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 of the Crimes Act 1914 (Cth), an offence against s 29(1) of the Australian Passports Act 2005 (Cth) can be dealt with summarily if the prosecution and defence consent. The maximum penalty if the offence against this section is dealt with summarily, which happened here, is imprisonment for two years or a fine of $13,200 or both.
The Magistrate discharged Mr Singh without recording a conviction pursuant to s 19B of the Crimes Act 1914 (Cth) upon Mr Singh entering into a recognizance to be of good behaviour for a period of 2 years. The amount of the recognizance was $5,000 in relation to the first three offences, and $1,000 in relation to the last offence, which was charged on a separate information.
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.
The Magistrate accepted that the offending was “serious”, but he also stated that it occurred “a decade ago when he was young and foolish”. He noted that since that time Mr Singh had settled down, married, successfully migrated to Australia “without any improper conduct in the process”, and had established a small but successful business.
He stated that there was a real risk that Mr Singh could lose his licence as a migration agent, although he noted that whether that would happen was uncertain. Importantly, he also noted that whether Mr Singh might lose his licence as a migration agent was not a relevant factor in determining whether to record a conviction.
The Magistrate went on to consider whether to record a conviction. He noted that Mr Singh had “engaged in serious conduct”, and that protection of the integrity of the passport system is very important because other countries need to have confidence that persons holding an Australian passport are the persons who they represent themselves to be.
Ultimately, the Magistrate found that the offending was atypical because he accepted that the explanation for the obtaining of the false passport was “youthful foolishness”, and that there was no indication that the false passport was used for any migration advantage. He noted that there is a need for general deterrence in relation to these offences, and he stressed the “objective seriousness of the offending.” He also noted the need for specific deterrence, although he said that the possibility that Mr Singh would lose his licence as a migration agent amounted to sufficient personal deterrence in this case.
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.
The offences were not committed under extenuating circumstances: s 19B(1)(b)(iii). Nor were the offences of a trivial nature: s 19B(1)(b)(ii). It can be said that Mr Singh’s age when he committed the first group of offences, and his general good character, were relevant factors for the purposes of s 19B(1)(b)(i). But to my mind they are not particularly persuasive circumstances, when one bears in mind the serious nature of the offending.
In considering whether it was “… inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment …” I consider that the nature and seriousness of the offending is a significant factor, and was entitled to greater weight than the Magistrate gave it. The circumstance that the offences were “atypical” does not assist Mr Singh. Of more significance is the seriousness of the offending. I respectfully disagree with the Magistrate’s conclusion that there was no need for specific deterrence in this case. The last offence was committed when Mr Singh was a migration agent, suggesting, to my mind, a need for specific deterrence.
I am persuaded that the Magistrate has erred. In my opinion the matters relied on by the Magistrate were not, in the circumstances, sufficient to enliven the discretion not to inflict any punishment other than a nominal punishment. In particular, the seriousness of the offending called for punishment other than nominal punishment.
For these reasons the Magistrate erred in not recording a conviction.
It does not necessarily follow that the appeal should be allowed. There is a need for restraint in respect of prosecution appeals against sentence: R v Osenkowski (1982) 30 SASR 212 at 213 King CJ; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150 at 156-159 Doyle CJ; R v Nemer [2003] SASC 375; (2003) 87 SASR 168.
However, there is an error of principle here that calls for the intervention of this Court. The intrinsic seriousness of the offences, coupled with the deliberate and planned nature of the offending conduct, called for a heavier sentence than that imposed by the Magistrate. This Court should intervene to ensure that adequate sentencing standards for this type of offending are maintained. There is a public interest in ensuring a consistency of approach in the sentencing for these offences, particularly given that they are Commonwealth offences.
It is not appropriate, having identified an error of principle, to allow the sentence to stand. To do so would leave standing an inadequate sentence. The appeal should be allowed and convictions recorded for all four offences.
However, I do not agree with Ms Barnes that a custodial sentence is called for. In my view, while the seriousness of the offending warranted the recording of convictions, Mr Singh’s prospects for rehabilitation, the fact that one offence was a first offence, the fact that the first three offences were committed when he was only 23, and the fact that he made full and frank admissions and pleaded guilty all support the conclusion that the imposition of a bond to be of good behaviour is the appropriate sentence in this case. It is an appropriate case to exercise the power conferred by s 20(1)(a) of the Crimes Act 1914 (Cth).
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.