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District Court 8 November 2019

R v Tham

[2019] NSWDC 766

Fraud & dishonesty

Citation: R v Tham [2019] NSWDC 766
Court: District Court of New South Wales
Date: 8 November 2019
Judge(s): Bennett SC DCJ

Background

The offender, an unlawful non-citizen, had been living in Australia since 1986 without any valid visa or citizenship of his own. Over the following decades, he constructed and maintained a false identity by appropriating the details of a real Australian citizen, using that identity to obtain official documents and government benefits.

Using the assumed identity, the offender obtained an Australian passport and made a separate false passport application. He also fraudulently claimed Newstart allowance and age pension payments from Centrelink over several years, receiving a combined total of approximately $103,873 to which he was not entitled. The fraud was uncovered through a joint investigation by the Department of Foreign Affairs and Trade, the Department of Human Services (Centrelink), and Medicare.

The offender pleaded guilty in the Local Court to four charges and adhered to those pleas when the matter came before the District Court for sentencing.

  • What sentences were appropriate for four offences of passport fraud and obtaining financial advantage by deception from a Commonwealth entity, having regard to objective seriousness and relevant subjective factors?
  • What discount, if any, should be applied to reflect the utilitarian value of the guilty pleas?
  • How should the advanced age of the offender and his prospects in custody bear on the sentencing exercise?

Decision

Bennett SC DCJ identified the conduct as seriously aggravated by its duration and the systematic nature of the fraud. The offender had lived unlawfully in Australia for 32 years and, throughout much of that period, maintained a fabricated identity that was used to extract public funds from the Commonwealth. His Honour noted the objective gravity of each offence, with all four carrying maximum penalties of ten years' imprisonment.

On the question of the guilty plea discount, his Honour applied a 25% reduction to each sentence. This followed the guidance of the NSW Court of Criminal Appeal in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, which had indicated that the utilitarian value of a plea should be identified and quantified. His Honour also acknowledged that the pleas were capable of reflecting contrition, remorse, and a willingness to facilitate the administration of justice.

The offender's advanced age was a significant mitigating consideration. His Honour accepted that the offender was elderly, that custodial life was particularly difficult for him given language and social isolation, and that he might never be released from custody. These factors informed sentences that his Honour acknowledged were somewhat below what the objective seriousness of the offending might otherwise have warranted.

His Honour noted that comparable decisions from other jurisdictions were helpful in maintaining consistency across Commonwealth offences, while recognising that each case ultimately turns on its own facts.

Orders Made

  • Sequence 3 (dishonestly obtaining a passport): 5 years' imprisonment, commencing 22 October 2018, expiring 21 October 2023
  • Sequence 9 (false or misleading statement in passport application): 5 years' imprisonment, commencing 22 October 2019, expiring 21 October 2024
  • Sequence 4 (obtaining financial advantage by deception, $61,985.48 age pension): 4 years' imprisonment, commencing 22 April 2021, expiring 21 April 2025
  • Sequence 10 (obtaining financial advantage by deception, $41,887.74 Newstart allowance): 3 years and 9 months' imprisonment, commencing 22 October 2021, expiring 21 July 2025
  • Overall sentence: 6 years and 9 months (22 October 2018 to 21 July 2025)
  • Single non-parole period of 4 years: 22 October 2018 to 21 October 2023
  • Reparation order under s 21B Crimes Act 1914 (Cth): $103,873.22

Key Takeaways

  • The District Court treated the sustained, multi-decade nature of the identity fraud as a significant aggravating feature, reflecting on the overall objective seriousness of the offending across all four charges.
  • A 25% discount for the utilitarian value of guilty pleas was applied consistently across all four sentences, in line with the approach endorsed by the NSW Court of Criminal Appeal in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70.
  • Advanced age and the particular hardship of custody for an elderly, isolated offender were accepted as legitimate mitigating factors capable of moderating the sentences below what objective gravity alone might suggest.
  • Partially accumulated sentences can produce a total effective sentence substantially longer than any individual term, even where each individual term is moderated by subjective factors.
  • Decisions from other Australian jurisdictions sentencing for Commonwealth offences were treated as useful reference points for consistency, while their application remained subject to the specific facts of the case at hand.

Legislation and Cases Referenced

Legislation
- Australian Passports Act 2005 (Cth), ss 29, 35
- Criminal Code of the Commonwealth, s 134.2(1)
- Crimes Act 1914 (Cth), ss 16A(2), 21B
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Xiao v Queen [2018] NSWCCA 4
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- R v Knip [2017] SASFC 34