Botha and Minister for Immigration and Multicultural Affairs [2000] AATA 82 (9 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/1336

GENERAL ADMINISTRATIVE DIVISION )

Re NICOLAAS JOHANNES BOTHA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 9 February 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

IMMIGRATION - Subclass 844 Investment Linked Visa - refusal - application of Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 - discretion - crimes of dishonesty - Sentencing Judge's comments.

REASONS FOR DECISION

9 February 2000 Deputy President DP Breen, Presidential Member

1. I heard this case in Brisbane on Wednesday 2 February 2000.

2. The applicant, Nicolaas Johannes Botha, was born in South Africa on 30 April 1955. He and his wife and four children have been resident in, but not citizens of, Australia since 1994.

3. His application to the Tribunal seeks review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 25 November 1999 under Section 501 of the Migration Act 1958 to refuse the applicant's claim to an investment linked visa. The application was for a visa of a kind that bestowed a right of permanent residency in this country.

4. At the hearing before me, Mr Botha was represented by Mr P Smith of Counsel instructed by Messrs Paul Everingham and Associates. The respondent Minister was represented by Mr R Gregg, Departmental in-house Counsel.

5. The applicant himself gave evidence as did his wife, Helena Elizabeth Botha, his eldest daughter Yolandi Botha, and the Senior Minister of the family's Church, Kings Christian Centre at Robina Island on the Gold Coast, Pastor Kindah John Greening.

6. I also received in evidence the "T" Documents (Exhibit 1); a bundle of factual Statements by the applicant, members of his family and Pastor Greening (Exhibit 2) tendered by Mr Smith; a bundle of relevant documents comprising Court transcripts, the relevant Ministerial Direction 17 and extracts from the legislation (Exhibit 3) tendered by Mr Gregg; and as Exhibit 4 a Schedule of the Charges of which the applicant was convicted, the fact which led to the making of the decision under review.

7. In the closing phase of the hearing, the making of submissions pursuant to Section 39 of the Administrative Appeals Tribunal Act 1975 (Cth)(as amended), each Counsel presented a written outline which each, respectively, then addressed.

8. I should record that nothing emerged in the delivery of oral evidence that rendered nugatory any argument advanced in the prepared submission - their preparation no doubt was based on filed and delivered statements, and the oral evidence was true to those statements. Nothing emerged in the course of each Counsel addressing his outline that amounted to more than that.

9. The submissions are therefore presented here in order to record, surely with maximum authority, the case for the applicant and the case for the respondent as they were presented to me.

10. I shall then deliver my findings, and the outcome of the Tribunal's proceedings.

"OUTLINE OF SUBMISSIONS - APPLICANT

1. Mr Botha was born on 30 April 1955 and presently is 44 years of age.

2. Mr Botha is married and has four children.

3. The family moved to Australia (the Gold Coast) in March 1994 and apart from a period of approximately four months in 1994, the family has been residing continuously in Australia. The family was granted a Temporary Residence Visa.

4. The applicant applied for a Business Skills (Residence) Visa on the 14^th June 1997 (Department's document - G1).

5. On the 13 August 1999 the applicant was convicted of six counts of wilful false promise (between the 1^st January 1995 and the 25^th March 1997), two counts of misappropriation with circumstances of aggravation (between the 1^st January 1997 and the 22^nd October 1997), one count of opening an account in a false name (5^th February 1997) and one count of operating an account in a false name (between 4^th February 1997 and 11^th December 1997).

6. The applicant was sentenced to an effective eight year head sentence with a recommendation for release on parole after serving three years imprisonment. Pre-sentence custody of 619 days (between the 3^rd December 1997 and the 13^th August 1999) was declared.

7. It is noteworthy that parole eligibility is on the 3^rd December 2000. With earliest discharge the release date is the 3^rd August 2000.

8. On the 17^th September 1999, the Department wrote to the applicant advising that after reviewing Section 501 of the Migration Act, the Minister's delegate was not of the view that the applicant met the character requirement contained in that section (Section 501(6)(a)).

9. An opportunity was given to the applicant to make a submission to that letter.

10. On the 22^nd October 1999 the applicant's Solicitors wrote a letter informing the Department that fresh evidence had come to light which led the applicant to believe that the conviction ought be set aside. It was also requested that the decision-maker take into account the family situation of the applicant and his lack of previous criminal history.

11. Notwithstanding the submission on the 25^th November 1999, the Department decided to refuse the visa to the applicant under Section 501 of the Migration Act 1958.

12. The essential basis of the decision was that the applicant had a substantial criminal record.

Submissions

13. Section 501 provides:-

'(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.'

It should be noted that the term 'character test' is defined in Section 501(6) of the Act relevantly that a person does not pass the character test if the person has a substantial criminal record. The term 'substantial criminal record' is defined in subsection (7) as meaning a situation where a person has been sentenced to a term of imprisonment of twelve months or more.

14. Direction No. 17(1) headed 'Direction - Visa Refusal and Cancellation under Section 501 - No. 17(2)' provides guidance to decision-makers in respect of the decision as to whether or not to refuse or cancel visas under Section 501 of the Act.

15. Importantly it is stated on page 1:-

'Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizens links to Australia and any relevant international law obligations.'

16. The direction also provides that once a person does not pass the character test, Part 2 provides directions on what considerations are to be taken into account in deciding whether to refuse or cancel a visa.

17. As the applicant understands the position, the only ground upon which he failed the character test was that he has a "substantial criminal record' in the sense that he received more than twelve months imprisonment and thus this hearing is concerned with the exercise of the discretion in accordance with the factors mentioned in Part 2.

18. (a) Protection of the Australian community (para. 2.3 & 2.4)

The direction specifically makes mention of the importance of determining whether the offences relate to drugs or crimes of violence because of the importance of protecting children and young people at risk. Obviously in this case no such offence was involved.

(b) Seriousness and nature of the conduct (para. 2.6)

It is fairly obvious that the offences to which the applicant pleaded guilty can be regarded as serious theft within the meaning of Direction 2.6(1). However it is submitted that this should be read in the context of Direction 2.7 which specifies that two important matters are the extent of the person's criminal record including the number and nature of the offences, the time between the offences and the time that has elapsed since the most recent offence (Direction 2.7(a)) and the repugnance of the crime - crimes involving violence or fraud against defenceless persons (such as children, the elderly, the disabled and the incapacitated) are especially repugnant to the whole community.

19. It must firstly be said that it was not challenged at the time of sentence that the "victims' of the offences were businessmen making a commercial investment (T24). The sorts of people seeking the loans were seeking loans for, for example, $50M US dollars (T28). It is also noteworthy that most of the witnesses for the various eight complainants came from overseas and thus it cannot reasonably be said that any particular person in the Australian community was disadvantaged (T29/35).

20. It is also important to determine the dates of the offences. Count 1 involving Blacksand Pty Ltd involved a count where money was paid in March 1997. Count 2 (Aussie Airlines Pty Ltd) involved a count in respect of which money was paid on the 7^th August 1997.

21. Count 3 involved a situation where money was paid on the 15^th November 1996.

22. Count 4 involved the payment of money between March and April 1997.

23. Count 5 (Daram Quill Pty Ltd) involved the payment of money in April 1995.

24. Count 6 (Luxor Holdings Pty Limited) involved the payment of money on the 21^st January 1997.

25. Count 7 (Omega Hotel Systems) involved the payment of money in March 1997.

26. Count 8 (Bik Wah International) involved the payment of money on or about the 21^st October 1997.

27. The two false bank account charges related to the operation of an account in the name of 'Dr John Barcley'. There was no suggestion of any loss to any particular person.

28. Thus, most of the criminal conduct in this case (with the exception of Count 2) involved a fairly discreet period in 1996/1997.

29. Additionally the submission is that apart from these entries on the applicant's criminal history, there is no other criminal record against him and it is true as defence Counsel submitted at the sentence and not really challenged by the prosecution that the offences were of out of character for the applicant.

30. It is also important to remember that the applicant made full compensation in relation to Count 2 (T31´/20-30).

31. It is also noteworthy that over two years has elapsed since the last offence in this particular case (of course, the applicant has been in jail since December 1997).

Likelihood that the conduct may be repeated (including any risk of recidivism)

32. Paragraph 2.10 correctly in the applicant's submission provides the view that the person's previous general conduct and total criminal history are highly relevant to assessing the likelihood of an offence in the risk of recidivism.

33. There is no evidence in this case that the applicant will commit any further offences. He was never warned previously about the risk of refusal or cancellation.

34. There is no increased risk of recidivism in this case because the applicant does not have several previous convictions.

35. In terms of the extent of rehabilitation already achieved, the evidence is that there have been no breaches whilst in custody.

36. In terms of the applicant's previous good behaviour, it is submitted that he has reached the age of 44 years with an otherwise blameless life. He resided in South Africa until 1989 and then the United States from 1989 until 1994. He is not the associate of any person who could reasonably be suspected of being involved in criminal conduct. He completed the equivalent of Year 12 in South Africa and obtained a Diploma. He served in the Army and the Police Force honourably and worked constantly up until the time he went to Prison. There is no evidence to suggest he is likely to offend again.

General deterrence (para. 2.11)

37. In paragraph 2.11 of the Direction it is said that general deterrence is an important factor. In this case there is no evidence that the refusal of a visa might deter others from committing similar offences.

Expectation of the Australian community (para. 2.12)

38. It is submitted that this is obviously an important consideration. But it is also further submitted that the Australian community would appreciate that one should take into account the risk of recidivism (particularly if it is low) on the effect (if any) on a person's family.

The best interests of the child (para. 2.13 et seq)

39. This is a most important consideration in this particular case it is submitted. The applicant has four children, Yolandi born on the 10^th June 1980; Nicholas born on the 27^th February 1982; Jacques born on the 5^th December 1983 and Janine born on the 2^nd July 1990.

Yolandi in her statement confirms that she left South Africa with her parents when she was only about eight years of age. She says that she arrived in Australian when she was about thirteen. The family immediately established themselves on the Gold Coast and developed a circle of friends and relationships with other families on the Gold Coast. She says that her knowledge and recollection of South Africa is very limited. The mother tongue is Afrikaans and she can hardly speak the language. She has only a very vague memory of what her family looks like and the children have no contact with any family or friends other than telephone contact with their grandparents. Understandably because her father is in prison, they have become reliant upon family, relatives and friends for support. Although temporarily working as a waitress she wishes to enrol in the Griffith University.

40. Nicholas presently is 17. He doesn't have much memory of his years whilst in South Africa. He went to school from Grade 8 to Grade 12 on the Gold Coast. He finished school on the Gold Coast with an OP score of 10 and was School Captain. He is to find out in the week commencing the 31^st January 2000 as to whether he has been accepted into Griffith University. Apart from being involved as a Church youth group leader he believes he considers himself to be an Australian and really all of his links are in Australia. He hopes that once the applicant gets out of jail it is possible to have the family together once more.

41. Jacques in his statement says that he left South Africa when he was about 5 years of age. He has no recollection of relatives or friends in South Africa. All of his friends are in Australia and on the Gold Coast. He presently is in Year 11 and wishes to complete Grade 12 and hopefully go into the engineering field. The family is very close and notwithstanding his father is in jail, he would like the family to get back together.

42. Janine is presently 9 and has no recollection at all of South Africa. All of her friends are on the Gold Coast. Before her Dad went to jail in 1997 they were a very close family and they haven't stopped being close because they go and visit him every Saturday and Sunday. She would like to attend High School in Australia.

43. The links the family has to Australia are confirmed in the following documents:-

(i) The reference of Dianne Tucker;

(ii) Reference of Denise Percasky;

(iii) Reference of Dr Robert Paech;

(iv) Reference of Kindah Greening;

(v) Reference of Dr Tampoe.

44. There is no suggestion in this case there has been any abuse etc by the applicant upon his children (paragraph 2.15).

45. It is submitted the matters mentioned in paragraph 2.16 militate in favour of keeping the family in Australia.

Other considerations (para. 2.17)

(a) The extent of disruption to the non-citizens family business and other ties to the Australian community:

These issues have been addressed above. There is no doubt that there would be a great degree of disruption to the family.

(b) Degree of hardship: (para. 2.17(c))

Whilst it is true there are some relatives in South Australia [sic], the reality is that almost all of the children have little recollection of their relatives overseas. There would be hardship caused by breaking the ties the family has in Australia.

(c) Family composition: (para. 2.17(a))

The fact that there are some relatives in South Africa is not really to the point here. The fact is that the children do no recall them.

(d) Likelihood of the non-citizens seeking to evade any outstanding legal matter:

One would think that in relation to the Australian complainants it would be best if the applicant remained in Australia such that it would be easier for them to pursue their legal remedies against him if that was going to happen. If he was to be refused his visa, one would think this would cause particular hardship to any Australian based complainant.

(e) Breaching conditions:

There was no suggestion that the applicant is to breach any conditions of any outstanding legal matter.

(f) Evidence of rehabilitation and any recent good conduct:

There was no suggestion that the applicant has not been rehabilitated and in fact has had no breaches whilst in prison.

(g) Whether the application was for a temporary or permanent visa:

The application was for a permanent visa.

(h) The purpose and intended duration of the entry to or stay in Australia:

The purpose of the entry into Australia was under a Business Skills (Residence) Visa the conditions of which can still be satisfied by the applicant in this case.

(i) Previous warnings:

There have been no previous warnings to the applicant.

Other international obligations

46. It is submitted that an important international obligation exists in this case namely the United Nations Convention on the rights of the child which are ratified by the Commonwealth Executive in 1990 and entered into force for Australia on the 16^th January 1991. Article 3(1) provided:

'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary consideration.'

No doubt for this reason the interests of the child is listed as a primary consideration in the directive.

47. This received extensive consideration by the High Court in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; see Mason, CJ and Deane, J at 287, 291, Gaudron J at 304.

Examples of the application of the principles

48. (I) Kuvas v The Minister, Smithers J, 25^th September 1978 No. 78/12006.

(ii) Long v Department of Immigration and Multicultural Affairs, W97/244, Registry No. 12475, 5^th December 1997.

(iii) Sharpe v The Minister, Q93/28, 7^th April 1994.

(iv) Vo v Department of Immigration, N97/1175, 5^th March 1998.

RESPONDENT'S SUBMISSIONS

1. This is an application by Mr Nicolaas Botha ('the applicant') seeking review of a decision, by a delegate of the Minister on 25 November 1999, to refuse his application for a subclass 844 (Investment Linked) visa. The refusal decision was made under Section 501 of the Migration Act 1958.

2. Section 501 was repealed and substituted on 1 June 1999. Section 501 in its current form is part of a legislative scheme introduced by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, the provisions of which entered into force on that day. Item 28 of Schedule 1 of that Act provides that the new legislative regime applies to applications made before the commencement date. The new regime is therefore applicable to the application lodged by the applicant on 20 June 1997 (G1/1-37).

3. The applicant was notified of the refusal decision on Thursday 2 December 1999 (s 501G and regs 2.53 and 5.03 of the Migration Regulations). In accordance with s 500 (6L) of the Migration Act 1958, the Tribunal must make a decision in this case by 24 February 2000 (the decision is otherwise taken to have been affirmed by the Tribunal).

Factual Background

4. The applicant was born on 30 April 1955 and is currently 44 years of age. He is married (Helena - age 45) with four children (Yolandi - age 19; Nicolaas - age 17; Jacques - age 16; and Jeannie - age 9). All members of the family were born in South Africa and are citizens of that country. All are currently living on the Gold Coast (with the exception of the applicant who is incarcerated at the Woodford Correctional Centre).

5. The parents and three siblings of the applicant reside in South Africa. The parents and seven siblings of the applicant's spouse reside in South Africa.

6. After first entering Australia as a visitor in 1994, the applicant was subsequently granted a subclass 412 (Independent Executive) visa on 20 June 1995. This is a temporary visa. It was valid until 20 June 1997.

7. On 20 June 1997, ie the day that the subclass 412 visa was to expire, the applicant applied for permanent residence in Australia, via a subclass 844 (Investment Linked) visa (G1/1-37). In that application, the applicant claimed that he was the owner and manager of Corporate Business Attorney's Inc (registered in Panama) (G1/20). He indicated that $750,000 from Corporate Business Attorney's Inc would be invested in a 'designated investment' in Australia (as required by the regulations for this class of visa)(G1/21). That has not occurred.

8. The subclass 844 application contained many claims about the applicant's business background and expertise. However, no evidence was provided to support any of the claims. For example:

The applicant claims that he will represent the Anker Pacific Group (APG) in Australia: 'APG has achieved an excellent reputation internationally ... provides financial packages from US$10m up to US$500m' (G4/116). 'Mr Botha, through APG, has demonstrated over eighteen years, his ability to provide loan finance for clients world-wide. His wholly owned company, CBA, has been successful as an arranger of project finance, a trader of Eurobonds and a trader of US dollars for commercial paper' (G4/117).

Corporate Business Attorney's Inc (wholly owned by the applicant) had a net income of $1,411,400 in 1996/97 (G4/111).

In the early 1980's the applicant established Johannesburg Business Brokers which earned income in excess of one million rand in its first year. He later acquired three other investment companies before moving to the USA in 1989 where he 'established a number of finance management companies in addition to his other activities and managed investment portfolios for large corporations' (G1/121).

9. On 3 December 1997 the applicant was arrested on fraud charges. He has remained in detention since that time. He eventually pleaded guilty to 8 counts of fraud and two counts of opening and operating false bank accounts. He was sentenced, on 13 August 1999, to eight years imprisonment with a non-parole period of three years. He is due for release from prison later this year.

10. The application for a subclass 844 visa was refused on 25 November 1999 and the applicant became an unlawful non-citizen on that date. He is liable for removal from Australia under s 198 of the Migration Act and, subject to this appeal, will be removed to South Africa as soon as he completes the custodial portion of his sentence. His wife and children remain in the community on bridging visas. However, they have no other claim to remain in Australia and will be expected to depart Australia with the applicant (if not before).

Application of Section 501

11. The applicant does not pass the 'character test' (s 501(6)) because he has a 'substantial criminal record' (s 501(7)). The discretion to refuse to grant him a visa is therefore enlivened (s 501(1)). In the exercise of the discretion the Tribunal 'must comply' (s 499(2A)) with the relevant Direction issued by the Minister under s 499 - 'Direction - Visa Refusal and Cancellation under Section 501 - No 17'.

12. The ministerial direction requires the Tribunal to consider a number of 'primary considerations' and also 'other considerations' (para 2.2). Most weight is to be given to primary considerations, however a balancing process taking account of all relevant considerations must [be] undertaken (para 2.2).

Protection of the Australian community (para 2.4)

13. It is submitted that the Australian community requires protection from further fraudulent activity by the applicant. His crimes fall with the designation 'serious theft' (para 2.6(1)) and must be considered 'very serious' within the framework of the ministerial direction. This conclusion is entirely consistent with the sentencing comments of Judge McLauchlan. It is submitted that there is a significant likelihood that the fraudulent conduct will be repeated (para 2.10). There is no evidence that the applicant has any legitimate source of income. His fraudulent activities were serious and extended over a long period (January 1995 to October 1997 according to the sentencing comments). He has shown no remorse for his crimes. At his sentencing he attempted (via his counsel) to mislead the sentencing judge by claiming that he had no association with Corporate Business Attorneys Inc (transcript of submissions on sentence, page 32). This was a complete untruth (see paragraph 7 above). Furthermore, the applicant claimed in October 1999, via his current solicitors, that 'fresh evidence has come to light' which casts doubt on his convictions (G5/134). This sort of statement (which has never been backed up with evidence) is indicative of a complete failure to accept responsibility for his criminal activities.

14. General deterrence - In accordance with para 2.12 of the ministerial direction, weight should be given to the possibility that refusal of a visa to the applicant may discourage others minded to engage in similar schemes.

Expectations of the Australian community (para 2.12)

15. It is submitted that, in accordance with para 2.12, the refusal of a visa is appropriate in this case. The Australian community would expect the applicant to be removed from Australia (which is a consequence flowing from visa refusal under section 501).

Best interest of children (para 2.13)

16. The interests of the three youngest children are a 'primary consideration'. It is accepted that the relocation of the family to South Africa will cause some disruption. However, the 'hardship' to them must take account of the fact that none of the family members are permanent residents. There has never been any basis for the applicant or his spouse to believe that they would be permitted to remain in Australia. They chose to take their family to the USA as temporary residents for some years. They then chose to come to Australia as temporary residents. The children have grown up in an environment where moving home was common. The best interests of the children may be for the children to remain in Australia (the respondent has no evidence about their schooling, friends, etc), but on the other hand it is noted that they have grandparents and numerous aunts, uncles and cousins in South Africa. In any event, it is submitted that the best interests (assuming they would be served by remaining in Australia) are heavily outweighed in this case by the need to protect the Australian community and the expectations of the Australian community.

Other considerations (para 2.17)

17. In accordance with para 2.17 the Tribunal should take account of any other relevant matters. In this case it is submitted that there is very little that can be said on the applicant's behalf. He is the sole architect of his current dilemma. His ties to Australia are negligible. He and his family can return to South Africa and resettle without difficulty. There is nothing in this case which would outweigh the primary considerations which point overwhelmingly to the desirability of affirming the decision under review."

11. The evidence establishes a close family unit, and the distress and hardship to that family unit which will flow from the removal from Australia of the applicant. His wife will accompany him, of necessity their youngest child, their younger daughter (aged 9 years) will accompany them, and it seems the three older children will need to go to another country to make student-visa applications for re-entry.

12. On the evidence overall, the family have established close family ties, a close co-ordination of Church and school family friends and have accordingly been well received in the community in which they reside.

13. However, Australian law is such that those considerations are relegated very much to second place. Ministerial and Governmental policy, now binding on this Tribunal, results in these features of a particular case excluding primary statutory considerations only infrequently. I am not at all persuaded that circumstances of that kind apply here. This family will no doubt be disappointed and disrupted by my decision, but the Tribunal is bound by the law. Its decisions are appealable to the Federal Court if it fails to apply the law correctly.

14. I affirm the decision under review.

15. The applicant's criminal conduct which led to that decision is adequately recorded for the purposes of these reasons by extracts I have drawn from the sentencing remarks made by His Honour Judge McLauchlan QC of the District Court of Queensland when the applicant appeared before him on 13 August 1999 and pleaded guilty to each of 10 counts of dishonesty embodied in an indictment then before the Court. Judge McLauchlan said:

"You appear before the Court on very, very serious charges of dishonesty. The amount involved is in the neighbourhood of $1.1 million and the offences appear to have been committed during the period running from January 1995 to October 1997.

You apparently persuaded people, who one would have though were hard-headed business people, to pay to you substantial amounts of money mostly in United States dollars, on the basis that you could obtain from some prominent bank documentation of such a nature that other financial institutions would be likely to or would, in fact, provide a guarantee of funding as a result of which money could be raised for these people to pursue projects they were interested in on the footing that no collateral other than the assets of those projects would be required by the ultimate lender.

There is no doubt that you told many lies to these people to get the money from them and that you then behaved in an evasive and fraudulent fashion to endeavour to retain the fees they paid you without having to perform your side of the bargain. So it was deliberate, calculated and extensive fraud dealing with large amounts of money. In the area of fraud it is a serious case.

It is said on your behalf that although the amounts we are talking about exceeded a million dollars you personally only got about 470,000 or, I suppose, round about 500,000 but the fact is that all the money seems to have gone to you or your associates or persons whom you used or involved in this scheme.

It seems remarkable that people who apparently were used to dealing in large amounts of money should have been induced to pay money to you as they did. It seems extraordinary. The only explanation I can think of is that for some reason you can persuade people that you are an honest person and that your word can be relied upon and they unfortunately seem to have taken that view to the extent of, as I say, paying considerable sums of money to you without anything at the time it was paid and on a basis of some document having a financial effect which one would have thought would be slightly surprising in the circumstances of your clients.

It is right to say however that you were dealing with business people who were interested in making money. You were not dealing, on the whole, with people who represent the more vulnerable members of society or people who are placed in a vulnerable position such as solicitors' clients or people in retirement villages and I think it is right, as Mr Macgroarty has submitted, that many of the cases which have been cited to me on the question of penalty do involve persons vulnerable in that way.

These people I do not regard in that light. They apparently saw you as some heaven sent opportunity to get funds which they would have had great difficulty in getting otherwise and they were prepared to pay you substantial sums of money for the privilege. They were just there to make a profit and I suppose one possible explanation is that greed overcame their better judgment.

I do not feel upon the evidence which is before me that anything would be achieved by ordering you to pay restitution to these people. I suspect that the restitution would not be forthcoming in any event.

......

I do not think I need to say any more about the seriousness of the offences. It is high level fraud. As I say it is rather surprising to a Court that this sort of thing does succeed but apparently it does succeed. There is very little, if anything, that can be said for you by way of excuse in respect of these matters.

There are some references before me which indicate that people thought you were a man of good character and the suggestion is that you are and that these activities were out of character. I find it hard to accept that view of things. The facts are incontrovertible and indeed they are not controverted. What you did on a number of occasions over a substantial period is entirely inconsistent with any proposition that you are a man of good character.

......

You are a 44 year old man someone told me. You are married and you have four children and it does seem quite extraordinary that at this stage in your life and situated as you were you should have engaged in this conduct unless you expected to be in a position, ultimately, to repay these people because obviously you must have known that they would be aware that they had been cheated in the end and obviously you would then be faced with the position of repaying their funds or facing the criminal proceedings which you have faced.

......

The principal thing in your favour is the fact that you have pleaded guilty to the offences. The Crown concedes that a trial would have been a very expensive one. You are entitled to credit for that and you will get credit for that.

......

That brings me to the question of sentence. The sentences imposed in the cases which have been referred to me are in the order of ten years or a year or so less in some cases. In some cases they are more than that because there have been a number of offences and the periods of imprisonment have been imposed cumulatively to get to a total of something like 12 years in some cases.

In your case I take into account particularly the fact that you were not dealing with people whom I regard as vulnerable. You were dealing with people who no doubt thought they were using you, although in a legitimate way, as you were using them in an illegitimate way.

I think that an appropriate head sentence in respect of these matters is a term of imprisonment for a period of eight years. That specifically will be a term of imprisonment of eight years in respect of counts 2 and 8 in the indictment and will be a period of 18 months in respects of counts 9 and 10 in the indictment relating to the bank account and in relation to the other counts in the indictment will be a period of four years and all those terms of imprisonment will be concurrent.

In view of your guilty plea I am prepared to recommend parole after a period of three years rather than after four years as would otherwise be the case. So you are sentenced accordingly and I declare that you have served pre-sentence custody in respect of these offences from 3 December 1997 to 13 August 1999 which is a period of 619 days and is to be counted as time served in respect of the sentences which I have just imposed."

16. It is my view that this Tribunal is in the position of being required to accept the fact of the conviction, and, further, of being required to give great persuasive value to the comments of the Sentencing Judge in assessing the seriousness of an applicant's offending behaviour. The Sentencing Judge has all of the relevant circumstances of the offences placed before him by the Prosecutor, he has the benefit of off-setting submissions on that issue by Defence Counsel and he has the considerable benefit of full exposure of the personal profile of the convicted person also being placed before him. It is against the background of that exhaustive information that sentencing comments are made. They are made, therefore, with great authority and are to be regarded as such.

17. I accept the assessment of Judge McLauchlan of the seriousness of the applicant's offences and I accept his finding of want of good character in the applicant. It follows that the risk of like offences in the future imperils the interests of the Australian community to the point that the protection of those interests must prevail.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed: Emma Oettinger

Associate

Date/s of Hearing 2.2.00

Date of Decision 9.2.00

Counsel for the Applicant Mr P Smith

Solicitor for Applicant Messrs Paul Everingham & Co

Counsel for the Respondent Mr R Gregg, Departmental Advocate

Solicitor for the Respondent