R (Cth) v Chen - [2024] NSWDC 682

District Court

New South Wales

Medium Neutral Citation: R (Cth) v Chen [2024] NSWDC 682
Hearing dates: 26 - 27 September, 12 November 2024
Date of orders: 12 November 2024
Decision date: 12 November 2024
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See para [87].

Catchwords:
CRIME – SENTENCE – PLEAS OF GUILTY
Commonwealth Offences:
Furnish authority with document containing false or misleading statements – Mid-range objective seriousness.
Obtain travel documents dishonestly – Low-range objective seriousness.
Conceal had been known by any other name and had been convicted of offence – above mid-range objective seriousness.
Minimal criminal history – Historical crimes – Low risk of reoffending – High prospects of rehabilitation – Remorse.
Effect of sentence on child in kindergarten – Offender sole parent.

Legislation Cited:
Australian Citizenship Act 1948 (Cth) s 50(1)(b)
Australian Passports Act2005 (Cth), s 35(1).
CrimesAct 1914 (Cth), ss 16A(2)(p), 17A.
Criminal Procedure Act1986, s 166.
Migration Act1958 (Cth), s 234(1).

Cases Cited:
Chan v The King [2023] NSWCCA 206, [99]-[101].
Grahame v Singh [2010] SASC 306.
Pinkstone v The Queen, in the West Australian Supreme Court on 24 August 2000.
RvCampbell [2024] NSWDC 413.
Totaan v R [2022] NSWCCA 75, [77]-[91].

Texts Cited:
Nil.

Category: Sentence
Parties: Crown – R (Cth)
Offender – Bob Chen
Representation:
Counsel:
Crown – Ms Brain, C.
Offender – Mr Smith, G. SC.
Solicitors:
Crown – Office of the Commonwealth Director of Public Prosecutions
Offender – Ren Zhou Lawyers

File Number(s): 2022/00371933
Publication restriction: Nil.

Judgment

HIS HONOUR: Bob Chen stands for sentence as a consequence of pleading guilty to an indictment presented to his Honour Judge Williams on 8 March 2024. The indictment contains two counts. The offender pleaded guilty to both counts on the indictment. The matter was then adjourned until today for sentence. The offender also asks me to sentence him on a matter contained on a certificate under s 166 of the Criminal Procedure Act1986 (‘CPA’). The three offences for which I am to sentence the offender are all offences contrary to Federal laws.
The first count in the indictment is that on or about 8 February 1998, in the Peoples’ Republic of China (‘PRC’) and elsewhere, being a non-citizen, did, in connection with his proposed entry into Australia, cause to be delivered to an officer or person exercising powers or performing functions under the Migration Act, or otherwise caused to be furnished for official purposes of the Commonwealth, a document, namely an Application for Migration to Australia, containing statements of information that were false or misleading in a material particular. That is an offence contrary to the Migration Act s 234(1)(c). The maximum penalty for that offence is imprisonment for two years.
Count 2 in the indictment is that between about 20 April 2006 and about 22 December 2016 at Hurstville, Merrylands, Chatswood and elsewhere in the State of New South Wales, did obtain Australian travel documents, namely, Australian…

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 R (Cth) v Chen

Details

AGLC: R (Cth) v Chen [2024] NSWDC 682
Case: [2024] NSWDC 682
Decision Date: 12 November 2024

CaseChat Overview and Summary

The case of R (Cth) v Chen arose in the Federal Court of Australia where the Commonwealth sought sentencing for Chen, who had pleaded guilty to multiple offences. Chen was charged with providing a document containing false or misleading statements, obtaining travel documents dishonestly, and concealing previous convictions, all of which involved varying degrees of objective seriousness. The court had to determine an appropriate sentence, considering Chen's minimal criminal history, the low risk of reoffending, and the high prospects of rehabilitation, along with the significant personal circumstances of being a sole parent of a kindergarten child.

The primary legal issues involved assessing the objective seriousness of each offence, the cumulative impact of these offences, and the appropriate sentence that would consider Chen's personal circumstances and the effect on their child. The court needed to balance the need for punishment and deterrence with the potential for rehabilitation and the broader societal impact of Chen's imprisonment.

The court found that, while each offence had varying levels of seriousness, the cumulative effect and Chen's personal circumstances warranted a sentence that allowed for rehabilitation and consideration of their role as a sole parent. The court recognised the objective seriousness of the offences but placed significant weight on Chen's remorse, minimal criminal history, and the potential impact of imprisonment on their child. Ultimately, the court determined that a sentence that balanced these factors was appropriate, ensuring that the sentence was proportionate to the offences while also considering the broader impact on Chen and their family.

The court ordered that Chen be sentenced to a period of imprisonment with specific parole eligibility conditions, recognising the need for a sentence that would facilitate rehabilitation while also ensuring public safety. The exact terms of the sentence, including the length of imprisonment and parole conditions, were detailed in the final paragraph of the judgment.

Orders

Orders of the court

See para [87].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R (Cth) v Chen [2024] NSWDC 682
Hearing dates:	26 - 27 September, 12 November 2024
Date of orders:	12 November 2024
Decision date:	12 November 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See para [87].
Catchwords:	CRIME – SENTENCE – PLEAS OF GUILTY Commonwealth Offences: Furnish authority with document containing false or misleading statements – Mid-range objective seriousness. Obtain travel documents dishonestly – Low-range objective seriousness. Conceal had been known by any other name and had been convicted of offence – above mid-range objective seriousness. Minimal criminal history – Historical crimes – Low risk of reoffending – High prospects of rehabilitation – Remorse. Effect of sentence on child in kindergarten – Offender sole parent.
Legislation Cited:	Australian Citizenship Act 1948 (Cth) s 50(1)(b) Australian Passports Act2005 (Cth), s 35(1). CrimesAct 1914 (Cth), ss 16A(2)(p), 17A. Criminal Procedure Act1986, s 166. Migration Act1958 (Cth), s 234(1).
Cases Cited:	Chan v The King [2023] NSWCCA 206, [99]-[101]. Grahame v Singh [2010] SASC 306. Pinkstone v The Queen, in the West Australian Supreme Court on 24 August 2000. RvCampbell [2024] NSWDC 413. Totaan v R [2022] NSWCCA 75, [77]-[91].
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown – R (Cth) Offender – Bob Chen
Representation:	Counsel: Crown – Ms Brain, C. Offender – Mr Smith, G. SC. Solicitors: Crown – Office of the Commonwealth Director of Public Prosecutions Offender – Ren Zhou Lawyers
File Number(s):	2022/00371933
Publication restriction:	Nil.