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District Court 14 February 2020

R v Thomson

[2020] NSWDC 337

Fraud & dishonesty
CRIME SENTENCE RELEVANCE TO REMORSE AND CONTRITION SUBJECTIVE MATTERS SERIOUSNESS OF OFFENCES REGRET IS NOT THE SAME AS REMORSE

Citation: R v Thomson [2020] NSWDC 337
Court: District Court of New South Wales
Date: 14 February 2020
Judge(s): King SC DCJ

Background

The offender, a New Zealand citizen, had been deported from Australia to New Zealand in 1993 following a custodial sentence imposed in NSW. He subsequently assumed the identity of another real person and used that false identity to re-enter Australian civic life across a span of nearly 25 years.

Using the assumed identity, the offender obtained an Australian passport in 1994, enrolled with Medicare under the false name, obtained a further Australian passport in 2007, and lodged Centrelink forms over more than a decade claiming Newstart Allowance and a disability pension. The total financial advantage dishonestly obtained from the Commonwealth amounted to $169,986. He was arrested on 9 January 2018 and had remained in custody on these matters since that date.

The sentence proceedings themselves were protracted and troubled. They were first listed before the District Court in August 2019 but were delayed repeatedly by changes in legal representation, a failed recusal application, ongoing indications that the offender intended to withdraw his guilty plea on one count, and the failure of defence lawyers to file promised material. The matter was ultimately finalised on 14 February 2020.

  • What aggregate sentence was appropriate for four federal offences spanning conduct from 1994 to 2018, including passport fraud, Medicare fraud, and obtaining a financial advantage by deception from the Commonwealth?
  • What weight should the court give to the offender's subjective circumstances, including any claim to remorse or contrition, in light of the extensive and disruptive history of the sentencing proceedings?
  • How should the court account for the lengthy pre-sentence delay and the offender's conduct during those proceedings when assessing remorse?
  • Whether a reparation order should be made in respect of the funds dishonestly obtained from the Commonwealth.

Decision

King SC DCJ sentenced the offender on four counts, with an additional offence taken into account under s 16BA of the Crimes Act 1914 (Cth). The individual indicative sentences ranged from 20 months (Medicare offence) to 44 months (Centrelink financial advantage offence), with indicative sentences of 28 months and 32 months respectively for the two passport offences. His Honour imposed an aggregate sentence rather than cumulative individual terms.

On the question of remorse, the court drew a clear distinction between regret and genuine contrition. The chequered history of the proceedings, including the prolonged threat to withdraw a guilty plea and the repeated disruption of the sentencing list, was directly relevant to this assessment. His Honour found that the conduct during the proceedings undermined any claim to authentic remorse.

The court identified the objective seriousness of the offences as significant. The offending spanned decades, involved sustained and deliberate deception of multiple Commonwealth agencies, and was motivated in part by the offender's desire to circumvent the consequences of his deportation. The need for both specific and general deterrence weighed heavily in the sentencing calculation.

His Honour imposed an aggregate sentence of five years' imprisonment with a non-parole period of three years, backdated to the date of arrest. A reparation order was also made requiring repayment of the full $169,986 to the Commonwealth.

Orders Made

  • Aggregate sentence of five years' imprisonment, commencing 9 January 2018
  • Non-parole period of three years, expiring 8 January 2021, with an order for release on parole on that date
  • Balance of term of two years, expiring 8 January 2023
  • Reparation order under s 21B of the Crimes Act 1914 (Cth) requiring payment of $169,986 to the Commonwealth

Key Takeaways

  • The District Court drew an explicit and firm distinction between regret and remorse, holding that the latter requires something more than the former and must be assessed against the offender's conduct throughout the entire proceedings, not merely their words at the sentencing hearing.
  • Prolonged and disruptive conduct during sentence proceedings, including repeated threats to withdraw a guilty plea without ever filing supporting material, can undermine a claim to contrition and affect the weight a court gives to subjective circumstances.
  • Where federal offending spans multiple agencies and extends over many years, the court treated the sustained and deliberate nature of the deception as a significant factor elevating objective seriousness.
  • An aggregate sentencing approach under Commonwealth sentencing principles can result in a total term lower than the sum of individual indicative sentences, reflecting the totality principle and the court's assessment of the "absolute minimum" custodial term appropriate to the facts.
  • A reparation order under s 21B of the Crimes Act 1914 (Cth) is available alongside a custodial sentence, and the District Court made such an order here for the full amount of funds dishonestly obtained from the Commonwealth.

Legislation and Cases Referenced

Legislation:
- Passports Act 1938 (Cth), ss 9A(1)(d), 10(1)(a)
- Health Insurance Act 1973 (Cth), s 129(2)
- Australian Passports Act 2005 (Cth), s 29(1)(b)(i)
- Criminal Code 1995 (Cth), s 134.2(1)
- Crimes Act 1914 (Cth), ss 16BA, 21B

Cases:
- Xiao v R (2018) 96 NSWLR 1