HAE Chang Lee v Christian James Phelan - [2004] ACTSC 28

HAE CHANG LEE v CHRISTIAN JAMES PHELAN
[2004] ACTSC 28 (20 May 2004)

MAGISTRATES COURT – appeal against sentence – offence of making false statement to obtain passport – sentence of six months imprisonment fully suspended – sentence not manifestly excessive – Passports Act 1938 (Cth), s 10 – obtaining a passport by false statement – imprisonment within range.

Passports Act 1938 (Cth), s 10(1)

Anthony John Pinkstone (2000) 116 A Crim R 187

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370

The Queen v De Simoni (1981) 147 CLR 383

Dinsdale v The Queen (2000) 202 CLR 321

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 80 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 20 May 2004

IN THE SUPREME COURT OF THE  )
  )  No SCA 80 of 2003
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:HAE CHANG LEE
Appellant

AND:CHRISTIAN JAMES PHELAN
Respondent

ORDER

Judge:  Connolly J
Date:  20 May 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against sentence be dismissed and the Magistrate’s orders be confirmed.

This is an appeal against sentence from a decision of Magistrate Doogan, who on 12 December 2003 sentenced the appellant to six months imprisonment fully suspended upon his entering into a recognizance in the sum of $2,000 and to be of good behaviour for a period of 12 months, following his plea of guilty to a charge that he made a false statement contrary to s 10(1) of the Passports Act 1938 (Cth) (the Passports Act) on 3 November 2000. I note that the appeal asserts that the recognizance was for two years (AB 1), but that both the bench sheet (AB 3) and transcript (AB 31) refer to 12 months. It is clearly 12 months.

The statement of facts before the learned sentencing magistrate (Appeal Book at 88-90) asserts that on 3 November 2000 the appellant lodged an application for an Australian passport in his name at the Gungahlin Post Office. The appellant was born in Seoul, Korea, in 1972, and migrated to Australia at the age of 20 in 1992. He became an Australian citizen on 31 May 1996. The application for the passport contained a photograph of another person, now known to be a Chinese national, said by the appellant to be a Mr Zhonghai Jin, who had been his boss when the appellant worked as a cleaner at Woolworths supermarket, Erindale. The application asserted that the photograph was of the appellant, and on 8 November 2000 an Australian passport was issued to the appellant in his name, but bearing the photograph of Mr Zhonghai Jin. On 15 April 2001 this passport was used by a person to depart Australia for the United States. The statement of facts says that there is no record of the passport being used to return to Australia. On 18 April 2001 (three days after the original passport was used by a person to leave Australia) the…

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 HAE Chang Lee v Christian James Phelan

Details

AGLC: HAE Chang Lee v Christian James Phelan [2004] ACTSC 28
Case: [2004] ACTSC 28
Decision Date

CaseChat Overview and Summary

In the case of HAE Chang Lee v Christian James Phelan, the appellant, HAE Chang Lee, appealed against the sentence imposed by Magistrate Doogan on 12 December 2003. The appellant was convicted of making a false statement in order to obtain an Australian passport, an offence under section 10(1) of the Passports Act 1938 (Cth). The appellant had pleaded guilty to submitting an application for a passport using a photograph of another person, who was a Chinese national. The offence involved knowingly making a false statement to obtain a passport, which subsequently was used by another individual to leave Australia. The appellant was sentenced to six months imprisonment, fully suspended, along with a requirement to enter a recognizance of $2,000 and to remain of good behaviour for a period of 12 months.

The primary legal issue before the court was whether the sentence imposed by the Magistrate was manifestly excessive. The court considered whether the Magistrate's decision to impose a custodial sentence, albeit fully suspended, was within the appropriate bounds of sentencing discretion, taking into account the principles of general deterrence and the severity of the offence. The court also had to determine if the Magistrate correctly exercised her discretion to suspend the sentence in light of the appellant's early guilty plea, good character, and remorse.

Justice Connolly found that the Magistrate's decision to impose a custodial sentence was appropriate, given the importance of general deterrence in cases concerning the integrity of the passport system. The court observed that offences involving false statements to obtain passports undermine the reliability and security of the passport system, with potential international implications. The court further noted that the sentence imposed, six months imprisonment fully suspended, was within the range of penalties available under the Act and was not manifestly excessive. The court also found that the Magistrate had appropriately exercised her discretion to suspend the sentence, taking into account the appellant's plea of guilty, good character, and remorse. The appeal was dismissed, and the sentence was confirmed.

Orders