Police v Michael Shyh-Jye Nguyen

[2011] NSWLC 5

Local Court

New South Wales

Medium Neutral Citation:	Police v Michael Shyh-Jye Nguyen [2011] NSWLC 5
Hearing dates:	18 January 2011
Decision date:	10 February 2011
Before:	Henson DCJ, Chief Magistrate
Decision:	The offender is convicted and sentenced to imprisonment on each offence for 6 months and 18 days . There is no basis to depart from the standard relationship between the head sentence and the non-parole period. I fix a non-parole period of 4 months and 28 days.
Catchwords:	Criminal law - use and possess false document to influence exercise of a public duty Sentencing - offences analogous to public justice offences - need for general deterrence.
Legislation Cited:	Crimes Act 1900, ss 254(b)(iii), 255(b) (iii), Part 7 Crimes (Sentencing Procedure) Act 1999, ss 3A, 5, 9, 21A, 22A Road Transport (Driver Licensing) Act 1998, s 22
Cases Cited:	R v Doan (2000) 50 NSWLR 115 R v Thomson; R v Houlten (2000) 49 NSWLR 383 R v Borkowski [2009] NSWCCA 102 Markarian v R (2005) 79 ALJR 1048 R v Way (2004) 60 NSWLR 168 R v Slattery (1996) 90 A Crim R 519 R v Jurisic (1998) 45 NSWLR 209 Stevens v R [2009] NSWCCA 260 R v Zamagias [2002] NSWCCA 17 R v Taylor [2000] NSWCCA 442
Category:	Sentence
Parties:	Police Michael Shyh-Jye Nguyen
File Number(s):	2010/264941

Judgment

1. The offender appears before this court for sentence in relation to two offences. He has entered a plea of guilty to one count of using a false document to influence the exercise of a public duty and one count of possessing a false document to influence the exercise of a public duty. The respective charges are brought pursuant to Sections 254(b)(iii) and 255(b)(iii) of the Crimes Act 1900.

1. The maximum penalty for each offence is 10 years imprisonment. Each matter falls within Table 1 of the Criminal Procedure Act 1986. When dealt with before the Local Court the maximum penalty that may be imposed for each offence is a sentence of 2 years imprisonment for each offence. Despite the jurisdictional limitation and in accordance with the well settled principles set out in R -v- Doan [2000] A Crim R the sentencing court is to have regard to the maximum legislative penalty not the jurisdictional limit. This is to ensure that the seriousness of the offending is measured against the express will of the parliament and by so doing promote the ideal of consistency in approach to sentencing within Courts at all levels.

The Facts

1. The factual circumstances to which the pleas are entered are uncomplicated. On 22 nd June 2010 the offender was driving his vehicle on the Hume Highway. He was observed by police to be using a mobile telephone inappropriately. He was stopped and asked for his license. He produced a licence in the name of David Lam. The inference arises from the facts that the photograph depicted on the license was a true photograph of the offender. This constitutes the offence under Section 254(b)(iii)

1. Police conducted a check on his license. They found it to be a false license. The offender was removed from his vehicle and, when asked about the license admitted it was false. He then produced his true license. The offender was placed under arrest and cautioned. He was asked some further questions and police searched his vehicle. They located a second false license in the name of Robert Lam. The licenses were seized and the offender released.

1. In August 2010 he took part in a record of interview regarding the event. He stated that he had acquired the two false licenses from an unknown Asian male for $500 and used them to show girls that he was 27 years of age rather than his true age of 31. He stated he had two licenses because he had several girlfriends and had "accidentally" produced the false license to police. Optimistically he asserted to police that he was unaware it was an offence to possess false identification. Such optimism was misplaced. Not surprisingly given the inherent implausibility of the purpose in acquiring the licenses and the purported ignorance that it was against the law the offender was charged with the offences before the Court.

The Plea

1. When the matters first came before the Court and despite his contemporaneous and subsequent admissions to authorities, the offender entered a plea of not guilty to each charge. He was at the time represented by a solicitor from the Legal Aid Commission. As a consequence of his denial of the charges the Court made orders that a brief of evidence be served on him and the proceedings were adjourned to a future date to fix the matters for hearing.

1. On the next occasion he entered a plea of guilty to the first count and sought an adjournment to make representations to Police in respect of the second count. Those representations were rejected and on the next occasion he entered a plea of guilty to each charge.

1. Whatever may have been the motivation behind the offender's initial denial of the charges before the court consideration by the Court of the utilitarian value of each plea is affected by that decision. Had his initial and subsequent admissions been confirmed before the Court on his first appearance he would have been entitled to a more significant discount on sentence - one towards the higher end of the range discussed in the Guideline Judgment of R -v- Thomson and Houlten (2000) 49NSWLR 383. So much is made clear within the Guideline and subsequently reinforced in R -v- Borkowski [2009] NSWCCA 102 at [32]. Against the background of these binding authorities the Court is required to identify the utilitarian value of the pleas.

1. As indicated, these are not the most complex of factual circumstances. Nonetheless the prosecution and the administration of justice were put to the cost and effort in addressing the initial pleas of not guilty. Ultimately wisdom prevailed and the inconvenience if I might use that phrase was not great. In such circumstance I find that the discount to be applied to the ultimate sentence determined is 17.5%.

1. Factual circumstances to one side; the offender's conduct is aggravated by reason of previous convictions for criminal offending behaviour. Section 22A(2)(d) of the Sentencing Act 1999 requires a Court at the time of sentence to take into account an offender's record. The offender has a previous conviction for fraudulent conduct and one for possession of drugs. As a consequence of those convictions these offences cannot be mitigated as they might otherwise have been for a first offender. The continued involvement by the offender in intermittent offending over the last 10 years raises a concern on behalf of the community as to his willingness to rehabilitate and the immediate and long term prospects of re-offending.

1. Sentencing an offender however does not occur within a spectrum that concentrates solely on the negative aspects of the conduct or the offender.

1. Section 21A(3) requires a court at the time of sentence to take into account factors which may mitigate a penalty so that the contrasting perspectives relevant to the conduct may be balanced against those relevant to the offender and against the background set out in Section 3A of the Sentencing Act.

1. There are a number of "criteria" set out in Section 21A(3) that apply favourable to the accused. Subsections (a) (b) have direct application. Objectively, despite the offender's odd approach to these charges the Court is satisfied there is a level of some remorse such that in a reduced sense, the penalty may be further mitigated.

Subjective Features

1. The offender is a 31-year-old single man who lives with his fianc. He intends to marry in 2011. His parents are of Chinese origin and immigrated to Australia from Vietnam. The offender's mother died giving birth to the offender's younger brother. His father re-married. The offender works in his father's business. He contributes to the financial demands within the wider family. Those contributions appear to be directed towards increasing the asset worth of the extended family in a manner that is more than passingly familiar within the Chinese community and modern Australia. His attitude to these offences is described in the Pre Sentence Report as "stupid" " wrong" and "immature".

The sentence

1. Counsel for the offender submitted that the nature of the offender's conduct placed it towards the lower end of objective seriousness. In support of that contention counsel sought to draw an analogy between an offence contrary to Section 22 of the Road Transport (Driver Licensing) Act 1998 and the nature of the offender's conduct suggesting it was comparable to the obtaining of a driver license by false statements and that as the maximum penalty under Section 22 of that Act was a fine of $2200 a comparable sentence ought be imposed on the offender. Failing this, the offender should be placed on a good behaviour bond, presumably pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999.

1. The Court comes to a different view to that suggested. The offender's conduct is not analogous to a breach of the driver licensing legislation. The elements of that offence relate to conduct Vis a Vis the relevant licensing authority. The concept of the creation of a false identity as opposed to a false entitlement is not inherent in offences contrary to those provisions.

1. In the circumstances of these offences the offender knowingly entered into the world of organised criminal behaviour to acquire two false driver's licenses with the clear intent of establishing a capacity to mislead as to his true identity. His willingness to do so aided by an admitted contribution of $500 to a person involved in the manufacture and distribution of illicit false identity material takes his conduct far beyond the level of criminality involved in being untruthful to a licensing authority. Implicit in the offender's conduct is the ability to mislead the world at large. The degree of moral turpitude associated with such a calculated intrusion into the world of organised crime at a time when the use of false identification is prevalent far outweighs the conduct relevant to a fine only offence.

1. The submission on behalf of the offender also fails on two other bases. It is a fundamental principle of law that the objective seriousness of an offence is to be judged by reference to the maximum penalty prescribed by the legislature Markarian -v- The Queen (2005) 79 ALJR 1048 at [31].

Additionally as was said in R -v- Way (2004) 60 NSWLR 168 at [52]:

"Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The Courts are expected to recognize and reflect that intention when sentencing offenders for offences after such amendments are made : R -v- Slattery (1996) 90 A Crim R 519 at 524 and R -v- Jurisic (1998) 45 NSWLR 209 at 227."

1. In 1999 Parliament increased the maximum penalty for each of these offences before the Court from 5 years to 10 years. When the bill was introduced the Attorney General expressed the following view:

"The new fraud offences I am introducing will ensure that criminal conduct now and well into the future can be caught. The bill also doubles the maximum penalty for fraud from five to ten years, demonstrating how seriously we take the issue. Identity fraud, involving the theft and then misuse of personal identification information is a growing problem and one to which we are all potentially involved."

1. Although those words were expressed in a general sense regarding a range of amendments, the views expressed are pertinent.

1. From the perspective of consideration set out in Doan's case (supra) the objective seriousness of these offences eclipses the objective seriousness of a fine only offence in Driver Licensing legislation.

1. In the context of the factual circumstances before the Court the offender submits that his conduct is towards the lower end of the range of objective seriousness, that the obtaining and use of the fraudulent licenses was more to do with lying about his age and increasing his ability to have multiple girlfriends than any ongoing attitude of dishonesty in relation to driving offences or misleading others as to his identity for other sinister but unidentified purposes.

1. I find his explanation regarding a "social use" of the licenses to further his love life unconvincing and inconsistent with his conduct on the day he was stopped by police. I reject his attempt to mitigate his purpose as disingenuous to the point of fanciful. The more likely purpose, and it is one consistent with the facts is that the offender acquired the false licenses as a device to circumvent the consequences of punishment for traffic offences.

1. Save for the potential created by their existence there is no evidence before the Court that the false licenses were used for other sinister purposes. In light of such conclusion I am of the view his offending is towards the lower end of the middle range of objective seriousness.

1. Turning to the issue of appropriate penalty the rise in prevalence of offences involving the creation of false identity support the conclusion that general and specific deterrence are of manifest importance. Although expressed in a far more serious context the words of the Chief Justice contained in Stevens -v- R [2009] NSWCCA 260 at [1]-[2] reinforce the approach to be taken. General deterrence is of paramount importance.

1. The issue to be determined in these circumstances is whether the offending warrants the imposition of a sentence of condign punishment. Imprisonment is, properly so, the option of last resort. This approach also represents the express view of the legislature.

1. Section 5 of the Crimes (Sentencing Procedure) Act 1999 is expressed as follows:

"5 (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."

1. There is no question the nature of the offender's conduct is of a type that is becoming more than passingly familiar within this Court. The trade in manufacturing and distributing false identities within the community has passed beyond the point of being incipient. It is systemic and has a rising capacity to interfere with the institutional and commercial certainties that once existed within society.

1. It is the view of this Court that this type of "fraudulent" conduct is analogous to Public Justice offences set out within Part 7 of the Crimes Act 1900. In these matters the clear intent on the part of the offender was to portray himself to police as someone other than himself with the purpose of avoiding responsibility for a traffic offence. Offending that avoids consequences through the use of a false identity strikes at the very heart of the administration and reliability of the driver licensing provisions and at the proper purpose of law enforcement.

1. Further, it has the potential to enable those with a predilection for disobeying the traffic laws to ignore responsibilities commensurate with ensuring the preservation of public safety in the belief that by means of their false identity they can place themselves beyond the reach of law enforcement.

1. Given the level of reliance placed on the validity of driver licenses in the community at large and commercial environment the need for sentences of general deterrence become manifest. It is pertinent at this point to reiterate the provisions of Section 3A(b) of the purposes of sentencing -

"to prevent crime by deterring the offender and other persons from committing similar offences".

1. On balance the objective seriousness of the conduct within the commission of the offences, his prior antecedents together with the need to emphasis general and particular deterrence combine to persuade the Court that a penalty of imprisonment is appropriate.

1. In coming to this view it is appropriate to regard both offences as being equally blameworthy. The offender could just as easily have produced the other false license. His intention to mislead may be confined to the use of one but the possession of both gave rise to an equal capacity. Each offence carries the same maximum penalty. They warrant equal and concurrent penalties.

1. Having come to the view that condign punishment is warranted and in line with the principles set out clearly in R -v- Zamagias [2002] NSWCCA 17 at [25] the term of the sentence is to be established.

1. In these matters, bearing in mind the objective seriousness of the offence, viz, that the maximum penalty is 10 years imprisonment, and against the finding that the offending is towards the lower end of the level of seriousness the appropriate sentence of imprisonment for each offence is imprisonment for 8 months.

1. The sentence is mitigated by the utilitarian value of the plea. Earlier in these remarks I set the discount to be applied at 17.5%.

1. The offender is convicted and sentenced to imprisonment on each offence for 6 months and 18 days . There is no basis to depart from the standard relationship between the head sentence and the non-parole period. I fix a non-parole period of 4 months and 28 days.

1. Again, in line with the principles set out in Zamagias it is necessary for the Court to determine the manner in which such sentence is to be served. On the basis that general deterrence is of paramount importance and acknowledging the guidance set out in R -v- Taylor [2000] NSWCCA 442 I decline to suspend the sentence.

1. Returning to the subjective features put before the court on behalf of the offender and within the Pre Sentence Report however I come to the view that rehabilitation of the offender, having previously failed may nonetheless be enhanced through enabling him to remain employed within the family business in circumstances that might at last bring home to him an enduring need to change his attitude to the law and value his freedom more highly than hitherto with the objective of maximising the prospect of his long term rehabilitation.

1. With this objective in mind the proceedings are adjourned for a period of six weeks until 24 March 2011 to enable the offender to be assessed as to his suitability to serve his sentence by way of Home Detention.

Judge Graeme Henson

Chief Magistrate

10 th February 2010

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Decision last updated: 04 May 2011