R v Tham

PRE-SENTENCE CUSTODY

1. The offender has been in custody since his arrest on 22 October 2018. The sentences that he is to experience will commence on that date.

THE UTILITY OF THE PLEAS OF GUILTY

1. The Crown has conceded in the submissions it provided to me that the pleas of guilty provide a basis upon which the Court may accept contrition and remorse and the attitude of the offender facilitating the administration of justice, and in accordance with recent or relatively recent authority including Xiao v Queen [2018] NSWCCA 4 as evidence of utilitarian value given by the course taken by the offender.
2. It is also said in the written submissions that a discount need not be quantified although its quantification is desirable. There are authorities referred to, including Xiao v Queen ibid. In Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 after a decision I made at first instance the Court of Criminal Appeal differed from me as I recall it in the requirement that the Court identify a discount for utilitarian value, which I had not done, simply bringing the plea to account in accordance with the statements of principle that are reflected in these written submissions. Since that guidance was provided to me, I tend to apply a discount to such matters and I will in this case apply a discount of 25% to each of the sentences that I will settle upon bringing into account the objective seriousness of the misconduct and the subjective matters that are put before me such as they are, with those matters that I must bring to account as set forth in s 16A (2) Crimes Act 1914 (Cth).

THE FACTS

1. 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.
2. There was a joint investigation conducted by the Department of Foreign Affairs and the Department of Human Services, they are respectively known as DFAT and Centrelink, and also the Department of Human Services Medicare. This was an investigation into passport fraud and social security fraud by this offender.
3. He came to the country in 1986 unlawfully and has remained here, as I said, for 32 years. He created and maintained the false identity of Simon Man‑Lee born 29 November 1944.
4. The offender made false statements in the course of attempting to obtain an Australian passport in the name of Simon Man-Lee. He obtained a false passport in that name. He applied to Centrelink and caused to be paid to him Newstart allowance in the sum of $41,887.74 in the name of Simon Man-Lee over a period of about three years and five months, and he applied for and obtained an age pension in the name Simon Man-Lee in the sum of $61,985.48 over three years and three months.
5. The investigators could not locate in the course of investigation an application for an Australian visa or Australian citizenship by the appellant or any of his aliases including the identity he created of Simon Man-Lee.
6. The facts provide me with a description of what an age pension is and how it comes to be paid; so too with regard to Newstart allowance. These are set forth in an annexure that is included in the statement of facts. I do not need to go through that detail, to which I have had access for this judgement.
7. He came to Australia, as I said, in 1986 on September 1 using a passport in the name of Kwok Theng Tham born 9 July 1941. There is no record showing the departure from Australia of that person and on 28 December 1989, the passport in that name was intercepted by Australian authorities through the post after it was sent from Thailand to Henry Tham, an alias used by the offender.
8. On 22 February 1991, he was arrested and charged and fingerprinted under the alias Henry Tham by the New South Wales Police. On 19 April 1967, Roger Lee born Wing Tak Lee on 29 November 1944 in Hong Kong obtained Australian citizenship and was issued with an Australian Citizenship Certificate. Subsequently, Australian Citizenship Certificates were issued in the name of Roger Lee on 19 April 1967, 13 February 1990, 7 November 1991, 29 April 1997 and those are set forth in a table together with the identification and certificate numbers.
9. On 18 September 1991, the offender made an application for a Declaratory Certificate of Australian Citizenship, form 119, in the name of Roger Lee. That was lodged with the Department of Immigration, Local Government and Ethnic Affairs. On 22 January 1992, the offender signed a statutory declaration lodged with the Land Titles Office of New South Wales declaring by 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".
10. On 3 February 1992, the Land Titles Office New South Wales allocated this transaction a unique reference number, particularised in the facts.
11. On 6 November 1991, the offender made an Australian passport application number XXX00CF in the name of Simon Man-Lee date of birth 29 November 1944, and in support of this he provided an Australian Citizenship Certificate in the name of Roger Lee certificate number XXX316 which was the certificate issued on 7 November 1991 linked to a master record number XXX96B and a deed number XXX444 registering a change of name.
12. On 19 March 1992 an Australian passport XXX300 was issued to the offender in the name of Simon Man-Lee. Between 15 April 1992 and 27 September 1995 the offender departed and returned to Australia on five occasions using the Australian passport XXX300. The travel is particularised in a table included in the statement of facts. The departures were on 15 April 1992, 29 July 1993, 26 November 1993, 4 October 1994, and 29 August 1995. There are corresponding dates when he returned to this country particularised in the table.
13. On 18 April 1997, Roger Lee made an application for a Declaratory Certificate of Australian Citizenship in his name. On 29 April 1997, Australian citizenship certificate number XXX312 linked to a master record XXX96B was issued in the name of Roger Lee. This caused the subsequent invalidation of the earlier Australian Citizenship Certificate number XXX316 linked to XXX96B issued on 6 November 1991.
14. On 23 May 1997, Roger Lee made an Australian passport application number XXX54L in his name. On 26 May 1997, Australian passport XXX227 was issued in the name of Roger Lee.
15. On 14 December 2001, the offender made an application for the renewal of Australian passport application number XXX15A in the name Simon Man-Lee. As this was an application for the renewal of a passport, he was required to submit a photograph and attend a passport interview.
16. On 31 December 2001, Australian passport XXX905 was issued in the name Simon Man-Lee.
17. Between 15 March 2002 and 28 March 2002, the offender departed from and returned to Australia on that passport.
18. On or around 10 September 2002, the offender completed and submitted a claim for Department of Human Services Centrelink Newstart allowance in the name of Simon Man-Lee. He provided documents in support. These were Australian passport L9117905, a driver's licence issued in New South Wales, XXX303, a St George multi-access visa card, a Medicare card XXX733.
19. Between 3 September 2002 and 28 October 2002, the offender received DHS Centrelink Newstart allowance. On 29 October 2002, the Newstart allowance was cancelled for failure to lodge a form.
20. On 7 November 2002, the offender was arrested under the identity of Simon Man-Lee by Australian Federal Police for supplying a commercial quantity of a prohibited drug, namely, MDMA. He was sentenced to six years imprisonment with a non-parole period of three years and nine months.
21. He was photographed and fingerprinted. Those matched the fingerprints taken for the offender's previous arrest in 1991, linked to the identity of Henry Tham. On 6 August 2006, the offender was released to parole.
22. We come now to the individual offences and the first of those is sequence 3, the offence of dishonestly obtaining the Australian travel document namely the passport XXX200.
23. On 15 October 2008, the offender reported the passport XXX905 issued in the name of Simon Man-Lee as lost. On 18 October 2008, he obtained a registered New South Wales Births, Deaths and a Marriages Change of Name Certificate, number XXX30/2008 in the name of Simon Man‑Lee.
24. On 23 October 2008, the offender made an Australian passport application number XXX00F in the name of Simon Man-Lee which was subsequently withdrawn because a valid citizenship certificate could not be provided.
25. In support of that application, there were the following documents: Australian passport or travel document lost or stolen report in the name of Simon Man-Lee dated 15 October 2008 in respect of passport L9117905; Australian Citizenship Certificate XXX316 in the name of Roger Lee issued 7 November 1991; a New South Wales change of name certificate showing a change of name from Roger Lee to Simon Man-Lee dated 18 October 2008; and a general declaration by passport applicant in the name of Simon Man-Lee dated 23 October 2008 declaring that he was born in Hong Kong.
26. On 14 September 2015, the offender made an application for evidence of Australian citizenship in the name of Simon Man-Lee. On 17 September 2015 the application was granted and a new Australian Citizenship Certificate was issued, certificate number XXX494.
27. On 11 August 2016, the offender made an application for an Australian passport in the name of Simon Man-Lee in support of the application. He provided the Australian Citizenship Certificate XXX494 in the name of Simon Man-Lee, Australian passport XXX300 in the name of Simon Man‑Lee, two photographs, one on the reverse bearing the words "This is a true photo of Simon Man-Lee" with a signature and dated 10/8/16 and a signed declaration dated 10/8/2016 in the name of Simon Man-Lee stating:- "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 lost my birth certificate. I am male".
28. The rear of Australian Citizenship Certificate XXX494 states that the person named on the front of the certificate had previously been issued with a Certificate of Australian Citizenship with the following details: the particulars thereunder are listed. There are four lines of particulars each in the name of Roger Lee with a date of birth 21/11/1944 with issue dates 30 April 1997, 12 November 1991, 14 February 1900 and 19 April 1967.
29. On 1 November 2016, departmental officer Tien Shu Shang recorded a file note to the application for Australian passport XXX200 indicating that Mr Shang had telephoned the offender about the application and spoke to him in Cantonese. During the telephone call, the offender stated that he did not have his Chinese birth certificate, his Hong Kong passport, his original visa to Australia or any other original identity documents and he said he did not have any family members or relatives having any of those documents.
30. On 30 March 2017, Australian passport XXX200 was issued in the name Simon Man-Lee.
31. We now come to sequence 4, obtaining a financial advantage by deception, namely, the age pension and sequence 10, obtaining the Newstart allowance.
32. On 17 July 2006, the offender completed and submitted a claim for Centrelink Newstart allowance in the name of Simon Man-Lee. He provided a New South Wales driver's licence XXX303, a Westpac Handycard expiry unknown and a Medicare card XXX733.
33. Between 4 September 2006 and 1 December 2009, Centrelink paid to the offender Newstart allowance in the sum of $41,887.74.
34. On 12 October 2009, the offender lodged an application to transfer the age pension stating that his date of birth was 29 November 1944 and he was born in Hong Kong, at the time he came to Australia his name was Simon Man-Lee, he lived in Hong Kong until 25 December 1994, and he was granted Australian Citizenship on 25 December 1994. The application was not accepted because he could not provide sufficient proof of residency.
35. On 17 November 2009, Roger Lee was approved for his age pension. His application said that his date of birth was 29 November 1944, he was born in Hong Kong, his name at the time he came to Australia was Wing Tak Lee, he began living in Australia before 1965, he was granted Australian Citizenship on 19 April 1967, and he used to be known as Robert Roger Lee.
36. On 4 August 2015, the offender confirmed his intention to claim that he was from that date approved for the Centrelink age pension in the name of Simon Man-Lee. The written claim for the age pension in the name of Simon Man-Lee was subsequently lodged on 11 August 2015 and enclosed an Australian Citizenship Certificate in the name Simon Man-Lee, Certificate XXX494, income and assets form in the name of Simon Man-Lee, and Compensation and Damage form in the name Simon Man-Lee dated 11 August 2015.
37. Between 29 September 2015 and 19 September 2018, the offender received $61,985.48 in Centrelink age pension benefits.
38. A search warrant, an arrest and a record of interview occurred in the following sequence.
39. On 22 October 2018, the search warrant was executed at the offender's premises where various items were seized. These were the passports XXX300 and XXX200 in the name Simon Man-Lee, the Australian Citizenship Certificate number XXX494 was seized, Medicare statement of claim for Simon Lee was seized, so too a Westpac bank account in the name Simon Man-Lee, Energy Australia electricity account in the name Simon Man-Lee, correspondence from DFAT in the name Simon Man-Lee in relation to an application for an Australian passport, New South Wales Family and Community Services application for housing in the name Simon Man-Lee, Westpack bankcards in the name Simon M Lee, Medicare card in the name Simon M Lee, a Centrelink pension card in the name Simon M Lee and a New South Wales driver licence in the name Simon M Lee. The documents are described with particulars of their numbers in that list which I have reviewed but I have chosen not to include them for the purposes of this judgement.
40. During the search, the offender was cautioned and interviewed. He made admissions that his true identity was Kwok Wah Tham born
41. 7 October 1943; that he was born in Singapore; that he travelled to Australia on a passport of Kwok Theng Tham in 1986; and that he was arrested under the name Henry Tham in 1991 for gambling. He was introduced to a person he thought was Roger Lee at a gambling house. He paid $3,000 for the Citizenship Certificate of Roger Lee, he used that and a change of name document to create the identity of Simon Man-Lee, he has never lived as Roger Lee, he used the identity of Roger Lee to create the identity of Simon Man-Lee, he does not have citizenship independently of Roger Lee, and he obtained the passport in the name of Simon Man-Lee and travelled on it.
42. On 22 October 2018, he was arrested at his residence by the Australian Federal Police. He was entered into custody at Bankstown Police Station. Later that afternoon, he participated in a record of interview with DHS and DFAT staff. This was the second interview in which he participated. He admitted that he submitted documents to obtain Medicare entitlements and to obtain Centrelink benefits.
43. Thereafter we have annexure A which particularises the various items of information to which I earlier referred.

THE OFFENDER

1. There is a record of antecedents from the records of the Australian Federal Police with particulars of his prior sentence for knowingly taking part in the supply of a large commercial quantity of MDMA with a sentence of six years and a non-parole period of three years and nine months that he was required to suffer.
2. There is a New South Wales antecedent report in the name of Henry Tham with a date of birth 9 October 1948 with aliases of Simon Man Lee, Roger Lee and Simon Lee with date of birth 29 November 1944. This record has particulars of convictions for playing an unlawful game in 1991 and supplying the large commercial quantity of drug for which he was committed to the Sydney District Court where he suffered the aforementioned sentence, the particulars of his incarceration are included with the custodial record.
3. Finally there is a redacted document bearing the heading "Identity Assessment Report" from the Department of Home Affairs. This is heavily redacted but there is reference to the offender being a person of interest in Singapore in respect of an unlawful death. It is not a matter that has any significance in the exercise that I am about to perform. The nature of the crime is specified to be murder and I am aware that unless policy has changed since I was a member of the National Crime Authority he is not at any risk of deportation to that jurisdiction. In any event it is not a matter that I need to be troubled with in the determination of sentence in this case.
4. There was no evidence tendered on behalf of the offender.

CONSIDERATION

1. Ms Carr who appears made all the submissions that were available to her on the last occasion. She noted his age of 74 years at the present time. She conceded that the concept embraced by s 5 Crimes (Sentencing Procedure) Act 1999 to the extent that it might apply to this Federal prosecution was crossed, in other words that a custodial sentence is inevitable in this case and there could be nothing other than a custodial sentence imposed. The requirement for consideration of that aspect is a matter found in the Crimes Act (Cth); it is a matter the Court needs to bring to account which I have.
2. The Crown spoke to written submissions. The uncharged acts that the offender engaged upon in the pursuit of his ultimate goals reflected in the charges upon which he is presented are matters that are relevant to the assessment of sentence because of the sophistication in the ongoing conduct by which he pursued his unlawful purposes. I agree with the submission made that it does not breach the De Simoni principle to bring that background and the related circumstances to account. The Crown submits that there should be an appropriate measure of accumulation in the sentences that are identified. This being a Federal offence in each case I do not have any scope for imposing an aggregate sentence; I am required to identify individual sentences with commencement dates but the Commonwealth legislation does allow me to specify one non-parole period and I intend to take that course.
3. The written submissions provided by the Crown are comprehensive and I might say helpful. It is noted that he has been in custody since he was arrested on 22 October 2019. I am reminded of Part 1B Crimes Act (Cth) 1914 and I am reminded that I must bring into account all factors that are relevant and as are known to the Court.
4. The circumstances and the nature of the offending is the first topic to consider. It is true, as the Crown has submitted that there was a course of conduct in respect of all of these offences. Looking at them individually, the passport offences for example first of all, involved conduct which was committed over a course of time with acts of the same or similar character, all of them dishonest, directed towards the creation and maintenance of the false identity in the name of Simon Man Lee. He used passports and other documents earlier obtained in the false identity of Simon Man Lee to make several applications for passports in the same name. It enabled him to thereafter engage upon the Social Security fraud. He used the details of the Australian passport XXX300 in the name of Simon Man Lee issued on 19 March 1992 to obtain a passport XXX200 from 11 August 2006 to between 30 March 2017 and 6 April 2017. He used various identity documents in the name of Simon Man Lee in support of his application for the first passport. He held himself out to a departmental officer that he was Simon Man Lee born in Hong Kong, all of that is relevant to sequence 3.
5. In respect of sequence 9 he submitted the Australian passport application in the name of Simon Man Lee on 23 October 2008 accompanied by an Australian passport or travel document lost or stolen report for the alleged loss of the Australian passport XXX105. He used various false identity documents in the name of Simon Man Lee to support his application for a further passport.
6. As to the Social Security offences he falsely claimed a total of $103,873.22. The Social Security offending extended over six years and eight months and he used the false Australian passports earlier obtained to facilitate his access to those benefits.
7. With regard to sequence 4, on 12 October 2009 he lodged an application to transfer to the aged pension; that application contained false information as to his identity. It was rejected because of insufficient proof of residency and so he made a subsequent application for the aged pension in 2015 using various identity documents in the name of Simon Man Lee to support his application. He used various false identity documents in the name of Simon Man Lee in support of his 2006 application for Newstart allowance which is the subject of sequence 10; that was received between 4 September 2006 and 1 December 2009.
8. I agree with the observation made by the Crown that the course of conduct which culminated in the passport offending displayed a degree of planning and premeditation characterised by a prolonged and deliberate pattern of behaviour directed to the dishonest concealment of both his true identity and his passport offending. The passport offending was sophisticated; he accumulated over time a collection of false identification including Australian passports which aided his acquisition of further false Australian passports. The circumstances where an unlawful non-citizen has dishonestly obtained or sought to obtain an Australian passport in such circumstances over 26 years puts this offending amongst what is said to be the most egregious examples of this type of offending.
9. I have not, I must say, in all my experience seen such misconduct within this context.
10. 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.
11. The decision as to where to place the particular conduct along the range of objective gravity is always a matter of judgement 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.
12. There is little known of the offender subjectively. He is someone who has been in this country for an extended period of time and has enjoyed the fruits of residency. He was involved in the commission of serious crime beforehand; that is a matter in aggravation of the criminal misconduct on this occasion, not to increase its objective seriousness or to increase the sentence that he would otherwise suffer, but it does inform the extent to which he will not have leniency that might otherwise be available to him, and it is relevant to the assessment of the weight to be given to the aspect of specific deterrence in this case.
13. Turning to the injury, loss and damage resulting from the offences, dealing first of all with fraud on the revenue of the Commonwealth there are ample statements in the authorities in courts at first instance and in appellate courts pointing out the impact of fraud on the revenue of the Commonwealth. Denying the Commonwealth those funds that it might use to pay what is required to maintain government institutions and services; it also impacts upon the extent to which taxation is required to ensure that there are resources for the government; and it also impacts upon those who are honest and who might otherwise be put under close scrutiny to ensure that they are not claiming benefits to which they are not entitled. This type of offence is difficult to uncover and establish and accordingly appropriate weight is required to make it clear to the community that if people do engage upon this sort of misconduct punishment will follow.
14. The guilty plea I have already discussed. He will have a discount of 25% to reflect all of the aspects that come to his favour in that regard. The Crown, as I said, concedes the utility, and the evidence of contrition and willingness to facilitate the course of justice, but I agree with the Crown's observation that this must be brought to account in light of what would have been a compelling Crown case should this matter have proceeded to trial.
15. The other point of interest in this case is that the offending is likely to have continued but for the interjection by the Australian Federal Police. That said, once he was apprehended he, according to the facts, surrendered to the inevitable and confessed his participation in this crime. There has been no attempt or arrangement put in place for reparation to the Commonwealth for the monies taken from Centrelink. It would be unlikely, from what I know at least, that he would be in a position to pursue that endeavour.
16. Passport fraud requires punishment, it requires general deterrence and in this case, of course, specific deterrence. I am reminded of what was said by the South Australian Court of Criminal Appeal in R v Knip [2017] SASFC 34, highlighting the importance of the integrity of the passport system, the reliance that all countries place upon the passport system, the extent to which passports allow the movement of citizens across international borders, all of which are imperilled by conduct such as this offender engaged upon, and thus the significance of general deterrence.
17. I am also asked to consider the proliferate use of false identity documents in his pursuit of those goals. I have already spoken of the significance of the social security fraud offences and the weight that is required for general deterrence in such matters, so too with specific deterrence required in this case.
18. The Crown concedes that the instances of similar offending cannot be used in aggravation of the sentences but it does, as the Crown submits and as was spoken to in the course of the oral submissions, demonstrate that the conduct is not aberrant or uncharacteristic, it informs the seriousness of the misconduct overall, and impacts upon the question of whether or not there are prospects of rehabilitation. The Crown submits that the previous sentence - of some substance I might say, six years with a non-parole period of three and a half years - seems not to have had any deterrent effect.
19. The character, antecedents, age and means and physical and mental health of the offender are next discussed. As noted, he is in his eighth decade of life. He is understood to be a citizen of Singapore. He appears not to have any connections upon which he could rely in this jurisdiction. English is not his first language and, from what I know, he is not sufficiently competent in English to ease his time in custody. The sentence that I am to impose I am asked to ensure will not be a crushing sentence, as was put to me by Ms Carr, but at the same time, as the Crown submits, I cannot impose an unacceptably lenient sentence. He is in the latter part of his life and whatever time is left to him clearly has to be limited, even were he to be released from gaol today, and I am cognisant of the fact that his release from gaol is going to be at a point in his life when his age will no doubt limit his opportunities to provide for himself in all or most aspects of his existence.
20. There is nothing to be said, as I perceive matters, about his prospects for rehabilitation. The fact that he owned up to and owned the misconduct speaks in his favour but there is nothing upon which I can conclude that there are strong prospects of rehabilitation. It might be said on his behalf that after such a prolonged period of misconduct and as he advanced into old age, options available to him to provide income from another source legitimately were just not available, but there is nothing before me to suggest that the offender has tried to rely upon any such circumstance.
21. The Crown correctly points out that prospect of deportation has been the subject of different comment in different jurisdictions, but, in New South Wales at least, the Court of Criminal Appeal has made it clear that that is not a matter that should trouble the sentencing court.
22. The sentences are going to be more than three years and there will be accumulation and I will be imposing a non-parole period. The non‑parole period as a proportion of the overall sentence is a matter that has caused me some concern, bearing in mind his age. There will be, I believe, appropriate punishment both in the head sentence which I am about to impose upon the accumulation of the individual sentences and the single non‑parole period to which he will be subject.
23. Before I go to that next step, Mr Crown, is there anything that you have detected in what I have had to say that is a misstatement of any of the facts or principles?
24. PRUSCINO: No, your Honour. There was one matter I'd like to address your Honour on in relation to a reparation order.
25. HIS HONOUR: Reparation, yes.
26. PRUSCINO: Pursuant to s 21B Crimes Act 1914.
27. HIS HONOUR: 21 capital B, isn't it?
28. PRUSCINO: 21, yes, 21 capital B, that's correct. The Crown seeks a reparation order in the amount of $103,873.22 to be payable to the Commonwealth.
29. HIS HONOUR: I will make the order I think, Ms Carr, unless you've got something to say.
30. CARR: Yes, your Honour. I confirm what your Honour has said, there is no clear indication he will ever be able to meet that--
31. HIS HONOUR: Prospects--
32. CARR: --but I don't seek to be heard other than that.
33. HS HONOUR: No, all right.
34. CARR: While I'm on my feet, your Honour, I will indicate that during my submissions I raised with your Honour that he was married and is married.
35. HIS HONOUR: Did you?
36. CARR: I also confirmed that she was unaware of his identity.
37. HIS HONOUR: Can I just go back to my notes? I read through them before I came up but I may have missed that.
38. CARR: Yes, it was towards the beginning I think.
39. HIS HONOUR: Just let me have a look.
40. CARR: Yes, your Honour, that she has a spousal visa pending and, once his position is solidified, her application fails. So it's not necessarily a helpful subjective circumstance so--
41. HIS HONOUR: I will continue with the following points--
42. CARR: Yes.
43. HIS HONOUR: --we can do it by way of exchange. You referred to the proposition of specific deterrence was not of great significance in this case, that the likelihood of his offending in Australia is low on the basis of his age rather than attitude, as I understood what you said to me.
44. CARR: And also that one way or another he is unlikely to be released into the Australian community.
45. HIS HONOUR: Yes, yes.
46. CARR: So it's simply a lack of opportunity as opposed to any intent.
47. HIS HONOUR: Yes. I just can't find the information you gave me about his wife.
48. CARR: It was towards the beginning of my submissions, your Honour, it may have even been before your Honour took the papers.
49. HIS HONOUR: I think that's probably right, because you gave a--
50. CARR: A bit of an opening, a bit of context, your Honour.
51. HIS HONOUR: An opening, such as it was - and I'm not being critical, you were doing your best to explain the unique circumstances of the case - and at that point I wasn't writing down what was said. But I'm happy for you to put that to me now so that I have not ignored it.
52. CARR: Yes, your Honour. So what I said to your Honour - and I apologise for not having it in writing - was that the subjective material prior to him entering custody was all based on a falsehood and so that's one of the reasons why there was no confirmation before your Honour, because anybody who could speak to him spoke to the falsehood as opposed to the man.
53. HIS HONOUR: Yes.
54. CARR: There is a marriage. My understanding, if your Honour would accept it from the bar table, was that his wife, who I have had contact with during these proceedings, would visit him about once a month in the house he lived in to ensure that he was well. My understanding is they did not cohabitate, they did not cohabitate.
55. HIS HONOUR: When was the marriage solemnised, if ever?
56. CARR: I don't know but it's relevantly recent, your Honour, her application is still pending.
57. HIS HONOUR: Okay. So is she here now?
58. CARR: Yes. So she had a spousal visa before the relevant authority. It had not been determined when this all came to light, so she's been effectively sitting in the wings monitoring the circumstances of these proceedings.
59. HIS HONOUR: Yes.
60. CARR: Because once these proceedings are finalised the Government will then have confirmation in relation to the support of her application. The colloquial understanding is that her application will therefore lack merit, given that she's not marrying an Australian citizen or has not married an Australian citizen and, as a consequence, she will likely suffer removal as well.
61. HIS HONOUR: Does any of that offer him any comfort?
62. CARR: Probably not. The only--
63. HIS HONOUR: And one might hold some concerns about some of it. Would it be better simply to note that you have put it before me--
64. CARR: Yes.
65. HIS HONOUR: --and just not attribute to it any significance in the proceedings?
66. CARR: The only reason why I wanted to ensure that it was before the record was should anybody seek to criticise me in the future.
67. HIS HONOUR: Yes, yes, I understand.
68. CARR: And also that he did have, if your Honour would accept from the bar table, he had connections within the community. He did have supports within the community but those supports all arose, however they came to be, they knew him as Simon.
69. HIS HONOUR: That his support, upon the material before me, could not be said to be--
70. CARR: There's no glowing references seeking to make reparation on his behalf or anything of that nature certainly.
71. HIS HONOUR: But the findings I have made with regard to his circumstances in gaol - on his own--
72. CARR: On his own.
73. HIS HONOUR: --without adequate English, has not been displaced by whatever associations or relationships he might have had.
74. CARR: He may get an occasional visitor that your Honour wasn't mindful of but, no, there's no position that for example he has significant family support also in custody who could surround him and provide him assistance. As I understand it, there's no-one he's particularly close with that would act as effectively an interpreter. He has on the last occasion described to me that it's very lonely being in Long Bay.
75. HIS HONOUR: Yes, I understand that. I can imagine that would be one of his problems.
76. I should add that I was helpfully provided with an analysis of other examples with some authorities and cases decided, but as in such matters each case will turn upon its own facts and at best they provide some guidance in how to approach these matters. It is best not to diminish the significance of their provision, they are always helpful and it is always appropriate to advance them to keep, at least in Federal offences across the Commonwealth, a measure of consistency in outcomes.

THE SENTENCE

1. In respect of the offences contrary to the Australian Passports Act sequences 3 and 9, for each of those I intend a sentence of 5 years applying the discount of 25%. I should note this is perhaps less than what one might have expected after the reasons that I have given for my decision but I am informed by the advanced years of the offender and as was frankly conceded by Ms Carr he might well not ever leave the custodial setting; that cannot be ignored in the assessment of the sentence in each case.
2. Insofar as the obtaining financial advantage by deception is concerned, in respect of sequence 4 the sentence is one of 4 years and in respect of sequence 10 a sentence is one of 3 years and 9 months and the accumulation of those sentences will of course result in a longer period.
3. In respect of each of these offences, the offender is convicted. For sequence 3 I specify a term of imprisonment of 5 years commencing on 22 October 2018, expiring on 21 October 2023. In respect of sequence 9 I specify a term of imprisonment of 5 years commencing on 22 October 2019 and expiring on 21 October 2024. In respect of sequence 4 I specify a term of imprisonment of 4 years commencing on 22 April 2021 and expiring on 21 April 2025. In respect of sequence 10 I specify a term of imprisonment of 3 years and 9 months commencing on 22 October 2021 expiring on 21 July 2025. The overall sentence therefore is one of 6 years and 9 months from 21 October 2018 to 21 July 2025. I specify a single non‑parole period of 4 years from 22 October 2018 to 21 October 2023. I make an order for reparation pursuant to s 21B Commonwealth Crimes Act 1914 that is in the sum of $103,873.22.

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