Waikato said that they had visited their father on every second weekend. Should Mr Waikato now be deported back to New Zealand they felt that this would cause them very significant hardship, and it would also cause stress and trauma for their father who had nowhere to live in Ne! w Zealand and no family support system to turn to. Ms Waikato said that she also thought her father would find it difficult to settle back into the location where he had previously lived in New Zealand since Ms A, his niece, was also residing in the same suburb (A8).

44. During the course of her personal testimony to the Tribunal Ms Waikato admitted that the first occasion upon which she had heard her father acknowledge his guilt in regard to the sexual assault offences was at the Tribunal hearing (Transcript 30 June 1998: 56). Despite this fact Ms Waikato said that she continued to love her father and had no worries or fears about him coming to live with her family, including her two young children, should he be allowed to remain in Australia (Transcript 3 July 1998: 20-22).

45. In a written statement provided to the Tribunal, Bill Waikato, Mr Waikato's son, stated that his father had been a strong support and friend especially during a period when he had suffered significant harassment at his place of employment. Bill Waikato said that he too believed that his father would not be able to find adequate support from family and friends should he be returned to New Zealand, and that the only family that was important to him were his children and grandchildren in Australia. Mr Waikato said that during the time his father had been in prison he had changed from a hard man who would stand up to anybody to a kind, gentle and caring person who did not demonstrate aggressive or violent behaviour patterns (A9).

CONSIDERATION

Policy and Submissions

46. The various matters which require consideration by the Tribunal in reaching a correct and preferable decision about a deportation case are in general well defined and understood. The relevant guidelines contained in the Policy, which has been set out above, make it clear that most weight should be given to the protection of Australian society, while less weight should be given to the views of the offender and that person's family and associates and any hardship to them arising from a deportation decision. The decision to deport a person from this country stems from the responsibility to protect the Australian community from the possibility of further criminal behaviour by a person like Mr Waikato, or to expel from this country a non-citizen who has seriously abused the privilege of residence accorded to them by that community. It is not, however, the intent of the Policy to impose further punishment upon a person like Mr Waikato who has already! served a significant period in prison for his offences of sexual assault without consent in circumstances of aggravation.

47. Paragraph 11 of the Policy contains a declaration that it may be appropriate to deport a non-citizen who has committed a crime which is so offensive to the standards of the community "that the community rebels against having within it a person who has committed such an offence". There is no doubt that offences against children are regarded with such abhorrence by Australian society that it could be said that anyone who commits a crime of this type falls within the parameters of this particular provision of the Policy. The nature of the revulsion felt even by fellow prisoners for a convicted sex offender like Mr Waikato was referred to by O'Reilly J at the time of his sentencing of the applicant for his offences of sexual assault. These prisoners made a brutal and unprovoked attack upon Mr Waikato when he was supposed to be in the protective custody of the correctional authorities. Such acts of vigilantism have no place in a civilised society, but as Gallop J! said in R v Hillsley (1992) 105 ALR 560:

There is no difficulty in the case of sexual offences against young people in determining the single voice of the community. In relation to other offences, such as those relating to drugs, there may be stratas of society which hold disparate views. But in the case of sexual offences against young people, the voice of the community, through the legislation enacted by parliament, expresses its abhorrence ...

(at 566)

48. Deputy President Thompson also referred to these remarks of Gallop J in the decision in VXX and Minister for Immigration, Local Government and Ethnic Affairs (AAT 8026, 17 June 1992), noting that:

Sexual offences against children are serious both because of their vulnerability and because of the serious harm which such offences are likely to cause to them. Ms Hook, who examined D a year ago and again recently, gave evidence of carrying out psychological testing and of her own observations of D. She said that in her professional opinion D had suffered serious psychological effects as the result of the offences. She was now anxious and depressed. She dealt with problems by depersonalization instead of facing up to them. She did not want to have male children and was worried that, if she did have a son, she would reject him. The effects on D were likely, in Ms Hook's opinion, to be long-lasting. So far as the seriousness of the offences is concerned, therefore, I am satisfied that they must be regarded as high up on the scale, almost at the point at which it could be said that they were so serious that the Australian communi! ty could not in any circumstances tolerate having the applicant continue as a member of it.

(at 10)

49. In the present case the Tribunal did not have any direct evidence before it in relation to the impact of the sexual assaults upon Ms A, Mr Waikato's niece. Justice O'Reilly faced a similar dilemma at the time of his sentencing of Mr Waikato although he expressed the rather surprising opinion, based only on his observations of Ms A in the witness box, that he did not have the impression that she had suffered long term psychological problems (see paragraph 18 above; T16: 39-40).

50. Although lacking an assessment of the impact of Mr Waikato's conduct upon Ms A, the Tribunal has been provided with quite extensive and expert advice in regard to what must be considered to be the crucial issue in this case - the level of risk of Mr Waikato re-offending and the related threat that he presents to the safety and wellbeing of the Australian community, and in particular to children in that community. The Policy makes it quite clear that the level of acceptable risk diminishes in direct relationship to the seriousness of the offence committed by a person confronted by a deportation decision. The graver the offence, the lower the level of risk of re-offending that can be tolerated.

51. Mr Rigby, in his submissions to the Tribunal made on behalf of the respondent, contended that the seriousness of the sexual assaults committed by Mr Waikato was indicated by the fact that each carried a maximum sentence of 20 years in gaol. At the time of the commission of the offences Ms A was 12 years old and O'Reilly J had said that "the relative ages of yourself and the complainant are a great problem" (T16: 39). The offences also constituted a gross betrayal of trust in relation to a child who was under Mr Waikato's care at the time.

52. Mr Rigby referred the Tribunal to the expert evidence provided by Ms Sullivan who stated that the adverse effects of these assaults on a child victim could be expected to be very significant:

The effects are regarded as being very substantial and long lasting and concern...all the major developmental aspects of a child's life ... psychological health, learning capacity, self-esteem, social relationships, trust, experience of sexuality - those are matters of concern that have residual effects.

(Transcript 18 August 1998: 24)

53. Mr Rigby submitted that given the nature of Mr Waikato's offences, the level of acceptable risk of the repetition of such crime was minimal. Neither Mr Warner, who was not an acknowledged expert on sexual offenders, nor Ms Sullivan, who was, had provided evidence to the Tribunal that the risk of Mr Waikato re-offending was minimal (Transcript 2 July 1998: 20; 18 August 1998: 22).

54. In his submissions to the Tribunal, Mr Waikato contended that there was no demonstrated pattern of menacing behaviour or immediate risk to the community which should deny him the opportunity to remain in Australia. Mr Waikato said that Ms Sullivan's report contained no definite prediction about his likely future behaviour and that she suggested that his actuarial risk of re-offending was relatively low. In regard to the combined actuarial and clinical assessment of risk he still fell at the lower end of the high risk category.

55. Mr Waikato said that Ms Sullivan had not spoken with either his son or daughter in reference to the living arrangements that were to be made upon his release from prison. He had been undertaking psychological counselling with Mr Warner for a period of about 18 months and Mr Warner had commented in his personal testimony to the Tribunal that he did not think that there was now even a moderate risk now of Mr Waikato re-offending. While incarcerated, Mr Waikato said he had the opportunity to go on a number of day and weekend leaves, and had also been out in the community on a work release program, without causing any threat or danger to the citizens. He had also completed many relevant educational courses and certificates designed to ensure his ongoing rehabilitation and reintegration into society.

56. Mr Waikato said that all his family ties, which were very strong, were with his immediate relatives in Australia and that if he were to be deported, excessive hardship would be caused to his son, daughter, grandchildren, as well as to himself. There was a risk that such deportation would result in a family breakdown. His family had already been under both emotional strain and financial stress because of his imprisonment and this would be exacerbated by his expulsion to New Zealand. If he were sent back to New Zealand he would be effectively homeless, and at 45 years of age he would have little chance of employment or support in that society. He was also fearful that because of his earlier association with particular ethnic groups in New Zealand there was a risk of some form of retribution or revenge being exacted upon him were he to return to his country of birth.

CONCLUSION

57. Throughout the conduct of his case before the Tribunal, Mr Waikato displayed many positive attributes including a quite keen intelligence and obvious affection for his two children who provided their strong support for his expressed desire to remain with them in Australia. The Tribunal has no doubt that Mr Waikato has also made a significant effort while in prison to gain an understanding of his pattern of offending, and to seek ways of preventing any recurrence of his offences once released back into the community.

58. Despite these positive attributes and an indication of some prospects of rehabilitation the Tribunal cannot be satisfied, on the basis of all of the evidence before it, that the overall risk of Mr Waikato re-offending is at a level which is acceptable to guarantee the safety and wellbeing of the Australian community. The Tribunal accepts the submission made on behalf of the respondent that neither Ms Sullivan, who the Tribunal found to be a most impressive witness, nor Mr Warner, who also provided a thoughtful and professional appraisal of Mr Waikato's reform prospects, judged this risk to be minimal. Ms Sullivan, in particular, stated that Mr Waikato's progress towards rehabilitation had not even reached a stage at which he would be considered an appropriate candidate for a community-based treatment program of the type offered by the New South Wales Corrective Services Sexual Offender Programs. If Mr Waikato were to be released back into the community it co! uld only be under strict conditions of supervision and control. These conditions would be designed to ensure that Mr Waikato had no unsupervised contact with children under the age of 16.

59. The difficult balancing that the Tribunal must undertake in this case between the protection of the Australian community on the one hand, and the interests of Mr Waikato and his family on the other, leads to a conclusion that the pendulum points clearly towards the deportation end of the scale. In reaching this conclusion, and thus determining that the correct and preferable decision in this case is that Mr Waikato should be returned to New Zealand, the Tribunal is conscious this outcome will cause both him and his family quite significant hardship. The Tribunal is also conscious that the victim of Mr Waikato's crimes, his niece, is a resident of New Zealand. This fact, in tandem with the equivalent level of threat that will inevitably be inflicted upon the New Zealand community as a consequence of Mr Waikato's return to that country, suggests the need for close consultation between Australian and New Zealand officials in regard to the arrangements made for M! r Waikato reintegration back into his country of birth. It would be a most cynical exercise merely to place Mr Waikato on a plane headed back across the Tasman. If at all possible Mr Waikato should, upon his return to New Zealand, at least be afforded an opportunity to receive therapeutic assistance of the type referred to in the Sullivan Report.

60. The decision under review is affirmed.

I certify that this and the 25 preceding pages are a true copy of the decision and reasons for decision herein of

Deputy President Dr D Chappell

Signed: ......(Sgd) Melanie Tully, Associate..........

Date/s of Hearing 30 June, 1-3 July, 17-18 August 1998

Last submissions received 24 November 1998

Date of Decision 22 January 1999

Solicitor for the Applicant self-represented

Departmental advocate Russell Rigby