Shero v Hinton [2010] ACTSC 73

4. The appellant be sentenced to a term of imprisonment of two months on the offence, such sentence of imprisonment to be suspended forthwith on the appellant entering into a bond to be of good behaviour for a period of 12 months secured by a recognisance in his own name in the sum of $1000.

2. On 7 December 2009, the appellant was convicted, on his own admission, of intentionally making a false statement in a statutory declaration in the Australian Capital Territory on 18 August 2009, contrary to s 11(1) of the Statutory Declarations Act 1959 (Cth). He was sentenced to four months imprisonment, to be served by way of periodic detention. The sentencing option of periodic detention provided by s 11 of the Crimes (Sentencing) Act 2005 (ACT) was available by reason of s 20AB of the Crimes Act 1914 (Cth). The maximum penalty prescribed for the offence is four years imprisonment.

3. The appellant appealed on two grounds, namely that the Magistrate took into account irrelevant considerations and that the sentence was manifestly excessive. On the appeal, the appellant also sought leave to add two further grounds of appeal, namely that:

(1) the Magistrate failed to give adequate reasons for his decision, in that he failed to indicate precisely what matters he took into account and what weight or significance he attached to each of those matters, and

(2) the Magistrate failed to state the penalty that would otherwise have been imposed but for the plea of guilty, as required by s 37 of the Crimes (Sentencing) Act 2005 (ACT).

4. At the invitation of the Court, counsel argued the appeal as if leave to amend the notice of appeal had been given. I indicated that I would consider the further proposed grounds of appeal, and determine whether leave to add them should be given at the completion of the argument.

5. It is convenient to deal with the proposed ground of appeal set out in para 3(2) above at this point. Section 37 of the Crimes (Sentencing) Act 2005 (ACT) applies if a court imposes a lesser penalty for an offence under s 35 (reduction of sentence on a guilty plea) or s 36 (reduction of sentence for assistance to law enforcement agency). It obliges the Court to state the penalty (including any shorter non-parole period) it would otherwise have imposed. Whether a failure to comply with s 37 leads to the sentencing process miscarrying so that a sentence should be set aside was considered by Refshauge J in Cotter v Corvisy [2008] ACTSC 64 at [57]. However, I do not need to consider that aspect further. The sentence imposed upon the appellant was not imposed pursuant to the Crimes (Sentencing) Act 2005 (ACT). It was imposed for a contravention of a Commonwealth provision. The sentencing provisions in relation to contravention of a Commonwealth enactment are set out generally in Pt IB of the Crimes Act 1914. Section 16A refers to the matters to which the Court is to have regard when passing sentence in respect of a person guilty of a federal offence. Not surprisingly, s 16A(2) lists a number of matters which a court must take into account, if relevant and known to the Court, in sentencing a federal offender. It is in terms which are very similar to those which apply under other legislation. However, as noted above, the option of periodic detention is only enlivened because it is taken up by s 20AB of the Crimes Act 1914 (Cth) providing for additional sentencing alternatives. There is no suggestion in s 20AB(1) which obliges the Court, when taking up of the sentence option of periodic detention under the law of a participating State or Territory, to comply with the procedural requirements of the different and isolated provisions of the participating State or Territory which apply if the sentencing is done under the law of that participating State or Territory. The sentencing for this offence was done under the Crimes Act 1914, and counsel for the appellant did not identify any such provision. In those circumstances, I do not propose to give leave to amend the grounds of appeal to include the proposed fourth ground of appeal.

6. The matter proceeded on an agreed statement of facts. In addition, the Magistrate had deferred sentencing to obtain a pre-sentence report, subsequently provided prior to the sentencing submissions and the ex tempore sentencing orders.

7. The following is taken from those documents, both of which were referred to by counsel for the appellant in the course of submissions.

8. The appellant was born on 1 July 1971. He was born in Kurdistan, the fourth of 11 siblings. He fled an oppressive government at the age of 15, and subsequently some years later was detained in Turkey when he was about 23 years old and imprisoned there for about 18 months. He arrived in Australia as a refugee on 4 October 1998, bearing an Iraqi passport.

9. At that time, his name, as disclosed on his passport, was Mohammed Malla Ahmad.

10. For some years he remained in New South Wales. During that time, he changed his name in accordance with procedures available to him at the New South Wales Office of Births, Deaths and Marriages to Alan Ako, then to Alan Dasco and subsequently in January 2009 to his present name Soran Shero.

11. In Queensland, according to its records, in March 2004 he changed his name from Mohammed Malla Ahmad to Aland Ahmed. Under that name he applied for a grant of Australian citizenship in July 2004.

12. On no occasion is it suggested that he changed his date of birth.

13. There was some evidence, referred to in submissions, that he had changed his name from Mohammed to Alan Ako because he received some ridicule by having the name Mohammed, and subsequently that he changed his name from Ako because, at the time he had a Philipino girlfriend and he learned that that name had unfortunate connotations in the Philipino language.

14. In the period 1999 to 2002, the appellant had several convictions in New South Wales for traffic, or traffic related offences, such as driving unlicensed or driving with an expired licence. Those convictions were recorded under the names of Mohammed Ahmad, Alan Ako and Alan Dasco.

15. The appellant came to live in Canberra in late 2007. He is a single man. He has a daughter now about nine years old, but he has no contact with her. He has no family in Australia. He works intermittently as a painter, but in recent times has had difficulty getting work because of loss of his driver's licence due to non-payment of a fine. He has worked casually as a painter. One of the persons for whom he has performed work has indicated that such work would continue to be available to him from time to time and that he was a satisfactory employee. He also received and continues to receive Centrelink benefits. He also runs an IT business, a web posting company largely for Iraq based persons. It was submitted that he would like to undertake study to increase his IT knowledge when he can afford it. He had no real education when growing up. He also sends money to his family in Kurdistan from time to time when he is able to do so.

16. In August 2009, under the name Soran Shero the appellant attended the Office of Births Deaths and Marriages in the ACT to apply to register a further change of name to Marco Semon. He was asked to provide on his application details of previous changes of name. He said only that he had changed his name from Aland Ahmed to Soran Shero. Subsequent investigations indicated some other possible names, including those mentioned above. He was asked to attend at the office to provide further information. He did so on 18 August 2009. A senior officer asked him whether any of the names Mohammed Malla Ahmed, Alan Ako and Alan Dasco were known to him. He replied in the negative. He then made a statutory declaration giving rise to the offence in the following terms:

I changed my name in NSW from Aland AHMED to Soran SHERO and because too many people calling me Marco SEMON in here I like to change my name in here to Marco SEMON and that shows in the stifcet (sic) I have changed from Aland AHMED to Soran SHERO. I have never chang (sic) othe (sic) names in Australia.

As noted above, it is now accepted that he had used the previous names referred to and had formally adopted those earlier names following the name under which he had arrived in Australia.

17. After hearing submissions, the Magistrate's sentencing remarks were quite brief. His Honour said:

Mr Shero, I will take into account your pleas of guilty with respect to these matters. I will also take into account the submissions that have been made on your behalf ... I take into account the contents of the pre-sentence report.

In my view, the offence under section 11(1) of the Statutory Declarations Act is a particularly serious offence and the matter before me is a serious example of that type of offending. The false statement that you made in the statutory declaration was directed towards the heart of the matter to which the statutory declaration was directed.

In addition, it was a bold and deliberate offence and clearly was intended to mislead the recipient of the statutory declaration into believing that a number of the names that you had used in the past had not been used by you. In my view, that offence calls for a term of imprisonment. However, having considered the matter, I am prepared to make a periodic detention order.

18. A separate offence was also addressed on that day in respect of which the appellant was convicted and placed upon a good behaviour bond for a period of 12 months. That order and sentence is not the subject of this appeal.

19. The ground of appeal asserting that the Magistrate took into account an irrelevant consideration is based upon some comments of the Magistrate in the course of submissions, rather than upon the sentencing remarks.

20. The Magistrate said to counsel for the appellant that, according to his criminal history the appellant had had something like 12 aliases, and that the inevitable inference from that is that the appellant

... uses one name for a period of time whilst he builds up some criminal offences with respect to it and then moves onto a new name ...

In that way he attempts to avoid the repercussions for his offences.

21. Apart from the facts that the criminal history is confined to traffic related offences, and that the statement of facts identifies five previous names (including that under which he arrived in Australia), there is no evidence to support that inference as to the appellant's reason for the name changes. The nature and timing of those offences does not support that inference. There were no offences committed under the names Aland Ahmed or Soran Shero. The statement of facts did not assert that to be the reason for the name changes. Nor was that put forward by counsel for the respondent. The Magistrate's comments were positively disputed by counsel for the appellant.

22. In those circumstances, it would have been wrong for the Magistrate to impose sentence on that basis. There was no explanation for all the name changes. The appellant, through the pre-sentence report, had proffered an explanation for two of the name changes. The Magistrate was entitled to indicate that he did not accept those explanations. However, the Magistrate was not then entitled to make such an adverse finding as his observations in the course of submissions suggest without an evidentiary base for such a finding, and unless satisfied of that finding beyond reasonable doubt: Gas v The Queen [2004] HCA 22; (2004) 217 CLR 198 at [30]; The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]- [28].

23. However, whilst that matter was raised in the course of submissions, I am not persuaded that the Magistrate proceeded to sentence on that basis in fact. The sentencing remarks are set out above. They do not refer to that matter. The Magistrate's remarks are all properly sustainable, based upon the agreed facts and the material in the pre-sentence report. For that reason, that ground of appeal does not succeed.

24. A contention that the sentence is manifestly excessive is always a difficult one to sustain. Counsel for the appellant acknowledged that, by his reference to House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. There are, however, circumstances where error is demonstrated because the sentence is so excessive, even if specific error is not apparent: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 at 519-520.

25. The present offence is the first offence of its kind committed by the appellant. As the Magistrate said, it is a serious example of the offence because of the circumstances in which it was committed. The appellant, for reasons known to himself, asserted in the face of a specific request, that he had not previously used names which he had in fact used. In my view, it was open to the Magistrate in those circumstances to decide that his offence called for a term of imprisonment.

26. However, I am persuaded that the term of imprisonment which was imposed was manifestly excessive.

27. The appellant's personal circumstances are set out above. The Magistrate said he took them into account. The appellant had an unfortunate personal background. Since 2002, he has not been convicted of any offence, and the several offences he committed between 1999 and 2002 were of a different character. Although the reason he committed the offence is unexplained, it is not appropriate to ascribe to him some adverse or sinister motive for his conduct. In the light of his personal history, including in more recent years his capacity to obtain employment as a painter, indicate that a significantly lesser period of imprisonment was appropriate. In addition, there is to be added into the sentencing considerations the fact that the appellant apparently acknowledged his guilt and pleaded guilty when the matter first came before the Court, so that he is entitled to a substantial discount on the penalty which would otherwise be imposed, in my view a sentence of four months imprisonment was manifestly excessive.

28. It then falls upon the Court, as invited by counsel, to determine an appropriate penalty. As I said above, the offence was a deliberate and apparently calculated one. The appellant was confronted with the allegations about his earlier names, but still chose to make the false declarations. He cannot have been unaware of the seriousness of his conduct. It is not a case of a simple misunderstanding. There is no scope for such a contention on his behalf, and his counsel did not put that proposition.

29. Having regard to the matters referred to, and of course for the need to impress upon the public and the appellant the gravity of the conduct, I consider that a term of imprisonment is an appropriate punishment rather than the imposition of a good behaviour bond as urged by his counsel. The appellant is recorded in the pre-sentence report as showing no remorse for his conduct. It is necessary to impose on him a penalty which will make him realise the significance of what he has done. In my judgment, the appropriate term of imprisonment is a term of two months.

30. In the appellant's circumstances, I propose also to suspend that term of imprisonment forthwith upon the appellant entering into a bond to be of good behaviour for a period of 12 months upon his own recognisance in the sum of $1000.

31. In reaching my view as to error on the part of the Magistrate, I have not placed any weight on the information provided by counsel for the appellant derived from the New South Wales Judicial Commission data base concerning penalties for offences against s 11 of the Statutory Declarations Act 1959 (Cth). That is simply because, as counsel for the appellant accepted, the information provided is too general to be of much use. Nothing is known from the material I was given about the circumstances of any of the offences or the personal circumstances of any of the offenders.

32. The proposed ground of appeal relating to the adequacy of the Magistrate's reasons for his decision is not without some merit. Apart from remarks about the gravity of his offence in the circumstances, and the specific mention of the plea of guilty, the Magistrate said only that he took into account the submissions and the contents of the pre-sentence report.

33. In a busy Magistrates Court, it is understandable that often sentencing remarks will incorporate by reference matters referred to in submissions or in documents such as a pre-sentence report. It may well be a question of degree in a particular case whether such a process will suffice to satisfy the fundamental principle that the reasons for a judicial decision, including a sentencing decision, must be given, to satisfy the requirement for justice to be seen to be done: R v Thomson and Haulton (2000) 49 NSWLR 383 at [42] per Spigelman CJ. See also Thomas v Regina (Commonwealth) [2006] NSWCCA 313 at [16].

34. I am left with some unease about the adequacy of the reasons in this matter. It was desirable for the Magistrate, having made the comments about the appellant's motivation in the course of submissions, only a short time prior to the sentencing remarks, to have made it clear that he did not sentence the appellant on that basis. If there were particular salient features of the appellant's background or personal circumstances, or of the submissions on his behalf, it was appropriate that they at least be referred to and their significance explained. Indeed, the reference to the submissions in such general terms is unhelpful, at least. The course of submissions shows that, in relation to the subject offence, the Magistrate was resistant to any suggestion that the commission of the offence was not dishonest. The work history was only briefly referred to. The appellant's preparedness to submit to periodic detention was confirmed, prompted by a question from the Magistrate. There was inconclusive discussion about the appellant's citizenship status. The appellant's counsel then submitted that the appellant be punished by a good behaviour bond, or a fine (including observations about his ability to pay a fine), and that if a period of imprisonment was to be ordered it may be more appropriate to impose a short suspended sentence. How the Magistrate took those submissions into account is not explained. Obviously, they were not all accepted.

35. However, in view of the conclusion I have already reached, I do not need to finally determine this ground of appeal. It is appropriate to give leave to amend the notice of appeal to encompass it, so I do consider it is an arguable matter and that the respondent did not suggest that he would be prejudiced in any way by giving that leave.

36. For the reasons given, I allow the appeal and set aside the sentence imposed by the Magistrate by order made on 7 December 2009. I will substitute an order that the appellant, having been convicted of the offence, be sentenced to a term of imprisonment of two months, such sentence to be suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months secured by his own recognisance in the sum of $1000.

37. My orders will also reflect any rulings on the application for leave to amend the notice of appeal.

I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Mansfield.

Solicitor for the plaintiff: Legal Aid ACT

Solicitor for the defendant: Director of Public Prosecutions