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Court of Criminal Appeal 17 December 2020

Tham v R

[2020] NSWCCA 338

Fraud & dishonesty
CRIMINAL LAW OFFENCES SENTENCE APPEAL APPLICANT AN UNLAWFUL NON ERROR NOT ESTABLISHED CRIMINAL LAW

Citation: Tham v R [2020] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 17 December 2020
Judges: Bathurst CJ, Hoeben CJ at CL, Bellew J (principal judgment)

Background

The applicant entered Australia unlawfully in 1986 and, over more than three decades, maintained a false identity under the name Simon Man Lee. Using that identity, he obtained Australian passports, claimed Newstart Allowance totalling approximately $41,887, and collected an age pension totalling approximately $61,985. He was not entitled to any of those benefits.

The applicant pleaded guilty in the Local Court to four federal offences: dishonestly obtaining a travel document (count 1), making a false or misleading statement in connection with a passport application (count 2), and two counts of obtaining a financial advantage by deception (counts 3 and 4). Each offence carries a maximum penalty of 10 years' imprisonment. He was sentenced in the District Court in November 2019 to an aggregate term of 6 years and 9 months' imprisonment, with a single non-parole period of 4 years. A reparation order of $103,873.22 was also made.

The applicant sought leave to appeal against sentence on the grounds that the sentencing judge erred in his assessment of objective seriousness.

  • Whether the sentencing judge erred by taking the applicant's status as an unlawful non-citizen into account when assessing the objective seriousness of the fraud offences.
  • Whether the sentencing judge erred in characterising the fraud offences as well above the mid-range of objective seriousness, approaching the upper end of the scale.

Decision

On the first ground, the Court of Criminal Appeal found no error. The applicant's unlawful immigration status was not an impermissible or irrelevant consideration. The court reasoned that his status as an unlawful non-citizen was inextricably connected to the fact that he was not entitled to the social security benefits he obtained. It was therefore directly relevant to the nature and circumstances of the offending, not a matter introduced improperly to aggravate the sentence.

On the second ground, the court also found no error in the sentencing judge's assessment that the fraud offences fell well above the mid-range and moved towards the upper end of seriousness. The amounts defrauded were substantial. The offending spanned extended periods: count 3 covered more than three years and count 4 nearly three years. The applicant had a prior conviction for drug supply, which had not deterred him from further offending upon his release on parole. These features, individually and cumulatively, supported the sentencing judge's characterisation.

The court also made observations on the element of breach of trust inherent in social security fraud. Social security systems must often pay benefits quickly to those in genuine need, and introducing more stringent verification checks could delay relief to vulnerable claimants. That practical reality means the system necessarily depends on the honesty of applicants. The court found that the applicant had exploited that trust over a prolonged period and to a significant extent, further supporting the assessment of elevated objective seriousness.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 10 August 2020.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's treatment of the applicant's unlawful immigration status as relevant to objective seriousness, where that status was inseparable from his ineligibility for the benefits obtained.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the duration of fraud, the amounts involved, and the existence of relevant prior convictions are all legitimate factors when assessing where offending sits on the scale of objective seriousness.
  • The court observed that social security fraud involves an inherent breach of trust because the system is designed to provide speedy relief to those genuinely in need, and it necessarily relies on the honesty of applicants in order to function.
  • Where a person's unlawful status is the direct reason they were not entitled to benefits claimed, that status is not an extraneous aggravating factor but a matter integral to the offending itself.
  • The Court of Criminal Appeal noted that the breach of trust in this case, sustained over many years and involving multiple false identities and documents, provided additional support for the sentencing judge's conclusions on objective seriousness.

Legislation and Cases Referenced

Legislation
- Australian Passports Act 2005 (Cth), ss 29, 35
- Criminal Code 1995 (Cth), s 134.2(1)
- Crimes Act 1914 (Cth), ss 16A, 21B
- Social Security Act 1991 (Cth)

Cases
- Ali v R [2010] NSWCCA 35
- Mulato v R [2006] NSWCCA 282
- R v Conway (2001) 121 A Crim R 177; [2001] NSWCCA 51
- R v De Leeuw [2015] NSWCCA 183
- R v Hawkins (1989) 45 A Crim R 430
- R v Lopez [1999] NSWCCA 245
- R v Richard [2011] NSWSC 866
- R v Van Tung Luu (NSW Court of Criminal Appeal, 7 December 1984, unreported)