Cordery and Minister for Immigration and Multicultural and Indige nous Affairs [2003] AATA 105 (29 January 2003)

Last Updated: 25 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 105

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/931

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JULIE ANNE CORDERY

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr S P Estcourt QC., (Deputy President)

Date 29 January 2003

Place Melbourne

Decision

The decision under review is set aside

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration - deportation - cultivation of a narcotic plant - seriousness and nature of conduct - hardship to deportee and hardship to Australian citizen - deportation order set aside.

Migration Act 1958 - s200

REASONS FOR DECISION

29 January 2003

Mr S P Estcourt QC., (Deputy President)

1. This is an application to review a decision of the respondent of 15 August 2000, ordering the deportation of the applicant's spouse, Mr Kerry James Tuhi, pursuant to s200 of the Migration Act 1958 ("the Act").

2. Section 200 of the Act provides that the respondent may order the deportation of a non-citizen to whom the division of the Act applies.

3. Section 201 of the Act provides that s200 applies to a person who is a non-citizen and who has been convicted of an offence when that person has been in Australia as a permanent resident for a period of less than 10 years.

4. Although at the time of the deportation order, Mr Tuhi had been a permanent resident in Australia for considerably more than 10 years, at the date of the commission of the deportable offence which was 19 November 1996, he had been resident in Australia for only 9.75 years.

5. On 19 June 1997, Mr Tuhi was convicted in the County Court of Victoria of the offence of cultivation of a narcotic plant and was sentenced to imprisonment for 2½ years with a non-parole period of 15 months.

6. On 30 October 1997, the Victorian Court of Criminal Appeal allowed Mr Tuhi's appeal and set aside the order of the County Court reducing his sentence to imprisonment for 18 months with 9 months of that sentence suspended on conditions.

7. The evidence establishes that at the time of the offence, Mr Tuhi had a cannabis habit and in his record of interview with Victorian Police he admitted that he had involved himself in the scheme having been recruited by one Friedemann with money as his motive.

8. For convenience I set out the comments of Hampel AJA in which Phillips CJ and Batt JA concurred:

"HAMPEL, A.J.A.: The applicant is 33 years of age and was born in New Zealand. He completed an apprenticeship as a boilermaker which he commenced at the age of 16. He left his parents' home at 16 because of tension between his parents and his nine siblings. His parents were ultimately divorced in 1983, when he was aged 19. After completing his apprenticeship he had a succession of jobs and ultimately he came to Australia in 1985, where he continued working. In Australia he formed a relationship with a woman which lasted for nine years. Towards the end of 1995 that relationship came to an abrupt end, and the applicant was then in casual employment.

It was at that time, in early 1996, that a man by the name of Friedemann masterminded a series of cannabis cultivating operations and was introduced to the applicant. Friedemann put a "business proposition" to the applicant, bringing him from Sydney to Melbourne in order to explain the scheme to him. The applicant was told that Friedemann would be setting up a crop of cannabis in a house and that he wanted the applicant to look after the crop. He was told that there were already two other houses set up for this purpose in Camberwell and Templestowe. The applicant was told he would receive a 12.5% share of the profits and that the profit from one crop could be worth up to $250,000. The applicant was shown the drying operations and the bagging process. Later, Friedemann found a house in Riversdale Road, Box Hill South, where they set up operations and the applicant moved in. After the first crop matured during September 1996, the applicant helped Friedemann to harvest that crop and a second crop was planted. The applicant in fact received $4,800 from the first crop on 11 November 1996 and also an additional $200 on about eight occasions.

A warrant was executed on the premises in Riversdale Road on 16 November 1996 and the applicant was arrested. 170 cannabis plants and 197 cannabis seedlings were found. A crop of approximately 270 plants had already been harvested.

The applicant gave a full and frank record of interview detailing his role and the role of his co-accused. He was subsequently charged with one count of cultivation of a narcotic plant contrary to s.72 of the Drugs, Poisons and Controlled Substances Act 1981 between 1 July 1996 and 15 November 1996 at Box Hill South, that being the Riversdale Road House.

He pleaded guilty at the earliest opportunity. In his plea he relied on a number of mitigating factors. They were that the applicant had no previous convictions; that he had a good work record and, after serving 30 days in custody following his arrest, he obtained employment whilst on bail until he was sentenced on 19 July 1997. He made full admissions to the police and made further statements which substantially assisted the police in respect of the involvement and the roles of Friedemann and others, which significantly helped the investigation. He undertook to give evidence against the co-accused. His role was subsidiary to that of Friedemann, and he was enlisted by Friedemann at a time when his relationship had broken down and he was, as counsel put it on the plea, in a void in his life.

These matters and the fact that the applicant had formed a new relationship were all before the sentencing judge. His Honour rightly observed that the applicant's stated motive for entering into this commercial operation was money. His Honour sentenced the applicant to be imprisoned for two and a half years which a non-parole period of 15 months. A forfeiture order was made of $2,830 in respect of money seized by the police."

9. I set out that passage because not only does it describe the nature of the operation in which Mr Tuhi involved himself, but it draws attention to the very significant mitigating factors which attended the commission of the crime.

10. To those observations I add those of Batt JA which I set out below:

"BATT, J.A.: I agree. In approaching the re-exercise by this Court of the sentencing discretion, the following considerations are, to my mind, important.

First, the offence, when committed with a view to production for trafficking as it was here, is a serious one for which imprisonment will often, if not normally, be imposed, even on a first offender, general deterrence being the principal purpose to be served by the sentence imposed.

Secondly, however, each case depends on its own facts. Here the applicant's conduct extended over four and a half months and produced two sizeable and seemingly staged crops, and his role as a so-called gardener's assistant - or, as I should prefer to say, gardener - whilst subordinate, was both considerable and essential to the sophisticated scheme which Friedemann was carrying out at several locations. The applicant engaged in the criminal conduct for money. He indeed received some not inconsiderable money from it and stood to gain very much more but for police intervention. But he was not an organiser or principal.

Thirdly, the effective maximum sentence of imprisonment was ten years: R v Paramboukis (Court of Appeal, unreported, 1 July 1997).

Fourthly, chief among the several mitigatory facts identified by Hampel, A.J.A. is the significant bona fide and apparently unreserved assistance afforded by the applicant to the police in his answers and statements, adding significantly to their information about the organiser and his electrician. That assistance, in which I include the offer to give evidence against the principal, coupled with the early plea of guilty (though that is of much less weight), warrants a very significant discount, especially in a case of a drug offence. See, for example, R v Duncan (unreported, Court of Appeal, 26 May 1997) per Callaway, J.A. This powerful factor distinguishes the case, in my opinion, from R v Harrison and Zelanak (unreported, Court of Appeal, 4 September 1997), which was in any event a case that did not involve re-sentencing by this Court.

Fifthly, the excellent work record, previous good character and age of the applicant suggest good prospects for rehabilitation.

The sentence proposed by Hampel, A.J.A., in my view, gives appropriate effect to the considerations I have highlighted. The relative leniency of the sentence, both as regards the term and the part of it to be suspended, results from recognition of the fourth and fifth considerations I have enumerated."

11. From the observations of Batt JA I draw attention in particular to the reference to Mr Tuhi's excellent work record, his previous good character and his age which suggest good prospects of rehabilitation.

12. Those are important considerations for under General Direction - Criminal Deportation No. 9 made by the respondent pursuant to s499 of the Act, the only primary consideration which I consider relevant in this case is that of the expectations of the Australian community.

13. There are two aspects to community expectations under the Direction. They are:

(a) the expectation that the community will be protected and not put at risk; and

(b) the expectation that non-citizens who commit or are convicted of crimes that are abhorrent to the Australian community will be removed from Australia.

14. The factors relevant to the assessment of the level of risk to the Australian community and the need for its protection are:

(c) the seriousness and nature of the crime;

(d) the risk of recidivism; and

(e) the likelihood that the deportation of the potential deportee would be likely to prevent or discourage similar offences by other persons.

15. In this case these matters must be considered against the background of the Australian Government's view expressed in the Direction as follows:

"It is the Government's view that the Australian community expects the Government to protect it from the actions of criminals and to take action to remove unacceptable levels of risk of crime. In particular, it is the Government's view that the Australian community expects that the Government will take necessary action to ensure the safety of the more vulnerable members of the community. The Government considers that children and young people are especially at risk in this area. The Government acknowledges that is has a heavy responsibility to ensure that the rights of the community are carefully considered when making decisions relating to the criminal deportation of offenders. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. A decision maker should have due regard to the Government's view in this respect."

16. It is clear therefore that those who involve themselves in offences in relation to drugs may expect ordinarily to be deported. In this case however, as is plain from the comments of the sentencing judge as set out above (which are supported by the uncontradicted evidence in this case), Mr Tuhi was not an organiser or principal but was a subordinate in the scheme involved and his excellent work record and his previous good character, ( which I might add is established by the evidence as having continued until the time of the hearing of this application), suggest that there is no real risk of recidivism.

17. As to the question of deterrence, I have no doubt that the deportation of Mr Tuhi could be expected to deter other non-citizens from committing similar offences. However, that consideration in this case does not in my view militate against the exercise of discretion in Mr Tuhi's favour.

18. I turn to the "other considerations" set out in the direction which are to be taken into account, but given less weight than the primary considerations. In considering the degree of hardship suffered by the applicant and her husband as a result of the deportation order I note the following.

19. The applicant had been a single mother from 1984 until 1997 when she met Mr Tuhi. They met after his involvement in the criminal offence concerned. She said that even at that time he was very remorseful, he was honest and straightforward with her and he told her on their first meeting of his involvement in the crime and the likelihood of his going to jail. Nonetheless the feelings between this couple were obviously so strong, and the relationship between them so lasting that they remained together through Mr Tuhi's trial and appeal and his period of imprisonment.

20. The applicant is a fifth generation Australian with three children and two grandchildren living in Australia.. Her children are now old enough to look after themselves, although the applicant and Mr Tuhi who presently live and work in Taiwan still provide them with financial support.

21. Mr Tuhi came to Australia in 1985 and as I have already observed was somewhat unfortunately only resident in Australia for 9.75 years prior to the commission of his deportable offence. A few more months and the present dilemma for this couple would not have arisen.

22. Mr Tuhi's father lives in Sydney, as do his five sisters.

23. Mr & Mrs Tuhi were never informed that Mr Tuhi was likely to be deported. It was not a matter that was either raised or taken into account on his sentencing hearings, and the evidence indicates that the couple were led to believe that they need not be concerned about deportation. It came as a very distressing experience for them then when the deportation order was signed over three years after Mr Tuhi's conviction and original sentencing and, I calculate, some 18 months after his release from prison and the resumption of his life.

24. The uncontradicted evidence before the Tribunal is that apart from this one aberration, Mr Tuhi has been a person of good character, has an excellent work record, has rehabilitated himself and had formed a strong family unit with the applicant and her children and grandchildren prior to their deportation.

25. When Mr Tuhi was deported, the applicant spent a few months organising her affairs and arranging for her children to live independently and she then followed Mr Tuhi to New Zealand where they worked until they moved to Taiwan about 12 months ago.

26. Since leaving Australia, the applicant has only been able to afford to return home on two occasions to see her children and her greatest wish at present is to be able to "come home".

27. In my view, the circumstances of this case do not justify the state of limbo and family separation which has been visited upon the applicant and her husband. When one takes into account all of the considerations under the direction, it is my view that the hardship suffered by the applicant and her husband in this case outweighs the expectations of the Australian community given the level of involvement of Mr Tuhi in the commission of the deportable offence, his otherwise excellent character and the absence of any realistic risk of recidivism.

28. It follows that the decision of the Tribunal is that the decision under review is set aside.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 6 November 2002

Date of Decision 29 January 2003

Counsel for the Applicant Self represented (by telephone)

Solicitor for the Applicant

Counsel for the Respondent Ms V Priskich

Solicitor for the Respondent Blake Dawson Waldron