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 Solicitors: Armstrong Legal – Applicant Commonwealth Director of Public Prosecutions – Respondent File Number(s): 2018/323189 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 8 November 2019 Before: His Honour Judge Bennett SC Judgment 1. BATHURST CJ: I agree with Bellew J. 2. HOEBEN CJ at CL: I agree with Bellew J and the orders which he proposes. 3. BELLEW J: Kwok Wah Tham (the applicant) pleaded guilty before the Local Court to the following offences: 1. between 11 August 2016 and 30 March 2017, did dishonestly obtain an Australian travel document, namely Australian passport in the name of Simon Man Lee, contrary to s 35 of the Australian Passports Act 2005 (Cth) (count 1); 2. on or about 23 October 2008, did make a false or misleading statement in connection with an application for an Australian travel document, namely an Australian passport in the name of Simon Man Lee, contrary to s 29 of the Australian Passports Act 2005 (Cth) (count 2); 3. between 4 September 2006 and 1 December 2009, did obtain a financial advantage by deception, namely $41,887.74, contrary to s 134.2(1) of the Criminal Code 1995 (Cth) (count 3). 4. between 29 September 2015 and 19 September 2018, did obtain a financial advantage by deception, namely $61,985.48, contrary to s 134.2(1) of the Criminal Code 1995 (Cth) (count 4). 1. The maximum penalty for each of those offences is imprisonment for 10 years. 2. The applicant adhered to those pleas when he appeared before the District Court for sentence. On 8 November 2019 he was sentenced as follows: 1. count 1 – imprisonment for 5 years commencing on 22 October 2018 and expiring on 21 October 2023; 2. count 2 – imprisonment for 5 years commencing on 22 October 2019 and expiring on 21 October 2024; 3. count 3 – imprisonment for 3 years and 9 months commencing on 22 October 2021 and expiring on 21 July 2025; 4. count 4 – imprisonment for 4 years commencing on 22 April 2021 and expiring on 21 April 2025. 1. The overall sentence imposed was one of 6 years and 9 months' imprisonment to date from 21 October 2018 and to expire on 21 July 2025. The sentencing judge imposed a single non-parole period of 4 years' imprisonment commencing on 22 October 2018 and expiring on 21 October 2022. The sentencing judge also made an order for reparation pursuant to s 21B of the Crimes Act 1914 (Cth) (the Act) in the sum of $103,873.22. 2. The applicant now seeks leave to appeal on the grounds more fully discussed below. 3. The applicant requires an extension of time in which to file a notice of application for leave to appeal. The Crown indicated at the conclusion of the hearing that no objection was taken to an order for an extension of time being granted. THE FACTS OF THE OFFENDING Overview 1. The applicant entered Australia unlawfully in 1986 and remained in Australia for more than 32 years before being arrested for this offending. Following his arrival the applicant created, and thereafter maintained, the false identity of Simon Man Lee born 29 November 1944. [1] 2. In broad terms, the applicant's offending was constituted by the following: 1. obtaining an Australian passport in the name of Simon Man Lee (count 1); 2. making a false or misleading statement in connection with obtaining a Australian passport in the name of Simon Man Lee (count 2); 3. obtaining, by deception, payment of Newstart Allowance in the name of Simon Man Lee in an amount of $41,887.74; (count 3). 4. obtaining, by deception, payment of an age pension in an amount of $61,985.48 over a period of approximately three years (count 4). The circumstances leading to the offending 1. On 19 April 1967 Roger Lee, born Wing Tak Lee on 29 November 1944 in Hong Kong, obtained Australian citizenship and was issued an Australian Citizenship Certificate. [2] 2. The applicant unlawfully entered Australia on 1 September 1986 using a passport in the name of Kok Theng Tham, born 9 July 1941. No record exists showing the departure, from Australia, of Kok Theng Tham. On 28 December 1989, the passport of Kok Theng Tham was intercepted by authorities through the post, having been sent from Thailand to a person named Henry Tham, a known alias of the applicant. On 22 February 1991, the applicant was arrested, charged and fingerprinted by NSW Police under the name of Henry Tham. [3] 3. On 18 September 1991, the applicant made an application for, and was issued with, an Australian Citizenship Certificate in the name of Roger Lee. He subsequently signed a statutory declaration, registered with the Land Titles Office of NSW on 3 February 1992, in which he stated: I the undersigned Roger LEE of 26 Noble Avenue, Strathfield NSW 2135 and now or lately called Simon Man LEE on behalf of myself absolutely renounce and abandon the use of my said name Roger Lee. [4] 1. On 6 November 1991 the applicant applied for an Australian passport in the name of Simon Man Lee born 29 November 1944. In support of his application he produced: 1. an Australian Citizenship Certificate in the name of Roger Lee; and 2. the deed registering his change of name. [5] 1. On 19 March 1992, an Australian passport was issued to the applicant in the name of Simon Man Lee. Between 15 April 1992 and 27 September 1995, the applicant departed from, and returned to, Australia using that passport. [6] 2. On 14 December 2001, the applicant applied for the renewal of the passport issued in the name of Simon Man Lee. On 31 December 2001, an Australian passport was issued in the name of Simon Man Lee. Between 15 March 2002 and 28 March 2002, the applicant departed from, and returned to, Australia using that passport. [7] 3. On or about 10 September 2002, the applicant completed and submitted a claim for DHS Centrelink Newstart Allowance (Newstart Allowance) in the name of Simon Man Lee and provided the following documents in support of his claim: 1. the Australian passport in the name of Simon Man Lee; 2. a NSW driver's licence expiring on 14 July 2004; 3. a St George multi-access Visa Card expiring in September 2004; and 4. a Medicare card expiring in March 2006. [8] 1. Between 3 September 2002 and 28 October 2002, the applicant received payment of Newstart Allowance. On 29 October 2002, that allowance was cancelled due to the applicant's failure to lodge the necessary documentation. [9] 2. On 7 November 2002 the applicant was arrested under the identity of Simon Man Lee for supplying a commercial quantity of a prohibited drug, namely MDMA. He was sentenced to imprisonment for 6 years with a non-parole period of 3 years and 9 months. At the time of his arrest, the applicant was photographed and fingerprinted. The fingerprints matched those taken at the time of his previous arrest in 1991 under the identity of Henry Tham. The applicant was released on parole on 6 August 2006. [10] The offending in count 1 1. On 11 August 2016, the applicant applied for an Australian passport in the name of Simon Man Lee. In support of that application he produced the following documents: [11] 1. an Australian Citizenship Certificate in the name of Simon Man Lee issued on 17 September 2015; 2. the Australian passport issued in the name of Simon Man Lee on 19 March 1992; 3. two photographs, the reverse side of one of which bore a signature and the date of 10 August 2016 accompanied by the words: This is a true photo of Simon Man Lee; 1. a signed declaration dated 10 August 2016 in the name of Simon Man Lee which included the following: My name is Simon Man Lee, date of birth 29 November 1944. The passport L9117905 was lost in about year 2010 which was also reported to police department at Campsie Police Station. I also lost my birth certificate. I am male. 1. On 1 November 2016, a departmental officer, Tien Shu Shang recorded that: 1. he had telephoned the applicant about the application and had spoken to him in Cantonese; 2. during the telephone call the applicant stated that he did not have: 1. his Chinese birth certificate; 2. his Hong Kong passport; 3. his original Visa allowing entry into Australia; or 4. any other original identity documents; and 1. the applicant stated that he did not have any family members or relatives who had any of his documents. [12] 1. On 30 March 2017, an Australian passport was issued to the applicant in the name of Simon Man Lee. [13] The offending in count 2 1. On 15 October 2008 the applicant reported that Australian passport L9117905 which had been issued in the name of Simon Man Lee had been lost. On 18 October 2008 he obtained a registered change of name certificate in the name of Simon Man Lee. Subsequently, on 23 October 2008, the applicant made application for an Australian passport in the name of Simon Man Lee, which was subsequently withdrawn because a valid Citizenship Certificate could not be proved. Accompanying this application were the following supporting documents: 1. an "Australian passport or travel document lost or stolen report" in the name of Simon Man Lee dated 15 October 2008, reporting the loss of Australian passport L9117905; 2. an Australian citizenship certificate in the name of Roger Lee; 3. a change of name certificate showing a change of name from Roger Lee to Simon Man Lee dated 18 October 2008; and 4. a general declaration in the name of Simon Man Lee dated 23 October 2008 declaring that Simon Man Lee was born in Hong Kong. [14] The offending in count 3 1. On 17 July 2006, the applicant completed and submitted a claim for Newstart Allowance in the name of Simon Man Lee and provided the following documents in support of that claim: 1. a NSW driver's licence expiring 15 August 2011; 2. a Westpac Handycard; and 3. a Medicare card expiring November 2011. [15] 1. Between 4 September 2006 and 1 December 2009, the applicant was paid Newstart Allowance in an amount of $41,887.74. [16] 2. In order to be paid Newstart Allowance a claimant must satisfy the requirement prescribed by s 593 of the Social Security Act 1991 (Cth) (SSA), namely that he or she be an Australian resident unless exempt. [17] Pursuant to s 7(2) of the SSA, an Australian resident is defined as a person who resides in Australia and who is: 1. an Australian citizen; 2. the holder of a permanent visa; or 3. a special category visa holder who was a protected Special Category visa holder. [18] 1. The applicant purported to satisfy this requirement on the (false) basis that he was an Australian citizen. The offending in count 4 1. The applicant lodged a claim for payment of age pension on 11 August 2015 accompanied by the following documents in support: 1. an Australian Citizenship Certificate in the name of Simon Man Lee; 2. an income and assets form in the name of Simon Man Lee dated 11 August 2015; and 3. A "Member of Couple Compensation and Damage" form in the name of Simon Man Lee dated 11 August 2015. [19] 1. Between 29 September 2015 and 19 September 2018, the applicant was paid age pension in an amount of $61,985.48. 2. In order to be paid the age pension, a claimant must satisfy (inter alia) the requirement prescribed by s 43 of the SSA, namely that he or she have 10 years of "qualifying Australian residence". Pursuant to s 7(5) of the SSA, a person meets this requirement if and only if: 1. the person had, at any time, been an Australian resident for a continuous period of not less than 10 years; or 2. the person had been an Australian resident during more than one period and: 3. at least one of those periods was of 5 years or more; and 4. the aggregate of those periods exceeded 10 years. 1. Bearing in mind the provisions of s 7(2), the applicant purported to satisfy this requirement on the (false) basis that he was an Australian citizen. The applicant's arrest 1. On 22 October 2018 a search warrant was executed on the applicant's premises. Various documents were found, including an Australian passport and other documents in the name of Simon Man Lee. [20] In the course of the execution of the search warrant, and having been cautioned, the applicant admitted (inter alia) that he: 1. was in fact Kwok Wah Tham, born 7 October 1943 in Singapore; 2. travelled to Australia on the passport of Kok Theng Tham in 1986; 3. paid $3,000.00 for the citizenship certificate of Roger Lee; 4. used the citizenship certificate for Roger Lee and a change of name document to create the identity of Simon Man Lee; 5. did not have Australian citizenship; and 6. obtained the passport in the name of Simon Man Lee and travelled on it. [21] THE GROUNDS OF APPEAL Ground 1 – The sentencing judge erred in taking into account the applicant's status as an unlawful non-citizen in assessing the objective seriousness of the social security fraud offences The sentence proceedings 1. The Crown made the following submission to the sentencing judge: [22] In circumstances, where an unlawful non-citizen has dishonestly obtained (or sought to obtain) an Australian passport in a false identity using documents including a previous Australian passport in the same false identity he has used for approximately 26 years places the instant passport offending among the most egregious examples of this type of offending. The use of false identification documentation was also an essential element of the social security offending and must be distinguished from less serious forms of offending such as failing or under declaring income. The gravamen of the social security offending concerns the use of a false identity by an unlawful non-citizen and places this offending among the most serious category of its type. That the offending involved a quantum above $100,000.00 and duration beyond six years serves to aggravate further the objective seriousness. The reasons of the sentencing judge 1. The sentencing judge said the following: [23] This is an unusual case, I might say. The offender has been in this country as an unlawful non-citizen for some 32 years, and so in the broadest terms, has been acting contrary to Australian law through the entire period. In that time, as particularised in the charges, he engaged upon identity fraud which in turn was used to impose upon the Commonwealth and access the benefits that he was able to persuade the authorities to allow him on the false representations that he made. 1. When assessing the objective seriousness of the offending in counts 3 and 4, the sentencing judge said: [24] The gravamen of the Social Security offending concerns the use of the false identity by an unlawful non-citizen and puts this offending toward the range of the most serious category of offences of this type. The decision as to where to place the particular conduct along the range of objective gravity is always a matter of judgment and minds will in my experience often differ, but I agree with the Crown's submissions that all of these offences are well above middle range at least and moving towards the upper end of the scale of seriousness. Submissions of the applicant 1. Counsel for the applicant made reference to s 16A of the Act which sets out a non-exhaustive list of matters to be taken into account, to the extent that they are relevant and known to the Court, when sentencing a federal offender. It was submitted that although the applicant's status as an unlawful non-citizen had some "limited relevance" as a subjective factor, the sentencing judge had erred in taking it into account in assessing the objective seriousness of the offending in counts 3 and 4. 2. Counsel submitted that the nature of the offending in counts 3 and 4 involved the applicant receiving a financial advantage, in the form of benefits to which he was not entitled. It was submitted that the applicant's receipt of those benefits was unaffected by his status as an unlawful non-citizen, rendering that status an irrelevant consideration in an assessment of the objective seriousness of the offending. Submissions of the Crown 1. The Crown accepted that in many instances, a person's immigration status may be entirely irrelevant to his or her offending. However, it was submitted that in the present case the applicant's status as an unlawful non-citizen was a matter which was directly relevant to his entitlement to the benefits he had fraudulently obtained, and was thus causally related to his offending. 2. The Crown pointed out that in order to qualify for each benefit that he had been paid, the applicant was required to satisfy the eligibility criteria previously set out. The Crown drew attention to the definition of the term "Australian resident" in the SSA, and pointed out that an unlawful non-citizen was precluded from obtaining the benefits which had been paid to the applicant. It was submitted that in these circumstances, the applicant's status as an unlawful non-citizen was relevant to the nature and circumstances of his offending in counts 3 and 4, [25] particularly as to the planning in which he had engaged in order to commit such offending. CONSIDERATION 1. The benefits fraudulently obtained by the applicant were payable only to a person who was an Australian resident. The applicant purported to satisfy that part of the eligibility criteria on the basis that he resided in Australia, and was an Australian citizen. He did so in circumstances where his presence in Australia had been unlawful on and from the time that he arrived in 1986. 2. The applicant utilised his falsified Australian citizenship to meet the eligibility criteria for obtaining the benefits in question. That reflected a significant level of planning and sophistication. As an unlawful non-citizen, he did not have, and could never have had, any entitlement to the benefits he received. It follows that his status as an unlawful non-citizen was inextricably linked to the offending in counts 3 and 4, and plainly relevant to an assessment of the objective seriousness of that offending. 3. For these reasons this ground is not made out. Ground 2 – The sentencing judge erred in his assessment of the objective seriousness of the social security fraud offences The findings of the sentencing judge 1. I have previously set out the findings of the sentencing judge as to the objective seriousness of the offending in respect of counts 3 and 4. [26] Submissions of the applicant 1. Although counsel for the applicant dealt with the two grounds of appeal together in his written and oral submissions, ground 2 was advanced independently of ground 1. Counsel submitted that there were a number of factors relevant to an assessment of the objective seriousness of the offending of this kind, including: 1. the amount of money obtained; 2. the period of time over which the offending took place; 3. the degree of planning; and 4. the circumstances in which the offending ceased. 1. Counsel submitted that when these matters were considered in the context of the applicant's offending they supported a conclusion that his Honour had erred in his assessment of the objective seriousness of the applicant's offending in counts 3 and 4. 2. Counsel for the applicant further submitted that it was relevant to take into account the fact that the applicant's offending did not involve a breach of trust. He submitted, in particular, that to reach a contrary conclusion would be to impermissibly extend "the ordinarily accepted notion of trust in sentencing law". [27] Submissions of the Crown 1. The Crown submitted that the sentencing judge had taken into account all relevant considerations. The Crown pointed out that the sentencing judge did not find that the offending was at the upper end of the range, or in the most serious category of objective seriousness, but rather that it was towards the upper end. 2. The Crown submitted that the applicant had failed to demonstrate that such a finding was not reasonably open in circumstances where, viewed objectively, the offending constituted a serious example of a fraud on the Commonwealth revenue. In this regard, the Crown pointed, in particular, to the systematic nature of the fraud, the amount of money which was obtained, and the period over which the offending took place. CONSIDERATION 1. Characterisation of the degree of objective seriousness of an offence is classically within the role of a sentencing judge in performing the task of finding facts and drawing inferences from those facts. Accordingly, this Court will be slow to interfere with the assessment of objective seriousness which is made by a sentencing judge. [28] In terms of offending of this nature, there are a number of factors which a sentencing judge is entitled to take into account in making that assessment. 2. The amount of money dishonestly obtained is one such factor. The amount is indicative of the extent to which an offender is prepared to be dishonest for the purposes of advancing his or her own purposes. [29] 3. The period over which the offending occurred is also a material consideration. Offending which is isolated or spontaneous will, as a general proposition, be regarded as less serious than that which involves a repetitive course of conduct which continues over an extended period of time. [30] 4. Moreover, because offending of this nature is easy to commit but difficult to detect, the fact that such offending only ceased after detection will also be relevant. [31] 5. Bearing in mind these considerations, the matters relied upon by counsel for the applicant in support of this ground [32] tend completely against the conclusion that the sentencing judge erred in his assessment of the objective seriousness of the offending in counts 3 and 4, given that such offending: 1. resulted in the applicant fraudulently obtaining a significant amount of money, namely $103,873.22; 2. occurred over an extended period, namely 6 years and 3 months; 3. was premeditated and sophisticated, as well as being facilitated by the creation of a false identity; and 4. only ceased when the applicant was arrested. 1. Further, and contrary to the submission of counsel for the applicant, the offending involved a significant breach of trust. Those who claim social security benefits are often in such genuine and urgent need of assistance that there is no time to undertake an investigation of the veracity of the information submitted in support of a claim at the time that it is made. If a system of more stringent checks were introduced, it may cause delay in the payment of benefits to those genuinely in need. Accordingly, the price of avoiding hardship to genuine claimants by granting them speedy relief is the risk of abuse by those who are not genuine. [33] 2. Those circumstances necessarily create a relationship in which the Government relies upon, and trusts, the honesty of those who make applications for monetary benefits, and the veracity of the information which is provided. In the present case, that trust was breached by the applicant over a long period of time, and to a significant extent. That is a further factor which supports the sentencing judge's conclusions as to the level of objective seriousness in counts 3 and 4. 3. For all of these reasons, this ground is not made out. ORDERS 1. I propose the following orders: 1. The time in which to file a notice of application for leave to appeal against sentence is extended until 10 August 2020. 2. Leave to appeal is granted. 3. The appeal is dismissed. ********** Endnotes 1. AB62. 2. AB 63 at [10]. 3. AB63 at [8]-[9]. 4. AB 64 at [11]-[12]. 5. AB64 at [13]. 6. AB 64 at [14]. 7. AB65 at [18]-[19]. 8. AB65 at [20]. 9. AB65 at [21]. 10. AB65 at [22]-[23]. 11. AB 66 at [27]. 12. AB 66-67 at [29]. 13. AB 67 at [30]. 14. AB 65-66 at [24]-[25]. 15. AB 67 at [31]. 16. AB 67 at [32]. 17. AB 71 at [46]. 18. AB 70 at [45]. 19. 68 at [35]. 20. AB 68 at [37]. 21. AB 68 at [38]. 22. Crown's written submissions at 11.8-11.9; AB 104-105. 23. AB 38-39. 24. AB 51. 25. See s 16A(2)(a) of the Act. 26. At [35] above. 27. T5.25-T5.26. 28. Mulato v R [2006] NSWCCA 282 at [37]; Ali v R [2010] NSWCCA 35 at [33]. 29. R v Hawkins (1989) 45 A Crim R 430 at 435. 30. R v Richard [2011] NSWSC 866 at [65]; R v De Leeuw [2015] NSWCCA 183 at 116. 31. R v Lopez [1999] NSWCCA 245 at [17]-[18]. 32. At [44] above. 33. R v Conway (2001) 121 A Crim R 177; [2001] NSWCCA 51 at [14]; R v Van Tung Luu (Court of Criminal Appeal (NSW), 7 December 1984 per Street CJ, unrep). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2020