Pinkstone v The Queen
[2000] WASCA 228
•24 AUGUST 2000
PINKSTONE -v- THE QUEEN [2000] WASCA 228
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 228 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:15/2000 | 13 JULY 2000 | |
| Coram: | PIDGEON J WALLWORK J ANDERSON J | 24/08/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Total sentence of 2 years imprisonment reduced to 15 months imprisonment and minimum term reduced from 12 months to 7 months | ||
| PDF Version |
| Parties: | ANTHONY JOHN PINKSTONE THE QUEEN |
Catchwords: | Criminal law Sentencing Statutory maximum penalty for offence relatively low Significance of this Two passport offences Legislative policy disclosed by the statutory maximum General pattern of sentencing important |
Legislation: | Passports Act 1938 (Cth), s 10(1)(a) |
Case References: | Oliver v The Queen (1982) 7 A Crim R 174 Atholwood v The Queen [1999] WASCA 256 Attorney-General v Tichy (1982) 30 SASR 84 Australian Coal & Shale Employees' Federation v The Commonwealth (1956) 94 CLR 621 Baker v Minister for Immigration & Multicultural Affairs (1996) FCR 494 Baumer v The Queen (1988) 166 CLR 51 Canino v Venning (1993) 66 A Crim R 92 Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997 Holder & Johnston (1983) 3 NSWLR 245 House v The King (1936) 55 CLR 504 Miles v The Queen (1997) 17 WAR 518 R v Amos, unreported; CCA SCt of NSW; 27 November 1996 R v De Havilland (1983) Crim LR 489 R v Ferrier - Esis (1991) 55 A Crim R 231 R v Gallagher (1991) 53 A Crim R 248 R v Hoad (1989) 42 A Crim R 312 R v Lux, unreported; CCA SCt of NSW; 26 August 1988 R v Morgan (1993) 70 A Crim R 368 R v Ryan [1989] 1 Qd R 188 R v Spiero (1981) 26 SASR 577 R v Storey (1998) 1 VR 359 R v Tait (1979) 46 FLR 387 R v Winchester (1992) 58 A Crim R 345 R v Yu, unreported; CCA SCt of NSW; 1 September 1995 Veen v The Queen (No 2) (1988) 164 CLR 465 Ward v The Queen, unreported; CCA SCt of WA; Library No 7891; 17 October 1989 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PINKSTONE -v- THE QUEEN [2000] WASCA 228 CORAM : PIDGEON J
- WALLWORK J
ANDERSON J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Statutory maximum penalty for offence relatively low - Significance of this - Two passport offences - Legislative policy disclosed by the statutory maximum - General pattern of sentencing important
Legislation:
Passports Act 1938 (Cth), s 10(1)(a)
Result:
Total sentence of 2 years imprisonment reduced to 15 months imprisonment and minimum term reduced from 12 months to 7 months
(Page 2)
Representation:
Counsel:
Applicant : Mr C Steirn SC & Mr M J Bowden
Respondent : Mr J McGrath
Solicitors:
Applicant : Cannon Bowden & Co
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Oliver v The Queen (1982) 7 A Crim R 174
Case(s) also cited:
Atholwood v The Queen [1999] WASCA 256
Attorney-General v Tichy (1982) 30 SASR 84
Australian Coal & Shale Employees' Federation v The Commonwealth (1956) 94 CLR 621
Baker v Minister for Immigration & Multicultural Affairs (1996) FCR 494
Baumer v The Queen (1988) 166 CLR 51
Canino v Venning (1993) 66 A Crim R 92
Doherty v The Queen, unreported; CCA SCt of WA; Library No 970518; 14 October 1997
Holder & Johnston (1983) 3 NSWLR 245
House v The King (1936) 55 CLR 504
Miles v The Queen (1997) 17 WAR 518
R v Amos, unreported; CCA SCt of NSW; 27 November 1996
R v De Havilland (1983) Crim LR 489
R v Ferrier - Esis (1991) 55 A Crim R 231
R v Gallagher (1991) 53 A Crim R 248
R v Hoad (1989) 42 A Crim R 312
R v Lux, unreported; CCA SCt of NSW; 26 August 1988
R v Morgan (1993) 70 A Crim R 368
R v Ryan [1989] 1 Qd R 188
R v Spiero (1981) 26 SASR 577
(Page 3)
R v Storey (1998) 1 VR 359
R v Tait (1979) 46 FLR 387
R v Winchester (1992) 58 A Crim R 345
R v Yu, unreported; CCA SCt of NSW; 1 September 1995
Veen v The Queen (No 2) (1988) 164 CLR 465
Ward v The Queen, unreported; CCA SCt of WA; Library No 7891; 17 October 1989
(Page 4)
1 PIDGEON J: The applicant is seeking leave to appeal in respect of two cumulative sentences of 12 months imprisonment imposed on him by her Honour Judge Kennedy following his pleas of guilty to counts of contravening s 10(1)(a) of the Passports Act 1938 by knowingly making false statements in writing for the purposes of obtaining a passport. In each case a false passport was obtained.
2 The indictment alleges that the first offence occurred on 8 June 1998 and her Honour was informed that this was the date of the first offence. The documents in the appeal book and the depositions show that the application was completed on 8 June 1999, which means that the offence must have been carried out on in 1999 and not 1998 but no point is made of that discrepancy. The applicant completed an Australian passport application in the name of John Leslie Richmond. He then inserted an address for this person. The applicant, in the passport application, was required to give particulars of an "Identifier". In this section he inserted the name of John Lewis. There was attached to the application a photograph of the applicant with the endorsement "This is a true photograph of John Leslie Richmond" and it appeared to have been signed by Dr Lewis. On 24 June 1999 the applicant took this false document to a passport office in Sydney. He used for identification at the passport office a birth certificate in the name of John Leslie Richmond. On 29 June 1999 he received a passport in the name of John Leslie Richmond.
3 Dr Lewis, the person described as the identifier, in his deposition, said that he did know the applicant and that he did reside at the address stated by the applicant in the application form. Dr Lewis said that on 1 April 1999 he left that address to live in Bunbury. However, in September or October of the previous year, whilst he was still living in Sydney, the applicant contacted him and asked him to witness a passport application. He said he witnessed this application, which was in the applicant's true name and that he signed a photograph of the applicant as being a true photograph of "Anthony John Pinkstone". On 11 November 1999 the Federal investigator showed Dr Lewis the false application. Dr Lewis said that he did not know John Leslie Richmond. He was shown the photograph which he said was a photograph of the applicant. He was also shown the endorsement reading, "This is a true photograph of John Leslie Richmond" followed by a signature followed by the words, "Dr J A Lewis". He said that the signature was not his.
4 There was no person by the name of John Leslie Richmond living at the address written by the applicant on the application. The birth certificate proffered by the applicant showed that a person of that name
(Page 5)
- was born on 29 August 1968. The Federal police endeavoured to trace such person but were not able to do so.
5 The applicant made use of this false passport. He travelled to Hong Kong on 20 August 1999. He used the false passport to go through Immigration at Perth International Airport and later that evening, he used it to enter Hong Kong. On his return on 23 August 1999, he showed the false passport on his departure from Hong Kong and on his arrival in Australia. One of the results is that the Immigration authority had no knowledge of his leaving or re-entering Australia.
6 The second offence was alleged to have occurred on 2 October 1998 and this date is correct, which means that the offence referred to in the second count occurred prior to the offence in the first count. The applicant completed an Australian passport application in the false name of David Douglas Cameron. He showed the authorities a birth certificate in the name of Cameron. A passport issued to the applicant in the name of David Douglas Cameron. On this occasion the applicant used as an identifier the name of Dr Leslie Vargo. Dr Vargo stated he had never known the applicant or any person named Cameron and he had never verified a passport application. He said the signature verifying the photograph was false The Australian Federal Police ascertained that there was a person by the name of Cameron. Mr Cameron said that he last saw the applicant 25 years ago in high school. The applicant did not use this passport for the purpose of entering or leaving the country. He would nevertheless have had possession of it, or access to it, when he made the journey in August 1999.
7 The applicant was born in 1958. He has an extensive record which includes a conviction in 1993 of being knowingly concerned with the importation of a commercial quantity of cannabis resin. For this offence he was sentenced to a total term of 7 years and 4 months with a minimum term of 4 years. There was a further conviction of stealing in 1965 when he received a term of 4 months. I understand this related to his improperly taking an exhibit into his possession.
8 It was submitted to the sentencing Judge, in mitigation, that the reason he obtained the passport was that he was in fear of his own safety and considered that he was being followed. He gave reasons for this which included that he had given evidence for the Crown and had made reports in respect of corruption. Her Honour, during the course of the submissions, intervened in a way that indicated that she was having difficulty in accepting the submission. Ultimately she said (AB 58):
(Page 6)
- "As for giving legitimacy to the idea that he got himself two false passports because he suddenly decides he has to travel overseas incognito because he's fearful of his life, I'm not prepared - without him giving evidence. Ii wouldn't be prepared to give legitimacy to that".
9 It was the Crown's submission that the explanation was implausible and was not accepted by the Crown. Her Honour later indicated to the applicant's counsel that whatever the explanation was, the offence required a term of imprisonment. She then said to counsel that if counsel wanted to put evidence before her in relation to that explanation, it may be done. Counsel did not.
10 Her Honour, in her sentencing remarks and after outlining the offences, gave the following reasons for imposing the sentences she did: (AB64)
"These matters are extremely serious and they're serious for the reasons that the prosecutor has given and as your counsel has said that's not an aggravation, that's the seriousness of the offence and I accept what she is saying about that but that does make the seriousness of the offence.
There can be absolutely no suggestion that we have any idea that you have done this for any other reason or for any reason that the prosecution are able to put forward. For your part you say that you had legitimate concerns for your own safety and that, even though you'd been travelling in and out of the country legitimately under your own name for some time, you decided that it was in your interests and for your safety to do what you have done.
I accept that toward the end of 1998 you had been developing new technologies which were to be patented. You had a number of legitimate enterprises and, according to the information I have, you were travelling on a number of occasions for legitimate reasons but it must be taken into account the seriousness of this and you know why these matters are regarded so seriously. They are part of the records of our community.
…
(Page 7)
- I accept that you have pleaded guilty at the first possible opportunity. Ms Lieder has told me about your background and it undoubtedly is an explanation for why your life has gone the way it has gone, but you are now 41 years of age and these matters have simply got to be dealt with and they've got to be dealt with seriously and people must be deterred from this sort of behaviour.
Now, I have not put these at the higher end of the scale, but there are two separate offences and they are not part of the same matter at all. One of them is on 8 June 1998 and the second one is 2 October 1998 so that there are two separate - completely separate and distinct matters and that must be taken into account in all the circumstances and the seriousness, as I say, which Ms Lieder has said is not an aggravation, but is the seriousness of the offence, are the matters referred to by the crown.
In relation to these matters you're sentenced to 12 months' imprisonment on each count and they are cumulative on each other. At the end of 12 months you can be released on a recognisance release order. I'm obliged by law to inform you that that means that after you've served 12 months in prison you can be released if you sign a recognisance release order. That recognisance release order will last for a period of 2 years."
11 The grounds of appeal read: (AB 1)
"1. The sentence imposed upon me for each offence are manifestly excessive in the circumstance of each offence particularly bearing in mind:
(a) my plea of guilty;
(b) the circumstances leading to the commission of the offence;
(c) the statutory maximum penalty for each offence;
2. The learned Trial Judge erred in ordering that the sentence for count 1 and the sentence for count 2 be served cumulatively."
12 The section under which the applicant was convicted reads:
(Page 8)
- "10. (1) A person shall not knowingly make any false or misleading statement, whether orally or in writing -
(a) for the purpose of obtaining an Australian passport or a renewal or endorsement of an Australian passport; or"
14 The submissions in support of the application are that the sentences imposed are beyond the range normally imposed for an offence of this type. It was submitted that it was an offence that carries a maximum of 2 years imprisonment. It was submitted that most offences under this section are dealt with in the Courts of Petty Sessions. There was put before us a schedule containing seven cases of such offences when they were not combined with drug offences and a further three cases when they were. These latter three were on indictment. There was also submitted a bar graph issued by the Judicial Commission of New South Wales 1996 of disposals in the Local Courts of New South Wales. These show that only 4 per cent of such offences were dealt with by way of imprisonment.
15 Section 10(1)(a) encompasses a wide range of offences which can range from some incorrect information in an application that is otherwise correct, particularly as to the name of the holder, to an application as comprehensively false as each of those made by the applicant. Offences of this latter type are not common and I do not consider a sufficient range has been established where it could be said that her Honour's sentence fell outside the range.
16 The prosecuting authorities regarded the offences, as committed by the applicant, as very serious and they did so for the following reasons submitted to the sentencing Judge: (AB59)
"However, the two offences that remain are very serious. As has been said, each has a penalty of imprisonment of a maximum of 2 years or a $5000 fine. The reliability of the passport system is valuable and the integrity must be maintained. The reliability and integrity of the passport system is not just of domestic concern but significantly is of international concern to the Commonwealth of Australia which obviously has international obligations.
In this instance, Mr Pinkstone obtained two passports in false names. We would say the level of dishonesty is revealed by the
(Page 9)
- manner in which Mr Pinkstone utilised persons who had passed through his life in previous years and the fact that he presented false birth certificates at the time of his interview when obtaining two passports.
The truly aggravating fact about this particular case is the purpose to which one of the false passports was put. Mr Pinkstone used the false passport in the name of Richmond to enter, exit and re-enter the country. This is not simply a case where a passport has been obtained for identification purposes in Australia, where a particular organisation or private entity requires photographic evidence.
Now, what's the significance of this? As noted in the statement of Thompson, which is at page 36 of the brief, who is an officer with the Department of Immigration, she states the Department of Immigration requires all Australian citizens departing Australia and entering to be recorded. The reason for this is to show all movements of all citizens are recorded. The reason includes need to identify ineligible persons, that's been referred to, the absconders, those with children leaving the country, but most significantly as well, as Thompson states, it's to create a database which has the capacity to act as a resource for data retrieval for, amongst other things, law enforcement purposes; that is, the targeting of particular persons and particular regions, frequent travellers to regions, all those whose antecedents the Commonwealth law enforcement agencies wish to observe. We would say, in this particular case, the use of the passport was used in a manner that strikes at the very heart of the reliability and integrity of the passport system."
17 As the prosecution regarded them as serious, it exercised an option it had to present an indictment in the District Court rather than to proceed summarily. This would be a further reason why the range of penalties in Magistrates Courts to which we were referred would be of no assistance.
18 Her Honour, in her sentencing remarks, regarded the offences as committed by the applicant as being extremely serious for the reasons that the prosecutor has given. She said that it was necessary for a deterrent sentence, as persons must be deterred from doing what the applicant did. Her Honour did not put the offences at the higher end of the scale. I must say, for my part, that I consider that in this case the actual breach of s 10(1)(a) and the manner in which it was carried out was as bad as it
(Page 10)
- could be. The issuing of a passport which is completely false in every particular, and which does not refer to the name of the applicant, is as bad a document as could issue under the Act. It would appear that her Honour thought it could be worse if more use had been made of the documents that did issue and with that I agree. This does not detract from the proposition that as far as breaching the section concerned, these circumstances have reached the upper level. There has been achieved the very thing that the policy of the Act aims to prevent. It was achieved by deceit at a high level including, in each case, the submitting of the applicant's photograph with a false signature that it was the photograph of the fictitious person in which the passport was to issue. In these circumstances I consider her Honour was correct in saying that the offences were very serious and a deterrent penalty was called for.
19 It was suggested that a court should be hesitant to impose terms of imprisonment when the maximum penalty is 2 years. With this I agree but it must not be overlooked that the Parliament has provided a penalty of two years imprisonment for offences at the upper level. There would be good reason for Parliament not making the penalties higher. The offence would not be as bad as offences of violence or of stealing large amounts of property. Parliament has given no warrant for saying that the term can never be imposed.
20 The low maximum term would be an important factor to bear in mind if there were any significant mitigating factors present other than a plea of guilty. In the present case there were no such factors. The way each offence was carried out involved deceit and criminality of a high degree. No mitigation can be found in the applicant's antecedents. It is of concern that with planning and deliberation he has committed offences involving the degree of criminality each did so soon after he completed his parole period on an earlier serious offence. The only mitigating factor is the plea of guilty. He made known his intention to plead guilty to these particular offences at an early stage. Taking this course assists greatly the administration of justice and for that reason this Court has said a credit must be given. The amount of the credit is dependent on all the circumstances. If the plea shows remorse, particularly of a first offender, the credit to be given is much greater. It would be unreal on the facts of this case to say the plea comes within that category when it has not been suggested. The credit to be given is higher if there is an immediate admission of the offence to the persons investigating it and a co-operation with those persons to explain how the offence was committed. In the present case the investigating officers had the passport in the name of another but containing the applicant's photograph, verified by Dr Lewis.
(Page 11)
- They wished to ask the applicant about this but he exercised his right to decline to give a statement. (AB87). This was his right and there can be no increase in penalty by reason of this. However greater credit can be given in mitigation if a suspect makes a complete confession resulting in the investigating authorities being able to curtail their inquiries. In the present case it was necessary for the authorities to continue their inquiries, to interview Dr Lewis and to make inquiries as to the present whereabouts of the persons whose birth certificate had been used. They were required to make extensive inquiries and this resulted in their completing a strong case against the applicant. The plea was made in circumstances where the evidence to prove the case against the applicant was overwhelming and where the applicant had not assisted in the obtaining of that evidence. While some credit must be given to the plea it would in these circumstances be at the lower end of the scale and would not warrant any greater mention than that given by her Honour.
21 Her Honour indicated she was taking into account the plea of guilty. She saw the need for a deterrent sentence. The sentence was well below the maximum sentence. She provided for a conditional release order when half of that sentence had been served. It has not been shown she acted on any wrong principle or that her discretion miscarried.
22 The grounds make reference to the circumstances in which it was claimed the applicant committed the offence. These were not accepted by her Honour and as no attempt was made to establish them it would not be open for this Court to take them into account.
23 The second ground claims that her Honour erred in imposing a cumulative sentence. It is submitted that the two offences involve the commission of the same offence and were committed within a relatively short space of time. It is submitted, further that they arose out of the same factual circumstances and are not entirely distinct. I would see them as two distinct offences committed some months apart. The fact that the applicant may have had a similar motive in each case would not be a reason to make the terms concurrent.
24 I would refuse leave to appeal.
25 WALLWORK J: The important question raised by this application for leave to appeal is the significance of the maximum penalty provided by Parliament for an offence.
26 In Oliver v The Queen (1982) 7 A Crim R 174 at 177, a decision of the Court of Criminal Appeal in New South Wales, Street CJ said at 177:
(Page 12)
"In evaluating the Crown's contention that the aggregate 3 year term is inadequate it is necessary in this case, as in all cases requiring the determination of a sentence, to have regard to two initial considerations.
The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum. This hardly needs to be stated and certainly requires no elaboration. For each of the present offences the statutory maximum is 10 years with a fine and this reflects a legislative view of the seriousness of the criminal conduct in cases falling within the relevant sections of the Poisons Act.
The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of even-handedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislation. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand. This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics. There is an enormous difference between recognising and giving weight to the general pattern as a manifestation of the collective wisdom of sentencing judges on the one hand and, on the other hand, forcing sentencing into a straightjacket of computerisation. There is, moreover, always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another.
In ascertaining the general pattern of sentencing for these crimes, it will be sufficient to refer to the decisions of this Court in recent years."
(Page 13)
27 In this case the applicant committed two offences against s 10(1)(a) of the Passports Act 1938 (Cth). The maximum penalty for these two offences was in each case imprisonment for 2 years or a fine of $5000. The applicant was sentenced to 12 months imprisonment for each of the two offences. The second sentence was ordered to be served cumulatively, making a total effective sentence of 2 years imprisonment with an order that the applicant be released after serving a term of 12 months and entering into a personal recognisance to be of good behaviour for the remaining 12 months.
28 The Crimes Act is a good place to start when looking at the penalties for offences against Commonwealth laws. It can be seen for example that for offences relating to telecommunications, the penalty for defrauding a carrier is imprisonment for 5 years; for dealing with illegal interception devices, the penalty is imprisonment for 5 years. With respect to postal services, there is a penalty of imprisonment for 5 years for inducing a false belief that an article contains an explosive substance; for obstructing the carriage by post of any article there is a penalty of imprisonment for 2 years; for stealing articles in the course of post, etc, there is a penalty of imprisonment for 5 years; for forging a postal message there is a penalty of imprisonment for 10 years.
29 Under the Criminal Code of Western Australia, it can be seen that the punishment for stealing is a maximum of 7 years imprisonment. In special cases such as stealing a testamentary instrument, the offender is liable to imprisonment for 10 years. If the offender is a clerk or servant and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years. If the offender is a director or officer of a corporation or company and the thing stolen is the property of the corporation or company, he is liable to imprisonment for 10 years. Where an object is stolen from the person of another, or is stolen from a dwelling, and the offender at, or immediately before or after the time of stealing, uses or threatens to use violence to any person in the dwelling, the offender is liable to imprisonment for 14 years.
30 The above examples are only that. Of course there are many different kinds of offences and many different maximum penalties. But to return to the words of Street CJ: "The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself, as well as by the legislative policy disclosed by the statutory maximum." It can
(Page 14)
- be seen that the legislature in the case of these two relevant offences has prescribed a fairly low maximum penalty.
31 Coming to the next question referred to by Street CJ, which was the significance of the existence of a general pattern of sentencing by criminal courts for offences such as those under consideration, counsel for the applicant referred this Court to a large number of decisions concerning penalties for passport offences, ranging from 1 year's imprisonment concurrent with a term of life imprisonment for an importation of cannabis resin, to fines of various sums of money. Counsel submitted that the tariff for passport offences, where the passport was used in the commission of other offences, appeared to be between 4 and 6 months imprisonment when the other offences committed were less serious offences, for example frauds and the like. Penalties of between 6 and 12 months imprisonment were said to have been imposed where the other offence committed were more serious offences.
32 It was submitted that in the applicant's case, one of the passports had never been used. The other passport had been used on one international journey only. It was submitted that it had been accepted by the learned sentencing Judge that the applicant could not be sentenced on the basis that the occasion of its use was attended by a sinister motive or purpose.
33 It was further submitted that in this case the applicant had pleaded guilty. He was therefore entitled to the normal reduction of between 20 and 35 per cent for a plea of guilty, particularly bearing in mind that he had originally been charged with an additional two offences, contrary to s 29B of the Crimes Act 1914. It was contended that the effect of the two additional charges was that the matter had had to go the District Court and had not been dealt with summarily. The Commonwealth Director of Public Prosecutions had then declined to proceed with the prosecution of the two alleged s 29B Crimes Act offences. It was said that it had been accepted by the Commonwealth DPP that negotiations had taken place in connection with the s 29B charges and that the applicant had pleaded guilty to the passport offences at an early, if not the earliest opportunity. Accordingly it was submitted he should have received a substantial reduction in his sentence. It was submitted that it seemed that the applicant had been given very little, if any discount for the early plea of guilty.
34 In sentencing the applicant the learned Judge said: "I accept that you have pleaded guilty at the first possible opportunity." The Judge also said:
(Page 15)
- "Now, I have not put these at the higher end of the scale, but there are two separate offences and they are not part of the same matter at all. One of them is on 8 June 1998 and the second one is 2 October 1998, so that there are two separate - completely separate and distinct matters and that must be taken into account in all the circumstances and the seriousness, as I say, which Ms Lieder has said is not an aggravation, but is the seriousness of the offence, are the matters referred to by the Crown. In relation to these matters you are sentenced to 12 months imprisonment on each count and they are cumulative on each other. At the end of 12 months you can be released on a recognisance release order."
35 In his reasons for judgment on the appeal, Justice Pidgeon has set out the facts and background of these offences. I will not repeat them as they are readily available. Amongst other considerations his Honour has stated that in relation to the second false passport, the Immigration authorities had no knowledge that the applicant had used the passport to travel to Hong Kong on 20 August 1999 and had then returned to Australia. With respect to the second offence which occurred before that time and on 2 October 1998, his Honour stated that the applicant had not used the passport for the purpose of entering or leaving the country. His Honour referred to the previous convictions of the applicant and also to the fact that it had been submitted to the sentencing Judge in mitigation that the reason the applicant had obtained the first passport was that he was in fear of his own safety and had considered that he was being followed. Reasons had been given for this proposition which the learned sentencing Judge did not accept. However the learned Judge did accept that towards the end of 1998, the applicant had been developing new technologies which were to be patented and that he had a number of legitimate enterprises. According to the information which the Judge had been given, the applicant had travelled on a number of occasions for legitimate reasons.
36 The sentencing Judge said that the offences had to be dealt with seriously and that people must be deterred from this sort of behaviour.
37 Justice Pidgeon referred to the submission by counsel for the applicant of a graph issued by the Judicial Commission of New South Wales concerning the disposal of matters in the Local Courts of New South Wales. That graph showed that only 4 per cent of such offences had been dealt with by way of imprisonment. However, Justice Pidgeon said that the relevant section of the Act encompasses a wide range of
(Page 16)
- offences which can range from some incorrect information in an application which is otherwise correct, particularly as to the name of the holder, to an application as comprehensively false as each of those made by the applicant. His Honour said that offences of this latter type are not common. He did not consider a sufficient range of sentences had been established from which it could be said that the relevant sentences fell outside the range.
38 Justice Pidgeon came to the conclusion that the manner in which the offences had been carried out was as bad as it could be and that the applicant had achieved his purpose by deceit at a high level. Each case had included the submitting of the applicant's photograph with a false signature, purporting that the photograph was a photograph of the fictitious person for whom the passport was to issue. He said that it must not be overlooked that the Parliament has provided a penalty of 2 years imprisonment for offences at the upper level. His Honour noted that the applicant had committed these offences soon after he had completed his parole period for an earlier serious offence.
39 It is my opinion that the combination of the relatively low maximum penalty which Parliament has provided for the offence and the information which this Court has been given in the form of the schedules concerning penalties which have been imposed in other courts, establishes that the total for the two sentences imposed on the applicant was too high.
40 Concerning the relatively low maximum penalty provided by Parliament, the sentences imposed in this case can be compared with sentences usually imposed for other offences such as stealing and burglary etc, where the penalties prescribed are greater. Such a comparison in my view, reveals that the aggregate in this case is too high.
41 For the above reasons I would reduce the penalty for the offence involving the use of the passport to a term of 9 months imprisonment, and the penalty for the other offence to a term of 6 months imprisonment to be served cumulatively. I would reduce the minimum term before release from the period of 12 months imprisonment to one of 7 months imprisonment.
42 ANDERSON J: I have read in draft the reasons for judgment of Wallwork J and I agree that, upon an examination of such material as is available with regard to the general pattern of sentencing by criminal courts for passport offences, the sentences in this case were excessive. It is true, as Pidgeon J has pointed out, that the offences involved passport applications which were false almost from top to bottom. Nevertheless,
(Page 17)
- the maximum penalty is 2 years' imprisonment. Whatever suspicions one might have about a person with the applicant's antecedents, as to what he had in mind in making these false applications, the fact is that one passport was not used at all and the other was used for a journey in respect to which there is no indication that anything sinister occurred. Sentencing, therefore, cannot be approached on the basis that these fraudulent applications were part of a criminal enterprise.
43 Although the case against the applicant was strong, so that he should not receive maximum credit for his plea of guilty, nevertheless he did plead guilty at a time which the learned sentencing Judge described as the "first possible opportunity". Whilst a sentence of imprisonment was called for in each case having regard to the high level of falsity in each application, I agree with Wallwork J that cumulative sentences of 1 year's imprisonment for the two offences is excessive in all the circumstances.
44 I agree with the orders proposed by Wallwork J.
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