Grahame v Singh - [2010] SASC 306

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRAHAME v SINGH
[2010] SASC 306
Judgment of The Honourable Chief Justice Doyle
4 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Prosecution appeal against sentence - respondent pleaded guilty to making false statements on a passport application and possessing a false passport - Magistrate discharged respondent without recording a conviction - whether sentence manifestly inadequate - whether matters relied on by Magistrate sufficient to enliven discretion not to record convictions - whether Court should intervene to correct error and maintain adequate sentencing standards - importance of general deterrence - seriousness of offending - appeal allowed - convictions recorded.
Passports Act 1938 (Cth) s 9A(1)(e)(i), s 10(1)(a), s 11(2); Australian Passports Act 2005 (Cth) s 29(1); Crimes Act 1914 (Cth) s 4J, s 19B, s 19B(1)(b), s 19B(1)(b)(i), s 19B(1)(b)(ii), s 19B(1)(b)(iii), s 20(1)(a), s 20(1)(b), referred to.
R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; R v Nemer (2003) 87 SASR 168, considered.

GRAHAME v SINGH
[2010] SASC 306
Magistrates Appeal: Criminal

DOYLE CJ: The informant Mr Grahame has appealed against a sentence imposed by a Magistrate. Mr Singh pleaded guilty in the Magistrates Court to one count of making a false statement on a passport application contrary to s 10(1)(a) of the Passports Act 1938 (Cth); two counts of possessing a passport that had been falsified contrary to s 9A(1)(e)(i) of the Passports Act 1938 (Cth); and one count of making a false statement on a passport application contrary to s 29(1) of the Australian Passports Act 2005 (Cth). The Passports Act 1938 (Cth) was the Act in force at the time the first three offences were committed. The Australian Passports Act 2005 (Cth) was the Act in force when the fourth and most recent offence was committed.
The maximum penalty for the offences under s 10(1)(a) and s 9A(1)(e)(i) of the Passports Act 1938 (Cth) is two years’ imprisonment or a fine of $5,000. Section 11(2) of the Passports Act 1938 (Cth) provides that these offences can be dealt with summarily if both the prosecution and the defence consent and the court is satisfied that it is proper to do so. When dealt with summarily, as was the case here, the offences attract a maximum penalty of 12 months’ imprisonment or a fine of $2,000 or both.
The maximum penalty for an offence under s 29(1) of the Australian Passports Act 2005 (Cth) is 10 years’ imprisonment or a fine of $110,000 or both. Pursuant to s 4J…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grahame v Singh

Details

AGLC: Grahame v Singh [2010] SASC 306
Case: [2010] SASC 306
Decision Date: 4 November 2010

CaseChat Overview and Summary

In the case of Grahame v Singh, the respondent, Mr Singh, was appealing against the decision of the Magistrate to discharge him without recording a conviction for four passport-related offences. Mr Singh had pleaded guilty to making false statements on a passport application and possessing a false passport. The Director of Public Prosecutions challenged the decision to discharge Mr Singh without recording a conviction, arguing that the sentence imposed was manifestly inadequate and that the Magistrate erred in considering certain factors.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, whether the Magistrate had sufficient grounds to exercise their discretion not to record a conviction, and whether the Court should intervene to correct the error and maintain adequate sentencing standards. The court considered the importance of general deterrence and the seriousness of the offences committed.

The court found that the Magistrate had exercised the power conferred by s 19B of the Crimes Act 1914 (Cth) and discharged Mr Singh without proceeding to a conviction. However, the court held that the sentence imposed was manifestly inadequate. The court noted the seriousness of the offences, the need to protect the integrity of the passport system, and the importance of general deterrence. The court found that the Magistrate had erred in placing undue weight on the impact the recording of a conviction would have on Mr Singh’s employment and registration as a migration agent and in failing to have regard to the need for personal deterrence. The appeal was allowed, and convictions were recorded for all four offences. Mr Singh was released without passing sentence on him, upon giving security by recognizance to be of good behaviour for a period of two years.

Orders

Orders of the court

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Background

Background to the litigation

On appeal, Ms Barnes, counsel for the Director, challenges the decision to discharge Mr Singh without recording a conviction. She submits that the sentence imposed was manifestly inadequate, that the Magistrate erred in placing undue weight on the impact the recording of a conviction would have on Mr Singh’s employment and registration as a migration agent, and that the Magistrate erred in failing to have regard to the need for personal deterrence. She submits that a custodial sentence is appropriate, with an order for immediate release under s 20(1)(b) of the Crimes Act 1914 (Cth).Facts Mr Singh first came to Australia in 1996 on a student visa. On 6 April 2000 he submitted an application for an Australian passport in the name of Amandeep Singh. Amandeep is not Mr Singh’s first name. On the application he also falsely claimed that Australia was his place of birth, and he gave a false date of birth. He annexed a false Australian birth certificate to the application. He signed a declaration on the application stating that all of the information he had provided was correct. Mr Singh’s application for an Australian passport was successful. The providing of false information with his application was the subject of the first offence, the making of a false statement on a passport application contrary to s 10(1)(a) of the Passports Act 1938 (Cth). On 24 May 2000 Mr Singh used the Australian passport issued to him to travel to New Zealand. He returned to Australia on 10 June 2000 and provided this passport to Immigration Officers upon his re-entry. The Magistrate accepted that Mr Singh made no further use of this passport and that he subsequently destroyed it. The use of the passport to travel to and from New Zealand was the subject of the second and third offences, namely the possession of a passport that had been falsified contrary to s 9A(1)(e)(i) of the Passports Act 1938 (Cth). At the time he committed the first three offences Mr Singh was 23 years old. In 2002, prior to the expiry of his student visa, Mr Singh left Australia. He married and subsequently returned to Australia on a temporary work visa with his wife and son. He and his wife were granted permanent residence in Australia in 2007. In 2009 Mr Singh became eligible to become an Australian citizen. He chose to do so. However, he was required to surrender his home country passport as he could not retain dual citizenship. On 20 July 2009 Mr Singh lodged an application for an Australian passport. He provided his Australian citizenship certificate in support of his application. On his application he stated that he had never been issued with an Australian passport. The making of this false statement on his passport application constituted the fourth offence, namely the making of a false statement on a passport application contrary to s 29(1) of the Australian Passports Act 2005 (Cth). Mr Singh was 33 years old when sentenced. He was employed as a migration agent. His income was modest, and he was the sole income earner for his immediate family. He had no prior convictions, and the Magistrate accepted that he was a person of good character and that he was well regarded in the community. Two references were provided to the Magistrate attesting to his good character.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In light of these findings it is unnecessary for me to consider the Director’s other grounds of appeal.Conclusion For these reasons I order that the appeal be allowed; that the sentence imposed by the Magistrate on 23 July 2010 be set aside; that an order be substituted that convictions be recorded for all four offences; that pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) Mr Singh be released without passing sentence on him upon him giving security by recognizance to be of good behaviour for a period of two years, with the amount of the recognizance to be $5,000 in relation to the first three offences, and $1,000 in relation to the last offence.

Ratio Decidendi

Legal Principle Established

The Magistrate exercised the power conferred by s 19B of the Crimes Act 1914 (Cth) and, without proceeding to a conviction, discharged Mr Singh upon him giving security, by his own recognizance, to be of good behaviour for a period of two years. Consideration of appeal The Director’s main submission is that the sentence imposed by the Magistrate is in all the circumstances manifestly inadequate, and that notwithstanding the restraints that the Court observes on a prosecution appeal against sentence, this Court should intervene to correct this manifest inadequacy. The offending conduct was serious. The offences themselves are serious. The fact that Mr Singh’s initial passport application was comprehensively false in that it was accompanied by false documentation, and the fact that he used the false passport he obtained to travel overseas, means that these are serious instances of this type of offending. As has been said in other cases, it is necessary to protect the integrity of the passport system. The strength of the passport system is that it provides a secure and reliable form of identification. This type of offending undermines the reliability and integrity of that system. This has both domestic and international implications. Other countries rely on the passport system. An Australian passport enables its holder to travel freely to and from most countries without hindrance because of the confidence that other countries have in the integrity of the Australian passport system. If other countries lose confidence in the Australian passport system, then Australians travelling abroad risk losing the travel privileges that they currently enjoy by virtue of holding an Australian passport. Further, passports allow for the movement of people across international boarders. The relevant authorities in other countries as well as here in Australia have an interest in knowing who is entering and leaving their jurisdiction. There would be a significant security concern if persons entering other countries or Australia are not who they appear to be on their passports. For these reasons general deterrence must be given a high weighting when sentencing for this kind of offending. People must be warned that if they engage in this sought of conduct they will be punished. The seriousness of the offending is reinforced by the maximum penalty. The maximum penalty has been increased substantially by the Commonwealth Parliament in recent years. I accept that this reflects a concern about the need to deter identity document fraud, something which has been identified, including in the Explanatory Memorandum to the Australian Passports Bill 2004 (Cth), as a growing national and international problem. The Magistrate acted under s 19B of the Crimes Act 1914 (Cth). Section 19B requires the sentencing judge or magistrate to identify one or more of the matters set out in s 19B(1)(b) before considering whether, having regard to the factor or factors identified, it is inexpedient to inflict any punishment.