Tham v R [2020] NSWCCA 338

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tham v R [2020] NSWCCA 338 Hearing dates: 27 November 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Before: Bathurst CJ at [1] Hoeben CJ at CL at [2] Bellew J at [3] Decision: (1) The time in which to file a notice of application for leave to appeal against sentence is extended to 10 August 2020. (2) Leave to appeal is granted. (3) The appeal is dismissed. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred by taking into account the fact that the applicant was an unlawful non-citizen when assessing the objective seriousness of the fraud offences – Applicant's unlawful citizenship status inextricably linked to the fact that he was not entitled to the benefits he obtained – Error not established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant an unlawful non-citizen who pleaded guilty to offences arising from dishonestly obtaining a passport and associated offences of revenue fraud – Whether sentencing judge erred in finding that the fraud offences were well above the mid-range and moving towards the upper end of the scale of objective seriousness – Error not established – Observations as to the breach of trust inherently involved in offending of this kind Legislation Cited: Australian Passports Act 2005 (Cth) Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Social Security Act 1991 (Cth) Cases Cited: 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 (Court of Criminal Appeal (NSW), 7 December 1984, unrep) Category: Principal judgment Parties: Kwok Wah Tham – Applicant Regina – Respondent Representation: Counsel: L Brasch and M Voleynik – Applicant G Wright – Respondent