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District Court 12 November 2024

R (Cth) v Chen

[2024] NSWDC 682

Fraud & dishonesty
CRIME SENTENCE MID LOW ABOVE MID HISTORICAL CRIMES

Citation: R (Cth) v Chen [2024] NSWDC 682
Court: District Court of New South Wales
Date: 12 November 2024 (orders revised by consent)
Judge(s): Neilson DCJ

Background

The offender, referred to in the judgment as Bob Chen, appeared for sentence following guilty pleas to two counts on indictment and one further offence dealt with on a certificate. All three offences were federal offences. The conduct spanned nearly two decades, beginning in 1998.

The offender had originally entered Australia in 1988 under one identity, was deported in 1993, and then re-entered in 2000 using a different name and a different Chinese passport. Using that second identity, he applied for and obtained permanent residence, Australian citizenship, and three successive Australian passports, each time concealing his prior identity, his deportation, and his earlier criminal history.

The three charges corresponded to three distinct steps in that course of conduct: submitting a false migration application in 1998 (Count 1, under the Migration Act 1958 (Cth)); dishonestly obtaining three Australian passports between 2006 and 2016 (Count 2, under the Australian Passports Act 2005 (Cth)); and, on the certificate, concealing a prior name and prior convictions when applying for Australian citizenship in 2005 (under the Australian Citizenship Act 1948 (Cth)).

  • What was the appropriate objective seriousness for each of the three offences?
  • What weight should be given to mitigating factors, including guilty pleas, remorse, minimal criminal history, and prospects of rehabilitation?
  • How should the court treat the potential hardship to the offender's young child, who was of kindergarten age and for whom the offender was the sole carer, under s 16A(2)(p) of the Crimes Act 1914 (Cth)?
  • Whether full-time imprisonment or an alternative sentence was appropriate given all the circumstances.

Decision

His Honour assessed the objective seriousness of each offence individually. The s 166 certificate offence (concealing a prior name and prior convictions in the citizenship application) was placed above mid-range seriousness. Count 1, the false migration application, was assessed at mid-range. Count 2, the dishonest obtaining of passports, was assessed at the low range, in part because the passports were obtained as a downstream consequence of the fraudulently obtained citizenship rather than through independent deception directed at the passport authority itself.

On subjective matters, the court accepted that the offender had minimal relevant criminal history, had pleaded guilty, demonstrated genuine remorse, and carried strong prospects of rehabilitation. The historical nature of some of the offending and the significant gap between the conduct and the prosecution were also taken into account. These factors collectively warranted a meaningful reduction from what the objective gravity of the offences might otherwise attract.

The hardship to the offender's young child received close attention. Relying on Totaan v R [2022] NSWCCA 75, which confirmed that hardship to a family member or dependant need not reach an "exceptional" threshold before a sentencing court may take it into account for federal offences, Neilson DCJ found that the impact on the child would in any event have met even the former, higher threshold. The child was of kindergarten age, the offender was the sole parent, and full-time imprisonment would create substantial uncertainty about the child's care and welfare.

The initial sentence was subsequently set aside by consent on application by the Crown, and a revised sentence was imposed. An aggregate sentence of three years imprisonment was ordered, to be served by way of intensive correction in the community (an ICO), with community service and supervision conditions attached.

Orders Made

  • Initial sentences set aside by consent on application by the Crown.
  • Aggregate sentence of three years imprisonment, to be served by way of Intensive Correction Order (ICO) in the community.
  • Conditions of the ICO:
  • No commission of any offence.
  • Submission to supervision by a community corrections officer.
  • Completion of 400 hours of community service work.
  • Participation in any rehabilitation or treatment program directed by Community Corrections.
  • Report to Community Corrections office at Hornsby by telephone within seven days.
  • Indicative sentences:
  • Section 166 certificate offence: 6 months.
  • Count 1 (false migration application): 10 months.
  • Count 2 (dishonestly obtaining passports): 2 years and 6 months.

Key Takeaways

  • The District Court placed the dishonest passport-obtaining offences at the low range of seriousness where those passports flowed directly from a fraudulently obtained citizenship, rather than from a fresh, independent act of deception directed at the passport authority.
  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), the effect of a sentence on a dependent child is a factor the court may weigh in sentencing for federal offences; following Totaan v R [2022] NSWCCA 75, this does not require the hardship to reach an "exceptional" threshold, though the District Court found the hardship here would have satisfied even the former stricter test.
  • A conviction for concealing a prior name and prior convictions in a citizenship application was assessed above mid-range seriousness, reflecting the deliberate nature of the concealment and its central role in enabling the entire course of fraudulent conduct.
  • Historical offending, substantial delay between conduct and prosecution, genuine remorse, and strong rehabilitation prospects each operated as mitigating factors capable of reducing an otherwise significant sentence.
  • An aggregate sentence of three years can be served by way of an ICO where the combination of subjective factors, including sole parenthood of a young child, justifies a non-custodial mode of service.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), s 234(1)
- Australian Passports Act 2005 (Cth), s 35(1)
- Australian Citizenship Act 1948 (Cth), s 50(1)(b)
- Crimes Act 1914 (Cth), ss 16A(2)(p), 17A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Totaan v R [2022] NSWCCA 75
- Chan v The King [2023] NSWCCA 206
- R v Campbell [2024] NSWDC 413
- Grahame v Singh [2010] SASC 306
- Pinkstone v The Queen (Supreme Court of Western Australia, 24 August 2000)