R v Vella [2012] NSWDC 263

District Court New South Wales

Medium Neutral Citation: R v Vella [2012] NSWDC 263 Hearing dates: 2 March 2012 Decision date: 02 March 2012 Before: Nicholson SC DCJ Decision: Sentenced to imprisonment - See paragraphs [47], [48] and [49] Catchwords: CRIMINAL LAW - Sentence - Passport fraud - Identity fraud - Initiates application for false passport - Recruits forger - Intended use as identity document to permit banking using false identity - No contrition - Parity - Reasonable rehabilitation prospects Legislation Cited: Commonwealth Crimes Act - Australian Passports Act Cases Cited: R v El Kahani(1991) 21 NSWLR 370 Texts Cited: (Marginal) General Deterrence Doesn't Work - and What It Means for Sentencing] -Bagaric and Alexander (2011) 35 Criminal Law Journal 269 Category: Sentence Parties: The Crown Paul John Vella Representation: Mr J Korn - Offender DIrector of Public Prosecutions (Cth) File Number(s): 2010/00241046 Publication restriction: There is to be no publication of the name used for false identity

SENTENCE 1HIS HONOUR: On 29 August 2011 Paul John Vella was arraigned upon six charges all relating to steps he had taken to obtain a false passport. Five counts charged Vella with providing misleading documents in support of an application for an Australian passport, the sixth charged Vella with making a false statement in an application for an Australian passport. All offences were said to have occurred on 7 October 2006. 2Vella pleaded not guilty. After a seven day trial the jury found him guilty of all offences. Today Mr Vella is to be held accountable for his criminal conduct. 3The Court's task in sentencing is to determine the appropriate sentence for these offences. It does that firstly by finding facts in relation to the offending conduct arising out of evidence in the trial, it then assesses the objective criminality of those facts as found to be as against other offences of a similar kind. This is an offence against the Commonwealth law and that requires consideration of matters found in 16A of the Commonwealth Crimes Act 1914. Facts 4The starting point then is the facts which need to be found. In its submission the Crown produced and overview of facts it argued were established before the jury. I am prepared to accept them as a reasonable reflection of the facts reflecting the jury's verdict. At some stage prior to 7 October 2005, namely the date of the offences, the offender sought the services of Charles Cassar for the purposes of obtaining a passport in a name other than his own. The offender specifically requested that Cassar obtain a Queensland name/identity for the false passport. The offender paid for and arranged for Cassar to travel to Southport Queensland to meet with the offender and to obtain the details for the Queensland identity of the false passport that was to be obtained. After Cassar arrived in Queensland the offender drove Cassar to the Southport cemetery so Cassar could look through the headstones for an appropriate name for the passport to be obtained. Cassar obtained the details of one ED, from a headstone. I make an order in respect of that name that it is not to be published. Cassar then subsequently obtained the necessary supporting documentation for an identity of E D, including a Medicare card and bank cards. At the offender's request Cassar also created a false residential tenancy agreement purporting to be a lease entered into by E D for the rental of the property at 77 Clifton Road Marsden Park New South Wales. The property was in fact owned by the offender's parents. Through an intermediary the offender provided Cassar with at least two photographs of himself to be affixed to the passport application. The offender met with Cassar on 7 October 2005 outside the shops at Londonderry where the post office Agency was located. Cassar provided the offender with the Medicare card and residential tenancy agreement in the name of E D. The offender brought the bank cards that had been sent to 77 Clifton Road Marsden park. The offender provided Cassar with instructions [as said - read "Cassar provided the offender with instructions] on how to complete and lodge the passport application. The offender attended the post office and lodged the application for a passport in the name of E D, in so doing the offender purported that he was E D and provided the false Medicare card, bank cards, and residential tenancy agreement as proof of that identity. The offender signed the application as E D. The offender also provided/submitted two signed photographs of himself which had been signed by Cassar using the name and identify of Richard Opie, as guarantor. The offender nominated 77 Clifton Avenue Marsden Park New South Wales as address for the passport to be sent to via registered mail, the passport was issued and sent via registered mail to that address. The offender arranged for Cassar to be paid a sum between $20,000 and $30,000 for this service. The passport had never been used by way of travel, nor was it recovered by police. The Crown submits that the offender must necessarily have collected and hidden/disposed of the passport. 5The defence case at the trial was that Cassar was the real applicant of the false passport. It was he who had come to Queensland and found the false identity of E D at a Queensland cemetery. It was he who undertook the principal role in the creation of the false documents and endorsed the picture of the accused as being E D. It was he who had used the false documents to make the false application passport at the Londonderry Post Office and it was he who had filled out the application. 6By its verdict the jury had clearly rejected this account. The defence case on sentence, that the jury was correct, is made clear in the undated affidavit of Vella tendered on the sentencing hearing, paragraphs 9 to 20; 9. In relation to this matter I now admit the following: 10. The witness Cassar did make an application and did obtain for me a passport and did so in the following circumstances. 11. I did not know Cassar directly I knew a member of his family a person who has been referred to as Mohammad in the brief was known to me. In the course of the conversation between us he told me that he had a second passport and said casually, "Do you want one". 12. Without giving the matter any real thought I said, "Yes". I did not know how serious a breach of the law that getting a false passport was. I only ever considered that I might use it to open a second bank account to try and hide money from my now ex-wife. We were separating and the situation was becoming very bitter on her part. 13. I met Cassar on one occasion only and that was outside the Londonderry Post Office, I had previously provided my photo he did everything else. 14. He took me inside and we had the interview with the male post office person. The interview was not with the female from the post office who gave evidence in this matter. 15. That was the first and last time I saw Cassar. 16. I did not go back to the post office for the second interview, I did not even know about a second visit to the post office. 17. I paid $10,000 for the passport and that was paid through an intermediary. 18. The passport was sent to a post office box and I collected it. 19. I never used it on even one single occasion. 20. When I heard about the police interest in the matter with people being arrested I burnt the passport and all associated plastic cards and other associated paperwork. 7In respect of this affidavit the offender was required for cross examination, that is to say his evidence was tested. I accept his evidence that his intent was to use the false passport for identification points in the event he chose to hide money from his ex-wife in family law matters or for some other purpose. Inherent in this admission is a concession that he at least contemplated presenting a false financial picture of his assets to his wife and/or her advisors when settling property issues from his marriage dissolution. 8The creation of fraudulent documents, the obtaining of false passport and its intended use to deceive bankers, former wife and others, indicated the offender is a man willing to use manipulation to achieve deception. Such a person does not inspire confidence as a speaker of the truth. 9I reject paragraph 12 of the affidavit, that is, the offender's claim of failing to give the matter any serious thought. This is simply self serving. The taking of the photographs, the creation of the false residential agency and the paying on his own account of $10,000 must necessarily directly involve him in acts to advance the aim of securing the false passport. Those acts alone and the money sum involved would put a lie to, "not giving the matter any real thought". 10If the offender is saying in paragraph 12 that a reason he decided to hide money from his ex-wife was because of the bitterness of the situation and they were then separating, I reject that also. The principle reason he is trying to hide money was because he wanted to keep it. I am satisfied that the sum he was trying to hide was well in excess of the money he paid for the false passport, the evidence in the trial was that the offender paid $20,000 for the false passport. 11My understanding of the evidence is that his ex-wife that he was seeking to hide the money from was Diana. Bearing in mind the offences charge date -October 2005 - and that the events leading up to the fraudulent application required some preparatory work, the time of the offender's relationship is informative. 12He met Diana in 2002 I think in Malta, visited her in the Ukraine after that. In 2005 she came to Australia. In December 2006 she gave birth to the offender's daughter. The couple did not separate until 2009, four years after the events where he was speaking about a bitter separation. While I accept there may have been difficult moments throughout the relationship including at the time of her arrival in Australia, I do not accept that as things were playing out in 2005, there was any need for him to hide money from Diana if things had not worked out in October 2005, there was no child and scope for very little claim by Diana, upon his assets. 13The offender's counsel, on instructions in cross examination, put to Charles Michael Cassar, that he Cassar was passing himself as being the applicant. I am unsure whether the offender has resiled from that position. In paragraph 10 of his affidavit, Vella deposes, "the witness Cassar did make an application and did obtain for me a passport". The offender also describes the circumstances of these events as meeting Cassar at the Londonderry Post Office. It was also put by Mr Korn, on instructions, that his evidence [Cassar's] that he met the offender at the post office was a lie. That has now revealed a use of his counsel to put to a witness a proposition the offender knew to be untrue. It is another example of manipulation by the offender for the purposes of seeking to deceive. 14The meeting of Cassar at the Londonderry Post Office, Cassar taking the offender inside, "we had an interview with the male", (not the female post office person), frankly this is minimising. I am satisfied the offender presented himself as the applicant and engaged in the interview as the applicant. The offender in his affidavit puts the sum he paid Cassar at $10,000. Given there is unchallenged evidence in the trial that Vella paid for Cassar's travel to Southport and paid him somewhere between twenty and thirty thousand, the burden of proving the mitigation of those facts falls upon the offender on the balance of probabilities. A line in an affidavit is insufficient for that purpose. 15Cassar's evidence is that he received payments through an intermediary, that being the evidence before the jury, it is more likely that not the intermediary also took a cut or commission. The jury acted on this evidence. Given its verdict, the jury is likely to have accepted payment as described by Cassar. 16I reject the offender's evidence that he never used the passport on any occasion. While there is no proof to the contrary I cannot and do not rule out that the passport has been used to hide money from his ex-wife and it follows, from the authorities. It makes no sense for a man to pay, even on his own version, a five figure sum for a false passport and put it to no use. It should be understood I am in no position to make an adverse finding, my point is I am not satisfied on the balance of probabilities that the passport remained unused, I cannot go further than that. 17Nor do I accept the offender has proved on the balance of probabilities the passport has been destroyed. It may be listed in Customs and Immigration black books around the world, but it was never intended to be a travel document, but rather a document offering what is regarded as a confident source of identification. In this area, it may still have some value to the offender. I view the claim self serving. 18I regard paragraphs 9 to 20 in the offender's affidavit as primarily self serving and an attempt to minimise or perhaps rationalise his criminality and his criminal conduct. These paragraphs have not caused me to modify my view as to the appropriateness of the facts and circumstances of the offence as set out by the prosecution, in paragraph 6 of the Crown prosecution's submissions. Objective Criminality 19From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of an offender's behaviour. That is done by comparing objectively the criminality exhibited in the charges before me with criminality of offences of a similar kind. It is in that way that the objective seriousness of the criminality of these offences can be evaluated. Quite clearly the objective criminality has an important if not the most important impact upon the sentencing outcome. 20The principle purpose of the Australian Passports Act, is to provide for the issue and administration of Australian passports to be used as evidence of identity and citizenship by Australian citizens travelling internationally. Clearly the creation of false passports for criminal purposes attacks the very integrity of the objective passports are meant to achieve. It also undermines the capacity of Governments to administer passports and it's Act, that is the proper regulation of movement of peoples into and out of Australia and it's treaty obligations in respect of other countries. It opens the door for a range of offences from tax evasion, money laundering, unlawful enrichment and of course, the arrival and departure of people who are seeking to hide their identification such as criminals. That is to say it may assist in the interfering with the administration of criminal justice and the administration of justice in Family Law matters, by facilitating the non-disclosure of matrimonial assets. The offences before the Court are to be found in the Part for Offences Relating to Australian Travel Documents. Their seriousness is to be evaluated against a maximum penalty of ten years imprisonment. While I have noted the potential and obviously link to use of false passports for an ongoing criminal activity, there are no other offences proved or that should be taken into account. Each of counts one to five were offences committed as preparatory offences with the intent of using the product of that earlier offending, in support of the fraudulent application which is the subject of the sixth count. 21The victim of the offences is not a person, but rather a deceased person whose identity has been taken. The other victim is the integrity of the passport system as a means of facilitating travel and identification. This offence as with others, adds to the pressure on the Government to police the system, all of which costs taxpayers money and may result in increased regulation such as fingerprints on passports or eye scans for travellers. The injury, loss and damage relate to costs and efforts needed to detect offenders and to maintain as best as can be done, the integrity of the passport system. 22I do not regard the offender as being contrite. As late as 23 November last year, he was denying to Probation and Parole any involvement in the offence. His lack of contrition is also to be measured against the instructions he gave to his counsel as demonstrated in the cross examination of Cassar. Nor does he have any insight into his offending as is demonstrated by those parts of his affidavit touching upon the offending conduct that I have earlier referred to. Nor does he have any sympathy for or even concern about the possible affront that using the name E D may have had to those who knew and loved and mourn E D. 23His principal regret is it the consequence of the guilty verdicts and how they will impact upon his prospects of obtaining custody of and/or access to his daughter. His claim to have destroyed the passport has not been proved. The question of reparation is no issue in this matter. So far as I am aware no attempt has been made to apologise to the family of the deceased man or baby actually it was, whose identity and memory were being desecrated by his conduct. Subjective Matters 24Vella is a forty one year old man in a de-facto relationship, he has two children of prior relationships, a nineteen year old son Joshua, and a five year old daughter Tiffany. His separation from his former wife Diana is still ongoing with a level of bitterness that regrettably is not unknown in Family Law matters. As noted the offender's involvement in these offences had provided an unwelcome and self inflicted ammunition for his protagonist in circumstances where other less savoury allegations against him have failed for want of any merit. As best I can tell, he is well supported by his current partner and his son. Education, Employment and Skills 25Vella completed Year Ten, a motor trimming apprenticeship and a specialised vehicle trimming course. He was a self employed business man operating his own motor trimming business for some ten years. He moved to the Gold Coast and operated a boat yard there for three years. Currently he manages holiday rental apartments. It would seem he has a strong work ethic. Since the Court cases (crime and family law), he has employed a manager. Through his work he has made a useful contribution to the community. General Health 26So far as one can tell there are no general physical health problems. Emotional and Mental Health Issues 27Vella has never been diagnosed with any mental health issue, it is likely that he is seriously stressed by the potential outcome of Court cases in two jurisdictions. There is no suggestion of any drugs, alcohol or gambling addictive issues. I have sought to highlight the strengths of his character as a father of two children and through his work he has made useful contributions to the community. I have noted his good work ethic. Antecedents, and Rehabilitation Prospects 28His antecedents do not disentitle him to some leniency, there are three offences recorded against his name since 1997, all finalised in the Local Court. His total criminality as measured by Court results amounts to $1,150 and three months disqualification. He should be regarded in essence, as a person of prior good character. There are a number of matters to be regarded as positive rehabilitation indicators, * Supportive partner and son; * Available accommodation upon release; * Good work ethic and reasonable income stream; * Minimal criminal antecedents with last offending a decade ago; * Good physical health; * No drug, alcohol or gambling issues. On the negative side, * An absence of meaningful contrition; * An absence of insight as to the antisocial nature of his offending or any genuine concern about it 29While there are those negative aspects, I am prepared to accept that his rehabilitation prospects are better than reasonable. While the offender has not sought to cooperate with police and certainly has disclosed nothing to assist, nor has be been obstructive. He has taken advantage of his right to silence and that cannot add to his criminality. 30There are three people of significance in the offender's life so far as the evidence reveals, his son, his daughter and his partner. A period of incarceration will adversely affect each. He is to be incarcerated in New South Wales, there may be access deprivation to family because of distance. His incarceration will be most telling in the outcome of the custody battle being raged over his daughter Tiffany. 31From what I have read of the Family Law proceedings the relationship between mother and daughter may be troubled, disturbing and destructive for the child. That is not a matter I wish to express any firm opinion on, because I have not heard nor is it appropriate for me to hear, from the mother. There are other proceedings afloat dealing with those issues. But on the evidence before me such full time custody as is required will be arduous for this offender because of his inability to offer himself as a custodian for the immediate future. That is a factor which has impacted significantly upon the period of non-release. 32I also recognise that his care of his daughter, assuming he devoted himself to it, would be more therapeutic than care and custody by some other relative. However, there is another Court dedicated to finding the best custodial situation for the child and that too is a factor I take into account. 33Incarceration inevitably causes high levels of emotional stress and deprivation for those left behind. It is only in exceptional circumstances when incarceration is called for by the nature of the offending, that it can thereby be avoided by exceptional circumstances being experienced by a third party. I have already noted why these circumstances will mitigate the punishment but they do not fall into a category where the punishment due can be avoided. 34This offender has not been to prison before. Insofar as personal deterrence is of importance I note the research points to the deterrent impact of arrest, charging, criminal proceedings and the very fact of incarceration as being the areas of highest deterrence, (see [(Marginal) General Deterrence Doesn't Work - and What It Means for Sentencing] - Bagaric and Alexander (2011) 35 Criminal Law Journal 269 and authorities cited there). I regard these factors as constituting sufficient personal deterrence. 35It is to be noted there is no requirement in s 16A(2) for general deterrence to be applied. I note Hunt J in R v El Kahani (1991) 21 NSWLR 370 regarded that as a legislative oversight. On that occasion the Court of Criminal Appeal had not been referred to the ALCR report 41, which preceded the introduction of s 16A. The general tenor of the Australian Law Reform Commission report was critical of the concept and effect of general deterrence. Later research has to strengthen the arguments against the usefulness and appropriateness of general deterrence, see (Marginal) General Deterrence Doesn't Work ibid. 36Notwithstanding my strong reservations and reluctance, my oath of office requires me to accept decisions of the Court of Criminal Appeal as binding upon me and to apply the doctrine of general deterrence as a factor in the intuitive synthesis process. I do so. 37Section 16A(3) Crimes Act 1914 (Cth) requires the Court to have regard to the nature and severity of conditions that may be imposed on, or may apply to an offender under any sentencing order I make. I note that this will be the offender's first time in custody. At age forty one he will be older than the majority of prisoners. He will be housed in a single sex paramilitary institution where all significant decision making in respect of accommodation, classification, cell mates, eating time, food choices, clothing choices and the like, will be made by authorities and not by him. 38What programs he may enter and the time he spends out of his cell will be determined in the final instance by others and not by him. He will not be at liberty to leave his custodial sentencing until the expiration of the sentence or by special order of the manager of the gaol where he is housed. The architecture is crude, harsh and unwelcoming. His environment will be something foreign to him with clanging doors, continual noise, inmates who are mentally unwell and overly sensitive, as his companions. 39I have already noted difficulties his family may have visiting him and it's impact upon him whilst in custody. I have already noted his sense of impotence in respect of obtaining custody of his child. It is no wonder full time custody is to be a sentence of last resort. Parity 40On 24 August 2011 Judge Zahra sentenced Cassar for aiding and abetting this offender to produce documents that sustained the false passport application, to a sentence of two years and six months on a plea of guilty. His Honour found genuine contrition and gave a significant discount for assistance to authorities. That offender was sentenced on a total of eleven counts. This sentence was partly cumulative upon a sentence imposed by Judge Ainslie-Wallace. Cassar was regarded as a major producer of false passports, in a sense, the manufacturer and retailer of false passports for that clientele that was seeking them. 41Judge Ainslie-Wallace's sentence had an non parole period expiring on 9 December 2016. In other words Judge Zahra was facing totality issues among the eleven offences before him and further totality in respect of already existing substantial sentence earlier imposed. It would appear he set an overall sentence of four and a half years with a recognisance release order of two and a half years. 42Judge Walmsley, dealt with Bonny Purac, Mr Cassar's de-facto and assistant. She was before Judge Walmsley for nine offences including two counts contrary to s 29(1) of the Australian Passports Act. She had pleaded guilty. 43Her subjective case was particularly strong, her participation in the offending was powerfully influenced by her attachment to Cassar. None of the offences she was on appears to share any relationship with this offender's indictment calendar. As to those two offences which are related to the same section of the most serious offence for this offender his Honour imposed terms of imprisonment of two years for each. The overall sentence was one of two years and three months. A recognisance release order was made to affect her release after fourteen months. 44Another client of Cassar's one Adam O'Brien, was also dealt with by Judge Zahra. O'Brien was before his Honour on eleven matters including four offences relating to actively engage by him to secure, including two actively engage by him to secure a false passport and one count of possessing a false passport. And then there were six counts relating to firearm offences. The offender had pleaded guilty to all of the counts. His Honour found remorse for the passport offences. In that totality of offences his Honour was dealing with, his Honour set a sentence of two years. 45Those sentences provide a guide. The Cassar sentence for aiding and abetting this offender is of particular value. Frequently the criminality of the aider and abetter does not reach the level of the principle in the first degree. However, Cassar both has skill and commitment and him holding himself out as a retailer, that is committing a series of offences to produce fraudulent passport documents, points to his criminality being greater. While this offender certainly requested and paid for the documents, the skill of Cassar was vital. Moreover, his offending in Vella's matters was part of his extensive ongoing criminal conduct. 46I regard Count Six in the indictment before me as the offence displaying the worst criminality. The application was in a false name and address. The application document was fraudulent. To give it an aura of legitimacy it was supported by five further documents each known to be false. That greater criminality is to be reflected in my sentence. Setting the Sentences 47Paul John Vella you are convicted of these five offences, that you on or about 7 October at Londonderry in the State of New South Wales produced misleading document, namely a Queensland birth certificate in the name of E D, to another person and the document was produced in connection with an application for an Australian travel document, namely an Australian passport application in the name of E D. Likewise, at the same time and place and in the same circumstances, you did produce an Australian Medicare card in the name of E D. Likewise at the same time and place and in the same circumstances, you did produce another misleading document, namely a Reliance Credit Union bank card in the name of E D. Again, at the same time and in the same circumstances you did produce a St George Bank Visa card in the name of E D and finally in this group, you did produce a false document namely a residential tenancy agreement in the name of E D at the same time and in the same circumstances and for the same purpose. In respect of these five offences you are convicted. You are sentenced to two years imprisonment, to date from 2 March 2012 and expire on 1 March 2014. 48In respect of Count Six, you are convicted that you on or about 7 October 2005 at Londonderry in the State of New South Wales, did make a false document to another person and that you did falsely state that the statements you had made in the information you had given to the post office employee were true and correct, and the statement was made in connection with an application for a Australian passport that I have earlier mentioned in the name of E D, you are convicted. For that offence you are sentenced to two years and six months imprisonment. That will date from 2 March 2012 and expire on 1 September 2014. 49You are to be released on 1 June 2013, that is next year. On your entering into a recognisance pursuant to s 20(1)B of the Crimes Act 1914, yourself in the sum of ten dollars without security, with the conditions that you be of good behaviour for the balance of the sentence. That is until 1 September 2014.