CDirector of Public Prosecutions v Falco (a pseudonym)

[2025] VCC 1158

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
ELIJAH FALCO (A PSEUDONYM)	Defence

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JUDGE:	Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2025
DATE OF SENTENCE:	15 August 2025
CASE MAY BE CITED AS:	CDPP v Falco (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 1158

REASONS FOR SENTENCE
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Subject:Offence contrary to s 271.2(1A) of the Criminal Code Act 1995 (Cth)

Catchwords:              Guilty plea - facilitation of exit of wife from Australia by deception – low end offending – four year delay in sentencing – excellent prospects of rehabilitation

Legislation Cited:      Criminal Code Act 1995 (Cth); Acts Interpretation Act 1901 (Cth); Crimes Act 1914 (Cth)

Cases Cited:R v Pardeep Lohan, 21 January 2021 (District Court of New South Wales, Judge Hunt); R v AR [2024] NSWDC 307; DPP (Commonwealth) v Mohamed Omer [2024] VCC 1810; CDPP v Elijah Falco (a pseudonym) [2024] VSCA 247; Winsor v Boaden (1953) 90 CLR 345.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J Manning	Commonwealth Director of Public Prosecutions
For the Defence	Dr G Boas	James Dowsley & Associates

HIS HONOUR:

1Elijah Falco[1], you have pleaded guilty to one charge of facilitating the exit of a person from Australia by deception contrary to subsection 271.2 (1A) of the Criminal Code Act 1995 (Cth) (‘the Code’).

[1] A pseudonym.

2The maximum penalty is 12 years imprisonment.

Circumstances of offending

Background

3Around July 2018, you met SS on an online dating site. Each of you were aged in your mid-40s and had been married previously.

4You are an Australian citizen. She is an Indonesian national.

5On 24 November 2018, you married SS in an Islamic ceremony in Indonesia.

6After you were married, you returned to Australia. SS applied for a visa to come to Australia.

7While her application was being processed, she remained in Indonesia, and you visited her in March and May 2019.

8On 7 August 2019, she was granted a three-month visitor visa.

9On 23 September 2019, she flew to Australia and moved into your home with you in northern Victoria.

10On 19 December 2019, you married SS, under Australian law, at your home.

11The next day, she applied for a partner visa. You were her sponsor.

12On 6 March 2020, SS started work at a produce business, which you managed. She started as a fruit packer and was promoted to quality controller and then a supervisor.

13On 7 June 2021, SS was granted a partner visa.

14During the COVID-19 pandemic, Australia closed its borders.

15SS told you she wanted to return to Indonesia, with you, for a holiday, when overseas travel resumed.

16In November 2021, after international borders had reopened, you encouraged her to fly to Indonesia to visit family.

17When she said she was worried, because of travel restrictions, she might not get back to Australia you reassured her she would be able to return. And you said the two of you would take a holiday to Indonesia together in June 2022.

18On 16 November 2021, you went with SS to a local Flight Centre where she booked a one-way flight from Melbourne to Jakarta.

19On 18 November 2021, you drove SS to Melbourne airport. While she was waiting to depart, you exchanged messages of expressions of mutual love with her.

20About an hour later you exchanged affectionate messages with another woman and told her you loved her. She moved into your home when SS left.

21SS flew to Indonesia, with $900 spending money, and, after time spent in hotel quarantine, she stayed with her sister.

22While in Indonesia she exchanged WhatsApp messages with you.

23On 23 November 2021, you told her you could not continue your relationship. Two days later, you told her you wanted a divorce.

24She replied she loved you and would do anything for you. She said she wanted to come back to Australia. And asked you to book her a return ticket. You refused. You asked her to understand you wanted a divorce. You told her you were with someone else. You said she should stay with her family.

25On 30 November 2021, SS borrowed money from her niece to buy a plane ticket to Australia.

26On 2 December 2021, you sent SS a message denouncing your Islamic marriage. SS responded you had dumped her by sending her back to Indonesia on the pretext she would see her family.

27On 4 December 2021, SS returned to Melbourne. From Melbourne Airport, she took an “Uber” to your home.

28When she arrived, no one was present. She found the other woman’s personal items in her room. Her own personal items had been removed.

29When you arrived home, you told her your relationship was finished, and she could not stay. You told her you had put her belongings in storage to send to her in Indonesia. You asked her to call a friend to pick her up. When she refused you called emergency services. When police arrived, you told them you had separated from SS and wanted her out of your house.

30SS left your house with police and went to stay with a mutual work friend. You told the friend you had divorced SS while she was overseas so she would be closer to her family.

31On 12 February 2022, you married the other woman in an Islamic ceremony.

32Two weeks later SS spoke to Federal police.

33On 17 March 2022, federal agents executed a search warrant at your home.

34On the same day you participated in a lengthy interview.

35You told them you had decided to divorce SS because, among other things, her strained relationship with your children impacted your relationship with them, her many social media posts of the two of you frustrated you and the strictness of her Islamic requirements were difficult. You said little things added up.

36You admitted you had deceived her with the false promise of a return trip to Indonesia so you could divorce her while she was there.

37You said, “she’s a very nice woman” and you did not want to divorce her in Australia where she has no family. You said, at least in Indonesia “she is with family and friends”.

Guilty plea

38By your guilty plea you admit:

(a)you organised or facilitated the exit of SS from Australia;

(b)you used deception; and

(c)the use of that deception resulted in you obtaining SS’s compliance in respect of her exit.[2]

[2] CDPP v Elijah Falco (a pseudonym) [2024] VSCA 247, [58].

Objective seriousness

39Your offending occurred over a two-week period.

40You made Internet searches of travel websites on 3, 6, 8, 15 and 16 November 2021. On 16 November 2021, you went with SS to the travel agency where she booked a plane ticket to Indonesia and on 18 November 2021 you drove her to Melbourne airport to catch her flight.

41You misled SS to believe she was making a two – three week trip, you would arrange a return ticket for her while she was in Indonesia and, in June 2022, the two of you would travel to Indonesia together.

42Your offending was not sophisticated.

43SS did not know you intended to end your marriage.

44She trusted you and you abused her trust.

45SS was, to a degree, socially and economically dependent on you. She had come to Australia, knowing only you, and while you had a joint bank account with her, as you told police, you managed your joint finances.

46It is one thing to end your marriage; it is another to deceive SS to leave Australia so you could end it. She was devoted to you, and you showed a cold and cowardly disregard for her feelings.

47There was no coercion, exploitation or threat by you.

48Unlike other cases, SS was not abandoned in a foreign country, she had family support there, and you did not take any steps to prevent SS from returning to Australia.

49Overall, I assess the objective seriousness of your offending to fall at the low end of the range.

50In my view, your wrongdoing was more dishonourable and less criminal. Accordingly, I assess your moral culpability, in the criminal sense, to be low.[3]

Harm to the victim

[3] The Attorney-General’s Department Findings Report ‘Targeted Review of Modern Slavery Offences in Divisions 270 and 271 of the Criminal Code Act 1995 (Cth)’ identified, in respect of the s 271.2(1A) offence, the risk of ‘over-criminalisation’.

51Nevertheless, by your deception, you caused SS significant inconvenience, upset and distress.

52She borrowed money from her niece to fly back to Australia. When she got to your home, and you told her she could not stay, she was visibly upset.

53Her victim impact statement was read to the court.

54She described her marriage to you as good, initially. Then, she was happy and positive. You were always together. Over time, she made friendships and started going out without you. However, according to her, you changed for the worse and she became tearful, sad and withdrawn.

55SS has remained in Australia. Fortunately, she has re-established herself; she has completed some studies and is working. She has tried to form other intimate relationships but has struggled to trust men. No doubt there is a connection between that loss of trust and your offending.

Chronology

56On 5 May 2023, police charged you on summons.

57On 2 February 2024, a Magistrate committed you to stand trial in this court. No witnesses were called because you accepted a straight hand up brief.

58On 24 May 2024, I made an interlocutory decision on a point of statutory construction.

59On 23 October 2024, the Court of Appeal, allowing the Director’s appeal, set my decision aside.

60On 5 June 2025, you made an application for a sentence indication.

61On 25 July 2025, you entered your guilty plea to the charge on the indictment.

Criminal record

62You have admitted a criminal record.

63In 1995, a Magistrate placed you on a three-month community correction order, without conviction, for dishonesty offences.

64In 2019, a Magistrate released you on an undertaking without conviction for contravention of a family violence interim intervention order.

Personal circumstances

65You were born on 1977 in South Australia. You were 44 years old when you offended. You are now 48.

66You grew up in northern Victoria and went to local schools until year nine.

67Since school, you have worked diligently, mostly in the fruit produce industry.

68You have two children, aged 20 and 16, to one partner and three, aged 15, 12 and 11 to another. You also have two grandchildren. You have regular contact with all of them.[4] You pay child support for your dependent children.

[4] According to the letter authored by your mother dated 2 June 2025 (Exhibit 2).

69Your mother describes you as a hard worker. She has proudly watched you work your way up from the junior ranks to managerial roles.

70Your older sister describes you as “giving, kind-hearted and funny”.[5]

[5] Letter of your sister dated 2 June 2025 (Exhibit 3).

71A long-time family friend describes you as being close to your parents and sister.[6] According to her, you enjoy a good reputation.[7]

[6] Letter of your long-term friend dated 2 June 2025 (Exhibit 4).

[7] Ibid,.

72Your current relationship is a happy one.

73Around April 2024, with your current partner, you moved to Queensland. For the last 10 months you have worked for a mango and citrus business as the packhouse manager. Your role requires you to travel to Pacific nations to recruit fruit pickers. Your employer described you as “an exceptional communicator and leader” who is “respected by all [company] staff”.[8]  

[8] Letter of your employer dated 22 May 2025 (Exhibit 5).

Consideration

74Deceptive conduct that leads to a person exiting Australia is a serious matter.[9]

[9] CDPP v Elijah Falco (a pseudonym) [2024] VSCA 247, [66].

75As the Court of Appeal said:

"Generally speaking – when a person leaves Australia they are at risk of losing the protections of the law that are afforded to persons within the jurisdiction. Forcing or deceiving someone to leave Australia can (and often will) have significant consequences, the gravity of which may depend on a range of circumstances, but all of which may be legitimately regarded by the parliament as a matter of serious concern”.[10]

[10] ibid,. [66].

76Thankfully, the consequences for SS have been relatively limited. While you misled her to leave Australia, she has successfully re-established herself here. Nonetheless, there remains the serious consequence of her understandable loss of trust in men.

77There is no established sentencing practice for the offence contrary to s271.2 (1A).

78The prosecution helpfully referred me to the sentences of intermediate courts,[11] not to suggest a sentencing practice, but to serve as broad “yardsticks”. They show the circumstances of the commission of the offence can vary widely .

[11] R v Pardeep Lohan, 21 January 2021 (District Court of New South Wales, Judge Hunt); R v AR [2024] NSWDC 307; DPP (Commonwealth) v Mohamed Omer [2024] VCC 1810.

79In each of those cases the sentencing judge imposed a sentence of imprisonment, with recognizance release, or with a non-parole period fixed.

80In my view, the objective gravity of the offending and the moral culpability of each offender is considerably higher than yours. Each offence involved elements of threats,[12] coercive control,[13] or exploitation,[14] or a combination, perpetrated against a vulnerable victim.

[12] R v Pardeep Lohan, 21 January 2021 (District Court of New South Wales, Judge Hunt).

[13] In DPP (Commonwealth) v Mohamed Omer [2024] VCC 1810, Omer was convicted after trial.

[14] In R v AR [2024] NSWDC 307,Judge Grant found the offender had "treated his wife as a chattel that could be discarded", at [7].

81In addition to the circumstances of your offending, and the harm which SS has suffered, I take into account subjective factors which are in your favour.[15]

[15] I have also taken into account the other matters set out in sub-s 16A(2) of the Crimes Act 1914 (Cth) as far as they are relevant and known to the court.

82You are entitled to a sentencing discount for:

(a)your guilty plea which has high utilitarian value because it has spared SS the ordeal giving evidence in any proceeding; and

(b)your cooperation with police at interview, when you made full and frank admissions of your deception, which has assisted authorities in your prosecution.

83As well, I find your guilty plea is also evidence of some remorse. While, as it seems to me, you do not understand your conduct was unlawful, I accept you intended SS no harm and you are sorry for the harm you have caused her.

84Additionally, the delay in sentencing, nearly four years, is a powerful mitigating factor.

85Since you offended, you have maintained full employment and continued to support your children and grandchildren, emotionally and financially. You have also found a stable relationship and you have a supportive family. Importantly, you have not reoffended.

86I am satisfied, over the period, you have substantially advanced your rehabilitation.

87And, since police interviewed and charged you, you have endured the anxiety of the uncertainty of outcome, with the possibility of imprisonment.

88Your criminal history is limited. The penalties imposed indicate the offending was relatively minor.

89I find you are highly unlikely to reoffend. I assess your prospects of rehabilitation to be excellent.

90Accordingly, there is very little need for specific deterrence in your case.

Federal sentencing provisions

91Under the federal sentencing regime,

(a)I must impose a sentence of a severity appropriate to the circumstances of your offence;[16] and

(b)I must not pass a sentence of imprisonment unless I am satisfied no other sentence is appropriate in all the circumstances of the case.[17]

[16] S 16 A(1) of the Crimes Act 1914 (Cth).)

[17] S 17A of the Crimes Act 1914 (Cth).

92I accept, in the ordinary case, a prison term is warranted for the commission of this offence. However, your relatively low level of criminality, the lengthy delay in sentencing and strong subjective factors set your case apart.

93While I am mindful, for a crime of the type, general deterrence and just punishment are two important sentencing factors, I am not satisfied a sentence of imprisonment is the only appropriate sentence.[18]

[18] In reaching this conclusion I have given careful consideration to the comprehensive and helpful written and oral submissions of both parties.

94Section 20(1)(a) of the Crimes Act 1914 (Cth) provides for an order for a form of conditional release, after conviction, as an alternative to passing a sentence of imprisonment on an offender.[19] 

[19] Winsor v Boaden (1953) 90 CLR 345, 347 (per Dixon CJ).

95I have decided such an order, with a punitive component, can meet all sentencing objectives in the particular circumstances of your case.

96By the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

97Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of organising or facilitating the exit of another person from Australia by deception contrary to subsection 271.2 (1A) of the Code you are convicted and released, upon giving security, by recognizance in the sum of $2500, that you will comply with the following conditions:

(a)you will be of good behaviour for the period of four years; and

(b)you will pay to the Commonwealth a pecuniary penalty of $2500 by 12 September 2025.

98The pecuniary penalty order is a punitive component to your sentence. I have moderated the penalty amount to take into account your ongoing child support obligations.

99Whilst there is some artificiality in the process, I declare but for your plea of guilty, I would have imposed a sentence of 12 months’ imprisonment and ordered your release, on recognizance, after serving three months.