"SROO" and Minister for Immigration and Multicultural Affairs [2000] AATA 999 (15 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 999

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/384

GENERAL ADMINISTRATIVE DIVISION )

Re "SROO"

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Deputy President J Block

Date 15 November 2000

Place Sydney

Decision The decision under review is set aside and the Respondent is directed to grant the Applicant's application for citizenship.

..............................................

Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - citizenship - refusal to grant - applicant convicted of murder - Australian Citizenship Instructions - whether of good character - risk of recidivism - whether a reasonable amount of time has passed since last crime

Australian Citizenship Act - section 13

Re Boskovic and Minister for Immigration and Multicultural Affairs [2000] AATA 251

Goldie v The Minister for Immigration and Multicultural Affairs [1999] FCA 1277

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

REASONS FOR DECISION

15 November 2000 Deputy President J Block

1. (a) The decision under review in this matter is the Respondent's refusal dated 11 February 2000 to grant Australian citizenship to the Applicant on the grounds that he does not satisfy the requirements of section 13(1)(f) of the Australian Citizenship Act 1948 ("ACA") that he be "of good character".

(b) The Applicant was represented by Mr Michael Jones, a solicitor, while the Respondent was represented by Ms Sharon Hanstein, a departmental representative.

(c) The Tribunal had before it the T Documents and also two sets of supplementary T Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The T Documents and also both sets of the Supplementary T Documents were numbered sequentially and so that it is unnecessary to distinguish specifically between the T Documents and each or either set of the Supplementary T Documents. Accordingly, in these Reasons the term "T documents" includes, unless the context requires otherwise, the two sets of Supplementary T Documents. The Tribunal had in addition before it exhibits as follows:

* Exhibit A1 is a set of documents (referred to at the hearing as the "Applicant's documents") consisting of a letter by the Applicant to this Tribunal and also the Department of Immigration and Multicultural Affairs ("the Department") dated 12 May 2000 and a number of (in some cases) lengthy attachments (in one case an attachment to an attachment). Some of the documents in Exhibit A1 are included in the T Documents

* Exhibit A2 is a document dated 31 July 200 entitled "Position Description". For reasons set out later in these Reasons I do not propose to go into any detail as to the office currently held by the Applicant.

* Exhibit A3 is entitled "Employment History...." Here too I do not, for reasons set out hereafter, intend to go into any detail as regards the Applicant's employment history with his current employer.

* Exhibit A4 is a report dated 5 November 2000, addressed by Dr Wendy-Louise Walker to the Applicant's solicitor, Mr Jones.

2. (a) By way of background and purely in order to set the scene, I commence by including the following extracts in these Reasons:

(i) The section headed 'Chronology' contained in the Respondent's Statement of Facts and Contents dated 16 October 2000 and which reads as follows:

1. The Applicant [SR00] was born on 30 March 1951, at Telford in England. (Tp99)

2. He arrived in Australia on 21 February 1976. (Tp64)

3. [SR00] became a permanent resident on 16 August 1979, on the basis of marriage to an Australian citizen), Lynette Joyce Lynch. (Tp72)

4. They have been separated since 1980. (Tp77)

5. On 28 September 1985 [SR00] strangled his former de facto, [Ms Joan Smith]. (Tp50) .

6. He was arrested and charged with murder on 28 September 1985. (Tp62)

7. The sentencing judge accepted that on 20 September 1985, some eight days before the killing, the prisoner had said, inter alia, and referring to the deceased, "I'll throttle her". (Tp56)

8. Dr Milton, a psychiatrist concluded in his report that:

"It is impossible to offer a definite comment concerning the future and the chance of a repetition of the incident. ...In short, it was impossible to form a clear idea of the emotional context in which [SR00] views the offence because he revealed so little of himself .... on the interview with me it was impossible to judge with confidence the likelihood of a repetition of the offence if he becomes involved in another close relationship". (Tp57)

9. He was convicted of the crime on 12 December 1986 and sentenced to 18 years imprisonment with a non-parole period of 12 years to date from 28 September 1986. (Tp62)

10. The sentence was recalculated pursuant to the provisions of the Sentencing Act 1989 to be a minimum term six years eleven months and five days which commenced on 28 September 1986 and an additional term of three years five months and fourteen days. (Applicant's documents p3)

11. [SR00] was released to parole on 2 September 1993. The additional term expired on 15 February 1997, however he was supervised for the maximum period of three years which expired on 2 September 1996. (Applicant's documents p3)

12. On 14 February 1992 [SR00] was given an oral warning, followed in writing, that, while the Ministers delegate had decided on this occasion not to order his deportation from Australia on the basis of his conviction, any further conviction would lead to the question of deportation being reconsidered, and disregard of the warning would weigh heavily against him in the event of his case being reconsidered.

13. On 4 October 1997 [SR00] was arrested in Pittwater Road, Dee Why for urinating on the rear of a parked motor vehicle. (Tp69)

14. On 30 October 1997 he was convicted of conducting himself in an offensive manner in a public place. He was fined $100. (Tp67)

15. [SR00] applied for Australian citizenship on 10 September 1999. (Tp42)

16. His citizenship application was refused On a finding that [SR00] is not of good character under section 13(1)(f) of the Australian Citizenship Act (the Act) on 11 February 2000. (Tp6)

17. On 10 March 2000 he applied for review of this decision to the Administrative Appeals Tribunal (AAT). (Tp3)

(ii) By way of balance, the facts as contained in the Applicant's (undated) Statement of Facts and Contentions, read as follows:

1 .The applicant has been a permanent resident of Australia since August 1979.

2. On 12 December 1986 he pleaded guilty to a charge of murder in the Supreme Court of NSW and was sentenced to 18 years imprisonment with a non-parole period of 12 years.

3. The applicant's sentence was recalculated under the Sentencing Act 1989 (NSW) to become a minimum term of 6 years 11 months and 5 days and an additional term of 3 years five months and 14 days.

4. On 14 February 1992 the respondent decided not to order the applicant's deportation on the basis of his conviction.

5. During his term of imprisonment the applicant was permitted to take part in an industrial training scheme permitting him to work outside the prison for 2 days per week, and later was permitted to take part in a work release scheme permitting full-time employment outside the prison. The applicant was employed by the [Public Body] with the knowledge and permission of the [Public Body's superiors].

6. The applicant was released on parole on the earliest possible date, being 2 September 1993. He was supervised by the NSW Probation and Parole service until 2 September 1996.

7. During his period of parole the applicant was granted permission to travel overseas to visit his sick father.

8. In 1997 the applicant was convicted of a summary offence for which he was fined.

9. The applicant continues to be employed by the [Public Body] and currently holds the position of [Officer].

10. On 10 September 1999 the applicant applied for grant of Australian Citizenship pursuant to s 13 of the Australian Citizenship Act 1948,

11. On 11 February 2000 the respondent decided to refuse grant of Australian citizenship to the applicant on the grounds that the applicant did not satisfy the requirement of paragraph 13(1)(f) that he be "of good character".

(b) I emphasise that my inclusion (in sub-clause (a)) of the Chronology and also the Applicant's contentions as to the Facts should not be construed so as to mean that I accept that in respect of each or either party the relevant statement is in all respects correct or indeed complete. By way of one example only, the Respondent referred (in clause 8) of the Chronology to a report by Dr Milton. In fact the psychological evidence given at the Applicant's murder trial was by no means confined to that furnished by Dr Milton. There was indeed other relevant evidence, referred to in the sentencing Judge's remarks and set out later in these Reasons. Those sentencing remarks indicate that the Judge preferred other psychological evidence, markedly different than that given by Dr Milton. There are other aspects of each party's contentions, which while perhaps not incorrect when regarded in isolation, take on a different colouring in the context of the matter as a whole.

(c) There is another matter of a preliminary nature. On 10 March 2000, Deputy President McMahon issued an order under section 35(2) of the Administrative Appeals Act 1975 in the following terms:

Being satisfied that it is desirable to do so, by reason of its confidential nature, I hereby order and direct, pursuant to sub-section 35(2) of the Administrative Appeals Tribunal Act 1975, that the hearing of this application shall take place in private and that the name of the applicant shall not be disclosed except to the respondent to the proceedings and its legal advisers, the applicant's legal advisers and to the member of the Tribunal constituted to hear the application for review and members of the staff of the Tribunal

Accordingly the matter was heard in private and this decision is prepared so as to conceal the identity of the Applicant, and in compliance with the order given by Deputy President McMahon. It became clear during the hearing that it is also necessary, to prevent disclosure of the Applicant's identity, that these Reasons be circumspect as to the office held by the Applicant. He occupies a position of responsibility in a well known [Public Body] and one of the witnesses at the hearing was his immediate superior in the [Public Body] concerned. I propose to refer to that organisation simply as "the [Public Body]". Moreover the trial at which the Applicant was convicted (having pleaded guilty) of murder and sentenced, received (so I was told) considerable publicity. For these reasons, and in order to achieve the spirit, if not the precise form of Deputy President McMahon's order, it is necessary for me to edit these Reasons further, and thus, in two cases, to use pseudonyms. Accordingly the deceased will be referred to throughout these Reasons as "[Ms Joan Smith]" (which is of course not her real name). Similarly the name of the Applicant's immediate superior in the [Public Body] will be concealed and he will be referred to as "[Mr James Brown]". All quoted passages contained in these Reasons have been edited in conformity with all of these provisions.

I note in this context that I accept that the office held by the Applicant at present with the [Public Body] is a responsible position requiring honesty, integrity, discretion, and an ability to cope with people in circumstances which are not always easy.

(d) The T Documents refer to the Respondent as the Department. However, this decision was made by a delegate of the Minister for Immigration and Multicultural Affairs, and it is for this reason that this decision has been prepared on the basis that the Minister is cited as the Respondent.

(e) In relation to the question of whether or not the Applicant is of good character, the Respondent has directed (in accordance with the Australian Citizenship Instruction ("ACI")) that very careful consideration should be given to paragraphs 4.8.20 to 4.8.28 of the ACI where an Applicant has (inter alia) been sentenced to a term of imprisonment of 12 months or more. Those paragraphs are contained in pages 35 and 36 of the T Documents. I set out only those paragraphs which are of particular relevance as follows:

4.8.20 Nature of anv offence(s). Consider the seriousness of any offences committed by the applicant in the context of ordinary community standards. For example, crimes of violence, sexual abuse, drug trafficking, major fraud and other crimes which have incurred a prison sentence or sentences totalling 12 months or more are ordinarily considered to be serious, and should be given due weight in an assessment. Alternatively, less serious offences would be reflected by the leniency of a sentence and, possibly, in the remarks of the sentencing Judge if available.

4.8.23 Number of offences committed. Consider whether a crime was a one-off occurrence that can now be considered "out of character", or whether the person's criminal records shows repeated offences and a pattern of unlawful behaviour which would suggest that the applicant is not of good character. Where the offence was not out of character, consider whether the applicant has been rehabilitated (see 4.8.26 - 4.8.28 below).

4.8.24 Circumstances leading to the crime being committed. Consider whether there were any extenuating circumstances relating to the crime being committed. For example, a crime committed under periods of temporary psychological disturbance (including post-natal depression, battered wife syndrome, involuntary effects of medication) or under duress may be given less weight than if these circumstances did not exist. The onus is on the applicant to provide evidence supporting a claim of extenuating circumstances.

4.8.26 Behaviour since the crime was committed. A person's previous behaviour as evidenced by a criminal record is relevant in assessment of character, but it is the person's behaviour and reputation at the time of the decision which has greatest relevance. Decision-makers must be satisfied that a person is of good character at the time of decision. Policy does not establish any specific time requirement for a finding of good character. However, a reasonable amount of time will need to have passed since the last crime was committed to establish a pattern of good behaviour and thus justify a conclusion that a person is now of good character.

4.8.27 The applicant's behaviour since commission of a serious crime can in part be evidenced by the existence or otherwise of subsequent convictions. Other relevant factors which may be taken into account include whether or not the applicant has stable employment, his or her status in the community, involvement in activities indicating contempt/disregard or respect for the law or human rights. The onus is on the applicant to demonstrate that there has been a change in his or her character since last offending.

4.8.28 Present reputation in the community. The applicant could demonstrate a good reputation in the community by providing references from reputable Australians, particularly employers (but not family members), attesting to their good character and whether they support the application for citizenship. Decision-makers are entitled to give substantially more weight to statutory declarations than to other statements. Declarations from character referees that acknowledge the person's criminal background, and attest to a change in character since, should be given considerable weight.

3. The documentation in this matter is large. The T Documents (including both sets of T Documents) run to nearly 200 pages. Exhibit A1 alone runs to approximately 70 pages. The report which is Exhibit A4 includes Dr Walker's current curriculum vitae which indicates that she is a most eminent clinical and forensic psychologist. In referring to the size of the documentation, I do not mean to suggest that any of it is either unhelpful or otiose. Indeed, the position is exactly the contrary. This is a case where many of the documents are of such relevance that quotations are particularly apposite. It is for this reason that these Reasons include on occasions quite lengthy extracts from the documents.

4. As set out in the Chronology the Applicant was born in England in March 1951. His oral evidence before the Tribunal revealed that:

(a) He studied at Portsmouth Polytechnic and in 1972 obtained an honours degree in business studies from that institution. While studying for that degree he worked for Marley Tiles in Reading, and he continued to work for them for two years after he graduated.

(b) In 1974 the Applicant moved to London with a view to travelling with his friends. For some while he held temporary jobs, including one position at Heathrow Airport with Securicor for six months as a security officer.

(c) The Applicant arrived in Australia in 1976. His first three months were spent in Perth, where he drove taxis. After moving to Sydney he continued as a taxi driver eventually owning his own taxi licence (in co-ownership with [Ms Smith]). Apart from a period of two years travelling around Australia with [Ms Smith] and during which time he owned (for brief periods) a landscaping business in Darwin, and a cleaning contract business in Perth, the Applicant has lived in Sydney. He said that it was indeed the profits from the sales of those businesses which contributed to his and [Ms Smith]'s ability to acquire a taxi licence.

(d) In the mid-seventies the Applicant had had a relationship with a Susan Maxwell, whom he originally met when she was in England. After that relationship ended, the Applicant (in 1979) married his wife Lynnette whom he had met in Tasmania about a year previously. That marriage was disastrous, according to the Applicant, because of his wife's drug habit. (The Applicant said in his evidence that so far as he is aware he is still married to Lynnette.)

(e) The Applicant's close relationship with [Joan Smith] commenced in 1979 although he had known her for some two years previously. He travelled around Australia with her and returned to Sydney with her, and where they commenced living together.

(f) [Ms Joan Smith] did on occasions have sexual relationships with other men. (Dr Walker's oral evidence before the Tribunal, but not that of the Applicant, was that she contracted a sexually transmitted disease from just such an affair with a man in Perth and that she communicated that disease to the Applicant.)

(g) Prior to 1985 the Applicant had parted from [Ms Smith]. However, although they were not living together and although [Ms Smith] had formed a sexual relationship with another man (with whom she may or may not have been living in a de facto relationship) in a flat owned by that other man's brother, she and the Applicant continued to have a close relationship. It seems that [Ms Smith] was not able or willing to terminate the relationship in any final way. She would say that she would not contact him for a period but invariably would do so. Dr Walker's evidence was that the Applicant did not know whether the relationship had terminated or not, that he loved [Ms Smith] very much, and that their relationship continued to be one of close involvement even though they were no longer living together.

5. (a) On 28 September 1985 the Applicant murdered [Ms Smith] by strangling her.

(b) The sentencing remarks of His Honour Mr Justice Maxwell on 12 September 1986 proved to be of such importance that a substantial part of his remarks can usefully be reproduced in these reasons. The following extract is taken from pages 51 to 60 of the T Documents as follows:

The prisoner was born on 30 March 1951, so that he is now thirty five. He is a married man but his marriage was described as being one of "convenience" apparently to enable the prisoner to work in Australia. I am satisfied that there are no suspicious circumstances surrounding this aspect. The prisoner arrived in Australia in 1975 from the United Kingdom where he had been born. He is not, it is said, an associate of the criminal element nor addicted to intoxicating liquor or any drug. The prisoner was arrested on 28 September 1985, and although granted bail on 14 November 1985, it was not entered into until 12 December. The Detective Sergeant then gave evidence as to the relevant facts leading to the charge. The prisoner for some six years had had an intimate relationship with the deceased and for much of that time they had lived together. However there had been difficulties and from time to time separations occurred and about three weeks before her death the deceased had left the place at which they were both living together at 17 Quirk Street, Dee Why. She went to live in Lagoon Street, Narrabeen and accommodation in that unit at that address had been arranged by a William Shea, it being occupied at that time by the latter's brother. The prisoner knew where the deceased was living at Lagoon Street and on 28 September the prisoner met a friend of his, a Mr Peter Sherry, at the Manly Warringah Leagues Club where they had some drinks. Shortly thereafter, the prisoner left the Leagues Club and went to the North Narrabeen beach for a short time from whence he went to the unit in Lagoon Street being occupied, inter alia, by the deceased. He had a conversation with her and she then went with him to the beach where they remained until about 6.30pm. They then went to a coffee shop restaurant at Collaroy and after a cup of coffee they returned to the house at Quirk Street. The prisoner informed Sergeant Bernasconi that he and the deceased had been talking for sometime on the beach about their relationship and that discussion went on throughout the evening until the time of her death. After having had the coffee, the prisoner had persuaded the deceased to go to his unit and whilst she was seated in a lounge chair in front of him, he kneeling before her, they had a discussion which could perhaps be described at emotional in relation to both of them and it was during this discussion that the prisoner placed his hands around the deceased's throat and strangled her. Following this he picked up her body and placed it on a bed in the house and then rang his friend Mr Sherry and told him what he had done. Mr Sherry went to the house at Quirk Street and from there he telephoned the police. Subsequently, the prisoner had a formal interview with the investigating police officers as a result of which a typed record of interview was produced and it is before me marked Exhibit "D".

I do not think it is necessary to refer in any great detail to this document except to indicate that he did appear to give to the police clear and coherent answers which include detailed admissions as to guilt describing clearly how the killing occurred.

There is no doubt, as I have said, that prior to the death of the deceased she had left the unit in Quirk Street where they were living together and had gone to live in other premises and was then enjoying an association with another man. On those bald facts one could readily be forgiven for assuming that this was a crime of passional namely, that the prisoner our of jealousy of the other man and as a result of the deceased leaving him, he murdered her. However I do not think that the matter rests there on that basis. I say this because there are some strange facets of their relationship over the six years that they had been associating together and a deep emotional reaction one to the other which is displayed not only in the discussions he had with Professor Wendy-Louise Walker, a well known and respected Clinical psychologist and Associated Professor and Head of the Department of Behavioural Sciences at the University of Sydney in its Faculty of Medicine, but also in the letters they sent each other.

The Professor has had over nine, two to three hour interviews with the prisoner and also had the benefit of reading the bundle of letters and cards passing between the prisoner and the deceased (Exhibit "E") to which I have just referred. I also have the benefit of a seven page detailed report of Professor Walker (Exhibit I). I do not propose to set it out in great detail but in it she refers to, inter alia, the prisoner's family background, his mental state and personality, her clinical assessment of him and, in depth, details of "background information" and "the relationship with the deceased". She also set out in detail the facts elicited from the prisoner during the interviews concerning the deceased.

The Professor concludes her report with the following:

"It is my opinion that [SR00] strangled [Miss Smith], whom he loved dearly, in a dissociated state of consciousness produced by the prior weeks of psychoIogical torment and ambiguity, the dissociation being facilitated by the effects of alcohol wearing off. I believe (sic) that he had been showing signs of dissociation over the prior weeks, finding himself driving near her flat without conscious intention to have done so. In this dissociated state I believe that a major division of consciousness occurred, with conscious awareness remaining with caring, supportive thoughts and feelings and the angry, jealous suffering thoughts and feelings separated by a barrier of incomplete amnesia. I believe that [SR00] did not in any way plan to kill [Miss Smith] or even, in any full sense, intend consciously to do it while the strangling was taking place. While [SR00] can remember the events, he is quite amnesic for any feelings of anger and for any intention to do what he was doing.

This was not complete dissociation, as would have been the case if [SR00] lost all recall for a time and then found himself with the dead girl. However I believe that very significant dissociation did take place, with two separate and distinct streams of consciousness working separately. Tragically the forgotten stream of consciousness was controlling physical action, while the stream accessible to memory comprised a weeping observer"

The Professor also gave evidence before me. In response to a request by me to assist in explaining or suggesting any association of the condition, she concluded the prisoner was in at the time of the killing with any possible significant diminution in culpability, she said:

"I believe that as I described it over the weeks proceding (sic) [Miss Smith]'s death that [SR00]'s controls which. Controlled impulses and direct action, his controls of consciousness in fact slowly became less effective, permitting more of the splitting into streams to take place. I was able to make the assumption from those descriptions of dissociation that [SR00] in fact was very likely an excellent hypnotic subject, that was some thing I did not: investigate, but the degree of dissociation he described would make me predict that, dissociation being one of the mechanisms underlying hypnosis, that he would have been an excellent subject."

Then following some further discussion and explanation, she said:

"In this case I believe very sincerely that what I described did happen, that at the stage, whether he kneeled on the floor, somewhere there the dissociation, the splitting, became more complete. Now this is a phenomenon I can predict very easily with a research subject in hypnosis. This has been demonstrated since the 18th Century. That I can be talking to a subject in hypnosis and talking and also suggest that the right hand holding the pencil is likely to write but you won't think about that, if the hand wants to write it will write and in a gifted subject the subject will write or may write if so inclined, will not be aware of what is written, they will. be aware in hypnosis of the transaction verbally with me and afterwards the subject even in hypnosis will be as inquisitive or as surprised as I about the content of that writing, so that I believe that the equivalent to the hand that is doing the writing, I believe that one's set of conscious processes, of conscious processes, divided off in fact did, did the strangling, whereas the conscious awareness was focussed on his own inner experience as an observer and yet he still was able to call out to God for help but unable to stop it and that is consistent with you know my research and clinical experience often using hypnosis was that I did feel that this was a genuine description and I went over it many times.

It was very difficult for him to describe it the first time, to get any sort of detail and I recall I had to get [SR00] to kneel on the floor in front of me and put his hands up in the position, to close his eyes and then to start to tell me about it so that it was difficult memory to access, and I might say at that stage I had no concern for my safety. It was the only way he was able to get much recall at all, was to kneel in the position so that I believe that indeed that his culpability, I believe it was diminished."

I am not unmindful of the fact that, in a statement, a Mr G M Elder, has said that on 20 September 1985, some eight days before the killing, that the prisoner had said, inter alia, and referring to the deceased, "I'll throttle her". However, I also bear in mind that Professor Walker was aware of this and had in fact discussed the matter with the prisoner. She said it did not alter or affect the conclusion she expressed in her report.

I have also the benefit of a report from Dr Neil Phillips, a Consultant Psychiatrist. In it he described a number of psychiatric conditions which could disturb a person's cognition, perception or conscious state in such a ways as to make them more likely to kill. He then proceeds to negative their applicability to this case; but at p3 of his report of 28 November 1986, goes on to say -

"I understand that [Joan Smith] had been having an affair with another man at the time of the first separation and that this affair resumed at the time of the second separation. The role the affair may have played in the development of [SR00]'s mental state at the time of the murder is not clear, although he reports that it was not upper most on his mind and that he was not aware of murderous fantasies through jealousy."

He concludes his report in these terms:

"A dissociative state occurs where there is a kind of division within a person's consciousness in which there can be alteration of perception, alteration in the quality of thinking, restricted access to the more usual mechanisms of self control and both detachment from feelings and sudden access to normally hidden and unexpected feelings. Dissociated states can occur at times of intense emotional stress and it can be understood as a defence against intolerable psychological conflicts. These non epileptic dissociative states are not, as far as we know, due to the underlying brain disease although there may be an inherent tendency for some people to enter these states more readily than others. The transition from a fairly normal state of consciousness into a dissociative state can be very abrupt or it can involve a gradual slipping into dissociation. From the history I obtained from [SR00], it seems to me that most of the change was gradual and occurred through the evening as he and [Joan Smith] struggled to deal with their intense feelings. I think there may have been a plunge into a deeper level of dissociation moments before the murder took place and the absence of memory for the period between [SR00] placing [Joan Smith]'s body on the bed and his calling his friend suggests the possibility of an even deeper dissociative state. [SR00]'s friend's description of him being like a stunned mullet tend to support this idea."

There is also a report of a Dr Milton, a Psychiatrist. He examined the prisoner on 4 December 1986 and as I understand it, the purpose of the Doctor's examination was to determine fitness to plead. The Doctor concludes his report in these terms:

"It is impossible to offer a definite comment concerning the future and the chance of a repetition of the incident. [SR00] claims that the sessions with Professor Walker have enlightened him greatly and he is now much more able to express emotion than he was previously and knows himself a great deal better. I did not see much evidence of this. In short, it was impossible to form a clear idea of the emotional context in which [SR00] views the offence because he revealed so little of himself. It is possible that more of himself might be revealed if he were to have counselling over a period of time, but on the interview with me it was impossible to judge with confidence the likelihood of a repetition of the offence if he becomes involved in another close relationship."

Nevertheless, I find greater assistance from the evidence of Professor Walker who has had many interviews with the prisoner and a much closer relationship.

There is a plethora of evidence as to the prisoner's background, excellent character and quiet disposition. He is, apart from the offence to which he has pleaded guilty, a man of exceptional character. Indeed, his younger brother and cousin have flown out from England to support the prisoner and to give character evidence on his behalf. In addition, three friends and business associates gave similar evidence. They were Messrs. Sherry, Fletcher and a Mrs. Cross. The latter is a married woman with a young daughter and the prisoner has been residing at their home during his period on bail.

However, matters such as good character, remorse and prior disposition are not matters to be taken into account on the issue or question of whether the prisoner's culpability for the killing was significantly diminished by mitigating circumstances; "whether disclosed by the evidence in the trial or otherwise". See Reqina v Bell (1985) 2 NSWLR 466. The circumstances relied upon must (be) such as to be causally connected with the crime. Then if they can be said to diminish significantly the prisoner's culpability for the crime the other matters character, remorse etc., can be taken into account. See R v Bell.

I have also had the benefit of thoughtful and earnest submissions from both the learned Crown Prosecutor Mr Lord Q.C., and from learned counsel for the prisoner, Mr Pritchard Q.C., Mine is not easy task, however in the light of the evidence Professor Walker, and bearing in mind that it is not really contested, I have to the come to the conclusion that the condition of the prisoner at the relevant time as described; does amount to a circumstance or circumstances significantly diminishing his culpability for the crime. Therefore, I am not bound to impose the sentence of penal servitude for life which would have been the case before the introduction of the proviso to s 19 of the Crimes Act.

The factors which I am entitled to take into account in considering sentence are those to which I have already referred. They are, previous excellent character; no prior criminal record; remorse; the plea of guilty to murder; the mitigating circumstances in relation to the crime and the likelihood or perhaps, certainly in this case of rehabilitation. There are in cases such as this many thoughts or feelings which should not influence the determination of the sentence. However, those feelings are ever present. There is the ever present sympathy for the family of the deceased person. There is frequently a feeling of sympathy for a person who is otherwise of excellent character who has killed the woman he loved. There is also the ever present feeling of' sympathy for the family of the prisoner. Of course, whilst the passage of time tends to assuage feelings of pain and anguish, it will never erase from the minds of the deceased's family the fact and circumstances of her death. Nor, one supposes, given the fact that he loved her, will time ever erase from the prisoner's mind the fact that he killed her. A sentencing Judge does not set out to create personal satisfaction in the minds of the parents or relatives of a deceased person or in the minds of the prisoner or his family. A sentencing judge's aim and purpose is to pass upon a prisoner a sentence which accords with those principles of sentencing which have been enunciated over the years by the Courts.

(c) The Tribunal is of course bound by the sentencing remarks of Justice Maxwell and is precluded from looking beyond them: Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245 (per Branson, Lindgren and Emmett JJ).

(d) The Judge's remarks make it clear that he considered that there were indeed circumstances of an extenuating nature and such that he was not bound to impose a life sentence. The Judge furthermore took into account a number of factors, including the certainty of rehabilitation, the fact that the Applicant's previous character was excellent, the fact that the Applicant had no prior record, and his remorse.

(e) The Applicant in his evidence said that his solicitor at the trial had advised him not to plead guilty on the basis that he might have been found guilty of a manslaughter charge. The Applicant however preferred the advice of his barrister and decided to plead guilty. Even more to the point is the fact that he made it clear that he felt that he was fully responsible for his actions.

(f) There was a significant gap in time between the Applicant's arrest and his sentence. Although he did not initially seek bail, he did so about two weeks after his arrest and while he was on remand. He was allowed bail, coincidentally by the same Judge who eventually sentenced him. He believes that he was allowed bail in part because there was police evidence as to the manner in which he had cooperated with them. Of the bail amount of $30,000, he paid one half and his friends provided the other half. He went back to driving a taxi and, moreover his solicitor introduced him to Dr Walker with whom he had lengthy sessions (more than 9) consisting of two to three hours each, and on a monthly basis.

6. (a) In 1991, the Applicant was threatened with deportation. He himself wrote a lengthy letter dated 22 November 1991 to the Department (Exhibit A1, pages 7-12). The Tribunal considers that the Applicant's letter was articulate and moreover indicative of intelligence. Clauses 3, 4, 7 and the summary of that letter are reproduced as follows:

. . .

3. The risk of further offences.

Obviously the major concern of your department in acting on behalf of the Australian community in making this decision as to my future, must be the consideration of the possibility of whether or not I could re-offend. Firstly, in general terms, I think it could be safely argued that I have not led a 'criminal' lifestyle in my 40 years to date and, therefore, I, am not likely to embark upon such a path now. In relation to general law breaking activity I do not think that anyone. needs to have any concern as to my possible change of lifestyle. More specifically, there would, naturally, be great concern in your decision making process as to whether or not I could repeat the offence for which I am convicted. My answer is simply 'No'. I justify this by way of drawing your attention to the expert assessments of all the professionals with whom I have had dealings over the past six years and, most particulary (sic), to the opinion of Dr. Wendy Walker. Once the background to the offence is known and understood it becomes evident that one of the major contributing factors was my own mal-development in certain areas of my personality. As Dr. Walker would put it, 'a part of him had not found himself in the adult world'. Accordingly this meant that I was in a position where I did not know how not to involve myself in certain situations in a relationship and, secondly, having got myself into such situations, I had not acquired the normally developed defence mechanisms to cope with them. I will expand on this when I address the topic of rehabilitaion (sic) but, suffice it to say at this point, I feel that the reasons for my behaviour have been truly identified and appropriate measures taken to ensure that such a situation could never arise again. Even allowing for the possibility of me being involved in stressful situations in inter-personal relationships in the future I now have correctly developed defence mechanisms which would negate the possibility of me re-offending in such a manner.

4. Rehabilitation.

As I have previously indicated I have never tried to offer excuses for my behavour (sic), only explanations. From the time the offence was committed there was only one question to be answered, 'why did this happen ?'. It was a question asked not only by myself but, also, by all those who were involved and knew me well. In the interim six years I have endeavoured to address all issues relating to the offence in the most energetic manner of which I am able. My relationship with Dr. Walker was, in the first instance, and has continued to be, the cornerstone of my development and rehabilitation. I have availed myself to all counselling possible, both before incarceration and since, and as part of my personal development programme I intend to make this an ongoing element of my future life. The opinion of the professionals who have monitored the progress of the entry of the mal-developed part of my personality into the 'adult world' has reaffirmed my own opinion that I have undergone considerable change in this area. It is my request that your department is prepared to place significant emphasis on the opinion of the various professional people who have prepared reports on my behalf. All of the people concerned are well trained in their respective fields and all have a positive opinion as to my progress in addressing the issues that caused the offence to be committed in the first place. Dr. Walker is considered a leading expert in her field and she is very positive in her response. Similarly, the assessments of the Community Corrections officers, the prison psychologist and the senior officers of the Department of Corrective Services are all positive in terms of my efforts and progress.

. . .

7. Remorse

I cannot write a submission such as this without mention of the remorse that I feel for the crime that I have committed. Notwithstanding the explanations that have been presented to demonstrate why such a tragic thing could happen in the first instance, nothing ever changes the fact that it did happen. I am, and always will be, acutely aware of the enormous negative impact that my actions have had on the lives of others. All those that know me well are also aware of the effect it has had on me. It is quite impossible for me to express my contribution in words. It will remain with me for ever.

Summary

Prior to 1985 I had established myself in this country and built a reputation as an honest, contributing, hard working resident who was respect by his peers and conformed to all standards expected of him by the community. I had made a conscious decision that, at the expiry of a ten year period from my arrival here in 1976, I would seek citizenship as recognition of my already established commitment to my new country. By the end of 1985 my whole existence had turned upside down, the woman I loved deeply was dead, killed by my own hand, and I had inflicted ferocious trauma upon those who accepted me as one of their own. Since that time I have sought to face up to the responsibility for what I had done and to try to do everything possible to address the problems that caused the offence to be committed in the first place. I believe this to be the Australian way. It is certainly mine.

I ask that your department take into account the following factors when considering the question of my continued residency in Australia;

(a) The offence was committed in extraordinary circumstances and the court accepted these at the time of my sentencing as evidenced by the reduced sentence and the sentencing judges comments.

(b) My previous record is exemplary.

(c) The risk of re-offending is as minimal as can be humanly predicted. Not only am I not likely to commit the same offence again but I am not likely to commit any offence in the future.

(d) My rehabilitation has been considerable. It is an ongoing process closely coupled to me desire for personal development. Everything related to this development is in Australia.

(e) I have always contributed to this country in the past and the expectation is that I will be able to do the same upon my release.

(f) I have extremely strong ties with my local community, both personal and economic, and my removal from this group will also cause them considerable emotional distress.

From the day my offence was committed I, with the help of many others, have strived to extract as many positive factors from this tragedy as possible. In relation to this I urge you to pay special attention to the opinions of the professional people who have been, and still are, involved with my case when making your decision. It is my submission to your department that there are no positive factors associated with my deportation and that, therefore, I should be allowed to continue to reside in the country that I love and have come to call home.

(b) The Applicant was supported by Dr Walker who furnished a letter to the Department dated 5 October 1991 (Exhibit A1, pages 13-15). I set out two paragraphs, being those headed 'Risk of Re-offense' and 'Rehabilitation' (pages 14 and 15 of Exhibit A1) as follows:

. . .

Risk of Re-offense

The kiling (sic) of Miss Smith took place in very tragic circumstances, outlined in considerable detail in my original report. Factors which had contributed included [SR00]'s lack of ability to face and communicate feelings (especially anger) In a productive way -in typical middle class English style, he "bottled up" feelings and was singularly inept at assertiveness. His life had really comprised a protracted adolescence and he had not found himself in the adult world, despite his high intelligence; this was perpetuated by the Australian mateship group within which he worked. His relationhsip (sic) with Miss Smith had been complicated by her inability to deal with commitment, her sexual infidelity and her inability to make her mind up either to marry [SR00] or to let him go, He,in (sic) turn, was able neither to admit to himself or her or to deal with the ferocious jealousy he was experiencing -jealousy which is simply the dark side of strong attachment. His overuse of alcohol during the weeks preceding the death and on the actual night was the final component of a deadly mix of psychological torment for both.

Despite Dr. Milton's doubts, I can assure you that [SR00] had resolved a great proportion of his problems before he came to trial and Judge Maxwell considered him not to be a risk of further violence, recommending that his term be served in a low security institution.

During his stay in Long Bay, through the years of working his way from maximum security, [SR00] has (1) been a productive, useful and helpful member of the prison community and has related well to staff and inmates, often in the role of negotiator and peace-maker; (2) he has used the help provided by a number of professionals within the prison system to obtain ongoing therapy, insight and personality development; (3) he has documented his progress in his very lengthy letters to me; (4) he has resumed a therapeutic relationship with me. He has dealt with aggression in the prison system without losing control; he has certainly learned to be articulate, to express his feelings and to be assertive. In this dreadful environment, he has developed into a competent adult and has escaped falling into the corrosive trap of bitterness and self-pity. The early years were centred on learning to live with the horrendous guilt of what he had done and learning to re-develop a sense of being useful and worthwhile, He went through times of profound depression but always emerged with better insight.

Mr. Gillet asked if the dissociated state could happen again, if he could kill someone else in such a state. The answer is no, the factors which made him vulnerable have been systematically resolved. Intelligent and basically normal people can and do learn from mistakes, including from dreadful and tragic ones. Even had [SR00] come for counselling a week before Miss Smith's death, it would not have happened.

The risk of re-offense is infinitesmal.

Rehabilitation

[SR00] had done a lot of work on his problems before he was sentenced to imprisonment, an unusual but quite desirable state of affairs. He has studied whatever was available while in prison. His rehabilitation is now as complete as it can be before he emerges to the outside world. For that phase, he has sensible and very supportive friends, has an excellent relationship with his parole officer and has a very significant therapeutic relationship with me. I anticipate a smooth re-building of like on his release. I believe that, should he choose to be involved in the area, he would have a great deal to offer in assisting prisoners adjust to the outside world. There has certainly emerged in this man a great facility for common sense and diplomacy.

. . .

(c) The Department of Corrective Services also supported the Applicant:

(i) In a letter dated 12 November 1991, Gay Baldry, Community Corrections Officer of that department said under the head of "Assessment" as follows (Exhibit A1, pages 19-20):

[SR00] gives every indication of being intelligent, articulate, independent, motivated, diligent man with a high degree of integrity. He has got in touch with both his weaknesses and strengths of personality through psychological counselling and has emerged without self-hate or aggression for the system.

The prisoner has a close network of support in the community of solid, caring, people. [SR00] would not be a financial burden on the Australian community. He has minimal ties to England and feels his identification and ties are here in Australia.

The prisoners (sic) expressed desire to remain in Australia ha (sic) been consistent throughout his sentence.

Given the prisoners favourable prison reports, attitudes to his future, strong community ties on a business and personal level coupled with his independent financial status it is felt [SR00] would resettle into life in Australia without being a threat, as a law abiding and responsible person.

Deportation is, therefore not recommended.

(ii) Ms Baldry's recommendation was supported by Mr Geoff Lyons, Officer-in-Charge of Long Bay Community Corrections Unit by a note dated 12 November 1991 (Exhibit A1, page 20), endorsed on Ms Baldry's letter, and reading as follows:

Ms Baldry's recommendation is supported. [SR00]'s behaviour in prison, his wide varying social supports and his financial independence and talents will ensure that he will be an asset to the community and a law abiding Australian citizen.

(d) In February 1992 the Department notified the Applicant that it did not intend to order his deportation (page 63 of the T Documents). Page 93 of the T Documents indicates that while a report had been prepared recommending deportation Messrs David Moon, Manager, Compliance Northern Region and Wayne Julian Gibbons, Deputy Secretary and Delegate of the Minister of State Responsible for administering the Migration Act 1958 were not prepared to support it. I refer in particular to the note by Mr Gibbons endorsed on the recommendation contained at page 93 of the T Document and reading as follows :-

I believe the factors in favour of deportation are outweighed by those against. In coming to this conclusion, I note the absence of any real prospect of recidivism. The policy intent is to protect the community not to administer further punishment.

(e) It is relevant also to note that the Applicant was able to submit references by a large number of respectable persons all of whom spoke of him in glowing terms. I refer in this context to the numerous references set out at pages 132 to 159 of the T Documents. Although it is unnecessary for me to deal in any detail with the numerous references, there are two which are of such significance that they deserve inclusion in these Reasons. Mr W V Wright, JP, Assistant Superintendent of Industries at the Department of Corrective Services, Long Bay Correctional Centre wrote a letter addressed "To Whom it May Concern" on 28 May 1991 (Exhibit A1, page 30), which reads as follows :

My name is William Vincent Wright and I am employed as the Assistant Superintendent of Industries at the Training Centre, Long Bay Prison Complex. I have been a prison officer for twenty five years.

Over the last year I have had the opportunity to observe [SR00] closely due to the nature of his employment in my office. He is employed as my Senior Clerk which is a postion (sic) of responsibility and trust.

It is my considered opinion that the offence of which he is convicted must have been committed in the midst of a set of extraordinary circumstances and I find the likelihood of him committing any further offences and returning to prison to be as minimal as can be predicted. I base these conclusions on the facts that (a) I do not consider the man to be criminally minded, (b) He was a productive member of society prior to his incarceration and, (c) He appears to have a strong support network in place for him upon his release from custody and return to the community.

It should be noted that [SR00] is only the third person for whom I have been prepared to write a reference such as this in the twenty five years that I have been associated with the Prison Service. Of the other two, neither have re-offended and one (Johann Pohl) looks like he may actually be acquitted of his crime after serving ten years.

I feel that there is every chance that, if [SR00] is given the opportunity he will be able to be a productive and law abiding member of the Australian community upon his release.

And, furthermore Mr K J Hornigold, JP, Deputy Superintendent, Reception Prison, Long Bay Prison Complex wrote a letter similarly addressed dated 25 October 1991 (Exhibit A1, page 31) reading as follows:

My name is Kenneth John Hornigold and I am presently employed in the position of Deputy Superintendent of the Reception Prison at the Long Bay Prison Complex. I have been a prison officer for fifteen years.

Prior to my present appointment I was employed as the Assistant Superintendent Industries at the Reception Prison and, whilst employed in this capacity, I had the opportunity to observe [SR00] closely from December 1986 to July 1990. During this period [SR00] was employed in my office, firstly as the Reception clerk and then, from July 1987 onwards, as the senior clerk/typist. Due to the nature of this employment [SR00] often had to deal with sensitive issues but, at all times, he discharged his duties in a responsible, diligent and trustworthy manner.

Over the three and a half year period that [SR00] worked in my office I also came to know him very well personally and I was able to gain considerable insight into him as an individual. I am aware of the circumstances in which his offence was committed and I an sure that he has made every effort to address the associated problems.

It is apparent that [SR00] was a law abiding, contributing member of the community prior to the commission of his offence and I feel that he is likely to be the same upon his release. I base these conclusions upon my observations of him over the period mentioned above. He also has ongoing support from members of his local community and this further re-inforces my opinion of his potential to successfully re-integrate when given the opportunity.

It is particularly relevant to note that in respect of Mr W V Wright the Applicant was only the third person for whom he was prepared "to write a reference such as this in the twenty five years ..."

7. (a) It is altogether clear that while he was in gaol, the Applicant was a model prisoner. He was released on parole in September 1993, at the earliest possible date on which he could have been released. Prior to release he received a special remission period of 28 days granted by the Governor of Long Bay Gaol. In 1991 he took courses in computers. In March 1992, some 18 months before his earliest possible release date, the Applicant was allowed to embark upon two days per week of industrial training and involving work at the [Public Body] previously referred to. This was not usual; work release is generally allowed from Silverwater and, in relation to Silverwater, a transfer to that institution generally takes place not more than 12 months prior to the earliest release date.

(b) The Applicant received (unusually) more than 12 months work release. Some three months after March 1992 and when he commenced work on a part-time basis at the [Public Body], he was transferred to Silverwater and then went to work for the [Public Body] daily. From the outset he went to and from work unsupervised, and by bus.

(c) The [Public Body] was so impressed by the Applicant that it employed him firstly as a temporary employee and then on its permanent staff from the time when he was paroled. His job specification has altered with time; he is currently in a position which might perhaps be categorised as middle management.

(d) I have previously referred to the references by Mr Wright and Mr Hornigold in the context of the threatened deportation, they do indicate the high regard in which the Applicant was held while he was in gaol. Indeed the treatment which he received in gaol indicates that he was an atypical prisoner. The atypical nature of the Applicant's character is moreover indicated by the sentencing judge's remarks referred to earlier in these Reasons.

8. (a) On 30 October 1997, the Applicant was convicted of offensive behaviour and fined $100. The full facts are contained at page 69 of the T Documents as follows:

At 12.30am 4/10/97 the Defendant was standing in lane 1 of Pittwater rd, Dee Why. He was facing South and urinating on the rear of Motor vehicle TJY-165 that car was parked outside the kebab House an the East side of Pittwater rd at Dee Why.

He then walked into the Kebab house and sat down at a table. He was arrested and conveyed to Dee Why Police Station where he made admissions as to his behaviour by way of signed statement.

Regarding his actions the Defendant said, "I'm sorry. I was busting for a piss," He was then issued a Court Attendance Notice for this matter. At the time of the offence the Defendant appeared well affected by alcohol. The area of Pittwater rd where the offence took place is a public place that was being used by a moderate flow of vehicular traffic and pedestrian traffic. It was immediately outside a food outlet that was open at the time.

(b) The Applicant in his oral evidence before the Tribunal said that he was at the time suffering from a bladder problem which made it difficult for him to void his bladder properly; in consequence the need to urinate arose suddenly and frequently. In effect he was caught short. He said that he believed that he had urinated beside and not on a parked car and in a place which was not well lit. However, he was prepared to accept that he was guilty (and pleaded guilty) and moreover was prepared to accept that the police version was probably correct. He was under the influence of alcohol at the time.

The Applicant's evidence before the Tribunal did lead me to consider that his bladder complaint was something in respect of which he had sought, either then or shortly after the incident, medical advice. In fact he obtained medical advice nearly two years later on this and certain sexual problems from Dr E M Lazzaro, urologist. Dr Lazarro's report, dated 31 August 1999, appears at page 6 of Exhibit A1.

(c) While not condoning the offensive nature of the Applicant's behaviour in 1997, the Tribunal notes that it does not consider that this conviction should be regarded in a serious light. The Applicant was "well affected by alcohol" and, as appears from page 69 of the T Documents, apologised for his behaviour. Indeed Miss Hanstein accepted that this summary offence (and it will henceforth be referred to as the "summary offence") could be treated as trivial.

9. [Mr James Brown] (who occupies a senior position in the [Public Body] and is now the Applicant's immediate superior) gave evidence as to the outstanding service of the Applicant as an officer of the [Public Body]. His evidence was clear and intelligent. The Respondent did not suggest that there was any reason why his evidence should not be accepted. [Mr Brown]'s affidavit appears at pages 1a and 1b of Exhibit A1 (naturally) under his correct name. [Mr Brown] knew of the Applicant's past when he first went to work for the [Public Body].

10. Mr A C Morgan (who is a Justice of the Peace) and the owner of a small business, has known the Applicant for a long time going back to the period before his arrest when they were both driving taxis in Sydney. He and his family (and including his late mother) have always believed in the Applicant. He himself visited the Applicant in gaol; he also looked after the Applicant's financial affairs while he was in gaol acting under a power of attorney. Mr Morgan still sees much of the Applicant both socially and because the Applicant is his sister's tenant at her flat in Dee Why (while she is resident in the United States). He was one of the first to hear about the murder and his immediate reaction was one of total disbelief that the Applicant could be guilty of such a crime. As was the case with [Mr Brown], Mr Morgan gave his supporting affidavit (Exhibit A1, page 2) with full knowledge of the Applicant's past.

11. (a) Dr Walker's report dated 5 November 2000 is Exhibit A4. Her report under the head of Imprisonment (pages 4, 5 and 6) reads as follows:

Imprisonment

[SR00], of course, found the trial and ensuing media coverage very stressful. The Judge had recommended that he be sent to a prison farm. This did not happen, but in the prison system, because of his intelligence, respect for others and excellent behavior (sic), [SR00] was given good professional support and appropriate work. He was initially supported by Danielle, who had formed a relationship with him during his time on bail; however Danielle left the relationship and married another man. [SR00] suffered bouts of severe depression and soul-searching on the anniversaries of [Joan]'s death and also when Danielle married. However he continued with counseling (sic) from prison psychologists (who contacted me when they had concerns about his well-being) and received antidepressant medication from the prison psychiatrist when needed. He was supported by his good friends in the community, especially Alex Morgan, who contacted me from time to time. His increased maturity was evident in my 1991 psychological testing. It was as if, in leaving his career, [SR00] had fled for years from full adulthood and against all odds, in the grim prison environment after a tragic crime, he focused again on maturing. He was moved to the Training Centre in 1990, which was a great relief after his time in maximum security and he continued to develop. He continued with counseling (sic) and gained a great deal of insight with Vivienne Griffin, a Drug and Alcohol Counsellor.

Prison staff respected [SR00] for his work and his efforts to improve himself. [SR00] got on sensibly with other inmates and supported some in times of crisis, though he consciously avoided making close friendships with other inmates, keeping his close friendships in the outside world. The Department of Immigration considered deporting [SR00] on release, but with documentation provided relating to his adjustment and personality, as well as behavior (sic) in prison, this was not carried out.

In 1992 [SR00] was given the opportunity of part-time work release to the [Public Body] (a most unusual offer in recognition of his excellent progress and his work potential). Of course, [SR00] gained every credit for good behaviour in terms of duration of imprisonment. He began in May 1992 as a temporary administrative assistance for food and beverage services in the [Public Body]; in June 1992 he was working 35 hours a week on work release from Silverwater, reporting to the Manager, Food and Beverages Services and providing administrative support to the Manager in relation to corporate services, employment, industrial and organizational development matters. Of course, the contents of his honours degree in business management from his youth remained very relevant. In March 1983, [SR00] was seconded to the [Public Body] and worked as a temporary Project Officer; his main responsibility was the implementation of the job evaluation process in [Public Body]. His confidence increased, along with his sense of personal dignity and value. His quiet personality and subtle judgment were appropriate to the role and he enjoyed his work greatly (as he still does.) In October 1993, [SR00] was appointed a [Public Body] Officer in Personnel, reporting to the Deputy Manager, Administration. His job involved administration of human resource and training functions and he had to research and recommend on policy issues as required. His development in the brief span from his release from full-time imprisonment was extraordinary and confirmed the faith that a wide range of people had had in [SR00] since the time of [Joan]'s death. His work in the [Public Body] has continued to increase in responsibility for him and trust and dependence on the part of his employers. He is now in a permanent position as a [Public Body] and does a range of complex tasks (including investigation and preparation of draft responses for [another public body]), works at public presentations, prepares budgets and provides procedural advice as required; he is a Member of the [Public Body] management team.

A certain gamble was taken in putting a work release prisoner to work in the [Public Body], but this gamble has paid off splendidly. [SR00] has been worthy of the trust given him and his performance has been, in my understanding, excellent. He is humbly grateful for the trust given in putting him in this position.

In his personal life, his development has continued. [SR00] did not resume his binge drinking as a coping mechanism on release into the community; he told me he has accidentally got drunk only a few times and, for the last three years, has used less alcohol. He is currently living in an apartment but spends a few nights a week with his beloved Danielle and her two young children. Their relationship is stable and Danielle would very much like another child with [SR00]; he wonders if he is too old to take on a child of his own, but is certainly tempted.

Overall, the documented history and self-report of [SR00]'s progress since I first met him at the end of 1995 in Long Bay supports the view that I developed, the report of Dr. Neil Phillips psychiatrist, staff and professionals in the prison system and administrators in his current highly responsible job in [...], that [SR00] is a man of good character who, at a time of emotional turmoil and protracted stress, committed one tragic crime. He is not psychopathic. He has a very strong conscience and is no risk to the community; on the contrary, he does very useful work in the community, work that is a last consistent with his educational level.

(b) Dr Walker's evidence (which the Respondent accepted) was extremely helpful to the Tribunal. She is plainly an expert in her field and clearly has over the years developed a deep interest in and a concern for the welfare of the Applicant.

(c) Dr Walker was asked to explain her findings as to the Applicant's state of mind at the time of the murder. She said that when she first met the Applicant he had an incomplete memory of the offence. In time she was able to persuade him to show her how it occurred by re-enacting it. Dr Walker said that the Applicant was in relation to [Ms Smith] immature in some respects. He was ill-prepared for communicating and for negotiating within a de facto relationship such as that which he had with [Ms Smith]. He loved her very much. Dr Walker considered that he committed the murder while in a state which in effect placed him outside himself, and so that it could be said that he was watching himself while he committed the murder.

(e) The sentencing Judge doubted that the murder was a crime of passion. The Applicant himself tended to play down his jealousy of [Ms Smith] and the fact that she had involved herself in a new sexual relationship. Dr Walker, however, described the Applicant as having been in a "wild anguish of sexual jealousy" and a little later as suffering from "ferocious jealousy". He was, as she put it, "uncertain of whether [Ms Smith] would stay with him". I prefer Dr Walker's evidence in so far as it did not accord with that of the Applicant. There were other aspects of her evidence which, when compared with the Applicant's evidence, falls into the same category. His evidence was that he had used cannabis while at university and afterwards at parties if it was available. As to his drinking habits, his evidence would suggest that he was never a very big drinker. Dr Walker's evidence (which I prefer) suggested that his drinking was rather more of a problem than he had indicated (although now altogether in the past). However, she made it clear that at this time, he does not over-indulge because he is concerned by factors of fitness, health and his relationship with Danielle. Dr Walker said also that the Applicant had used cannabis while on his travels with [Ms Smith]. He said that his behaviour was at that time redolent of adolescence.

(f) Dr Walker spoke of the Applicant's conservative value system and the fact that the sentencing Judge considered him to be of good character, something atypical of a sentence for murder.

(g) Dr Walker was altogether firm about the fact that the murder was committed in a dissociated state of consciousness - "along the way to automatism" so she put it. It was out of character in that the Applicant is essentially a man of good and stable character.

(h) This Tribunal finds that Dr Walker's evidence was impressive and altogether acceptable.

12. (a) The Respondent under the head 'Contentions' in his Statement of Facts and Contentions provided the Tribunal with a useful summary of some of the relevant case law. Clauses 18 to 29 inclusive of those contentions read as follows:

18. In order to be granted Australian citizenship, the Applicant must satisfy the relevant statutory criteria, which requires the Minister to be satisfied that he is of good character. The onus of proof under the Act is upon the Applicant to show that he is of good character.

19.There is no provision for a discretion to be exercised if the Tribunal is not satisfied that the Applicant is of good character.

20. The Department's Australian Citizenship Instructions (ACI) paragraph 4.8 incorporates Departmental policy: Paragraphs 4.8.15 to 4.8.28 of the ACI provide guidance and factors that ought to be taken into consideration in determining the good character requirement.

21. The Respondent refers to the ACI series, item 4.8.16, which provides that "the term 'good character' is not defined in the Act, so decision makers should be guided by the ordinary use of the words in making assessments. As a matter of policy, an applicant may be presumed to be of good character unless there is evidence to the contrary. In most cases, such evidence would be in the form of a serious criminal record, however, general conduct and associations may also be relevant."

22. The Tribunal and the Courts have consistently held that they will follow publicly declared Ministerial policy or Departmental Guidelines unless there is some good reason not to: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13. The reason may be general in nature - for example, the guidelines may be inconsistent with the provisions of an Act or Regulation; or the reason may be specific to the circumstances of a particular case so that to apply the guidelines would result in an unjust conclusion (per DP Chappel in Annecchini and Minister for Immigration and Multicultural Affairs, Unreported AAT No N96/383. 7.5.97). The Respondent submits that in the present case there is no good reason why the Tribunal should depart from the policy guidelines.

23. The Tribunal held, in Steele v MIMA (unreported, 21 October 1997, SM Hotop), and in Boskovic v MIMA [2000] MTA 251 (2 February 2000 DP Chappell) that they "had regard to the extracts from Chapter 4.8 of the ACI quoted above ..., and is of the opinion that they are consistent with the views of the Federal Court and of the Tribunal on the meaning and application of the 'good character' test and that, there being no good reason to do otherwise, it is appropriate to apply them". The extracts the Tribunal was referring to relate to 4.8.16, 4.8.17, 4.8.22, 4.8.231 4.8.26, 4.8.27 and 4.8.28 of Chapter 4.8 of the ACI. The Respondent respectfully submits that the above policy guidelines should be applied in the present case.

24. Lee J in Irving v MJLGEA (1996) 68 FCR 422, 139 ALR 841 considered the term 'good character'. Lee J stated, at pg 95, that "the task for the Minister was to have regard to the ordinary meaning of those words as modified by the regulations and to the scope and purpose of the visa sought to be granted and to apply common sense in determining whether the appellant 'satisfied' the prescribed criterion that he be of good character" .

25. Lee J went on, at pg 94, to state that "unless the terms of the Act and regulations require some other meaning be applied, the words 'good character' should be taken to be used in their ordinary sense, namely a reference to the enduring moral qualities of a person and not to the good standing fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is a review of subjective public opinion."

26. Although Irving involved the 'character' requirement under 5.501 of the Migration Act, Deputy President Chappell in Miroslav Mlinar v MIMA (unreported, 15 May 1997, DP Chappell) stated, at pg 10, that the "Tribunal agrees with Deputy President McMahon's comments in the Re Hamwi (unreported, 25 July 1994, DP McMahon) and Re Naumovski (unreported 4 November 1994, DP McMahon) cases that (in Citizenship matters under the Act) it can receive guidance from the interpretation of 'good character' in cases under s.501 of the Migration Act 1958.

27. In particular, Deputy President Chappell went on to state, that "good character in s.13 [of the Act] should be given the same meaning as it is in 5.501 of the Migration Act 1958. The standard of good character should be even higher (my emphasis) for citizenship cases than s.501 matters because of the importance of citizenship and greater responsibilities and privileges attached to it." The Respondent submits that section 13 of the Act imposes a similar 'good character' requirement and the Respondent submits that the requirement of good character should indeed be of a higher standard because of the importance of citizenship and the greater responsibilities and privileges attached to it.

28. Deputy President Chappell's above statement was adopted with approval by Senior Member Hotop in Steele (p20 of decision).

29. In Boskovic v MIMA [2000} AATA251 (2 February 2000) Deputy President Chappell said :

"The ACI sets out a number of matters which should be considered by decision-makers when determining whether or not a person is of good character. I will not read out each of those principles at this stage but the ACI makes it clear that the nature of the offences, the number of offences committed, the circumstances leading to the crimes committed, and the behaviour of the applicant since the crimes were committed, as well as that person's present reputation in the community are all matters to be taken into account".

(b) Mr Jones referred the Tribunal in particular to the decision of the Full Federal Court in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 and the test enumerated as to "enduring moral quality". The decision in Irving is also reflected in the recent Full Federal Court decisions of Minister for Immigration, Local Government and Multicultural Affairs v Baker (1997) 73 FCR 187 and Goldie v The Minister for Immigration and Multicultural Affairs [1999] FCA 1277.

13. I turn next to consider the ACI guidelines; (clause references relate to numbered clauses in the ACI):

4.8.20 The crime was of course serious; there are few crimes more serious than murder; that said, this was not a cold-blooded premeditated killing for gain. But nothing can detract from the fact that it was a very serious crime indeed.

4.8.23 The Tribunal considers that the crime was a one-off occurrence, which was out of character. It is not necessary to take the summary offence seriously.

4.8.24 There were as I have said, unquestionably extenuating circumstances; the sentencing Judge's remarks clearly indicate the fact that this is so.

4.8.26 Ms Hanstein argued that a reasonable amount of time is five years; this is apparently a rough and ready departmental guideline. But that there is no specific time period is born out by the wording of clause 4.8.26 which makes it clear that this is not the policy. It must be remembered that more than seven years has elapsed since the Applicant was released on parole, and approximately four years has elapsed since the end of the additional term. The Tribunal considers that in this particular case this time period is more than sufficient, more particularly given that there is on the evidence before the Tribunal, no danger of recidivism.

4.8.27.1 The Applicant has a stable, good and responsible position with the [Public Body].

4.8.27.2 The Applicant has furnished more than ample references which fit within the provisions of this paragraph.

14. Ms Hanstein, who appeared in Re Boskovic and Minister for Immigration and Multicultural Affairs [2000] AATA 251 contended that the fact situation in this case is similar to that in Boskovic.

The Tribunal considers that while there are a few aspects which might be thought to indicate similarity between the situations in this case and that in Boskovic, an argument that the fact situations are similar overall is simply not tenable. The decision in Boskovic indicates that the applicant in that case was a poorly-educated and disabled man who had committed a number of serious crimes and including two serious crimes of violence. Paragraph 13 of the decision in Boskovic refers to wounding with intent to cause grievous bodily harm; (Boskovic stabbed his former de facto partner). Paragraph 18 of the decision in turn relates to a later conviction for murder also of a de facto partner. These convictions are apart from a number of other serious offences, and including drug-related offences. Boskovic, it is true, did receive favourable treatment by the prison authorities; he too was able to produce some favourable references. But that is where the resemblance ends. Judging by my reading of the decision in Boskovic, his crimes after the first could not be described as out of character and a "one-off". Moreover, Mr Boskovic had been free of court obligations for only one year and it was this factor (inter alia) which led the presiding Deputy President to conclude that "the Tribunal is not in this case persuaded that it can be satisfied that Mr Boskovic is now of good character. He is undoubtedly a long way along the road to rehabilitation but he is not yet there" (at paragraph 42). By contrast the Applicant is an educated man, who was guilty of one act of violence and that while in a state of severe psychological disorder.

15. The oral and other evidence before this Tribunal unanimously favours the view that the Applicant is a man of good character. This is the clear and unmistakable opinion of Dr Walker, the other witnesses who gave evidence before the Tribunal and a host of persons who supported his deportation submission; I include under this head the views of members of the Department of Corrective Services, and to which I have referred previously in these Reasons.

16. Reduced to its essentials Ms Hanstein's argument can be summarised thus: the Applicant's fact situation is similar to that in Boskovic and that the result should be the same. I have already indicated that I do not accept that contention. Her only other contentions were that the Applicant had committed a most serious crime and that insufficient time had elapsed since the end of the additional term. I accept of course as set out previously that the crime was serious; however, and as I have indicated more than sufficient time has elapsed, the risk of recidivism is on the evidence "infinitesmal (sic)" (Exhibit A1, page 14) and as I have indicated, more than sufficient time has elapsed.. The Applicant showed, and continues to show, genuine remorse for his crime.

17. It is my view overall that the Applicant has a case and that he should succeed. Accordingly the decision under review is set aside. It follows, of course, that the Applicant's application for Australian citizenship should be granted.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President J Block

Signed: .....................................................................................

Associate

Date/s of Hearing 7 November 2000

Date of Decision 15 November 2000

Solicitor for the Applicant Mr Michael Jones

C/- Parish Patience Solicitors

Representative for the Respondent Ms Sharon Hanstein

C/- Department of Immigration and Multicultural Affairs